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HomeMy WebLinkAboutLawson Software Americas Inc; 2010-02-16; 00001786.0LAWS*N LAWSON SOFTWARE CUSTOMER AGREEMENT MASTER TERMS AND CONDITIONS Agreement No: 00001786.0 Customer Name: Address: City: State/Zip or Province/Postal Code: Country: City Of Carlsbad 1635 Faraday Ave Carlsbad California 92008 United States These Lawson Software Customer Agreement Master Terms and Conditions ("Master Terms and Conditions") are entered into by each respective Lawson Group company named below and in each Order Form, and the customer entity named above and in each Order Form. These Master Terms and Conditions are effective as of the latest date signed below after all Parties have signed. The entire Lawson Software Customer Agreement includes these Master Terms and Conditions, and each Order Form, Statement of Work and other written agreement entered into by Customer and any Lawson Group company at any time and which refers to these Master Terms and Conditions (collectively, the "Agreement"). Lawson must receive an original manually signed Customer signature on these Master Terms and Conditions, unless Law- son elects to accept a copy of these Master Terms and Conditions signed in counterparts and/or delivered by fax, pdf or other means that displays the original or a copy of the signatures. Any subsequent Order Form or Statement of Work may be signed and delivered in the same manner or as described in that Order Form or Statement of Work. The Agreement contains the complete agreement with Customer concerning any products, software, maintenance or servic- es provided by any Lawson Group company, and supersedes all purchase ooJers, presentations, demonstrations, requests for proposal and proposals. / / /I Lawson Software Americas Inc L/». Claude A. Lewis (Printed Name) Mayor, City of Carlsbad (Title) (Date)(Date) Approved As To Form Assistance City Attorney Custome' Agreement ; &C No^ Revised Septembe-18. 20C8 Las: Update Octobe-15, 2008 7(4) I awson Software Customer Aoieemenl Master Terms and Conditions The following Master Terms and Conditions supplement and govern each Order Form, Statement of Work and other written agreement en- tered into by Customer and any Lawson Group company at any time: 1. Definitions. The following defined terms are in addition to the definitions contained in each applicable Order Form or SOW: 1.1 "Agreement" or "Lawson Software Customer Agreement" means these Master Terms and Conditions and each Order Form. 1.2 "Cure Period" means the time after notice from Customer, rea- sonably required for Lawson to cure a breach under Lawson's then current Maintenance or Services practices. 1.3 "Customer" means the customer entity that has signed these Master Terms and Conditions and each Order Form. 1.4 "Documentation" means all help screens or other electronic or printed material describing the operation of the Software and made available by Lawson or a Third Party Supplier. Docu- mentation excludes all marketing materials, proposals, demon- strations and other promotional information. 1.5 "Escrow Agreement" means the separate escrow agreement, if any, entered into by the escrow agent appointed by Lawson. 1.6 "Initial Maintenance Period" means the initial period of Main- tenance specified in an applicable Order Form. 1.7 "Intellectual Property Rights" means all copyrights, patent rights, confidentiality rights, trade secret rights and trademark rights. 1.8 "Lawson" means each respective Lawson Group company that has entered into the Agreement with Customer. 1.9 Lawson Documentation" means the Documentation for the Lawson Products. 1.10 "Lawson Group" means Lawson Software, Inc. and each of its direct and indirect subsidiaries. 1.11 "Lawson Partner" means each entity that is then currently ap- pointed as a "Lawson Partner" by Lawson Group. 1.12 "Lawson-Maintained Products" means the unmodified Products denoted "LMP" in an Order Form while eligible for Mainten- ance. 1.13 "Lawson Product" means each Product described in an Order Form, excluding Third Party Products. 1.14 "License" means the rights granted in Section 2. 1.15 "License Term" means perpetual, unless a shorter term is spe- cified in the applicable Order Form or the License is terminated pursuant to the Agreement. 1.16 "Limited Offering" means software, maintenance and/or servic- es that are designated as "LO" in an Order Form. 1.17 "Maintenance" means the level of maintenance and support services described in an Order Form and in the Support Op- erations Handbook, and purchased by Customer for the Law- son-Maintained Products listed in that Order Form. 1.18 "Maintenance Period" means: (a) the Initial Maintenance Pe- riod or (b) any renewal period of Maintenance under Section 4 or under the applicable Order Form. 1.19 "Maintenance Warranty" is defined in Section 6.2. 