OR SERVICES; OR (II) MODIFY OR REPLACE THE LICENSED PRODUCT OR
SERVICES OR INFRINGING PORTIONS THEREOF TO BECOME NON-INFRINGING. IF NEITHER (I)
NOR (II) IS AVAILABLE OR COMMERCIALLY FEASIBLE, CYBERARTS SHALL HAVE THE RIGHT
TO TERMINATE WPT'S RIGHT TO USE THE AFFECTED PORTION OF THE LICENSED PRODUCT OR
SERVICES AND WPT SHALL BE ENTITLED TO RECOVER THE FEES PAID BY WPT FOR THAT
PORTION OF THE LICENSED PRODUCT OR SERVICES, AS APPLICABLE, PRORATED OVER A
THREE YEAR PERIOD FROM THE EFFECTIVE DATE.
C)
EXCLUSION. NOTWITHSTANDING THE FOREGOING, CYBERARTS SHALL HAVE NO
OBLIGATION TO INDEMNIFY WPT UNDER THIS SECTION 9.1 TO THE EXTENT ANY CLAIM OF
INTELLECTUAL PROPERTY INFRINGEMENT IS BASED UPON OR ARISING OUT OF (I) ANY
MODIFICATION OR ALTERATION TO THE LICENSED PRODUCT OR SERVICES MADE BY WPT, IN
THE EVENT SUCH INFRINGEMENT WOULD HAVE BEEN AVOIDED BUT FOR SUCH MODIFICATION OR
ALTERATION, (II) WPT'S CONTINUANCE OF ALLEGEDLY INFRINGING ACTIVITY AFTER BEING
NOTIFIED BY CYBERARTS IN WRITING TO STOP USING THE LICENSED PRODUCT OR USING
CORRECTIONS OR ENHANCEMENTS MADE AVAILABLE BY CYBERARTS, (III) USE OF THE
LICENSED PRODUCT OR SERVICES MATERIALLY NOT IN ACCORDANCE WITH THE DOCUMENTATION
AND ANY OTHER APPLICABLE END USER DOCUMENTATION OR OUTSIDE THE SCOPE OF THE
LICENSE GRANTED UNDER THIS AGREEMENT, AND/OR (IV) THIRD PARTY SOFTWARE.
9.2
SOLE REMEDY. THE FOREGOING REMEDIES CONSTITUTE WPT'S SOLE AND EXCLUSIVE
REMEDIES, AND CYBERARTS' ENTIRE LIABILITY, WITH RESPECT TO INTELLECTUAL PROPERTY
INFRINGEMENT.
10.
TERM AND TERMINATION.
10.1
TERM. THIS AGREEMENT SHALL COMMENCE AS OF THE EFFECTIVE DATE AND THE USE
OF THE LICENSED PRODUCT SHALL CONTINUE PERPETUALLY, UNLESS SOONER TERMINATED
PURSUANT TO SECTION 10.2. THE SUPPORT AND MAINTENANCE SERVICES SHALL CONTINUE AS
LONG AS THEY HAVE BEEN RENEWED IN ACCORDANCE WITH SECTION 4.1.
10.2
TERMINATION. THIS AGREEMENT MAY BE TERMINATED AS FOLLOWS:
A)
BY EITHER CYBERARTS OR WPT UPON THIRTY (30) DAYS PRIOR NOTICE FOR ANY
MATERIAL DEFAULT OR BREACH OF ANY OF THE MATERIAL TERMS AND CONDITIONS OF THIS
AGREEMENT BY THE OTHER PARTY, UNLESS THE DEFAULTING PARTY HAS CURED SUCH FAILURE
OR DEFAULT WITHIN SUCH 30-DAY PERIOD OR
B)
BY EITHER PARTY IMMEDIATELY UPON NOTICE, IF (I) THE OTHER PARTY IS
SUBJECT TO A BANKRUPTCY PROCEEDING, WHETHER VOLUNTARY OR INVOLUNTARY, WHICH IS
NOT DISMISSED WITHIN SIXTY (60) DAYS OR MAKES AN ASSIGNMENT FOR THE BENEFIT OF
CREDITORS, OR IF A RECEIVER, LIQUIDATION, ADMINISTRATOR OR TRUSTEE IS APPOINTED
FOR SUCH PARTY'S AFFAIRS IS INITIATED AND NOT DISMISSED WITHIN SIXTY (60) DAYS
OR (II) THE OTHER PARTY IS DISSOLVED.
C)
BY WPT OR ACQUIRING PARTY (AS DEFINED HEREIN), WHERE A PARTY ACQUIRES WPT
THROUGH A MERGER, REORGANIZATION, OR SALE OF SUBSTANTIALLY ALL OF THE BUSINESS
OR EQUITY INTERESTS WPT (THE "ACQUIRING PARTY") WITHIN SIXTY (60) DAYS AFTER
EXECUTION OF THIS AGREEMENT.
10.3
EFFECT OF TERMINATION.
10.3.1 UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, THE PROVISIONS OF
SECTIONS 5 -9, 10.3, AND 11 SHALL SURVIVE.
10.3.2
If termination occurs after WPT has paid the Source
Trigger Payment, there is an occurrence of a Source Code Grant, a Release
Condition,