Common use of Defense of Infringement Claims Clause in Contracts

Defense of Infringement Claims. (a) If a Third Party makes or threatens against Astellas, its Related Parties and/or Ambit and its Affiliates any claim of infringement of a Patent Right owned or controlled by such Third Party based upon the manufacture, use, offer for sale or sale of a Licensed Compound or Product (each, an “Alleged Infringement”), Astellas shall have the right to respond to and/or defend any and all such Alleged Infringements at its own cost and expense, and in its sole discretion, subject to the other provisions of this Section 8.4.2. Ambit agrees to provide any necessary assistance that Astellas may reasonably require in any such defense action for which Astellas shall pay to Ambit a reasonable hourly rate of compensation for such assistance. To the extent that any such Alleged Infringement is against Ambit or its Affiliates, if Astellas elects to respond to or defend such Alleged Infringement claim against Ambit, it must do so in a timely manner so as not to prejudice Ambit’s ability to defend itself and avoid suffering any default judgments, and such Infringement Claim shall constitute a Third Party Claim for which Astellas has the obligation to defend, indemnify and hold harmless in accordance with and to the extent required pursuant to its indemnification obligations in Article 7. Ambit shall have the right, at its own expense, to retain counsel of its choice (but subject to Astellas’s right to control the defense if it has elected to do so as above). (b) Astellas shall promptly notify Ambit in writing and provide a copy of (i) any claim of Alleged Infringement filed with a court or Governmental Authority or (ii) any written notice of an Alleged Infringement. Within a reasonable period of time in advance of any responsive deadline required by law or otherwise set forth in the claim or notice, Astellas shall notify Ambit in writing as to whether or not Astellas intends to respond to and defend each such Alleged Infringement. In the event that Astellas does not provide such notice of its intent to respond to and defend any such claim or notice of an Alleged Infringement against Ambit or any of its Affiliates (or fails to provide such response and defense in good faith) Ambit shall have the right, in its sole discretion, to respond to such Alleged Infringement, in which case Ambit shall pay any and all costs and expenses incurred by Ambit in such action (except as is otherwise provided in Section 7.2) to date.