Common use of Declaratory Judgment Clause in Contracts

Declaratory Judgment. If a declaratory judgment action is brought as an independent action naming Licensee and/or any of its Affiliates or Sublicensees as a defendant and alleging invalidity or unenforceability of any claims within the Licensed Patent Rights (except Joint Patent Rights), Licensee shall promptly notify Licensors in writing and Harvard and/or DFCI, as relevant based on ownership of the subject Licensed Patent Rights, may elect, upon written notice to Licensee within [**] days after Licensors receive notice of the commencement of such action, to take over the sole defense of the invalidity or unenforceability aspect of the action at its/their own expense. If neither Harvard nor DFCI elect to take over the action, Licensee (and/or any of its Affiliates or Sublicensees, as applicable) shall have the right to control such action in its entirety at its own expense, in which case it shall keep Harvard and/or DFCI, as relevant, reasonably informed of the progress of the action and shall give Harvard and/or DFCI, as relevant, a reasonable opportunity in advance to consult and offer its/their views about major decisions affecting such defense, which views Licensee (and/or any of its Affiliates or Sublicensees, as applicable) shall consider in good faith. Licensee may elect to retain sole responsibility for defense of the invalidity and/or unenforceability aspect of any action alleging invalidity or unenforceability with respect to Joint Patent Rights at its own expense. No party responsible for handling the defense of a declaratory judgment action as specified in this Section 8.7 shall compromise or settle such litigation in any manner that purports to limit the scope or validity of any Licensed Patent Rights without the prior written consent of the owner(s) of such Licensed Patent Rights, which consent shall not be unreasonably withheld or delayed.

Declaratory Judgment. If a declaratory judgment action is brought as an independent action naming Licensee Harvard, Licensee, any Sublicensee and/or any of its their Affiliates or Sublicensees as a defendant and alleging invalidity or unenforceability of any claims within the Licensed Patent Rights (except Joint Patent Rights), Licensee the named party shall promptly notify Licensors the other party in writing and Harvard and/or DFCI, as relevant based on ownership of the subject Licensed Patent Rights, Licensee may elect, upon written notice to Licensee Harvard within [***] days after Licensors receive Licensee receives notice of the commencement of such action, to take over the sole defense of the invalidity or and/or unenforceability aspect of the action at its/their its own expense. If neither Harvard nor DFCI elect Licensee elects to take over the actionsole defense of the invalidity and/or unenforceability aspect of the action and thereafter Licensee fails to defend in good faith the validity and/or enforceability of the Patent Rights in the action or Licensee’s license to a Valid Claim in the suit terminates, Licensee (and/or any then Harvard may elect to take control of its Affiliates the action with respect to the Patent Rights or Sublicenseessuch Valid Claim, as applicable) shall have . The party controlling the right defense of a declaratory judgment action pursuant to control such action in its entirety at its own expense, in which case it this Section 7.6 shall keep Harvard and/or DFCI, as relevant, the other party reasonably informed of the progress of the action and shall give Harvard and/or DFCI, as relevant, the other party a reasonable opportunity in advance to consult with the controlling party and offer its/their such other party’s views about major decisions affecting such defensethe litigation. The controlling party shall give careful consideration to those views, which views Licensee (and/or any of its Affiliates or Sublicenseesbut shall have the right to control the action. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, as applicable) shall consider in good faith. Licensee may elect to retain sole responsibility for defense of the invalidity and/or unenforceability aspect of any action alleging invalidity or unenforceability with respect to Joint Patent Rights at its own expense. No party responsible for handling the defense of a declaratory judgment action as specified in this Section 8.7 shall compromise or settle such litigation in any manner that purports to limit the scope or validity of any Licensed Patent Rights without the prior written consent of the owner(s) of such Licensed Patent Rights, which consent shall not be unreasonably withheld or delayedAS AMENDED.