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

Defense and Settlement of Third Party Claims. From the Effective Date and until Servier’s exercise of its Option to License for a given Pre-Candidate Product or Candidate Product, if a Third Party asserts (including any assertion that arises from activities occurring after the 2014 Agreement Date and before the Effective Date) that a patent right or other right owned by it is infringed by the manufacture, use, sale or importation of the given Pre-Candidate Product or Candidate Product in the Territory by Cellectis, Cellectis shall have the sole right to defend against any such assertions at its sole cost and shall immediately inform Servier of such assertion. After Servier has exercised its Option to License for a given Product, if a Third Party asserts that a patent right or other right owned by it is infringed by the manufacture, use, sale or importation of the given Product in the Territory by Servier, Servier shall have the sole right to defend against any such assertions at its sole cost. Cellectis shall reasonably assist Servier and cooperate in any such litigation at Servier’s request, and Servier shall reimburse Cellectis any reasonable, documented, out-of-pocket costs incurred in connection therewith. Subject to such control, Cellectis may join any defense and settlement pursuant to this Section 7.4 (Defense and Settlement of Third Party Claims), with its own counsel at its sole cost. Servier shall seek and reasonably consider Cellectis’ comments before determining the strategy for such matter. Without limiting the foregoing, Servier shall keep Cellectis advised of all material communications, actual and prospective filings or submissions regarding such action, and shall provide Cellectis copies of and an opportunity to review and comment on any such communications, filings and submissions. Servier shall not settle or consent to the entry of any judgment in any such action without Cellectis’s prior written consent, not to be unreasonably withheld or delayed. Servier shall keep Cellectis fully informed of all claims and actions governed by this Section 7.4 (Defense and Settlement of Third Party Claims). In the event Servier becomes engaged in: (i) settlement discussions with a Third Party that has specifically asserted that a patent right of such Third Party would be infringed by the use, sale or importation of the Pre-Candidate Product or Candidate Product or Product; (ii) settlement discussions of an interference involving a patent corresponding to a Cellectis Patent; Servier shall keep Cellectis reasonably informed of the status of such discussions; and (b) Servier shall consider in good faith any comments or suggestions of Cellectis.

Defense and Settlement of Third Party Claims. From the Effective Date and until Servier’s exercise of its Option to License for a given Pre-Candidate Product or Candidate Product, if a Third Party asserts (including any assertion that arises from activities occurring after the 2014 Agreement Date and before the Effective Date) that a patent right or other right owned by it is infringed by the manufacture, use, sale or importation of the given Pre-Candidate Product or Candidate Product in the Territory by Cellectis, Cellectis shall have the sole right to defend against any such assertions at its sole cost and shall immediately inform Servier of such assertion. After Servier has exercised its Option to License for a given Product, if a Third Party asserts that a patent right or other right owned by it is infringed by the manufacture, use, sale or importation of the given Product in the Territory by Servier, Servier shall have the sole right to defend against any such assertions at its sole cost. Cellectis shall reasonably assist Servier and cooperate in any such litigation at Servier’s request, and Servier shall reimburse Cellectis any reasonable, documented, out-of-pocket costs incurred in connection therewith. Subject to such control, Cellectis may join any defense and settlement pursuant to this Section 7.4 (Defense and Settlement of Third Party Claims), with its own counsel at its sole cost. Servier shall seek and reasonably consider Cellectis’ comments before determining the strategy for such matter. Without limiting the foregoing, Servier shall keep Cellectis advised of all material communications, actual and prospective filings or submissions regarding such action, and shall provide Cellectis copies of and an opportunity to review and comment on any such communications, filings and submissions. Servier shall not settle or consent to the entry of any judgment in any such action without Cellectis’s prior written consent, not to be unreasonably withheld or delayed. Servier shall keep Cellectis fully informed of all claims and actions governed by this Section 7.4 (Defense and Settlement of Third Party Claims). In the event Servier becomes engaged in: (i) settlement discussions with a Third Party that has specifically asserted that a patent right of such Third Party would be infringed by the use, sale or importation of the Pre-Candidate Product or Candidate Product or Product; (ii) settlement discussions of an interference involving a patent corresponding to a Cellectis Patent; Servier shall keep Cellectis reasonably informed of the status of such discussions; and (b) Servier shall consider in good faith any comments or suggestions of Cellectis.

