Infringement Remedy. In addition to Licensor’s obligations under Section 9.1, if the Software or other Licensed Materials is held, or in Licensor’s opinion is likely to be held, to infringe, misappropriate or violate any Proprietary Rights, or, if based on any claimed infringement, misappropriation or violation of Proprietary Rights, an injunction is obtained, or in Licensor’s opinion an injunction is likely to be obtained, that would prohibit or interfere with Xxxxx’s use of the Licensed Materials under this Agreement, then Licensor will at its option and expense either: (a) procure for Buyer the right to continue using the affected Licensed Materials in accordance with the license granted under this Agreement; or (b) modify or replace the affected Licensed Materials so that the modified or replacement Licensed Materials are reasonably comparable in functionality, interoperability with other software and systems, and levels of security and performance and do not infringe, misappropriate or violate any third-party Proprietary Rights. If, in such circumstances, Licensor cannot not successfully accomplish any of the foregoing actions on a commercially reasonable basis, Licensor will notify Buyer and either Party may terminate the Subscription and this Agreement, in which case Licensor will refund to Buyer any fees prepaid to Licensor by Buyer prorated for the unused portion of the Subscription. For clarity, Licensor’s indemnification and defense obligations under this Section include infringement Claims based on use of the Licensed Materials by Buyer Indemnified Parties following an initial infringement Claim except that, if Licensor responds to an infringement Claim by accomplishing the solution in (b), Licensor will have no obligation to defend and indemnify Buyer for infringement Claims arising from Buyer’s use after the accomplishment of (b) of the infringing Licensed Materials for which Licensor provided modified or replacement Licensed Materials.
Infringement Remedy. (a) If any item or process used by State Street to provide the Services and made available to the BTC Recipients becomes, or in its reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, State Street will use Commercially Reasonable Efforts to, in its sole discretion, take the following actions at no additional charge to such BTC Recipient as soon as reasonably practicable:
(i) secure the right to continue using the item or process; or
(ii) replace or modify the item or process to make it non-infringing, provided that the replacement or modification will not degrade performance or quality in any material respect, if neither (i) nor (ii) is available to State Street on commercially reasonable terms, remove the item or process from the Services and equitably reduce State Street’s charges to reflect such removal, provided that no such removal will diminish the scope of State Street’s obligation to perform the Services hereunder or under a Service Module.
(b) State Street’s obligations in this Section and its related indemnification obligations under Section 17.1(b) shall be the affected BTC Recipient’s sole rights and remedies in connection with infringement claims described herein. For the purposes of clarification, nothing in this Section 17.4 will limit a BTC Recipient’s ability to seek remedies for State Street’s failure to provide the Services under this Agreement or the Service Modules. Master Services Agreement 47 BTC | State Street CONFIDENTIAL
Infringement Remedy. (a) If any item or process used by Provider to provide the Services and made available to the Lending Funds or BTC becomes, or in Provider’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, Provider will use Commercially Reasonable Efforts to, in Provider’s sole discretion, take the following actions at no additional charge to such Lending Fund or BTC as soon as reasonably practicable:
(i) secure the right to continue using the item or process;
(ii) replace or modify the item or process to make it non-infringing, provided that the replacement or modification will not degrade performance or quality in any material respect; or
(iii) if neither (i) nor (ii) immediately above is available to Provider on commercially reasonable terms, remove the item or process from the Services and equitably reduce Provider’s charges to reflect such removal, provided that no such removal will diminish the scope of Provider’s obligation to perform the Services hereunder.
(b) Provider’s obligations in this Section 19.4 shall be the affected Lending Fund’s sole rights and remedies in connection with infringement claims described herein. For the purposes of clarification, nothing in this Section 19.4 will limit a Lending Fund’s ability to seek remedies for Provider’s failure to provide the Services under this Agreement.
Infringement Remedy. (a) If any Software or any component thereof, other than Customer Materials, is found to be infringing or if any use of any Software or any component thereof is enjoined, threatened to be enjoined, or otherwise the subject of an infringement claim, Developer shall, at Developer’s sole cost and expense:
(i) procure for Customer the right to continue to use such Software or component thereof to the full extent contemplated by this Agreement; or
(ii) modify or replace the materials that infringe or are alleged to infringe (”Allegedly Infringing Materials”) to make the Software and all of its components non-infringing while providing fully equivalent features and functionality.
(b) If neither of the foregoing is possible notwithstanding Developer’s [best/commercially reasonable] efforts then Developer may direct Customer to cease any use of any materials that have been enjoined or finally adjudicated as infringing, provided that Developer shall:
(i) refund to Customer all amounts paid by Customer in respect of such Allegedly Infringing Materials [and any other aspects of the Aggregate Software provided under the Statement of Work for the Allegedly Infringing Materials that Customer cannot reasonably use as intended under this Agreement]; and
(ii) in any case, at its sole cost and expense, secure the right for Customer to continue using the Allegedly Infringing Materials for a transition period of up to [NUMBER IN WORDS] ([NUMBER]) month[s] to allow Customer to replace the affected features of the Software without disruption.
