Common use of Claimed Infringement Clause in Contracts

Claimed Infringement. (a) In the event that a Valid Claim included in the Patent Rights is finally held to be invalid by a court of competent jurisdiction from which appeal can no longer be taken, Licensee shall thereafter be permanently relieved, to the extent of such holding of invalidity, from any further obligation to pay accrued unpaid royalties under this Agreement, unless the Product is covered by another Valid Claim within the Patent Rights licensed hereunder which have not been held to be invalid or limited in scope as provided above. (b) Licensor makes no warranty, and hereby expressly disclaims nay warranty, that the Product, the Patent Rights, the Licensed Technology, the Licensee, its Sublicensees, Affiliates, and/or successors or assigns are free from infringement of any intellectual property rights of others. Licensor shall not be obligated to assist or defend the Licensee, its Sublicensees, Affiliates, successors or assigns in any action alleging infringement of such intellectual property rights of others. Licensor shall not be liable to Licensee, its Sublicensees, Affiliates, successors or assigns for or on account of any damages which may be assessed in any such infringement action, or any expenses or costs incurred in connection therewith. Nothing in this Agreement shall be construed as: (i) a warranty as to validity of any Patent Rights; (ii) a warranty that the Product, Patent Rights, and/or Licensed Technology are not covered in whole or in party by patents or other intellectual property rights held by third-parties; (iii) an obligation of Licensor to initiate or prosecute any infringement suits with respect to any Product, Patent Rights and/or Licensed Technology; (iv) an obligation of Licensor to furnish any technical assistance to Licensee, its Sublicensees or Affiliates; or (v) a grant of any rights under patents of Licensor or its Affiliates other than the Patent Rights. Except as expressly set forth in this Agreement, Licensor makes no representations and extends no warranties of any kind with respect to the Product, Patent Rights and/or Licensed Technology or to the use, sale, or other disposition by Licensee, its Sublicensees and/or Affiliates. (c) Notwithstanding the provisions of Section 5.3(b), Licensor agrees that in the event that the Product becomes subject to royalty payments or licensing fees to a third party as a result of a court order or negotiated settlement agreement arising out of a third party intellectual property claim against the Product, subsequent royalty payments to Licensor under this agreement shall be reduced by 50% of the third party royalty payments or licensing fees. (d) In the event that the Product is finally held by a court of competent jurisdiction to infringe on any United States or foreign patent, copyright, trade secret or other intellectual property right of any third party, Licensor shall in its sole discretion and option, either (i) release Licensee from any further obligation to pay accrued or future owing royalties under this Agreement, or (ii) secure for Licensee the right to continue using the Product, or (iii) replace or modify the Product to be non-infringement without material impairment of existing function. (e) The provisions of Section 5.3(c) notwithstanding, Licensor shall not have any liability or obligation under Section 5.3(c) to the extent that any infringement or claim results from (i) the use of the Product, Patent Rights or Licensed Technology in combination with some other product or pharmaceutical formulation not supplied by Licensor where the Product, Patent Rights or Licensed Technology itself would not be infringing; or (ii) modifications of the Product, Patent Rights or Licensed Technology where the Patent Rights or Licensed Technology, if not modified by or for Licensee, would not be infringing.

Claimed Infringement. (a) In the event that a Valid Claim included in any action, suit or proceeding is brought against Scriptgen, Monsanto or any Secondary Affiliate, licensee or Sublicensee of Scriptgen or Monsanto, alleging the Patent Rights is finally held to be invalid by a court of competent jurisdiction from which appeal can no longer be taken, Licensee shall thereafter be permanently relieved, to the extent of such holding of invalidity, from any further obligation to pay accrued unpaid royalties under this Agreement, unless the Product is covered by another Valid Claim within the Patent Rights licensed hereunder which have not been held to be invalid or limited in scope as provided above. (b) Licensor makes no warranty, and hereby expressly disclaims nay warranty, that the Product, the Patent Rights, the Licensed Technology, the Licensee, its Sublicensees, Affiliates, and/or successors or assigns are free from infringement of any the intellectual property rights of others. Licensor shall not be obligated to assist a third party by reason of the discovery, development, manufacture, use, sale, importation or defend the Licensee, offer for sale of a Development Compound or a Royalty Bearing Product by Monsanto or its Secondary Affiliates or its or their licensees or Sublicensees, AffiliatesMonsanto will have the obligation to defend itself and its Secondary Affiliates and Scriptgen and its Secondary Affiliates and the licensees and Sublicensees of Scriptgen and Monsanto, successors in such action, suit or assigns in any action alleging infringement of such intellectual property rights of othersproceeding at Monsanto's expense. Licensor