Defense and Settlement of Third Party Claims. From the Effective Date and until Servier’s exercise of its Option to License for If a given Pre-Candidate Product or Candidate Product, if Party becomes aware that a Third Party asserts (including any assertion that arises from activities occurring after the 2014 Agreement Date and before the Effective Date) is asserting that a patent right or other intangible right owned by it is infringed by the manufacture, use, sale or importation of the given Pre-Candidate Product or Candidate Product in the Territory by CellectisField in the Territory, Cellectis such Party shall have promptly notify the sole right to other Party in writing setting forth the facts of such claim in reasonable detail. Except as set forth in this Section 10.8, Schering shall defend against any such assertions or any action relating thereto at its sole cost and expense. In such event, Licensee shall immediately inform Servier of render such assertion. After Servier has exercised its Option to License for a given Product, if a Third Party asserts that a patent right or other right owned by it is infringed by the manufacture, use, sale or importation of the given Product in the Territory by Servier, Servier shall have the sole right to defend against any such assertions at its sole cost. Cellectis shall assistance as may reasonably assist Servier and cooperate in any such litigation at Servier’s request, and Servier shall reimburse Cellectis any reasonable, documented, out-of-pocket costs incurred be requested in connection therewith. Subject to such control, Cellectis may join any defense and settlement pursuant to this Section 7.4 (Defense and Settlement of Third Party Claims), with its own counsel at its sole cost. Servier shall seek and reasonably consider Cellectis’ comments before determining the strategy for such matter. Without limiting the foregoing, Servier shall keep Cellectis advised of all material communications, actual and prospective filings or submissions regarding such action, and shall provide Cellectis copies of and an opportunity to review and comment on any such communications, filings and submissions. Servier shall not settle or consent to the entry of any judgment in any such action taken by Schering. Schering shall not be required to defend such action if Schering determines in good faith that it would not be commercially reasonable to do so, considering the overall spirit and intent of this Agreement. No settlement which would negatively impact the rights of Licensee under this Agreement may be entered into without Cellectis’s prior the written consentconsent of Licensee, which shall not to be unreasonably withheld or delayed. Servier The costs of any such settlement (including, without limitation, damages, expense reimbursements, compliance, future royalties or other amounts) shall keep Cellectis fully informed of all claims and actions governed be paid by this Section 7.4 (Defense and Settlement of [*]. If any Third Party Claims)is successful in any such claim and Licensee is ordered by a valid judicial authority in an unappealable order (or order which Schering determines not to appeal) or otherwise determines to make any payments to such Third Party in connection therewith, such payments shall be offset or deducted from the payment obligations of Licensee under the Agreement. In the event Servier becomes engaged in: (i) settlement discussions that Schering does not defend such action in accordance with this Section 10.8, then, except as set forth in this Section 10.8, Licensee shall initiate or continue a Third Party that has specifically asserted that a patent right of defense at its cost and expense. In such Third Party would event, Schering shall render such assistance as may reasonably be infringed requested in connection with any such action taken by the use, sale or importation of the Pre-Candidate Product or Candidate Product or Product; (ii) settlement discussions of an interference involving a patent corresponding Licensee. Licensee shall not be required to a Cellectis Patent; Servier shall keep Cellectis reasonably informed of the status of defend such discussions; and (b) Servier shall consider action under this Section 10.8 if Licensee determines in good faith that it would not be commercially reasonable to do so, considering the overall spirit and intent of this Agreement. No settlement which would negatively impact the rights of Schering under this Agreement may be entered into without the written consent of Schering, which shall not be unreasonably withheld or delayed. If Licensee so determines not to defend such action, the Parties shall discuss and cooperate with each other to determine an appropriate strategy with respect to such action. However, neither Party shall enter into a settlement of any comments such action that would negatively impact the rights of the other Party under this Agreement without the written consent of such other Party, which shall not be unreasonably withheld or suggestions of Cellectisdelayed.

