Remedies for Infringement. If the System, Software or Services, or any portion thereof are enjoined under any award or settlement, Swisslog, at its option and expense, will:
a. procure the right to continue using the System or Services;
b. replace the System or Services or infringing portion thereof with a non-infringing product or service; or
c. modify the System or Services so they become non-infringing. If the remedies set forth in (a) through (c) are not possible on commercially reasonable terms, Swisslog may terminate the License for the allegedly infringing System, Software or Services, and upon receipt of the System, Software or Services, return the fees paid by Customer to Swisslog, if any, prorated over the Agreement term from the delivery date. In electing the remedies set forth in (a) through (c) above, Swisslog shall consult with and obtain the consent of Customer, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Swisslog shall not be liable for any claim of infringement resulting from Swisslog’s compliance with any design, specification or instruction of Customer, modification of the System or Software by Customer without Swisslog’s approval, use of Equipment in a manner not according to specifications or documentation, or use of Equipment with software or hardware products not supplied by Swisslog. Systems for purposes of this indemnity do not include any third-party products, whether or not supplied by either party. The foregoing states Swisslog’s entire liability and Customer’s exclusive remedy for infringement of intellectual property rights.
Remedies for Infringement. Except in connection with any Intellectual Property Rights (or embodiments thereof) acquired by Boise Paper or any of its Affiliates from Boise Cascade under the Purchase Agreement (whether directly, by contribution under the Contribution Agreement provided for under the Purchase Agreement or by acquisition of any equity interest under the Purchase Agreement or the Contribution Agreement), if a Service, Deliverable, Software, hardware, Work Product or other document or material provided by Service Provider to Services Recipient infringes or otherwise conflicts with the Intellectual Property Rights of a third party, Services Recipient shall have the right to require the providing Party to: (i) replace or modify such infringing items to make their use non-infringing while providing substantially the same functionality; or (ii) procure the right for Services Recipient to continue to use or receive such infringing items. If Service Provider is unable to do the foregoing within a reasonable period of becoming aware of such infringement, Services Recipient may terminate the applicable Services upon 30 days written notice.
Remedies for Infringement. If use of the Licensed Program is enjoined or if CMC reasonably believes that use of the Licensed Program may be enjoined, CMC may, at its option, (a) obtain the right for Customer to continue using the Licensed Program; or (b) replace or modify the Licensed Program so it is no longer infringing, or if CMC determines that neither (a) nor (b) can reasonably be accomplished, (c) terminate the applicable license(s) and issue a pro rata refund of the License Fees paid for the Licensed Program, which refund amount shall be determined in CMC's reasonable discretion and CMC's payment thereof shall constitute Customer's sole and exclusive remedy for all claims.
Remedies for Infringement. 15.1 In the event Customer learns that there is, or may be, any infringement or unauthorized use of the Product or disclosure of Confidential Information, Customer shall promptly notify CAE Healthcare in writing of same. In the event of a possible infringement or unauthorized use of the Product, CAE Healthcare retains the sole right, in its sole discretion, to commence a legal action or to take any action in response thereto. Customer shall cooperate and provide all available information and assistance to CAE Healthcare in such regard. CAE Healthcare shall not be bound by any settlement or compromise of any charge of infringement made without its written consent. Customer acknowledges that CAE Healthcare shall have the right to take such measures which CAE Healthcare deems appropriate to minimise any potential damages due to any alleged claim. Customer agrees not to assert against CAE Healthcare any infringement claims on the Software, Data and/or the Products.
15.2 If a final judgment is obtained prohibiting the use by Customer of any part of the Product by reason of infringement of a registered copyright or patent, CAE Healthcare will, at its option and expense, either (i) procure for Customer the right to continue to use the Product; (ii) modify the Product so that it becomes non-infringing; or (iii) repurchase/reimburse from Customer the fee paid for the Product and/or documentation less depreciation at the rate of twenty-five percent (25%) per year, or pro rata for part of the year, from the date of commencement of the term of use of the Product to the date of repurchase of the Product.
15.3 LICENSEE ACKNOWLEDGES THAT THE ABOVE REMEDIES ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO LICENSEE RELATED TO CLAIMS FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Remedies for Infringement. As soon as Seller or Buyer has reason to believe a Claim under subsection (a) is likely to be made against the Indemnitees, Seller shall, promptly and at its sole expense, use its best efforts to settle, avoid, or otherwise cure the Claim by one of the following procedures:
(1) obtain a license for the Indemnitees to continue using the Products giving rise to the Claim in accordance with this Agreement;
(2) modify such Products to make them noninfringing while maintaining the equivalent or better functionality, features, and performance; or
(3) replace such Products with a noninfringing product, either from Seller or another seller, having the equivalent or better functionality, features, and performance. The procedures are set forth above in order of precedence. Seller shall pursue each of these procedures in the order stated until the cure is accomplished. Buyer reserves the right, however, to direct Seller to attempt these procedures in a different order in the interest of minimizing the adverse impact of the cure on Buyer operations. These obligations are in addition to, not in lieu of, Seller's obligations under the subsection entitled "Infringement Indemnity" of this Section. If, despite its best efforts to do so, (i) Seller is unable to effect a cure under the foregoing remedies and (ii) a permanent injunction ordering the Indemnitees to cease further use of the Products is issued or likely to be issued by a court of competent jurisdiction, either party may cancel the Purchase Order under which the Products were ordered, either in whole or in part, whereupon Buyer may return all or any portion of the Products to Seller for a full refund. Any license granted under this Agreement with respect to the returned Products will terminate as of the effective date of the cancellation. Any cancellation under this subsection will not (A) be deemed to be a cancellation for default or (B) relieve Seller of its accrued obligations under the subsection entitled "Infringement Indemnity" of this Section.
