Common use of Defense and Settlement of Third Party Claims Clause in Contracts

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark or other intellectual properties owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark or other intellectual properties owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status 31. *** - indicates material omitted pursuant to a Confidential Treatment Request and filed separately with the Securities and Exchange Commission. of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark or other intellectual properties owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party. *** - indicates material omitted pursuant to a Confidential Treatment Request and filed separately with the Securities and Exchange Commission.

Defense and Settlement of Third Party Claims. (a) 14.4.1 If a Third Party asserts that a patent, trademark or other intellectual properties IP Right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrierany Licensed Compound or Licensed Product by Angiotec, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier Licensed Compounds or the Back-Up Carrier Licensed Products infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis Angiotech will have the first sole right, but not the obligation, to defend against any control such claim defense at its own expense. If Novartis Angiotech does not assume control of such defense, then Emisphere will CombinatoRx shall have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s 's reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. (a) 7.4.1 If a Third Party asserts that a patent, trademark or other intellectual properties IP Protection Right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrierany Licensed Combinations, the Commercial Carrier or Licensed Products, or the Back-Up Carrier Collaboration Combination, or Collaboration Products, or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead CarrierLicensed Combinations, the Commercial Carrier or Licensed Products, or the Back-Up Carrier Collaboration Combination, or Collaboration Products infringes or otherwise violates the intellectual property rights of any Third Party, then such Party (hereinafter the “Defending Party”) will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will The Defending Party shall have the first sole right, but not the obligation, to defend against any such claim at its own expense. If Novartis control defense of actions; and if the Defending Party does not assume control of such defense, then Emisphere will the other Party shall have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark patent right or other intellectual properties right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of importation [*] by a Party (the Lead Carrier“Defending Party”), the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third Party, then such Defending Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will shall have the first right, but not the obligation, sole right to defend against any such claim assertions at its own expensesole cost. If Novartis does not assume control such Third Party asserts that a patent right or other right owned by it is infringed by the manufacture, use, sale or importation [*] by both of such defensethe Parties, then Emisphere will the Parties shall meet and confer, and both Parties shall have the sole right to control defend against any such defense assertions with respect to its activities at its own expensetheir respective sole cost. In any event, The other Party shall assist the Defending Party not controlling such defense will have the right to be represented and cooperate in any such action litigation at the Defending Party’s request, and the Defending Party shall reimburse such other Party any reasonable, documented, out-of-pocket costs incurred in connection therewith. Subject to such control, the other Party may join any defense and settlement pursuant to this Section 10.4 (Defense and Settlement of Third Party Claims), with its own counsel at its own expensesole cost. The Regardless of which Party controlling is the Defending Party (or if both Parties are a Defending Party), the Defending Party shall seek and reasonably consider the other Party’s comments before determining the strategy for such defense matter. Without limiting the foregoing, the Defending Party shall keep the other Party advised of the status of all material communications, actual and prospective filings or submissions regarding such action action, and shall consider recommendations made by provide the other Party in respect theretocopies of and an opportunity to review and comment on any such communications, filings and submissions. [*] The Defending Party shall not controlling such defense will assist and cooperate settle or consent to the entry of any judgment in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such enforcement action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action hereunder without the prior written consent of the other Party’s prior written consent, not to be unreasonably withheld or delayed. Each Party shall keep the other reasonably informed of all claims and actions governed by this Section 10.4 (Defense and Settlement of Third Party Claims).