1.20 "Maximum Use Designations" means the License and user limitation defined and shown in the applicable Order Form. 1.21 "New Products" means new software and documentation that Lawson Group elects to make generally available to customers separate from other products and which contain new applica- tion software or technology. 1.22 Order Form" means a Product Order Form ("POF"), a Services Order Form ("SOF"), Statement of Work ("SOW") or other or- der form signed by Lawson and Customer and referring to these Master Terms and Conditions. 1.23 "Party" or "Parties" means Lawson and/or Customer. 1.24 "Products" means the Software and Documentation. 1.25 "Product Warranty" is defined in Section 6.1. 1.26 "Release" means the edition of a Lawson-Maintained Product after it has been designated as a release and made generally available by Lawson. 1.27 "Service" means training, implementation, consulting, Service Deliverables, subscription, managed service, hosting or other services provided by Lawson, excluding Maintenance. Customer Agreement T&C North America Revised September 18, 20C8 Last Update Octobe-15. 2C08 1.28 "Service Deliverable" means any tool, training materials or other non-Product item described in an Order Form or State- ment of Work for delivery to Customer. 1.29 "Services Warranty" is defined in Section 6.3. 1.30 "Software" means the software code and media described in a POF, and any repairs, replacements, upgrades, updates, en- hancements and new Releases provided by Lawson or a Third Party Supplier under applicable Maintenance, and any copies. 1.31 "Statement of Work" or "SOW" means the portion of the Agreement that describes the Services by Lawson and the main responsibilities of the Parties, estimated time schedule for completion of a project, project scope and organization, change order process and other project requirements. 1.32 "Support Operations Handbook" means Lawson's then current document describing the levels of Maintenance available for purchase by Customer under a Product Order Form. 1.33 "Taxes" means any value-added, sales, use, excise, goods and services, withholding taxes, duties or other taxes, interest and penalties that are assessed by a governmental authority because of the Agreement, excluding taxes for which Custom- er provides Lawson a valid tax exemption certificate. 1.34 "Third Party Supplier" means the owner or supplier of a Third Party Product. 1.35 "Third Party Product" means each Product designated as a "Third Party Product" (or with a similar designation) in a POF. 1.36 "Users" means the natural persons authorized by Customer to use the Products, Services Deliverables and Limited Offerings within the scope of the License, and who each have an ID (pro- file) and password. 2. License Granted. Subject to the Agreement, when a Lawson Group company and Customer sign an Order Form, that Law- son Group company hereby grants to Customer, throughout the License Term, a non-transferable and non-exclusive li- cense to Customer to use and allow its Users to use the re- spective Products, Service Deliverables and Limited Offerings identified in that Order Form for up to the Maximum Use De- signations identified in that Order Form and only for the internal business of Customer and its wholly owned subsidiaries. 2.1 Software and Documentation Copies. 2.1.1 Users may copy: (a) the Software listed in an Order Form only for backup and archival purposes and (b) the Lawson Docu- mentation and Service Deliverables only for use with the Soft- ware. Users may not copy Documentation for Third Party Products unless permitted by the Third Party Supplier. 2.1.2 Upon request during the Maintenance Period and for a nominal handling charge, Lawson will provide Customer additional cop- ies of the Lawson Products listed in an Order Form (subject to the Maximum Use Designations). 2.2 Modifications and Ownership. Customer may modify the Law- son Products and Service Deliverables only to the extent per- mitted under an Order Form or the applicable Documentation. Customer or Lawson Partners may use the Lawson Products to develop and use interfaces for those Products only within the scope of the License. Subject to the License, Lawson and its Third Party Suppliers will continue to own all Intellectual Property Rights for the Products, Services, Service Delive- rables and any modifications. Unless authorized by separate agreement, Customer will not modify Third Party Products. 2.3 Compliance. 2.3.1 Customer may not transfer, rent, or re-license the Products or Service Deliverables, or use them to provide outsourcing, ser- vice bureau, hosting services or training to third parties. 2.3.2 Unless otherwise authorized by Lawson in writing, only Cus- tomer, Lawson Group or a Lawson Partner, may install, main- tain or host the Products and Service Deliverables. 