Scriptgen shall not be liable have the right to Licensee, separate counsel at its Sublicensees, Affiliates, successors or assigns for or on account of any damages which may be assessed own expense in any such infringement action, action or any expenses or costs proceeding and Monsanto will reimburse Scriptgen for all reasonable expenditures incurred in connection therewith. Nothing In the event that any action, suit or proceeding is brought against Scriptgen, Monsanto or any Secondary Affiliate, licensee or Sublicensee of Scriptgen or Monsanto, alleging the infringement of the intellectual property rights of a third party by reason of the discovery, development, manufacture, use, sale, importation or offer for sale of a Development Compound or a Royalty Bearing Product by Scriptgen or its Secondary Affiliates or its or their licensees or Sublicensees, Scriptgen will have the obligation to defend itself and its Secondary Affiliates and Monsanto and its Secondary Affiliates and the licensees and Sublicensees of Scriptgen and Monsanto, in such action, suit or proceeding at Scriptgen's expense. Monsanto shall have the right to separate counsel at its own expense in any such action or proceeding and Scriptgen will reimburse Monsanto for all reasonable expenditures incurred in connection therewith. Notwithstanding any other provision of this Agreement Agreement, in the event that a third party shall be construed as: bring (i) a warranty as to validity any action, suit or proceeding against Monsanto or any Secondary Affiliate, licensee or Sublicensee of any Patent Rights; Monsanto and (ii) a warranty that any action, suit or proceeding against Scriptgen or any Secondary Affiliate, licensee or Sublicensee of Scriptgen, both of which actions, suits or proceedings arise from or relate to the Productsame facts or circumstances, Patent RightsMonsanto and Scriptgen shall each have the sole and exclusive right, and/or Licensed Technology are not covered in whole at their own expense, to select counsel to represent it or in party by patents its Secondary Affiliate, licensee or other intellectual property rights held by third-parties; (iii) an obligation of Licensor to initiate or prosecute any infringement suits Sublicensee with respect to any Productsuch action, Patent Rights and/or Licensed Technology; (iv) an obligation suit or proceeding. Expenses, costs and damages imposed on Monsanto or Scriptgen in such action, suit or proceeding shall be shared by Monsanto and Scriptgen based on the relative fault of Licensor to furnish any technical assistance to Licenseeeach party as determined at the final outcome of such suit, its Sublicensees action or Affiliates; or (v) a grant proceeding. The Parties will cooperate with each other in the defense of any rights under patents such suit, action or proceeding. The Parties will give each other prompt written notice of Licensor or its Affiliates other than the Patent Rights. Except as expressly set forth in this Agreement, Licensor makes no representations and extends no warranties commencement of any kind with respect such suit, action or proceeding or claim or infringement and will furnish each other a copy of each communication relating to the Productalleged infringement, Patent Rights and/or Licensed Technology or but the failure to do so shall not affect the use, sale, or other disposition by Licensee, its Sublicensees and/or Affiliates. (c) Notwithstanding the provisions of Section 5.3(b), Licensor agrees that in the event that the Product becomes subject to royalty payments or licensing fees to a third party as a result of a court order or negotiated settlement agreement arising out of a third party intellectual property claim against the Product, subsequent royalty payments to Licensor Parties obligations under this agreement shall be reduced by 50% of the third party royalty payments or licensing fees. (d) In the event that the Product is finally held by a court of competent jurisdiction to infringe on any United States or foreign patent, copyright, trade secret or other intellectual property right of any third party, Licensor shall in its sole discretion Section and option, either (i) release Licensee from any further obligation to pay accrued or future owing royalties under this Agreement, or (ii) secure for Licensee the right to continue using the Product, or (iii) replace or modify the Product to be non-infringement without material impairment of existing function. (e) The provisions of Section 5.3(c) notwithstanding, Licensor shall not have any liability or obligation under Section 5.3(c) 9 except to the extent that a Party is actually damaged thereby. Neither shall not compromise, litigate, settle or otherwise dispose of any infringement such suit, action or claim results from (i) proceeding which involves the use of the Product, Patent Rights or Licensed Technology in combination with some other product or pharmaceutical formulation not supplied by Licensor where the Product, Patent Rights or Licensed Technology itself would not be infringing; or (ii) modifications patent rights of the Productother Party without that Other Party's advice and prior written consent, Patent Rights or Licensed Technology where the Patent Rights or Licensed Technology, if provided that such other Party shall not modified by or for Licensee, would unreasonably withhold its consent to any settlement which will provide an unconditional release of that other Party and which does not be infringinghave a material adverse effect on that other Party's business.