Common use of Performance Remedy Clause in Contracts

Performance Remedy. If any Software fails to comply with the warranties set forth in Sections 9.3.1 and 9.3.2, and paragraphs A.1, A.2 , B.1 and B.2 of Schedule 5, and if Distributor provides written notice of the non- compliance to Primus within five (5) business days of expiration of the warranty period then, except as otherwise specified in Schedule 5, Primus will either repair or, at its option, replace any non-complying media or Software. If Primus is unable to correct the noncompliance within sixty (60) days of receipt of such written notice from Distributor then, except as otherwise specified in Schedule 5, Primus shall, as Distributor's sole remedy, (i), with respect to non- compliant Initial Software, promptly refund all of the Software license fees paid by Distributor for such Software and terminate the Distribution Term with respect to the non-compliant Software, and (ii), with respect to non-compliant New Software, promptly refund all of the most recent annual support and maintenance fees paid by Distributor to Primus and attributable to the development of such New Software, in each case (i) and (ii) in full and final satisfaction of all and any of Distributor's claims arising out of media or Software failure.

Performance Remedy. If any Software fails to comply with the warranties set forth in Sections 9.3.1 and 9.3.2, and paragraphs A.1, A.2 , B.1 and B.2 of Schedule 5, and if Distributor provides written notice of the non- compliance to Primus within five (5) business days of expiration of the warranty period then, except as otherwise specified in Schedule 5, Primus will either repair or, at its option, replace any non-complying media or Software. If Primus is unable to correct the noncompliance within sixty (60) days of receipt of such written notice from Distributor then, except as otherwise specified in Schedule 5, Primus shall, as Distributor's sole remedy, (i), with respect to non- non-compliant Initial Software, promptly refund all of the Software license fees paid by Distributor for such Software and terminate the Distribution Term with respect to the non-compliant Software, and (ii), with respect to non-compliant New Software, promptly refund all of the most recent annual support and maintenance fees paid by Distributor to Primus and attributable to the development of such New Software, in each case (i) and (ii) in full and final satisfaction of all and any of Distributor's claims arising out of media or Software failure.