Common use of Defense of Infringement Claims Clause in Contracts

Defense of Infringement Claims. If a third party files a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, infringes a Patent, copyright, trademark or other intellectual property right, and if Seller is promptly advised of any such claim or action by Xxxxx, then Seller shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time use of the product is enjoined or is discontinued because of such action, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the product, replace or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. Seller shall not have any liability or obligation under this Section if the infringement of a third party right is based in any way upon (i) the use of products in combination with other components, equipment or software not furnished by Seller; (ii) use of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with Xxxxx's specifications and supplied to Buyer directly infringe any duly issued patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software or trade secret. Any such grant shall be made in a separate written agreement.

Defense of Infringement Claims. If a third party files a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, infringes a PatentUnited States patent, United States copyright, United States trademark or other United States intellectual property right, and if Seller is promptly advised of any such claim or action by Xxxxx, then Seller shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time use of the product is enjoined or is discontinued because of such action, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the product, replace replace, or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. Seller shall not have any liability or obligation under this Section if the infringement of a third party right is based in any way upon (i) the use of products in combination with other components, equipment or software not furnished by Seller; (ii) use of a product in practicing any process; (iii) any product which that has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with Xxxxx's specifications and supplied to Buyer directly infringe any duly issued United States patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software software, or trade secret. Any such grant shall be made in a separate written agreement.

Defense of Infringement Claims. If a third party files a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, infringes a United States Patent, United States copyright, United States trademark or other United States intellectual property right, and if Seller is promptly advised of any such claim or action by XxxxxBuyer, then Seller shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time use of the product is enjoined or is discontinued because of such action, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the product, replace replace, or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. Seller shall not have any liability or obligation under this Section if the infringement of a third party right is based in any way upon (i) the use of products in combination with other components, equipment or software not furnished by Seller; (ii) use of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with XxxxxBuyer's specifications and supplied to Buyer directly infringe any duly issued United States patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software or trade secret. Any such grant shall be made in a separate written agreement.patent

Defense of Infringement Claims. If a third party files a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, infringes a United States Patent, United States copyright, United States trademark or other United States intellectual property right, and if Seller is promptly advised of any such claim or action by Xxxxx, then Seller shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time use of the product is enjoined or is discontinued because of such action, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the product, replace replace, or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. Seller shall not have any liability or obligation under this Section if the infringement of a third party right is based in any way upon (i) the use of products in combination with other components, equipment or software not furnished by Seller; (ii) use of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with XxxxxBuyer's specifications and supplied to Buyer directly infringe any duly issued patentthird party intellectual property, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software software, or trade secret. Any such grant shall be made in a separate written agreement.

Defense of Infringement Claims. If a third party files notified promptly in writing of any action (and all prior claims relating to such action) brought against Distributor based on a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, Distributor’s use of the Product infringes a Patent, copyright, trademark patent or other intellectual property right, and if Seller is promptly advised of given access by Distributor to any information Distributor has regarding such alleged infringement, Manufacturer will defend Distributor in such action at its expense and will pay any costs or damages finally awarded against Distributor in any such claim or action by Xxxxxaction, then Seller provided the Manufacturer shall assume and have had sole control of the defense of any such action or claim at and all negotiations for its own expense, including the sole power and authority to negotiate any settlement or compromise and compromise. In the event that a final injunction shall be responsible for any judgment or award issued in such action based on such infringement. If at any time obtained against Distributor’s use of the product Product by reason of infringement of a patent or other intellectual property right or if in Manufacturer’s opinion the Product is enjoined likely to become the subject of a claim of infringement of a patent or is discontinued because of such actionother intellectual property right, Seller shallManufacturer will, at its sole option and at its expense, either procure for Buyer Distributor the right to continue using the productProduct, replace or modify the product same so that it becomes non-non infringing or grant Buyer Distributor a credit for the purchase price of the product such Product as depreciated and accept its return. Seller The depreciation shall be an equal amount per year over the five (5) year lifetime of the Product. Manufacturer shall not have any liability to Distributor under any provision of this clause if any infringement, or obligation under this Section if the infringement of a third party right claim thereof, is based in any way upon upon: (i) the use of products the Product in combination with other componentsproducts or devices which are not made by Manufacturer, equipment or software not furnished by Seller; (ii) the use of a product the Product in practicing any process; , (iii) the furnishing to Distributor of any product which has been modified information, data, service or altered; applications assistance, or (iv) the manner in which use of the product is used even if Seller has been advised of such use; Product with modifications made by Distributor. No costs or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event expenses shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer be incurred for the infringing productsaccount of Manufacturer without the written consent of Manufacturer. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with Xxxxx's specifications and supplied to Buyer directly infringe any duly issued patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software or trade secret. Any such grant shall be made in a separate written agreementTHE FOREGOING STATES THE ENTIRE LIABILITY OF MANUFACTURER WITH RESPECT TO INFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE PRODUCT OR BY ITS USE.

