Common use of INFRINGING SOFTWARE Clause in Contracts

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. 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 IntellectualProperty Rights has occurred, and this infringement has any effect on the right theright of a Customer or the State to use any of the Deliverables or Software (“Offending 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 cannotbe 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 ItemOffendingItem; (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 determinesthat it is necessary to retain and continue to use the Offending theOffending Item. Any payments required to be made to a third athird party as a consequence of this action must be reimbursed bereimbursed 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 onreasonable terms obtain rights to use, or modify or replace the Offending Item OffendingItem 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.