Common use of Defense of Claims Brought by Third Parties Clause in Contracts

Defense of Claims Brought by Third Parties. If a Party becomes aware of any actual or potential claim that the Research, Development or Manufacture of any Program Antibody by or on behalf of the Parties pursuant to the conduct of a Program under this Agreement infringes the intellectual property rights of any Third Party, such Party shall promptly notify the other Party. SR shall have the first right (but not the obligation) to defend and control the defense of any such claim, suit, or proceeding at its own cost and expense, using counsel of its own choice. Gilead may participate in any such claim, suit, or proceeding with counsel of its choice at its own cost and expense. Without limitation of the foregoing, if SR finds it necessary or desirable for Gilead to join SR as a party to any such action, the Parties shall cooperate to execute all papers and perform such acts as shall be reasonably required for Gilead to join such action. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. In the event that SR is the Party controlling the defense with respect to any such claim, suit, or proceeding pursuant to this Section 6.10, any settlement agreement entered into in connection with such claim, suit, or *** Confidential Treatment Requested *** 40 proceeding (a) shall not, without the prior written consent of Gilead, include the grant of any license, covenant or other rights to any Third Party that would conflict with or reduce the scope of the rights granted to Gilead under this Agreement or otherwise adversely affect the interest of Gilead in any respect and (b) shall be fully sublicensable to Gilead in the event Gilead exercises its Option with respect to the applicable Program(s). Except as otherwise agreed by the Parties in connection with a with a cost sharing arrangement, any recovery realized as a result of such litigation described in this Section 6.10 (whether by way of settlement or otherwise) shall be first, allocated to reimburse the Parties for their costs and expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses). Any remainder after such reimbursement is made shall be retained by the Party that has exercised its right to defend or control the defense of any such claim, suit or proceeding.

Defense of Claims Brought by Third Parties. If In the event that a Party becomes aware declaratory judgment action alleging invalidity or non-infringement of any actual or potential claim that the Research, Development or Manufacture of any Program Antibody by or on behalf of the Parties Licensed Patent Rights in the Licensed Field is brought against Licensee or raised by way of counterclaim or affirmative defense in an infringement suit brought under Sections 11.2, pursuant to the conduct of a Program under this Agreement infringes and the intellectual property rights provisions of any Third PartyChapter 29 of Txxxx 00, such Party shall promptly notify the Xxxxxx Xxxxxx Code or other Party. SR statutes, Licensee shall have the first right (right, but not the obligation, to (a) to defend and control the defense of any such claimsuit in its own name, suit, or proceeding at its own cost and expense, using counsel of and on its own choice. Gilead may participate behalf for presumably valid claims in the Licensed Patent Rights; (b) in any such claim, suit, ultimately to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement; and (c) settle any claim or proceeding suit for declaratory judgment involving the Licensed Patent Rights; provided, however, that (i) CHOP shall have the second right, but not the obligation, to take such actions and shall have a continuing right to intervene in such suit and (ii) CHOP shall have the sole right, but not the obligation, to take such actions with counsel of its choice at its own cost and expense. Without limitation respect to any of the foregoing, if SR finds it necessary Licensed Patent Rights in the event that a declaratory judgment action alleging the invalidity or desirable for Gilead non-infringement of any of the Licensed Patent Rights outside of the Licensed Field is brought or raised by way of counterclaim or affirmative defense in an infringement suit. Licensee shall take no action to compel CHOP either to initiate or to join SR as in any such declaratory judgment action. CHOP shall join any such suit if necessary to avoid dismissal of the suit. Should CHOP be made a party to any such action, the Parties shall cooperate to execute all papers and perform such acts as shall be reasonably required for Gilead to join such action. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. In the event that SR is the Party controlling the defense with respect to Licensee shall reimburse CHOP for any such claim, suit, or proceeding pursuant to this Section 6.10, any settlement agreement entered into in connection with such claim, suit, or *** Confidential Treatment Requested *** 40 proceeding (a) shall not, without the prior written consent of Gilead, include the grant of any license, covenant or other rights to any Third Party that would conflict with or reduce the scope of the rights granted to Gilead under this Agreement or otherwise adversely affect the interest of Gilead in any respect and (b) shall be fully sublicensable to Gilead in the event Gilead exercises its Option with respect to the applicable Program(s). Except as otherwise agreed by the Parties in connection with a with a cost sharing arrangement, any recovery realized Litigation Expenses which CHOP incurs as a result of becoming a party to such litigation described in this Section 6.10 (whether by way of settlement or otherwise) suit, which reimbursement shall be first, allocated to reimburse the Parties for their costs and expenses in making such recovery made within thirty (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses)30) days after receiving an invoice therefor. Any remainder after such reimbursement is made shall be retained by the Party that has exercised its right If Licensee elects not to defend or control against such declaratory judgment action, CHOP at its option, may do so at its own expense. In all cases, Licensee agrees to keep CHOP reasonably apprised of the defense status and progress of any such claim, suit or proceedinglitigation.