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark or other intellectual properties owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any Third Party, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be *** solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis *** will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis *** does not assume control of such defense, then Emisphere *** will have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. (a) If a Third Party asserts that a patent, trademark Patent or other intellectual properties right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportationsale, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights importation of any Third PartyProduct, then such Party will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will Astellas shall have the first primary right, but not the obligation, to defend against any such claim assertions. In the event Astellas elects to defend against any such Third Party claims in accordance with this Section 10.5, Astellas shall have the sole right to control the defense of any such Third Party claims and to elect to settle such claims, provided that it shall consult with and keep Maxygen reasonably informed with respect thereto. Maxygen may join any defense brought by Astellas pursuant to this Section 10.5, with its own counsel at its own expense. If Novartis does , or in the event that Astellas elects not assume control of to exercise its right to defend against any such defenseThird Party claims, then Emisphere will Maxygen shall have the right right, but not the obligation, to control defend against such defense Third Party claims with its own counsel at its own expense. In any event, the each Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep assist the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending other Party’s reasonable request. If the Party controlling such defense is not the Party against whom such action was originally brought, then the Party controlling such defense will not agree request without expense to the settlement requesting Party. Neither Party shall settle or consent to the entry of any judgment in any such action without the prior written consent of case that would adversely affect the other Party’s rights hereunder without the other Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed. Astellas may include Damages under this Section 10.5 as Third Party Payments under Section 5.16 of the Financial Exhibit, provided however that such Damages are only included as Third Party Payments under Section 2.1.3(a) of the Financial Exhibit to the extent such Damages are attributable to patent infringement excluding any increase due to willful patent infringement. For purposes of this Agreement, “Damages” shall mean damages and other liabilities that are required to be paid to such Third Party, in restitution of or payment for the infringement, as part of any final judgment awarded against such Party and any amounts paid by such Party (with the other Party’s prior written consent) in a settlement of the assertion (if additional claims have been asserted by such Third Party, then to the extent allocable to settlement of the applicable infringement claims).

Defense and Settlement of Third Party Claims. (a) 7.4.1 If a Third Party asserts that a patent, trademark or other intellectual properties IP Protection Right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrierany Licensed Combinations, the Commercial Carrier or the Back-Up Carrier Licensed Products, or Collaboration Combinations, or Collaboration Products, or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead CarrierLicensed Combinations, the Commercial Carrier or the Back-Up Carrier Licensed Products, or Collaboration Combinations, or Collaboration Products infringes or otherwise violates the intellectual property rights of any Third Party, then such Party (hereinafter the “Defending Party”) will promptly notify the other Party in writing. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will The Defending Party shall have the first sole right, but not the obligation, to defend against any such claim at its own expense. If Novartis control defense of actions; and if the Defending Party does not assume control of such defense, then Emisphere will the other Party shall have the right to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the Party controlling such defense is not the Party against whom such 10508642_1 CONFIDENTIAL action was originally brought, then the Party controlling such defense will not agree to the settlement of any such action without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. (a) If From and after the Effective Date, if a Third Party asserts that a patent, trademark Patent Right or other intellectual properties right owned by it is infringed by the importation, manufacture, use or sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party learns of a claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier infringes or otherwise violates the intellectual property rights Exploitation of any Third Party, then such Licensed Compound or Licensed Product in the Field in the Territory. Each Party will promptly notify give the other Party prompt written notice of any allegation by any Third Party that a Patent Right or other right owned by it is infringed by the Exploitation of any Licensed Compound or Licensed Product in writingthe Territory and then the Parties shall confer. Novartis has the right, if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis FibroGen will have the first right, but not the obligation, to defend against any such claim assertions at FibroGen’s sole cost or elect to settle such claims (except as set forth below). FibroGen will promptly inform HFB if it elects not to exercise its own expense. If Novartis does not assume control first right under this Section 9.4 (Defense and Settlement of Third Party Claims) to defend against such defenseassertion and, then Emisphere following discussion with FibroGen, [*], HFB will have the right second right, but not the obligation, to control such defense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in defend against any such action assertions at its own expenseHFB’s sole cost. The Party controlling such defense shall keep the other Party advised and any of the status of such action and shall consider recommendations made by the other Party in respect thereto. The Party not controlling such defense its Affiliates will assist the defending Party and cooperate in any such infringement litigation at the defending Party’s reasonable request. If the The other Party controlling such may join any defense is not the pursuant to this Section 9.4 (Defense and Settlement of Third Party against whom such action was originally broughtClaims), then the with its own counsel, [*]. The defending Party controlling such defense will not agree or any of its Affiliates may settle or consent to the settlement entry of any judgment in any enforcement action hereunder without the other Party’s prior consent; provided, however, that any such action settlement or consent judgment will not, without the prior written consent of the other PartyParty (such consent not to be unreasonably withheld, conditioned or delayed), impose any liability or obligation on the other Party or any of its Affiliates.