Common use of Allegations of Infringement by Third Parties Clause in Contracts

Allegations of Infringement by Third Parties. In the event that Alexion or XOMA receives notice that the use, development, manufacture, sale, import or export of a Product, or any other action by either of them under this Agreement, during the Term of this Agreement is alleged to be a violation of the patent or other intellectual property rights of a Third Party, it shall immediately notify the other Party. The JMC shall promptly determine an appropriate response and course of action. Alexion will (unless such allegations relate only to a particular Product in a particular Future Indication as to which Alexion has Opted Out and not Opted Back In) have the right to control any defense, using counsel selected by it with the consent of XOMA (which consent shall not be unreasonably withheld). The Party controlling such action, as provided in this Section 9.4, shall consult with the other Party, and give due consideration to any concerns the other Party may raise, with respect to all significant matters relating to such action. The costs thereof (including any damages, costs or expenses resulting from any action) shall be shared 70 (Alexion)/30 (XOMA) between the Parties (unless such allegations relate only to a particular Product in a particular Future Indication as to which one Party has Opted Out and not Opted Back In, in which case all such costs shall be borne by the other Party). Any recovery obtained as a result of infringement actions governed by this Section 9.4 shall be treated as provided in Section 9.3(g), and the Parties shall be entitled to abandon their efforts hereunder in the same manner as provided in Section 9.3(h).