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<br />82 Customer's exclusive remedies for breach of the Services Warranty
<br />or a Services default are as follows:
<br />a) Lawson will re-perform those Services at no additional charge
<br />within the Cure Period; and
<br />b) if Lawson does not complete that re-performance within the
<br />Cure Period, Customer may recover direct damages, including
<br />up to a refund of the Services Fees paid by Customer to
<br />Lawson for those Services not re-performed and timely cured,
<br />subject to the limitations described in Section 15 below. 11 2
<br />9. Lawson's Remedies.
<br />9.1 Upon request, Customer will provide Lawson sufficient financial
<br />information to enable Lawson to determine Customer's
<br />creditworthiness. Lawson may withhold delivery of any Products or
<br />Services pending credit approval by Lawson.
<br />9.2 Lawson may suspend or terminate Maintenance and/or Services at
<br />any time if all Lawson invoices, that are then due and payable, are
<br />not paid within 15 days after notice of late payment.
<br />9.3 Late payments will bear interest at the lesser of 8% per annum or
<br />the maximum annual rate allowed by applicable law.
<br />9.4 Lawson may terminate the License, the Agreement or any Order
<br />Form if any undisputed invoices are not paid by Customer within 15
<br />days after notice of late payment or if Customer does not cure any
<br />other material breach of the Agreement within 90 days after notice
<br />of breach.
<br />c) gives Lawson all available non-privileged information reasonably
<br />requested by Lawson concerning the suit or claim;
<br />d) does not make any admissions that prejudice, or might prejudice
<br />the defense; and
<br />e) has used the Products in compliance with the Agreement,
<br />complies with this Section 11 and reasonably cooperates with
<br />Lawson in the defense (Lawson will reimburse Customers
<br />reasonable out-of-pocket costs of that requested cooperation).
<br />Customer may also retain legal counsel to participate in the defense
<br />of a claim under this Section 11. Lawson will reimburse Customer for
<br />the reasonable fees and expenses of Customer's legal counsel only
<br />if Lawson fails to continue to retain legal counsel as required by this
<br />Section 11.
<br />11.3 If the Products or Service Deliverables are held or are reasonably
<br />believed by Lawson to infringe under this Section 11, Lawson will at
<br />its expense and to the extent commercially reasonable, modify or
<br />replace the applicable Products or Service Deliverables to be non-
<br />infringing and with similar functionality, or obtain permission for
<br />Customer to continue using the Products and Service Deliverables
<br />under the License.
<br />11.4
<br />9.5 Lawson may immediately terminate the Agreement or portion of the
<br />Agreement to the extent that it becomes illegal for the Lawson 11.5
<br />Group to conduct business with Customer.
<br />9.6 Customer will promptly destroy or return to Lawson all Products
<br />and Service Deliverables if the License and the Agreement
<br />terminate as described in Sections 9 or 17.2 (Third Party Products
<br />must be returned to Lawson upon termination of the License).
<br />10. Confidentiallnformation.
<br />10.1 "Confidential Information" means object code, source code and
<br />benchmark tests for the Products and Service Deliverables, Limited
<br />Offering software, pricing, non-standard Lawson contract terms,
<br />Customer financial information, data and all other information
<br />reasonably believed to be confidential, but excludes:
<br />a) information made available to the general public without
<br />restriction by the disclosing Party or by an authorized third
<br />party;
<br />b) information known to the receiving Party independent of
<br />disclosures by the disclosing Party;
<br />c) information independently developed by the receiving Party
<br />without access to or use of the disdosing Party's Confidential
<br />Information; or
<br />d) information that the receiving Party may be required to disdose
<br />pursuant to a valid and enforceable subpoena or other lawful
<br />process. The receiving Party will immediately notify the
<br />disclosing Party of any obligations to disclose under this Section
<br />10.1 (d) so that the disclosing Party can appear and protect its
<br />interests. Customers Confidential Information also excludes
<br />any new features or functionality suggested by Customer for the
<br />Products or Service Deliverables.
<br />10.2 The Parties will use reasonable efforts to keep each other's
<br />Confidential Information secret and will use that information only to
<br />fuffill the rights and obligations under the Agreement.
<br />10.3 Either Party may disclose in confidence the other Party's
<br />Confidential Information on a need-to-know basis to other persons,
<br />and the Party making that disclosure will be responsible for that
<br />person's compliance with the Agreement.
