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.
Appears in 6 contracts
Samples: Master Purchase and Service Agreement, Master Purchase and Service Agreement, Master Purchase and Service Agreement
