In Case of Infringement. If Customer’s use of the Products is, or in Tenable’s opinion is likely to be, the subject of an infringement claim, Tenable may, in its sole discretion and expense: (i) modify or replace the infringing Products as necessary to avoid infringement, provided that the replacement Products are substantially similar in functionality; (ii) procure the right for Customer to continue using the infringing Products; or (iii) terminate this Agreement and, upon Customer’s return or certified destruction of the infringing Product, provide Customer a pro-rata refund calculated as follows: (x) for infringing Products licensed on a subscription basis, the refund shall consist of any prepaid but unused fees for the remainder of the applicable License Term; or (y) for infringing Software licensed on a perpetual basis or infringing Hardware, the refund shall consist of a straight line depreciation of the license fee based on a three (3) year useful life as well as any prepaid but unused fees for separately charged Support Services. This Section 9 sets forth Tenable’s sole and exclusive liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement.
In Case of Infringement. If CustomerÕs use of the Products is, or in TenableÕs opinion is likely to be, the subject of an infringement claim, Tenable may, in its sole discretion and expense: (i) modify or replace the infringing Products as necessary to avoid infringement, provided that the replacement Products are substantially similar in functionality; (ii) procure the right for Customer to continue using the infringing Products; or (iii) terminate this Agreement and, upon CustomerÕs return or certified destruction of the infringing Product, provide Customer a pro-rata refund calculated as follows: (x) for infringing Products licensed on a subscription basis, the refund shall consist of any prepaid but unused fees for the remainder of the applicable License Term; or (y) for infringing Software licensed on a perpetual basis, the refund shall consist of a straight line depreciation of the license fee based on a three (3) year useful life. This Section 9 sets forth TenableÕs sole and exclusive liability and CustomerÕs sole and exclusive remedy with respect to any claim of intellectual property infringement.
