Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by the Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under the Agreement; or
(c) If neither (a) nor (b) are commercially reasonable, terminate the Agreement with respect to all or part of the Services and Provider Materials, require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, and Provider shall provide a refund to Customer of any pre-paid Fees for Services that Provider has not performed as of the effective date of termination.