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9. IRREPARABLE HARM Licensee acknowledges and agrees with Questica that the breach by it of any of the provisions of Sections 1- 5, 11 or 12 of this Agreement would cause serious harm to Questica which could not adequately be compensated for in damages and in the event of a breach by Licensee of any of such provisions, Licensee understands that an injunction may be issued against it restraining it from any further breach of such provisions, but such actions shall not be construed so as to be in derogation of any other remedy which Questica may have in the event of such breach. 10. PRODUCT MAINTENANCE For the first year of this Agreement, upon paying the Licensee Fee and for each year thereafter, provided that Licensee continues to pay the Annual Product Maintenance Fee in accordance with section 4 hereinabove, Ouestice shall provide the following maintenance services (the "Services") for the software if the Licensee is not otherwise in breach of the provisions of this Agreement: (A) Provision to the Licensee of such enhancement, mod'rficetions or upgrades to the Software as Questica may from time to time make available to its Licensees generally but excluding the provisions to the Licensee of any New Product (a "New Product" being a solution which, in Questica's determination and subject to generel industry standards, does not replace the Software licensed hereunder); and (B) Any written materials associated with such enhancement, modifications or upgrades to the Software, inGuding user manuals and training aids, that may exist. Should Licensee otherwise request the Services or request any service that is not a part of the Services, then Questip may comply with such request, at its discretion, at its fees then in effect. Such fees shall be paid by Licensee within thirty (30) days from the later of a) the date of receipt of invoice or b) the invoice date. 11. CONFIDENTIAL INFORMATION AND NONDISCLOSURE 11.1 CONFIDENTIAL INFORMATION Each of the Parties shall use reasonable efforts (and, in any event, efforts that are no less than those used to protect its own confidential information) to protect from disclosure the confidential information only to its employees or agents who require access to it for the purpose of this Agreement or as otherwise provided in this Agreement. This Section shall survive the termination of the Agreement For the purposes of this ~~ - ~ - - Section, "confidential information" means all data informationwhich wherit is,disclosed by a Party is - ~. designated as donfidential and shall include the Work and any other proprietaryand trade secrets of _ Questica to which access is obtained or granted hereunder to Licensee; provided, however that confidential.. ^snc:• ,..< , ,.' information shall not include any data or information which (a) is or becomes publicly available through no `~~~~~~ ~~ fault of the other Party, (b) is already in the possession of the Party prior to its receipt from the other Party, - (c) is independently developed by the other Party, (d) is rightfully obtained by the other Party from a third party, (e) is disclosed with the written consent of the Party whose information it is, or (f) is disdosed pursuant to court order, or other legal compulsion. 11.2 NONDISCLOSURE OF AGREEMENT Neither Party shall disclose the terms of this Agreement except as required by law or governmental regulation, without the other party's prior wdtten consent, except that either Party may disclose the terms of this Agreement on a confidential basis to accountants, attorneys, and f nancial advisors and lenders. Page 7 of 11