Defense of Infringement Claims. If a third party files notified promptly in writing of any action, and all prior claims relating to such action, brought against the Distributor based on a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, Distributor’s use of the goods infringes a Patent, copyright, trademark patent or other intellectual property right, and if Seller is promptly advised of given access by Distributor to any information Distributor has regarding such alleged infringement, Manufacturer agrees to defend Distributor in such action at its expense and will pay any costs or damages finally awarded against Distributor in any such claim or action by Xxxxxaction, then Seller provided the Manufacturer shall assume and have had sole control of the defense of any such action or claim at and all negotiations for its own expense, including the sole power and authority to negotiate any settlement or compromise and compromise. In the event that a final injunction shall be responsible for any judgment or award issued in such action based on such infringement. If at any time obtained against the Distributor’s use of the product is enjoined goods or is discontinued because any of such actiontheir parts by reason of infringement of a patent or other intellectual property right, Seller shallor if in Manufacturer’s opinion the goods are likely to become the subject of a claim of infringement of a patent or other intellectual property right, Manufacturer will, at its sole option and at its expense, either procure for Buyer the Distributor the right to continue using the productgoods, replace or modify the product same so that it becomes non-infringing they become noninfringing, or grant Buyer the Distributor a credit for such goods as depreciated and accept their return. The depreciation shall be an equal amount per year over the purchase price lifetime of the product and accept its returngoods as established by Manufacturer. Seller Manufacturer shall not have any liability to the Distributor under any provision of this clause if any infringement, or obligation under this Section if the infringement of a third party right claim thereof, is based in any way upon upon (i) the use of products the goods in combination with other components, equipment goods or software devices which are not furnished made by Seller; Manufacturer; (ii) the use of a product the goods in practicing any process; process not specifically permitted by the Product’s labeling; (iii) the furnishing to the Distributor of any product which has been modified information, data, service or alteredapplications assistance; or (iv) the manner in use of the goods with modifications made by the Distributor. The Distributor shall hold Manufacturer harmless against any expense, judgment or loss for infringement of any patent or other intellectual property right which the product is used even if Seller has been advised of such use; or (v) Seller's results from Manufacturer’s compliance with Buyer's the Distributor’s designs, specification specifications or instructions. In no event No costs or expenses shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer be incurred for the infringing productsaccount of Manufacturer without the written consent of Manufacturer. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with Xxxxx's specifications and supplied to Buyer directly infringe any duly issued patentTHE FOREGOING STATES THE ENTIRE LIABILITY OF MANUFACTURER WITH RESPECT TO INFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE PRODUCTS OR ANY PART THEREOF, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software or trade secret. Any such grant shall be made in a separate written agreementOR BY THEIR OPERATION.

Defense of Infringement Claims. If a third party files a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, infringes a United States Patent, United States copyright, United States trademark or other United States intellectual property right, and if Seller is promptly advised of any such claim or action by XxxxxBuyer, then Seller shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time use of the product is enjoined or is discontinued because of such action, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the product, replace replace, or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. Seller shall not have any liability or obligation under this Section if the infringement of a third party right is based in any way upon (i) the use of products in combination with other components, equipment or software not furnished by Seller; (ii) use of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with XxxxxBuyer's specifications and supplied to Buyer directly infringe any duly issued patentthird party intellectual property, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software software, or trade secret. Any such grant shall be made in a separate written agreement.

Defense of Infringement Claims. If a third party files a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, infringes a United States Patent, United States copyright, United States trademark or other United States intellectual property right, and if Seller is promptly advised of any such claim or action by XxxxxBuyer, then Seller shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time use of the product is enjoined or is discontinued because of such action, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the product, replace replace, or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. Seller shall not have any liability or obligation under this Section if the infringement of a third party right is based in any way upon (i) the use of products in combination with other components, equipment or software not furnished by Seller; (ii) use of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with XxxxxBuyer's specifications and supplied to Buyer directly infringe any duly issued United States patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software software, or trade secret. Any such grant shall be made in a separate written agreement.