(c) If developer directs Customer to cease using any Software pursuant to Section 12.3(b), Customer shall have the right to terminate any or all then-outstanding Statements of Work [and this Agreement] for cause pursuant to Section 14.3(b)(i).
(d) The remedies set forth in this Section 12.3 are in addition to, and not in lieu of[, all other remedies that may be available to Customer under this Agreement or otherwise, including] Customer’s right to be indemnified for such Actions.
Infringement Remedy. Customer’s sole and exclusive remedy for any non-conformance with the warranty in Section 5.1.4 above will be Customer’s defense and indemnification rights under Section 9.1 below, and Customer’s termination rights under Section 8.2 below.
Infringement Remedy. In addition to Licensor’s obligations under Section 10.1, if the Software or other Licensed Materials is held, or in Licensor’s opinion is likely to be held, to infringe, misappropriate or violate any Proprietary Rights, or, if based on any claimed infringement, misappropriation or violation of Proprietary Rights, an injunction is obtained, or in Licensor’s opinion an injunction is likely to be obtained, that would prohibit or interfere with Xxxxx’s use of the Licensed Materials under this Agreement, then Licensor will at its option and expense either: (a) procure for Buyer the right to continue using the affected Licensed Materials in accordance with the license granted under this Agreement; or (b) modify or replace the affected Licensed Materials so that the modified or replacement Licensed Materials are reasonably comparable in functionality, interoperability with other software and systems, and levels of security and performance and do not infringe,
Infringement Remedy. If the Customer is prohibited from using any of the PeoplesHR Services because of an Infringement Claim covered under clause 10.1, then the Company will, at its sole expense and option, either: (a) obtain for the Customer the right to use the allegedly infringing portions of the PeoplesHR Services; (b) modify the allegedly infringing portions of the PeoplesHR Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the PeoplesHR Services with non-infringing items of substantially similar functionality. If the Company determines that none of these remedies are commercially reasonable, then either Party may terminate this Agreement, and in such case, the Company will provide a pro-rated refund to the Customer for any prepaid fees received the Company under this Agreement that correspond to the unused portion of the Agreement Term. Without limiting the Company’s obligation to indemnify the Customer as set out in Clause 10.1, the remedy set out in Clause 10.2 is the Customer’s sole and exclusive remedy for any actual or alleged infringement by XxxxxxxXX Services of any third-party Intellectual Property Rights.
Infringement Remedy. Primus shall defend and indemnify Distributor against any proceeding based upon any failure to satisfy the warranties set forth in Section 9.3.3 and paragraphs A.3 and B.3 of Schedule 5, as Distributor's sole remedy, provided that: (i) Distributor shall notify Primus in writing of any claim of infringement promptly after it has been made; (ii) Primus or its licensors shall have exclusive control over the defense and settlement of the proceeding; (iii) Distributor shall make no admission of liability nor enter into any settlement without the prior written agreement of Primus; (iv) Distributor shall provide such assistance in defense of the proceeding as Primus or its licensors may reasonably request, at Primus' reasonable expense; and (v) Distributor shall comply with any court order or settlement made in connection with the proceeding. If use of the Software is, or in Primus' reasonable opinion is likely to become, the subject of a claim of infringement of any intellectual property right of any third party, then Primus may: (a) procure the continuing right of Distributor to use the Software; (b) replace or modify the Software in a functionally equivalent manner so that it no longer infringes; or (c) except as otherwise specified in Schedule 5, terminate the Distribution Term with respect to the Software subject to the infringement claim and refund to Distributor an amount equal to the depreciated license fees paid by Distributor for such Software (calculated on a straight line basis over a five (5) year life).
Infringement Remedy. (a) In the event of a Claim that the Indemnifying Party’s services, products, or marketing materials, or any use, promotion, marketing, distribution, sale or delivery thereof in accordance with this Agreement, infringe, misappropriate, or violate any intellectual property right of a third party, or if any use of any of such item (or any respective component thereof) is enjoined or threatened to be enjoined, then the Indemnifying Party will, at its sole cost and expense, (i) procure for the Indemnified Persons the right to continue to receive and use such item to the full extent contemplated by this Agreement; or (ii) modify or replace the elements that infringe or are alleged to infringe to make them non-infringing while providing reasonably equivalent services, features and/or functionality (as applicable).
(b) If, in Indemnifying Party’s discretion, none of the options set forth in Section 11.2(a) are commercially practicable, then either Party will have the right to terminate this Agreement with respect to the applicable products or services immediately.
(c) The remedies set forth in this Section 11.2 are in addition to, and not in lieu of, all other remedies that may be available to the Indemnified Persons under this Agreement or otherwise, including the Indemnified Persons’ right to indemnification pursuant to Section 11.1.
Infringement Remedy. If any Software or portion of the Software is finally adjudged to infringe, or in Contractor’s opinion is likely to become the subject of such a Claim, Contractor shall, at County’s option, either: (i) procure for County the right to continue using the Software;