2.3.3 Customer may use the Products listed in an Order Form only in accordance with the Documentation and only with the operat- ing system/database shown in that Order Form. 2.3.4 If an Order Form lists a Product for development and test use only, Customer may use that Product for internal development Lswson Software Customer Agreement Master Terms and Conditions and testing but not for production (unless Customer has li- censed that Product separately for production use). 2.3.5 Customer may not simultaneously use the same User ID (pro- file) on more than one computer terminal or access point. 2.3.6 Customer may allow its employees and contractors to attend Lawson training, but those contractors may use the Lawson training materials only for the benefit of Customer and may not be Lawson competitors. 2.3.7 Customer shall not export the Products or Service Deliverables from the country of initial delivery by Lawson without Lawson's prior written authorization and compliance with applicable law. 2.3.8 Customer is responsible for compliance with the Agreement by each of its Users and contractors. 2.4 Verifications. 2.4.1 After reasonable notice, Customer will promptly: (a) inform Lawson where the licensed Products are installed and confirm its compliance with the Maximum Use Designations and (b) al- low Lawson's representatives to verify that compliance by re- mote or physical inspection during normal business hours. Customer acknowledges that some Products may allow Law- son to monitor and prohibit unauthorized use. 2.4.2 If Lawson learns that Customer has exceeded the Maximum Use Designations, and Customer has not previously paid Law- son the applicable additional License fees, after written request from Lawson, Customer will promptly pay Lawson: (a) the then current list price for that overage plus a 25% surcharge and (b) the reasonable costs of conducting the above verification if the Maximum Use Designations were exceeded by more than 5%. 3. Delivery and Installation. 3.1 Lawson will promptly deliver or make available to Customer one copy of the Products listed in an Order Form. Title to any delivered goods passes at place of shipment (subject to the Li- cense), unless prohibited by applicable law. 3.2 Except as otherwise agreed in an Order Form, Customer is responsible at its expense for installation of the Software and Service Deliverables, User training, data conversion, imple- mentation and other services. 4. Maintenance and Renewal. 4.1 During the Maintenance Period, Lawson (a) will directly or indi- rectly provide Customer Maintenance for the Lawson- Maintained Products pursuant to the Support Operations Handbook and (b) will not materially degrade its Maintenance practices. New Products require a separate Order Form and are not provided as a new Release or as part of Maintenance for other Products. 4.2 Customer may elect to purchase from the applicable Third Party Supplier available support for Third Party Products speci- fied in an Order Form or Support Operations Handbook as not maintained by Lawson. Customer is responsible for licensing and paying for additional third party products that may be re- quired for use of upgrades, enhancements or new Releases of the Lawson-Maintained Products. 4.3 Unless otherwise described in an applicable Order Form, Law- son does not maintain or support Service Deliverables or Products modified outside of Maintenance provided by Law- son. 4.4 Before each renewal date of the Maintenance Period, Lawson will provide Customer an invoice for the Maintenance fees for the Lawson-Maintained Products for that renewal period. 4.5 After the Initial Maintenance Period (unless otherwise stated in an Order Form), Maintenance for the Lawson-Maintained Products will automatically renew for successive one year Maintenance Periods so long as Lawson makes that Mainten- ance available to its customers, unless Customer or Lawson notifies the other Party of non-renewal at least three months before the renewal date. 4.6 Lawson may consolidate the annual renewal dates for Main- tenance Periods under one or more Order Forms. 5. Services. Except as otherwise agreed in an applicable Order Form or elsewhere in the Agreement: (a) all Services will be Customer Agreement T&C North America Revised September 18. 2008 Las' Upcate Octobe' 15, 2008 on a time and materials basis at Lawson's then current rates and (b) Customer will reimburse Lawson for reasonable travel and out-of-pocket expenses incurred when rendering on-site Services, Maintenance or other warranty services. 6. Warranties. 6.1 Product Warranty. At the time of delivery of the Products, Law- son warrants that: (a) the applicable media for those Products will be free of defects, (b) Lawson will have timely used up-to- date, commercially available virus scanning and cleaning, and will not have (based on the results of that scanning and clean- ing) delivered Products containing any viruses, time bombs or other undocumented programs which inhibit Product use and (c) those Products will include the functionality described in the Documentation for those Products. 