Common use of Obligation to Replace Clause in Contracts

Obligation to Replace. In the event that the AMO Entities’ use of the Developed Software, the Work Product, the Vendor Software, any enhancements or modifications to the AMO Software performed by Vendor or Vendor Staff or any other materials or items provided to the AMO Entities by Vendor or Vendor Staff (each, as applicable, the “Indemnified Component”; collectively, the “Indemnified Components”) (1) infringes upon the proprietary rights of any third party or (2) is enjoined or any AMO Entity’s use of any of the Covered Services is enjoined due to any such Indemnified Component, Vendor shall, within thirty (30) days after notification such infringement or order, with AMO’s consent and at Vendor’s own cost and expense and in such a manner as to minimize disturbance to AMO business activities: (1) obtain for the AMO Entities the right to continue using the Indemnified Component; (2) modify the Indemnified Component so that it is not longer infringing (provided that such modification does not adversely affect the AMO Entities’ intended use as contemplated by this Agreement); (3) replace the Indemnified Component with a non-infringing functional equivalent; or (4) immediately refund the amounts paid to Vendor corresponding to that portion of the Charges relating to such Indemnified Component.

Obligation to Replace. In addition to the obligations of Section 27.02, in the event that the AMO Entities’ use of the Developed Software, the Work Product, the Vendor IBM Software, any enhancements or modifications to the AMO Software performed by Vendor IBM or Vendor IBM Staff or any other materials or items provided to the AMO Entities by Vendor IBM or Vendor IBM Staff (each, as applicable, the “Indemnified Component”; collectively, the “Indemnified Components”) (1) infringes upon the proprietary copyright, patent, trademark or trade secret rights of any third party or (2) is enjoined or any AMO Entity’s use of any of the Covered Services is enjoined due to any such Indemnified Component, Vendor IBM shall, within thirty (30) days after notification such infringement or order, with AMO’s consent and at VendorIBM’s own cost and expense and in such a manner as to minimize disturbance to AMO business activities: (1) obtain for the AMO Entities the right to continue using the Indemnified Component; (2) modify the Indemnified Component so that it is not longer infringing (provided that such modification does will not adversely affect substantially degrade the AMO Entities’ intended use as contemplated by this Agreementperformance or quality of the affected component of the Covered Services); (3) replace the Indemnified Component with a non-infringing functional equivalent; or (4) immediately refund the amounts paid to Vendor corresponding to that portion if none of the Charges relating foregoing can be accomplished by IBM with commercially reasonable efforts, and only in such event, then remove the item from the Covered Services, in which case IBM’s charges shall be equitably adjusted to reflect such Indemnified Componentremoval.