Defense and Settlement of Third Party Claims. (a) Licensed Compounds and Licensed Products. (i) From and after the Effective Date and until Servier’s exercise of its Option to License for a given Pre-Candidate Product or Candidate ProductDate, if a Third Party asserts (including any assertion that arises from activities occurring after the 2014 Agreement Date and before the Effective Date) that a patent right Patent or other right owned by it is infringed by the manufacture, use, sale Exploitation of any Licensed Compound or importation of the given Pre-Candidate Product or Candidate Licensed Product in the Territory by CellectisField in the Territory, Cellectis Arrys shall have the sole first right to defend against control the defense of any such assertions Third Party claims at its Arrys’s sole cost and expense and to elect to settle such claims (except as set forth below). AskAt shall immediately inform Servier of such assertion. After Servier has exercised its Option to License for a given Product, if a Third Party asserts that a patent right or other right owned by it is infringed by the manufacture, use, sale or importation of the given Product in the Territory by Servier, Servier shall have the sole right to defend against any such assertions at its sole cost. Cellectis shall reasonably assist Servier Arrys and cooperate in any such litigation at ServierArrys’s request, and Servier Arrys shall reimburse Cellectis AskAt any reasonable, documented, documented out-of-pocket costs incurred in connection therewith. Subject to such control, Cellectis AskAt may join any defense and settlement pursuant to this Section 7.4 (Defense and Settlement of Third Party Claims)6.3, with its own counsel counsel, at its sole costcost and expense. Servier shall seek and reasonably consider Cellectis’ comments before determining the strategy for such matter. Without limiting the foregoing, Servier shall keep Cellectis advised of all material communications, actual and prospective filings or submissions regarding such action, and shall provide Cellectis copies of and an opportunity to review and comment on any such communications, filings and submissions. Servier Arrys shall not settle or consent to the entry of any judgment in any such enforcement action hereunder without CellectisAskAt’s prior written consent, not to be unreasonably withheld withheld, conditioned or delayed. Servier . (ii) Should Arrys fail to defend against any such assertion within [***] prior to the applicable non-extendable deadline for doing so, AskAt shall keep Cellectis fully informed of all claims have the right to do so, at AskAt’s sole cost and actions governed by expense; provided that AskAt shall not exercise any rights under this Section 7.4 (Defense and Settlement of 6.3 if Arrys determined in its reasonable business judgment that defending against the relevant Third Party Claims)assertion would not be in Arrys’s best interest. In the event Servier becomes engaged inthat AskAt exercises rights under this Section 6.3: (i) settlement discussions with a Third Party that has specifically asserted that a patent right of Arrys shall reasonably assist AskAt and reasonably cooperate in any such Third Party would be infringed by the uselitigation at AskAt’s request, sale or importation of the Preand AskAt shall reimburse Arrys any reasonable, documented out-Candidate Product or Candidate Product or Product; of-pocket costs incurred in connection therewith, (ii) settlement discussions of an interference involving a patent corresponding Arrys may join any such defense brought by AskAt pursuant to a Cellectis Patent; Servier shall keep Cellectis reasonably informed of the status of such discussions; this Section 6.3, with its own counsel, at its sole cost and expense, and (biii) Servier AskAt shall consider not settle any assertions or consent to the entry of any judgment that adversely affects Arrys’s rights in good faith any comments litigation being defended hereunder without Arrys’s prior written consent, not to be unreasonably withheld, conditioned or suggestions of Cellectisdelayed.