6.2 Maintenance Warranty. Subject to the level of Maintenance purchased, Lawson warrants that Maintenance will include: (a) help desk support, (b) corrections to allow the unmodified Law- son-Maintained Products (when properly installed and confi- gured) to operate materially and substantially as described in the Documentation for those Products (by providing a program patch, update, new Release, or instruction for avoiding the er- ror, as determined by Lawson) and (c) updates and new Re- leases of the same Lawson-Maintained Products when gener- ally made available by Lawson for installation and use by Cus- tomer. New Products require a separate Order Form and are not provided as a new Release or as part of Maintenance for other Products. 6.3 Services Warranty. Lawson warrants that at the time of Ser- vices delivery, the Services will be provided by trained person- nel using commercially reasonable efforts. 6.4 THE WARRANTIES IN THE AGREEMENT ARE MADE SO- LELY BY LAWSON AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IM- PLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Lawson does not warrant that the Products, Services, Service Deliverables or Limited Of- ferings are free of nonmaterial defects or will meet the specific requirements or needs of Customer's business or of any coun- try or jurisdiction. 7. Customer's Remedies. 7.1 Customer's exclusive remedies for Lawson Group's breach of the Product Warranty or Maintenance Warranty are as follows: a) Lawson will provide Maintenance (if purchased by Custom- er) to repair, replace or furnish an upgrade of the Lawson- Maintained Products to enable those Products or upgrade of those Products to comply with the applicable Product Warranty and Maintenance Warranty; and b) if Lawson does not comply with Section 7.1 (a) within the Cure Period, Customer may terminate Maintenance and re- cover direct damages for the Lawson-Maintained Products subject to the damage claim, including up to a refund of the fees paid by Customer to Lawson for those Products, sub- ject to Section 13. 7.2 Customer's exclusive remedies for breach of the Services War- ranty or Lawson's Service obligations are as follows: a) Lawson will re-perform or re-deliver those Services or the applicable Service Deliverables at no additional charge with- in the Cure Period; and b) if Lawson does not complete that re-performance within the Cure Period, Customer may terminate the Services and re- cover direct damages, including up to a refund of the fees paid by Customer to Lawson for those Services or Service Deliverables not re-performed and timely cured, subject to Section 13. 8. Lawson's Payment Terms and Remedies. 8.1 Upon request, Customer will provide Lawson sufficient finan- cial information to enable Lawson to determine Customer's creditworthiness. Lawson may withhold delivery of any Prod- ucts or Services pending credit approval by Lawson. Lawson Software Customer Agrecmonl Master Terms and Conditions 8.2 Unless otherwise stated in the Agreement, an applicable Order Form or invoice, Lawson's invoices are due and payable within 30 days after invoice date. The payment terms in the Agree- ment, an applicable Order Form or Lawson's invoice prevail over any payment terms stated on a purchase order or other document from Customer to place an order, and prevail over Customer's accounts payable policy or practice. 8.3 All fees and expenses invoiced by Lawson are exclusive of Taxes. Customer is responsible for payment or reimbursement of applicable Taxes. 8.4 Lawson may suspend or terminate Maintenance and/or Ser- vices at any time if all Lawson invoices, that are then due and payable, are not paid within 15 days after Lawson informs Cus- tomer of non-payment. 8.5 Lawson may terminate the License, the Agreement or any Order Form if any undisputed invoices are not paid by Cus- tomer within 15 days after notice of late payment or if Custom- er does not cure any other material breach of the Agreement: within 90 days after notice of breach. 8.6 Customer will promptly destroy or return to Lawson all Prod- ucts and Service Deliverables if the License and the Agree- ment terminate as described in Section 8 (Third Party Products must be returned to Lawson upon termination of the License). 9. Confidential Information. 