Injunction Mitigation Clause Samples

Injunction Mitigation. In addition to Benchmark’s indemnity obligation to Customer, if use of the Product is enjoined based on a claim of Intellectual Property Infringement solely due to Benchmark’s manufacturing processes or Benchmark Pre-Existing IP, Benchmark will, at its sole expense and option and as Customer’s sole and exclusive remedy for such injunctions: (i) procure the right for Customer Indemnitees to continue using the Product; (ii) replace the Product with a non-infringing product of substantially similar function and performance; (iii) modify the Product to be non-infringing; or (iv) refund to Customer a pro rata amount for any payments made by Customer for the affected Product. In the event Benchmark is unable, despite its best efforts, to avail itself of the options set forth in (i), (ii) or (iii), Benchmark shall have the right, in furtherance of its obligation to mitigate and/or prevent further damages, to suspend manufacturing and its performance hereunder, solely as it relates to the item, Component and/or Product which is the subject of the Claim until such Claim is settled or otherwise resolved.

Injunction Mitigation. In addition to Manufacturer’s indemnity obligation to Butterfly, if use of the Product is enjoined based on a claim of Intellectual Property Infringement solely due to Manufacturer’s manufacturing processes or Manufacturer Pre-Existing IP, Manufacturer will, at its sole expense and option and as Butterfly’s sole and exclusive remedy for such injunctions: (i) procure the right for Butterfly Indemnitees to continue using the Product; (ii) replace the Product with a non-infringing product of substantially similar function and performance; (iii) modify the Product to be non-infringing; or (iv) refund to Butterfly a pro rata amount for any payments made by Butterfly for the affected Product. In the event Manufacturer is unable, despite its best efforts, to avail itself of the options set forth in Section 14.3(a)(i), (ii) or (iii), Manufacturer shall have the right, in furtherance of its obligation to mitigate and/or prevent further damages and subject to receiving written advice from counsel of same (a copy of which shall be provided to Butterfly), to suspend manufacturing and its performance hereunder, solely as it relates to the item, Component and/or Product which is the subject of the Claim until such Claim is settled or otherwise resolved.