Defense of Claims Brought by Third Parties. If any Third Party brings a claim or otherwise asserts that any ETB directed against a Collaboration Target, any Development Candidate, any Licensed ETB or any Licensed Product infringes such Third Party’s Patent or misappropriates such Third Party’s Know-How (each, a “Third Party becomes aware of any actual or potential claim that Infringement Claim”), the Research, Development or Manufacture of any Program Antibody by or on behalf Party first having notice of the Parties pursuant to the conduct of a Program under this Agreement infringes the intellectual property rights of any Third Party, such Party shall claim or assertion will promptly notify the other PartyParty in writing. SR shall Prior to the applicable License Effective Date, Company will have the first sole right (but not the obligation) to defend undertake and control the defense or settlement of any such claim, suit, or proceeding at its own cost and expense, Third Party Infringement Claim using counsel of its own choice. Gilead may participate in , at its cost and expense and, following the applicable License Effective Date, Vertex will have the sole right to undertake and control the defense or settlement of any such claim, suit, or proceeding with Third Party Infringement Claim using counsel of its choice choice, at its own cost and expenseexpense (such Party having the right to control such defense, the “Defending Party”). Without limitation If the Party not having the right to control such defense in accordance with the preceding sentence (the “Non-Defending Party”) is named as a defendant in such suit, the Non-Defending Party will have the right to participate in such defense and settlement with its own counsel, at its cost. The Defending Party will not enter into any settlement of any Third Party Infringement Claim that is instituted or threatened to be instituted against the Non-Defending Party without the Non-Defending Party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; except that, such consent will not be required if such settlement includes a release of all liability in favor of the foregoing, if SR finds it necessary Non-Defending Party or desirable for Gilead to join SR as a party to an assumption of any such actionunreleased liability by the Defending Party. As requested by the Defending Party, the Parties shall cooperate Non-Defending Party will provide reasonable cooperation and assistance to execute the Defending Party in connection with the Defending Party’s control of the defense or settlement of a Third Party Infringement Claim. Such cooperation and assistance will include executing all papers necessary and perform proper documents and taking such acts actions as shall be reasonably required appropriate to allow the Defending Party to control the defense and settlement of such Third Party Infringement Claim. The Defending Party will reimburse the Non-Defending Party for Gilead the Out-of-Pocket Costs incurred by the Non-Defending Party in providing such assistance and cooperation; except that the Defending Party will have no obligation to join such actionreimburse the Non-Defending Party for any costs or expenses incurred if the Non-Defending Party exercises its right to participate in the defense and settlement of a Third Party Infringement Claim with its own counsel. Each The Defending Party shall will keep the other Non-Defending Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. In the event that SR is the Party controlling the defense with respect to any such claim, suit, or proceeding pursuant to this Section 6.10, any settlement agreement entered into in connection with such claim, suit, or *** Confidential Treatment Requested *** 40 proceeding (a) shall not, without the prior written consent progress of Gilead, include the grant of any license, covenant or other rights to any Third Party that would conflict with or reduce Infringement Claim. Notwithstanding anything to the scope of the rights granted to Gilead under contrary in this Agreement or otherwise adversely affect the interest of Gilead in any respect and (b) shall be fully sublicensable to Gilead Section 8.3, in the event Gilead exercises its Option with respect of any Third Party Infringement Claim that is subject to a Party’s indemnification obligations under ARTICLE 10, the applicable Program(s). Except as otherwise agreed by the Parties in connection with a with a cost sharing arrangement, any recovery realized as a result provisions of such litigation described in this Section 6.10 (whether by way of settlement or otherwise) ARTICLE 10 shall be first, allocated to reimburse the Parties for their costs and expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses). Any remainder after such reimbursement is made shall be retained by the Party that has exercised its right to defend or control the defense of any such claim, suit or proceedingcontrol.