9.1 "Confidential Information" means software code and bench- mark tests for the Products and Service Deliverables, Docu- mentation, Limited Offering software, pricing, non-standard Lawson contract terms, User ID (profile) and passwords, Cus- tomer financial information, data and all other information rea- sonably believed to be confidential, but excludes: a) information made generally available without restriction by the disclosing Party or by an authorized third party; b) information known to the receiving Party independent of disclosures by the disclosing Party; c) information independently developed without access to or use of the disclosing Party's Confidential Information; or d) information that must be disclosed pursuant to court order. Customer's Confidential Information also excludes any new features or functionality suggested by Customer for the Products or Service Deliverables. 9.2 The Parties will use reasonable efforts to keep each other's Confidential Information secret and will use that information on- ly to fulfill the rights and obligations under the Agreement. 9.3 The Parties will have the right of injunctive relief to maintain compliance with this Section 9 and prevent unauthorized dis- closure, use or export of the Products, Service Deliverables, Limited Offerings or other Confidential Information. 10. Infringement Indemnity. Lawson will, at its expense, retain legal counsel and defend any suit or claim brought against Customer and will indemnify Customer against any third party damage claims that the Products or Service Deliverables as li- censed and delivered by Lawson infringe any third party's Intel- lectual Property Rights. Lawson may control the defense and settlement. If the Products or Service Deliverables are held or are reasonably believed by Lawson to infringe under this Sec- tion 10, Lawson will at its expense and to the extent commer- cially available, modify or replace the applicable Products or Service Deliverables to be non-infringing and with similar func- tionality, or obtain permission for Customer to continue using the Products and Service Deliverables under the License. Lawson will have no obligations or liability for any claim of in- fringement based on Customer's use of a superseded or Cus- tomer-altered Release of the Products or Service Deliverable to the extent that the obligation or liability would have been avoided by the use of a then current Release of the Products or Service Deliverable which Lawson provides to Customer. 11. No Hire of Certain Employees. Customer agrees that until one year after the later of (a) the termination and non-renewal of the Maintenance Period or (b) the completion of Services, Customer Agreement T&C North America Revised September 18. 2008 Last Update October 15. 2008 Customer will not hire, employ or contract for services with any employee of the Lawson Group who provides Maintenance or Services to any customers. If Customer violates this Section 11, Customer will pay Lawson a fee of two times the hired em- ployee's most recent annual compensation. 12. Force Majeure. Neither Party will be in default or liable for any noncompliance from causes beyond the reasonable control of the Party, including, for example, fires, floods, natural disas- ters, communication failures and other equipment or telecom- munication problems. 13. Limitations of Liability. 13.1 In no event will Lawson Group, Third Party Suppliers or Customer be liable for indirect, incidental, punitive, exem- plary, special or consequential damages, or damages for loss of profits, revenue or data. Neither Party will seek or apply for such damages. 13.2 Except only for indemnification by Lawson for third party claims under Section 10 above or bodily injury or direct damage to real or tangible personal property to the extent caused by Lawson's gross negligence, Lawson Group and its Third Party Suppliers' aggregate and cumulative liabili- ty for rescission and/or damages to Customer and its sub- sidiaries will be, whether in contract or tort, limited to ac- tual direct money damages in an amount not to exceed the aggregate fees paid by Customer to Lawson, excluding fees paid more than one year prior to Customer's initial notice of the claim to Lawson. 13.3 The limitations of liability in Section 13 apply to Lawson Group in the aggregate and are not additive among each Lawson Group company. 14. Source Code Escrow. All Products are licensed and delivered in object code only, except for those Products, if any, which are also designated in an Order Form for delivery in source code. During the Maintenance Period, Customer may elect to be- come a beneficiary under the applicable Escrow Agreement for the licensed Lawson Products delivered in object code only (excluding Third Party Products) by: (1) signing Lawson's ac- ceptance form and (2) paying all escrow fees. 15. Assignment. Customer may not assign the License or the Agreement, or transfer any rights or obligations under the Agreement. 16. Publicity. Either Party may publicize Customer's selection of Lawson. Pricing and non-standard Lawson contract terms will remain confidential under Section 9 above. 17. General. 17.1 All notices must be in writing and delivered electronically or by method with proof of delivery. All other communications, re- quests or alerts may be provided by fax, e-mail or other written means. 