Common use of Replacement of Materials Clause in Contracts

Replacement of Materials. (1) If any BNY Mellon IP used to provide the Services is found by a court of competent jurisdiction to infringe (or BNY Mellon believes that it will infringe, including via settlement or license) any IP rights of any third party and such infringement affects the receipt of Services by Voya and, provided that such infringement was not the result of any Unpermitted Use, then BNY Mellon shall, at BNY Mellon’s option, either: (a) procure for Voya the right to continue using or receiving the applicable BNY Mellon IP; or (b) replace or modify the applicable BNY Mellon IP to be non-infringing without (i) degradation or loss of functionality; (ii) imposing any material or adverse (to Voya) change to the manner in which Voya receives the Services, or (iii) causing Voya to incur any additional costs or expenses. Any additional costs associated with implementing any of the above shall be borne by BNY Mellon. To the extent BNY Mellon cannot accomplish clause (a) or (b) through commercially reasonable efforts, Voya may terminate the applicable Services that rely, directly or indirectly, on such BNY Mellon IP. (2) If any Voya IP used to provide the Services is found by a court of competent jurisdiction to infringe (or Voya believes that it will infringe, including via settlement or license) any IP rights of any third party and such infringement affects the delivery of Services by the BNY Mellon and provided that such infringement was not the result of any (a) use of the Voya IP by BNY Mellon in contravention of the Related Documentation or license granted to BNY Mellon under Section 6.01; (b) modifications made by BNY Mellon or BNY Mellon Agents other than at the written direction of Voya; (c) Voya complying with instructions or designs required or provided by BNY Mellon where such compliance necessarily would give rise to such infringement; or (d) combination of the Voya IP by BNY Mellon or BNY Mellon Agents with products or systems not reasonably anticipated by the Parties, then Voya shall, at Voya’s option, (i) procure for BNY Mellon the right to continue using or receiving the applicable Voya IP; or (ii) replace or modify the applicable Voya IP to be non-infringing without degradation or loss of functionality. Any costs associated with implementing any of the above shall be borne by Voya. Voya’s failure to procure or replace the infringing Voya IP in accordance with this paragraph may result in a Relief Event. (3) BNY Mellon and Voya’s respective rights and obligations set forth in this Section 6.05 shall be in addition to, and not in lieu of, BNY Mellon and Voya’s respective rights and obligations under the Agreement.

Replacement of Materials. (1) If any BNY Mellon IP used to provide the Services is found by a court of competent jurisdiction to infringe (or BNY Mellon believes that it will infringe, including via settlement or license) any IP rights of any third party and such infringement affects the receipt of Services by Voya and, provided that such infringement was not the result of any Unpermitted Use, then BNY Mellon shall, at BNY Mellon’s option, either: (a) procure for Voya the right to continue using or receiving the applicable BNY Mellon IP; or (b) replace or modify the applicable BNY Mellon IP to be non-infringing without (i) degradation or loss of functionality; (ii) imposing any material or adverse (to Voya) change to the manner in which Voya receives the Services, or (iii) causing Voya to incur any additional costs or expenses. Any additional costs associated with implementing any of the above shall be borne by BNY Mellon. To the extent BNY Mellon cannot accomplish clause (a) or (b) through commercially reasonable efforts, Voya may terminate the applicable Services that rely, directly or indirectly, on such BNY Mellon IP. (2) If any Voya IP used to provide the Services is found by a court of competent jurisdiction to infringe (or Voya believes that it will infringe, including via settlement or license) any IP rights of any third party and such infringement affects the delivery of Services by the BNY Mellon and provided that such infringement was not the result of any (a) use of the Voya IP by BNY Mellon in contravention of the Related Documentation or license granted to BNY Mellon under Section 6.01; (b) modifications made by BNY Mellon or BNY Mellon Agents other than at the written direction of Voya; (c) Voya complying with instructions or designs required or provided by BNY Mellon where such compliance necessarily would give rise to such infringement; or (d) combination of the Voya IP by BNY Mellon or BNY Mellon Agents with products or systems not reasonably anticipated by the Parties, then Voya shall, at Voya’s option, (i) procure for BNY Mellon the right to continue using or receiving the applicable Voya IP; or (ii) replace or modify the applicable Voya IP to be non-infringing without degradation or loss of functionality. Any costs associated with implementing any of the above shall be borne by Voya. Voya’s failure to procure or replace the infringing Voya IP in accordance with this paragraph may result in a Relief Event. (3) BNY Mellon and VoyaVoxx’s respective rights and obligations set forth in this Section 6.05 shall be in addition to, and not in lieu of, BNY Mellon and Voya’s respective rights and obligations under the Agreement.