Common use of Claim Mitigation Clause in Contracts

Claim Mitigation. Should any Software at any time become, or in Trend Micro’s opinion be likely to become, the subject of an IP Claim, Trend Micro shall have the right, at its sole option to: (a) procure for Company the right to continue using the Software as licensed hereunder, or (b) modify the Software such that it no longer is the subject of an IP Claim, while maintaining substantially the same functionality of the unmodified Software. If neither (a) or (b) are commercially practicable in Trend Micro’s opinion, Trend Micro may terminate this Agreement as to such Software and any related license granted hereunder as to the Software upon written notice, in which event Company will cease further use of the Software and return or uninstall and irrevocably destroy all copies of the subject Software (and Documentation) and, thereafter, Trend Micro will promptly refund to Company, the prorated portion of the license fees paid by Company for the remainder of any unexpired Subscription Period for such Software(s) or, if and to the extent such Software are licensed for a Perpetual Period, Trend Micro shall refund to Company all license fees paid by Company for the affected Software as amortized on a straight line basis over a three (3) year period and any unused, prepaid annual Maintenance fees. The Parties agree that any termination hereof in accordance with this Section 13 shall not be treated as a breach of this Agreement by Trend Micro and shall not entitle Company to any claim for damages, losses, or expenses of any kind or nature arising from or related to such termination including for replacement cost or loss of use of the Software or any lost profits, savings, or revenue arising from or related to the Software. This Section 13 states Trend Micro’s sole and exclusive obligation and liability to Company, and Company’s sole and exclusive right and remedy against Trend Micro, for any IP Claim. Except as set forth herein this Section 13, Company acknowledges and agrees that no indemnity is given by Trend Micro with respect to any Software or Appliance and Trend Micro specifically denies and disclaims any obligation to indemnify Company and/or its Affiliates from and against any other matter or thing in any event or circumstance.

Claim Mitigation. Should any Software at any time become, or in Trend Micro’s TXOne Networks’ opinion be likely to become, the subject of an IP Claim, Trend Micro TXOne Networks shall have the right, at its sole option to: (a) procure for Company the right to continue using the Software as licensed hereunder, or (b) modify the Software such that it no longer is the subject of an IP Claim, while maintaining substantially the same functionality of the unmodified Software. If neither (a) or (b) are commercially practicable in Trend Micro’s TXOne Networks’ opinion, Trend Micro TXOne Networks may terminate this Agreement as to such Software and any related license granted hereunder as to the Software upon written notice, in which event Company will cease further use of the Software and return or uninstall and irrevocably destroy all copies of the subject Software (and Documentation) and, thereafter, Trend Micro TXOne Networks will promptly refund to Company, the prorated portion of the license fees paid by Company for the remainder of any unexpired Subscription Period for such Software(s) or, if and to the extent such Software are licensed for a Perpetual Period, Trend Micro TXOne Networks shall refund to Company all license fees paid by Company for the affected Software as amortized on a straight line basis over a three (3) year period and any unused, prepaid annual Maintenance feesperiod. The Parties agree that any termination hereof in accordance with this Section 13 11 shall not be treated as a breach of this Agreement by Trend Micro TXOne Networks and shall not entitle Company to any claim for damages, losses, or expenses of any kind or nature arising from or related to such termination including for replacement cost or loss of use of the Software or any lost profits, savings, or revenue arising from or related to the Software. This Section 13 11 states Trend Micro’s TXOne Networks’ sole and exclusive obligation and liability to Company, and Company’s sole and exclusive right and remedy against Trend MicroTXOne Networks, for any IP Claim. Except as set forth herein this Section 1311, Company acknowledges and agrees that no indemnity is given by Trend Micro TXOne Networks with respect to any Software or Appliance and Trend Micro TXOne Networks specifically denies and disclaims any obligation to indemnify Company and/or its Affiliates from and against any other matter or thing in any event or circumstance.