INFRINGING SOFTWARE. In relation to Software:
2.1 if it is determined by any independent tribunal of fact or law, or if it is agreed between the Parties to a dispute, that an infringement of Intellectual Property Rights has occurred, and this infringement has any effect on the right of a Customer or the State to use any of the Deliverables or Software (“Offending Item”), then the Supplier must:
2.1.1 obtain for the Customer the right to continue using the Offending Item;
2.1.2 modify or replace the Offending Item (without detracting from its overall performance) so as to avoid the infringement, and compensate the Customer for the amount of any direct loss or damage sustained or incurred by the Customer during or as a result of such modification or replacement;
2.1.3 if the solutions in either of the two preceding paragraphs cannot be achieved on reasonable terms, the Supplier must:
(a) remove any Offending Item from the Customer’s premises;
(b) refund the moneys paid for the Offending Item and any Deliverables or Software which can only be used for the Customer’s purposes in conjunction with the Offending Item;
(c) terminate and cease to charge for the provision of the Offending Item; and
(d) except in the case contemplated in sub-clause 2.2, pay to the Customer the amount of any direct loss or damage sustained as a result of the unavailability of the Offending Item, unless the State in its sole discretion, determines that it is necessary to retain and continue to use the Offending Item. Any payments required to be made to a third party as a consequence of this action must be reimbursed by the Supplier to the State;
2.2 if the Offending Item is Software for which a Licence was provided by, or obtained for, the Customer by the Supplier, it will be presumed (unless the Customer can demonstrate otherwise) that the Supplier cannot on reasonable terms obtain rights to use, or modify or replace the Offending Item so as to avoid infringement of Intellectual Property Rights; and
2.3 for the purposes of this clause, “infringement” includes unauthorised acts which would, but for the operation of the Section 163 of the Patents Xxx 0000 (Cth), Section 96 of the Designs Xxx 0000 (Cth) and Section 183 of the Copyright Xxx 0000 (Cth) constitute an infringement.
INFRINGING SOFTWARE. NEW ADB agrees that, in the event that during the Term of the Agreement the Software or any portion thereof is held to infringe another person's rights, and use thereof is enjoined during such Term, NEW ADB shall, at its election and expense: (i) procure the right to use the infringing element thereof; (ii) procure the right to an element which performs the same function without any material loss of functionality; or (iii) replace or modify the element thereof so that the infringing portion is no longer infringing and still performs the same function without any material loss of functionality, performance or efficiency, provided that NEW ADB shall not be required to take any of the foregoing steps and shall bear no liability with respect to such an infringement that is caused, in whole or in part, by the actions or direction of XXX.XXX or THE
INFRINGING SOFTWARE. In the event of any claim described in Section 7.1 “Defense and Cooperation” above, or upon Licensor’s determination that such a claim may occur, Licensor shall have the right, at its option, to (i) procure for Licensee the right to continue using that portion of the Software claimed to be infringing, (ii) require Licensee to cease using that portion of the Software claimed to be infringing and replace such portion with other software to make the Software non-infringing, or (iii) require Licensee to cease using that portion of the Software or Documentation claimed to be infringing and refund to Licensee a pro rata portion of the fee paid by Licensee for the License granted hereunder.
INFRINGING SOFTWARE. If the Software is, or in Provider’s reasonable judgment is likely to be, held to constitute an infringing product, Provider shall at its expense and option either: (1) procure the right for the City to continue using the Software, (2) replace the Software with a non-infringing equivalent, (3) modify the Software to make it non-infringing, provided that the modification does not materially alter the functionality of the Software or the City agrees to and accepts the modification in writing; or (4) in the event Provider is ordered by a court of competent jurisdiction to remove the Software, and all right of appeal or stay is exhausted as to such order, accept return of the Software and refund to the City the full amount paid by the City to Provider pursuant to this Contract.
