Common use of New Circumstances Clause in Contracts

New Circumstances. (a) The provisions of this Section 6.2.6.4 shall apply in the event that (i) Licensee’s DVD Products are in compliance with the criteria set forth in Sections 6.2.6.1, 6.2.6.2, and 6.2.6.5 at the time such DVD Products are designed and at any time thereafter (A) new Widely Available Tools or new Specialized Tools (as defined in Section 6.2.5.2(a)(i)) come into the market, such that if such tools had been so available at the time of the design or such DVD Products, such availability would have caused such DVD Products to fail to comply with Sections 6.2.6.1, 6.2.6.2, or 6.2.6.5; and (B) it is reasonable to conclude, based on facts made known to Licensee, that such availability is substantially likely to pose meaningful harm in the commercially foreseeable future to other CSS Licensees or Motion Picture Companies; or (ii) there has been a “New Circumstances” determination as provided in Section 6.2.6.5(b)(iii) or Section 6.2.6.5(c)(iv). The occurrence of the circumstances described in this Section 6.2.6.4(a)(i) or (ii) shall be referred to herein as “New Circumstances.” (b) Upon (1) Licensee having actual notice of New Circumstances, (2) Licensee having actual knowledge of New Circumstances, (3) learned information that should reasonably have led it to believe – based on the information having been learned by individuals in the business unit responsible for Licensee’s design or production of DVD Products – that New Circumstances exist or (4) the occurrence of a determination of New Circumstances by Licensee or the Task Force pursuant to Section 6.2.6.5, Licensee shall promptly redesign or replace its affected DVD Products and, as soon as “reasonably practicable,” incorporate such redesign or replacement into its affected DVD Products, cease manufacturing affected DVD Products, and cease sales of affected DVD Products. A “reasonably practicable” time period shall be determined by taking into account, without regard to the actual resources of Licensee, (A) the substantiality of the actual and potential harm resulting from the New Circumstances, and (B) the technological difficulty of designing an engineering solution, or the feasibility of obtaining a license, to (i) cure the failure arising from the New Circumstances, (ii) redesign or replace the affected DVD Products, and/or (iii) incorporate such redesign or replacement into affected DVD Products. (c) In general, and subject to Section 6.2.6.4(d), (i) such incorporation of the redesign or replacement shall be presumed to require no more than fifteen (15) months after the occurrence of either of the events set out in Sections 6.2.6.4(b)(1) or (2); and (ii) cessation of manufacture and sale of the affected DVD Products shall be presumed to require no more than three (3) additional months after such incorporation of the redesign or replacement; (d) Where Licensee seeks to extend the time periods set out in Section 6.2.6.4(c), Licensee shall have the burden of proof. Where a Motion Picture Company seeks to reduce such time periods, it shall have the burden of proof. (e) Notwithstanding the foregoing, in the event of New Circumstances, nothing in this Section 6.2.6 shall obligate Licensee to redesign or replace any individual units of DVD Products that have been sold or shipped.