17.2 The Agreement may be amended only in writing signed by the Parties, except that Lawson may upon notice to Customer and without Customer's signature, amend an Order Form to correct errors without increasing the License fees or Services rates. 17.3 Lawson and Customer each waive right to a trial by jury. No litigation or other legal action may be brought if the injured Par- ty has known of the cause of action for more than 2 years. Each Party will pay (without reimbursement) its own legal fees and expenses incurred in any dispute. 17.4 Sections 1, 6.4, 7 through 15, and 17, and the provisions con- cerning protection of Intellectual Property Rights, will survive any termination or expiration of the Agreement. [End of Master Terms and Conditions] 4(4) LAWSON *?«!rT ADDENDUM TO LAWSON SOFTWARE CUSTOMER AGREEMENT MASTER TERMS AND CONDITIONS Agreement No:00001786.0 This Addendum ("Addendum") modifies the Lawson Software Customer Agreement (the "Agreement") entered into between the undersigned Lawson Company and Customer, and is effective as of the latest date signed below when all parties have signed. All of the capitalized terms not otherwise defined in this Addendum have the same respective meanings as contained in the Agreement. The following sections amend or replace the respective sections contained in the Agreement, or add additional section(s) to the Agreement. The sections of the Agreement that are not expressly modified or replaced by this Addendum shall remain in effect pursuant to their terms. Section 2.3.6 of the Agreement is deleted and replaced in its entirety with the following: Customer may allow its employees and contractors to attend Lawson training, but those contractors may use the Lawson training materials only for the benefit of Customer and may not be Lawson competitors. Customer will require as part of Customer's contract with a contractor that any training obtained by Lawson may only be used for Customer in accordance with this Agreement, and Customer will provide Lawson with a copy of such contract upon request. Section 2.4.1 of the Agreement is deleted and replaced in its entirety with the following: After reasonable notice, Customer will promptly: (a) inform Lawson where the licensed Products are installed and confirm its compliance with the Maximum Use Designations and (b) on reasonable notice allow Lawson's representatives to verify that compliance by remote or physical inspection during normal business hours. Customer acknowledges that some Products may allow Lawson to monitor and prohibit unauthorized use. Section 3.1 of the Agreement is deleted and replaced in its entirety with the following: Lawson will promptly deliver or make available to Customer one copy of the Products listed in an Order Form. Title to any delivered goods passes at place of shipment (subject to the License), unless prohibited by applicable law. In the event that any media is lost or damaged during shipment, Lawson will promptly ship another copy of that media to the Customer at no cost. Section 7.1(b) of the Agreement is deleted and replaced in its entirety with the following: (b) if Lawson does not comply with Section 7.1 (a) within the Cure Period, Customer may terminate Maintenance and recover direct damages for the Lawson-Maintained Products subject to the damage claim, including up to a refund of the fees paid by Customer to Lawson for those Products and any other Products that become substantially unusable (which includes any Maintenance fees paid to Lawson for those Products during the 12 month period prior to Lawson's notice of the claim), subject to Section 13. AdcerdtT to . awscn Sctwa-e C'js'.a<re- Agreerert OOOC' /86.0 Revised 2CC8 Jjr '7 »as: Upca:e Addendum to Lswson Software Customer Agreement Section 7.2(b) of the Agreement is deleted and replaced in its entirety with the following: (b) if Lawson does not complete that re-performance within the Cure Period, Customer may terminate the Services and recover direct damages, including up to a refund of the fees paid by Customer to Lawson for those Services or Service Deliverables not re-performed and timely cured. A new Section 9.4 is added to the Agreement: If Customer receives a request to disclose any Confidential Information under any Public Information Act, Open Records Act or similar law ("Request'), the Customer shall immediately notify Lawson and prior to disclosure give Lawson an opportunity to take any protective action it deems appropriate. If Lawson has not responded timely to the Request, as defined by the applicable law for which the Request is made pursuant to, Customer may, in its sole discretion and without being in breach of this Agreement, respond to the Request as Customer deems appropriate. In the event that Lawson directs Customer not to disclose the