Remedies for Infringement. If in any such suit or proceeding LICENSEE's continued use of any item of Software Products is enjoined, or if by reason of any claim or potential claim of infringement LICENSOR deems it advisable to do so, LICENSOR may, at its option and expense, (i) procure for LICENSEE the right to continue using such Software Products, (ii) modify or replace such Software Products with non-infringing Software Products, provided that such modification does not materially adversely affect performance or (iii) remove such Software Products and grant LICENSEE a credit based upon the remaining beneficial use of the Software Product and its depreciated value. If infringement is alleged prior to completion of deliveries of the Software Products, LICENSOR may decline to make further shipments without being in breach of this Agreement.
Remedies for Infringement. If the Hubble Software becomes or in xxxxxxxxxxxxxxx.xxx's opinion is likely to become the subject of a suit or claim of infringement of an intellectual property right, xxxxxxxxxxxxxxx.xxx will, at xxxxxxxxxxxxxxx.xxx’s option and expense:
(a) Procure for the Customer the right to continue use of the Hubble Software as furnished;
(b) Replace or modify the Hubble Software to make it non-infringing, provided that the Hubble Software still substantially conforms to the applicable Documentation; or
(c) If xxxxxxxxxxxxxxx.xxx is not reasonably able to do either (a) or (b), terminate this Agreement and/or the related Order Form(s) to the extent it relates to the infringing Hubble Software. In the event that this Agreement and/or Order Form(s) is terminated under this subsection (c), Customer must cease to use the infringing Hubble Software, and xxxxxxxxxxxxxxx.xxx will pay Customer, as Customer’s sole and exclusive remedy, an amount equal to the prepaid Subscription Fees calculated commencing with the termination date.
Remedies for Infringement. 47 This Article provides for revocation of a European Patent on any of the following grounds:
(a) the subject-matter of the European patent is not patentable under Articles 52 to 57 EPC;
(b) the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;
(c) the subject-matter of the European patent extends beyond the content of the application as filed or, if the patent was granted on a divisional application or on a new application filed under Article 61, beyond the content of the earlier application as filed;
(d) the protection conferred by the European patent has been extended; or
(e) the proprietor of the European patent is not entitled by being the inventor, the successor in title to the inventor or where the appropriate national law provides that employers own the inventions made by employees an employer who is so entitled. Interestingly, as with the grounds of opposition before the EPO, there is no express provision providing for revocation on the basis that a claim is of indefinite scope, notwithstanding Article 84 EPC’s requirement for clarity in the claims. 48 Whereby an earlier filed national right may have prior art effect against a European patent.
Remedies for Infringement. If Customer’s use of the Product is enjoined or in Santera’s opinion is likely to be enjoined, at its expense Santera will replace the enjoined Product or Licensed Materials furnished pursuant to this Agreement with a suitable substitute free of any infringement; will modify the infringing Product or Licensed Materials so that they will be free of the infringement; or will procure for Customer a license or other right to use such infringing Products or Licensed Materials. If none of the foregoing options are practical, Santera will remove the enjoined Product or Licensed Materials and refund to Customer the depreciated value (as carried on the Customer’s books) of such Product(s) or Licensed Materials. In no event, however, will Santera’s liability hereunder exceed the amounts paid by Customer to Santera to purchase the Product or the right to use the Licensed Materials that are the subject of the Infringement Claim. THE PROVISIONS OF THIS ARTICLE 9 SET FORTH THE PARTIES’ SOLE AND EXCLUSIVE OBLIGATIONS AND LIABILITIES WITH RESPECT TO ANY INFRINGEMENT CLAIM.
Remedies for Infringement. If a temporary or final injunction is obtained against Buyer’s use of the Product for which Supplier is obligated to indemnify Buyer under Section 3.2, Supplier may at its own expense, either a) procure for Buyer the right to continue using the Products, or b) replace or modify for Buyer the Products or the infringing portion thereof such that they no longer infringe as long as the utility of performance of the Product is not adversely affected by such replacement or modification and the replaced or modified Product conforms with the Specifications.
