Common use of Repair and Replace Clause in Contracts

Repair and Replace. If a SUSE Offering is held to infringe and its use is prohibited or if, in SUSE’s reasonable opinion, is likely to become the subject of an infringement claim, You will permit SUSE, at SUSE’s option and expense, to (a) procure for you the right to continue to use the SUSE Offering, or (b) replace or modify it so that it becomes non-infringing and has the same or additional functionality and comparable or improved performance characteristics, provided that if the measures at (a) and/or (b) are not available on a basis that SUSE finds commercially reasonable, SUSE may terminate the applicable SUSE Offering without further liability under this Agreement and, upon Your discontinued use or return of the infringing SUSE Offering, refund to You the amount paid for the unused portion of the term of the SUSE Offering as of the effective date of said termination.