<br />10.4 The Parties will have the right of injunctive relief to maintain
<br />compliance with this Section 10 and prevent unauthorized
<br />disclosure, use or export of the Products, Service Deliverables,
<br />Limited Offerings or other Confidential Information.
<br />11. Infringement Indemnity and Remedies.
<br />11.6
<br />Lawson will have no obligations or liability for any suit or claim of
<br />infringement based on Customers use of a superseded or
<br />Customer-altered Release of the Products or Service Deliverable to
<br />the extent that the obligation or liability would have been avoided by
<br />the use of a then current Release of the Products or Service
<br />Deliverable which Lawson provides to Customer.
<br />If Lawson determines that the remedies in this Section 11 are not
<br />commercially and reasonably possible and a court orders or is
<br />reasonably likely to order Lawson to terminate the Agreement to the
<br />extent it relates to the infringing Product or Service Deliverable:
<br />a) Lawson will pay Customer, as Customer's sde and exclusive
<br />remedy against Lawson (other than indemnification by Lawson
<br />under this Section 11) an amount equal to the License fee paid
<br />under the Agreement for the infringing Product and Service
<br />Deliverable and any other Product(s) and Service Deliverable(s)
<br />that become substantially unusable because of the infringement
<br />less the cumulative depreciation of those Products and Service
<br />Deliverables based on a six (6) year straight line depreciation
<br />commencing one (1) year after the initial date of the License for
<br />those Products and Service Deliverables; and
<br />b) Customer will cease to use and will return to Lawson such
<br />Product(s) and Service Deliverable(s).
<br />Customer will reasonably cooperate with Lawson to mitigate
<br />infringement damages.
<br />72. Insurance. While Lawson is rendering any on-site Maintenance or
<br />Services, Lawson will maintain comprehensive general liability
<br />insurance for bodily injury and damage to tangible property, with
<br />coverage of at least $1,000,000 USD per occurrence, with a general
<br />aggregate limit of at least $2,000,000 USD.
<br />13. No Hire of Certain Lawson Employees. Customer agrees that until
<br />one year after the later of (a) the termination of the Maintenance
<br />Period or (b) the completion of Services, Customer will not hire,
<br />employ, retain (directly or indirectly), or contract for services directly
<br />with any current employee of the Lawson Group who is or has been
<br />working in any capacity with Customer, and whose services have
<br />been invoiced to Customer, without receiving prior written consent
<br />from Lawson. If Customer violates this Section 13, Customer agrees
<br />to pay to Lawson as liquidated damages a fee of 100% of such
<br />Lawson employee's annual compensation in effect at the time of
<br />such employee's severance of employment with Lawson, as
<br />evidenced by a copy of such employee's most recent payroll record.
<br />74.
<br />14.1
<br />11.1 Lawson will, at its expense, retain legal counsel and defend any 14.2
<br />suit or claim brought against Customer and will indemnrfy
<br />Customer against any third party damage claims that the Products 15
<br />or Service Deliverables as licensed and delivered by Lawson
<br />infringe any third party's Intellectual Property Rights, only if 15.1
<br />Customer:
<br />a) promptly notifies Lawson after Customer learns of the suit or
<br />claim, and no delay by Customer in providing that notice
<br />materially prejudices the rights of Lawson;
<br />b) gives Lawson authority to defend or settle the suit or claim
<br />(provided that Lawson does not agree to any settlement that 15 2
<br />materially prejudices Customer);
<br />_~ P~1<strr r~ t~~,. .. ...
<br />.c~ mil .- r _{;d E' . .
<br />Force Majeure.
<br />Neither Party will be in default of its obligations under the Agreement
<br />or liable to the other for any noncompliance arising from causes
<br />beyond the reasonable control of the Party, including, without
<br />limitation, fires, floods, natural disasters, communication failures and
<br />other equipment or telecommunication problems.
<br />Each Party will use reasonable efforts to resolve promptly any type
<br />of force majeure event described in Section 14.1.
<br />Limitations of Liability.
<br />In no event will Lawson, Lawson Group, Third Parties or
<br />Customer be liable for indirect, incidental, punitive, exemplary,
<br />special or consequential damages, or damages for loss of
<br />profits, revenue, data or use, incurred by either Party, whether
<br />in contract or tort, even if the other Party has been advised of
<br />the possibility of such damages. Neither Party will seek or apply
<br />for such damages.
<br />Other than indemnification by Lawson for third party claims
<br />under Section 11 above or bodily injury or direct damage to real
<br />~"+. ~ ~ ; 6
<br />25C-40
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