Defense and Settlement of Third Party Claims. From the Effective Date On a Program-by-Program basis, from and until Servier’s exercise of its Option to License for a given Pre-Candidate Product or Candidate Productafter [***], if a Third Party asserts (including any assertion that arises from activities occurring after the 2014 Agreement Date and before the Effective Date) that a patent right Patent or other right owned by it is infringed by the manufacture, use, sale Exploitation of any Licensed SNA or importation of the given Pre-Candidate Product or Candidate Licensed Product in the Territory by CellectisTerritory, Cellectis shall Ipsen will have the sole first right to defend against any such assertions at its sole cost and shall immediately inform Servier [***]. Ipsen will have the first right to control the defense of any such assertion. After Servier has exercised its Option to License for a given Product, if a Third Party asserts that a patent right or other right owned by it is infringed by the manufacture, use, sale or importation of the given Product in the Territory by Servier, Servier shall have the sole right claims [***] and to defend against any elect to settle such assertions at its sole costclaims (except as set forth below). Cellectis shall reasonably Exicure will assist Servier Ipsen and cooperate in any such litigation at Servier’s Xxxxx’x request, and Servier shall reimburse Cellectis any reasonable, documented, out-of-pocket costs incurred in connection therewithIpsen will [***]. Subject to such control, Cellectis Exicure may join any defense and settlement pursuant to this Section 7.4 (Defense and Settlement of Third Party Claims)9.3, with its own counsel at its sole costcounsel, [***]. Servier shall seek and reasonably consider Cellectis’ comments before determining Ipsen may settle or consent to the strategy for entry of any judgment in any enforcement action hereunder without Exicure’s prior written consent so long as such mattersettlement or judgment does not impose any liability (financial or otherwise) on, or otherwise [***]. Without limiting the foregoing, Servier shall keep Cellectis advised of all material communications, actual and prospective filings or submissions regarding such action, and shall provide Cellectis copies of and an opportunity Should Ipsen fail to review and comment on defend against any such communicationsassertion [***], filings Exicure will have the right to do so, [***]. Ipsen will assist Exicure and submissions[***] cooperate in any such litigation at Exicure’s request. Servier shall Ipsen may join any such defense brought by Exicure pursuant to this Section 9.3, with its own counsel, [***]. Exicure will not settle or consent to the entry of any judgment in any such enforcement action hereunder without Cellectis’s Xxxxx’x prior written consent, not to be unreasonably withheld or delayed[***]. Servier shall keep Cellectis fully informed Exicure will give Ipsen [***] written notice of all claims and actions governed any allegation by this Section 7.4 (Defense and Settlement of Third Party Claims). In the event Servier becomes engaged in: (i) settlement discussions with a any Third Party that has specifically asserted a Patent or other right owned by it is infringed by the Exploitation of any Licensed SNA or Licensed Product. Each Party will pay any amounts due to the other Party under this Section 9.3 [***]. If Ipsen is obligated under Section 11.1 to indemnify Exicure (including any Exicure Indemnitee) with respect to such claim, then the process described in Section 11.3 of this Agreement shall govern the procedure for defending against such claim rather than this Section 9.3. Except as otherwise provided in Article 11, any settlement or license fees incurred by Ipsen to the Third Party under this Section 9.3 will be allocated in accordance with the principle set forth in Section 8.5(c)(i) to the extent that a patent right the Patent that is the subject of such Third Party settlement license would be infringed by the use, sale or importation of the Pre-Candidate Licensed Product or Candidate Product or Product; (ii) settlement discussions of an interference involving a patent corresponding to a Cellectis Patent; Servier shall keep Cellectis reasonably informed of in the status of such discussions; and (b) Servier shall consider in good faith any comments or suggestions of Cellectisrelevant country.

Defense and Settlement of Third Party Claims. From the Effective Date and until Servier’s exercise of its Option to License for a given Pre-Candidate Product or Candidate Product, if (a) If a Third Party asserts (including any assertion that arises from activities occurring after the 2014 Agreement Date and before the Effective Date) that a patent right owned or licensed by it is infringed by the use, sale, offer for sale, importation, exportation or manufacture of Licensed Product, the Party receiving such notice shall promptly notify the other Party. Upon initial receipt of such notice, the Parties shall within five (5) Business Days meet to discuss their options for proceeding, which may include, for example, redesigning the Licensed Product(s) at issue, taking a license under the asserted patent as described in Section 8.7, or defending against the alleged infringement as described in this Section 8.6. (b) If a Third Party asserts that a United States patent right owned or licensed by it is infringed by the manufacture, use, offer for sale, importation, exportation or sale or importation of the given Pre-Candidate Product or Candidate a Licensed Product in any country listed in Exhibit D, GALDERMA, upon the Territory by Cellectisreasonable written request of ANIKA, Cellectis shall as soon as commercially practicable cease the use or sale of such Licensed Product in such country solely during the pendency of such assertion of infringement, and each Party shall