Confidential Information materials sought pursuant to the Request, Lawson will indemnify Customer against any losses, including reasonable attorney fees and costs, sustained arising from the non-disclosure of the Confidential Information material requested in the Request. Customer, in its sole discretion may tender the Request to Lawson for response, including, any and all subsequent legal actions or challenges related to the non-disclosure. A new Section 10.1 is added to the Agreement: If Lawson determines that the remedies in this Section 10 are not commercially and reasonably possible and a court orders or is reasonably likely to order Lawson to terminate the Agreement to the extent it relates to the infringing Product or Service Deliverable: a) Lawson will pay Customer, as Customer's sole and exclusive remedy against Lawson (other than indemnification by Lawson under this Section 10) an amount equal to the License fee paid under the Agreement for the infringing Product and Service Deliverable and any other Product(s) and Service Deliverable(s) that become substantially unusable because of the infringement less the cumulative depreciation of those Products and Service Deliverables based on a six (6) year straight line depreciation commencing one (1) year after the initial date of the License for those Products and Service Deliverables; and b) Customer will cease to use and will return to Lawson such Product(s) and Service Deliverable(s). Section 11 of the Agreement is deleted and replaced in its entirety with the following: No Hire of Certain Employees. No Hire of Certain Employees. Customer agrees that until six months after the later of (a) the termination and non-renewal of the Maintenance Period or (b) the completion of Services, Customer will not hire, employ or contract for service with any employee of the Lawson Group who provides direct Maintenance or Services to any customers. However, if Customer has a general opening in its workforce and a current or former Lawson Group employee applies (but was not directly solicited by Customer) and competes for said job with other applicants, Customer shall not be in breach of this Section 11 if Customer hires said Lawson Group current or former employee. Section 16 of the Agreement is deleted and replaced in its entirety with the following: Publicity. Neither Party may publicize Customer's selection of Lawson without first obtaining the other Party's prior written consent. Section 17.3 of the Agreement is deleted and replaced in its entirety with the following: No litigation or other legal action may be brought if the injured Party has known of the cause of action for more than 2 years. Each Party will pay (without reimbursement) its own legal fees and expenses incurred in any dispute. A new Section 17.5 is added to the Agreement: Addendum to Lawson Softwa'e Custorre' Agreement Error! Reference source not found. 2 (3) Revised 2008 Jun 17 Last Update I la Addendum to Lswson Software Customer Agreement The Agreement is governed by California law (without regard to conflicts of laws principles) provided, however, if any of the limitations of liability contained in this Agreement are not enforceable under California law then Minnesota law shall govern the enforcement of those limitations of liability. Except as set forth above, all of the terms of the Agreement shall be enforceable to the full extent allowed by California law. If California law changes in any manner contrary to the express terms of the Agreement, those changes will not govern the Agreement to the extent that those changes can be lawfully waived by contract. A new Section 17.6 is added to the Agreement: The Parties agree to use commercially reasonable efforts to resolve disputes arising out of or related to this Agreement using good faith negotiations by engaging in the following dispute escalation process: Promptly after the written request of either Party, each of the Parties will appoint a designated representative to meet promptly in person or by telephone to attempt to resolve in good faith any dispute concerning Lawson's invoices, or any other dispute related to the Agreement. If the designated representatives do not resolve the dispute, then either Party may request that an officer of Lawson and an officer of Customer meet promptly in person or by telephone to review and attempt to resolve the dispute in good faith. A new Section 17.7 is added to the Agreement: Exhibit A: Memorandum of Understanding is incorporated into^this agreement and attached hereto. Lawson Software Americas Inc (/(Authorized Signature) Claude A. Lewis (Printed Name) (Title) (Printed Name) Mayor, City of Carlsbad (Title) (Date)(Date) Approved As To Form Paul idffiansen>4isMS9 Assistance City Attorney Addendum to Lawson So*tware Custoiie' Agreement Error! Reference source not found. Revised 2008 Jun 17 Last Update 3(3)