Common use of Claim Mitigation Clause in Contracts

Claim Mitigation. Should any Software at any time become, or in TXOne Networks’ opinion be likely to become, the subject of an IP Claim, 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 TXOne Networks’ opinion, 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, 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, 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. The Parties agree that any termination hereof in accordance with this Section 11 shall not be treated as a breach of this Agreement by 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 11 states TXOne Networks’ sole and exclusive obligation and liability to Company, and Company’s sole and exclusive right and remedy against TXOne Networks, for any IP Claim. Except as set forth herein this Section 11, Company acknowledges and agrees that no indemnity is given by TXOne Networks with respect to any Software or Appliance and 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.

Claim Mitigation. Should any Software at any time become, or in TXOne Networks’ Trend Micro’s opinion be likely to become, the subject of an IP Claim, TXOne Networks 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 TXOne Networks’ Trend Micro’s opinion, TXOne Networks 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, TXOne Networks 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, TXOne Networks 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 periodperiod and any unused, prepaid annual Maintenance fees. The Parties agree that any termination hereof in accordance with this Section 11 13 shall not be treated as a breach of this Agreement by TXOne Networks 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 11 13 states TXOne Networks’ Trend Micro’s sole and exclusive obligation and liability to Company, and Company’s sole and exclusive right and remedy against TXOne NetworksTrend Micro, for any IP Claim. Except as set forth herein this Section 1113, Company acknowledges and agrees that no indemnity is given by TXOne Networks Trend Micro with respect to any Software or Appliance and TXOne Networks 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.