have the sole right, but not the obligation, to defend any action or proceeding with respect to such alleged infringement of such patent by counsel of its own choice and at its own expense; provided, however, that ANIKA shall use reasonable care, with both Parties’ interests in mind, in determining whether or not to defend any such action if such action materially interferes with GALDERMA’s ability to sell the Licensed Products in such country. If ANIKA elects or is required to defend any such action or proceeding, then it shall bear the cost of any settlement, damages or other monetary relief that is awarded, including all attorneys’ fees and expenses. If ANIKA does not defend and GALDERMA elects to defend any such action or proceeding, then it shall bear the cost of any settlement, damages or other monetary relief that is awarded, including all attorneys’ fees and expenses. If the Parties elect to jointly defend any such action or proceeding, then they shall share equally in the cost of any settlement, damages or other monetary relief that is awarded, including all attorneys’ fees and expenses. If neither Party elects to defend any such action or proceeding, ANIKA shall bear all costs related thereto, including without limitation the costs of any default judgment entered against either Party or any of their Affiliates. The Party bearing the costs of such action or proceeding shall receive the benefit of any recovery of fees, it being understood that if both Parties share in the costs of such action or proceeding, each shall share in such recovery in proportion to its costs. Neither Party shall settle any such charge of infringement without the advance written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed. (c) If any such Third-Party claim materially interferes with GALDERMA’s ability to sell the Licensed Product in a jurisdiction for a period of more than ninety (90) days, then GALDERMA shall have the right to elect either (i) to be relieved of its obligations under Section 12.1(j) of this Agreement and Article V of the Supply Agreement solely for such jurisdiction or (ii) to terminate all of GALDERMA’s rights and obligations under this Agreement and the Supply Agreement with respect to such jurisdiction so that thereafter the definition of Territory shall not include such jurisdiction for all purposes under this Agreement and the Supply Agreement. If such interference has a material adverse effect on aggregate Net Sales of the Licensed Products in the Sales Territory (taken as a whole), GALDERMA shall have the further right to terminate all of its rights and obligations under this Agreement and the Supply Agreement with respect to such Sales Territory so that thereafter the definition of Territory shall not include such Sales Territory for all purposes under this Agreement and the Supply Agreement. The Parties agree that the remedies provided under this Section 8.6(c) are GALDERMA’s sole and exclusive remedies for ANIKA’s failure to use reasonable care in accordance with Section 8.6(b) in determining whether or not to defend against any such assertions at its sole cost and shall immediately inform Servier of such assertion. After Servier has exercised its Option to License for a given Product, if a Third Third-Party asserts assertion that a patent right owned or other right owned licensed by it is infringed by the manufacture, use, use or sale or importation of the given Product in the Territory by Servier, Servier Licensed Product. (d) GALDERMA shall have the sole right right, but not the obligation, to defend against any such assertions at its sole cost. Cellectis shall reasonably assist Servier and cooperate in any such litigation at Servier’s request, and Servier shall reimburse Cellectis any reasonable, documented, outan action or proceeding pertaining to a Third-of-pocket costs incurred in connection therewith. Subject to such control, Cellectis may join any defense and settlement pursuant to this Section 7.4 (Defense and Settlement of Third Party Claims), with its own counsel at its sole cost. Servier shall seek and reasonably consider Cellectis’ comments before determining the strategy for such matter. Without limiting the foregoing, Servier shall keep Cellectis advised of all material communications, actual and prospective filings or submissions regarding such action, and shall provide Cellectis copies of and an opportunity to review and comment on any such communications, filings and submissions. Servier shall not settle or consent to the entry of any judgment in any such action without Cellectis’s prior written consent, not to be unreasonably withheld or delayed. Servier shall keep Cellectis fully informed of all claims and actions governed by this Section 7.4 (Defense and Settlement of Third Party Claims). In the event Servier becomes engaged in: (i) settlement discussions with a Third Party that has specifically asserted assertion that a patent right of such Third Party would be owned by ANIKA is infringed by the manufacture, use, offer for sale, importation, exportation or sale of Licensed Product, by counsel of its own choice and at its own expense, in any country not listed on Exhibit D. (e) Notwithstanding the foregoing, if an action has not been brought or importation proceeding commenced but an assertion has been made that a patent right owned by a Third Party is infringed by the use or sale and manufacture of the Pre-Candidate any Licensed Product or Candidate Product if the settlement of any action or Product; (ii) settlement discussions legal proceeding to which this Section 8.6 applies involves a license, then the provisions of an interference involving a patent corresponding to a Cellectis Patent; Servier Section 8.7 shall keep Cellectis reasonably informed of the status of such discussions; and (b) Servier shall consider in good faith any comments or suggestions of Cellectisapply.