Defense of Claims Brought by Third Parties. If a Each Party shall promptly notify the other Party if it becomes aware of any actual or potential claim that Licensee’s actual use or practice of Compounds or Formulations within the ResearchProtiva Intellectual Property, Development or Manufacture Licensee’s methods of any Program Antibody by creating or on behalf using such Formulations or Compounds, in connection with its exercise of the Parties pursuant to the conduct of a Program its license under this Agreement infringes Section 2.1 infringes, misappropriates, or otherwise violates the intellectual property rights of any Third Party, such Party shall promptly notify in the other PartyAgricultural Field. SR shall have the first right (but not the obligation) to defend and control the defense of In any such claim, suit, or proceeding at its own cost and expense, using counsel of its own choice. Gilead may participate in any such claim, suit, or proceeding with counsel of its choice at its own cost and expense. Without limitation of the foregoing, if SR finds it necessary or desirable for Gilead to join SR as a party to any such actioninstance, the Parties shall cooperate and shall mutually agree upon an appropriate course of action; provided, however, that in the absence of any such agreement, (i) any such matter relating to execute all papers and perform Protiva Project Patents (such acts as matter a “JRC Protiva Project Infringement Matter”) shall be reasonably required for Gilead referred to join such the JRC to be addressed in the manner set forth in the Option Agreement, and (ii) Protiva shall have sole right to determine what action, if any, should be taken in respect of Protiva Background Patents. Each Party shall keep provide to the other Party reasonably informed copies of all material developments any notices it receives from Third Parties regarding any patent nullity actions regarding the Protiva Background Patents or the Protiva Project Patents, any declaratory judgment actions and any alleged infringement or misappropriation of Third Party intellectual property rights arising out of Licensee’s use or practice of the Protiva Intellectual Property in connection with any such claim, suit, or proceedingits exercise of its license under Section 2.1. In the event that SR is the Each Party controlling the defense with respect to any such claim, suit, or proceeding shall be responsible for its own costs incurred pursuant to this Section 6.105.5; provided, however, that nothing in this Section 5.5 or elsewhere in this Agreement shall be deemed to eliminate, reduce, or otherwise modify any settlement agreement entered into liability or obligation of Protiva in respect of the Protiva Intellectual Property or Licensee’s (or its Sublicensees’) use or practice of the Protiva Intellectual Property in connection with its exercise of its license under Section 2.1, including but not limited to any such claimliability or obligation that may arise out of any representation, suitwarranty, or *** Confidential Treatment Requested *** 40 proceeding (a) shall not, without covenant made by Protiva under the prior written consent of Gilead, include the grant of any license, covenant or other rights to any Third Party that would conflict with or reduce the scope of the rights granted to Gilead under this Option Agreement or otherwise adversely affect the interest of Gilead in any respect other Transaction Agreement; and (b) shall be fully sublicensable to Gilead in the event Gilead exercises its Option with respect to the applicable Program(s). Except as otherwise agreed by the Parties in connection with a with a cost sharing arrangementprovided further, any recovery realized as a result of such litigation described however, that nothing in this Section 6.10 (whether by way of settlement or otherwise) 5.5 shall be first, allocated deemed to reimburse the Parties for their costs and expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses). Any remainder after such reimbursement is made shall be retained by the Party that has exercised its limit or eliminate a Party’s right to defend or control actions initiated by a Third Party against such Party, except to the defense of extent such rights may be limited under any indemnification provisions applicable to such claim, suit or proceedingactions.

