Common use of Performance Remedy Clause in Contracts

Performance Remedy. If any Software fails to comply with the warranties ------------------ set forth in Sections 6.1.1 and 6.1.2 and Licensee provides written notice of the non-compliance to Distributor within the warranty period, then Distributor will either repair or, at its option, replace any non-complying media or Software. If Distributor is unable to correct the noncompliance within sixty (60) days of receipt of such written notice from Licensee, Distributor shall (i), with respect to non-compliant Initial Software, promptly refund all of the License fees paid for such Software, and (ii), with respect to non-compliant New Software, promptly refund all of the most recent annual Support and Maintenance Agreement fee attributable to the development of New Software, together with a pro-rated amount of the annual fee reflecting the unused portion of the annual term, in each case (i) and (ii) in full and final satisfaction of all and any of Licensee's claims arising out of media or Software failure, and immediately terminate the License or Support and Maintenance Agreement, as the case may be.