Defense of Claims Brought by Third Parties. If a Each Party shall promptly notify the other Party (and, prior to the Closing, the JRC) if it becomes aware of any actual or potential claim that Licensee’s actual use or practice of Compounds or Formulations within the ResearchProtiva Intellectual Property, Development or Manufacture Licensee’s methods of any Program Antibody by creating or on behalf using such Formulations or Compounds, in connection with its exercise of the Parties pursuant to the conduct of a Program its license under this Agreement infringes Section 2.1 infringes, misappropriates, or otherwise violates the intellectual property rights of any Third Party, such Party shall promptly notify in the other PartyAgricultural Field. SR shall have the first right (but not the obligation) to defend and control the defense of In any such claim, suit, or proceeding at its own cost and expense, using counsel of its own choice. Gilead may participate in any such claim, suit, or proceeding with counsel of its choice at its own cost and expense. Without limitation of the foregoing, if SR finds it necessary or desirable for Gilead to join SR as a party to any such actioninstance, the Parties shall cooperate and shall mutually agree upon an appropriate course of action; provided, however, that in the absence of any such agreement, (i) any such matter relating to execute all papers and perform Protiva Project Patents (such acts as matter a “JRC Protiva Project Infringement Matter”) shall be reasonably required for Gilead referred to join such the JRC to be addressed in the manner set forth in the Option Agreement, and (ii) Protiva shall have sole right to determine what action, if any, should be taken in respect of Protiva Background Patents. Each Party shall keep provide to the other Party reasonably informed (and, prior to the Closing, the JRC) copies of all material developments any notices it receives from Third Parties regarding any patent nullity actions regarding the Protiva Background Patents or the Protiva Project Patents, any declaratory judgment actions and any alleged infringement or misappropriation of Third Party intellectual property rights arising out of Licensee’s use or practice of the Protiva Intellectual Property in connection with any such claim, suit, or proceedingits exercise of its license under Section 2.1. In the event that SR is the Each Party controlling the defense with respect to any such claim, suit, or proceeding shall be responsible for its own costs incurred pursuant to this Section 6.105.5; provided, however, that nothing in this Section 5.5 or elsewhere in this Agreement shall be deemed to eliminate, reduce, or otherwise modify any settlement agreement entered into liability or obligation of Protiva in respect of the Protiva Intellectual Property or Licensee’s (or its Sublicensees’) use or practice of the Protiva Intellectual Property in connection with its exercise of its license under Section 2.1, including but not limited to any such claimliability or obligation that may arise out of any representation, suitwarranty, or *** Confidential Treatment Requested *** 40 proceeding (a) shall not, without covenant made by Protiva under the prior written consent of Gilead, include the grant of any license, covenant or other rights to any Third Party that would conflict with or reduce the scope of the rights granted to Gilead under this Option Agreement or otherwise adversely affect the interest of Gilead in any respect other Transaction Agreement; and (b) shall be fully sublicensable to Gilead in the event Gilead exercises its Option with respect to the applicable Program(s). Except as otherwise agreed by the Parties in connection with a with a cost sharing arrangementprovided further, any recovery realized as a result of such litigation described however, that nothing in this Section 6.10 (whether by way of settlement or otherwise) 5.5 shall be first, allocated deemed to reimburse the Parties for their costs and expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of such expenses). Any remainder after such reimbursement is made shall be retained by the Party that has exercised its limit or eliminate a Party’s right to defend or control actions initiated by a Third Party against such Party, except to the defense of extent such rights may be limited under any indemnification provisions applicable to such claim, suit or proceedingactions.