Defense of Infringement Claims. If a third party files a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, infringes a United States Patent, United States copyright, United States trademark or other United States intellectual property right, and if Seller is promptly advised of any such claim or action by XxxxxBuyer, then Seller shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time use of the product is enjoined or is discontinued because of such action, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the product, replace replace, or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. Seller shall not have any liability or obligation under this Section if the infringement of a third party right is based in any way upon upon (i) the use of products in combination with other components, equipment or software not furnished by Seller; (ii) use of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with XxxxxBuyer's specifications and supplied to Buyer directly infringe any duly issued United States patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software software, or trade secret. Any such grant shall be made in a separate written agreement.

Defense of Infringement Claims. If a third party files a claim or brings an action against Buyer alleging that a product, as delivered by Seller to Buyer, infringes a United States Patent, United States copyright, United States trademark or other United States intellectual property right, and if Seller is promptly advised of any such claim or action by Xxxxx, then Seller shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time use of the product is enjoined or is discontinued because of such action, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the product, replace replace, or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. Seller shall not have any liability or obligation under this Section if the infringement of a third party right is based in any way upon upon (i) the use of products in combination with other components, equipment or software not furnished by Seller; (ii) use of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with Xxxxx's specifications and supplied to Buyer directly infringe any duly issued United States patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software software, or trade secret. Any such grant shall be made in a separate written agreement.

Defense of Infringement Claims. If Additionally, and without limiting Section 9.4.1, each Party shall promptly notify, in writing, the other Party upon learning of any notice, allegation, suit, or other proceeding against either Party, or any of their respective Affiliates, subcontractors, suppliers, licensors, licensees or customers, of infringement, misappropriation or misuse of any Third Party Intellectual Property Rights or Know-How as a third party files a result of the actual or planned Commercialization of any Licensed Product in the Field in the Territory or the actual or planned Manufacturing of such Licensed Product for Commercialization in the Field in the Territory, including any infringement claim brought under the BPCIA (an Infringement Claim). As between the Parties, Licensee shall have the primary right and use Commercially Reasonable Efforts to control the defense against any such Infringement Claim (irrespective of whether such Infringement Claim was brought against Licensee, Bioeq or brings an action any of their respective Affiliates, subcontractors, suppliers, licensors, licensees or customers (collectively referred to as Defendants)), including directing all aspects, stages, motions and proceedings of litigation (including motions or proceedings under the BPCIA) as well as bringing any counter-claims against Buyer alleging that a productthe Infringement Claim, as delivered by Seller well as electing to Buyersettle such Infringement Claim (subject to Section 9.4.2(h)) (collectively Defend or Defense). The Parties shall cooperate in relation to any such Defense as follows: (a) As between the Parties, infringes a Patent, copyright, trademark or other intellectual property Licensee shall have the sole right, and if Seller is promptly advised of any such claim or action by Xxxxx, then Seller shall assume and have sole control of the defense of any such action or claim at its own sole cost and expense, including to select the sole power and authority primary outside counsel to negotiate any settlement or compromise and shall be responsible for any judgment or award issued jointly represent the Defendant(s) named in such action based on such infringementInfringement Claim and to direct and control the Defense thereof (“Primary Outside Defense Counsel”). If at any time use of the product Licensee is enjoined or is discontinued because of not a named Defendant in such actionInfringement Claim, Seller shallLicensee may, at its sole option discretion, join as a named Defendant in such Infringement Claim (to the extent permitted by Applicable Law). (b) Prior to undertaking any action of Defense, Licensee shall notify Bioeq in writing and expenseshall, either procure for Buyer the right to continue using the productupon Bioeq’s request, replace or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. Seller shall not have any liability or obligation under this Section if the infringement of a third party right is based in any way upon connection with Primary Outside Defense Counsel, disclose to, and discuss with, Bioeq in good faith (i) the use of products in combination with other components[***], equipment or software not furnished by Seller; (ii) use of a product in practicing any process; [***] and (iii) any product which has been modified or altered; [***]. (ivc) Licensee shall give due consideration to Bioeq’s comments with respect to items discussed between the manner in which Parties pursuant to this Section 9.4.2, but shall have the product is used even if Seller has been advised final decision-making authority on all aspects relating to the Defense of such use; Infringement Claim (including with respect to directing Primary Outside Defense Counsel with respect to actions taken in connection with the Defense). (d) Licensee shall, through Primary Outside Defense Counsel, keep Bioeq reasonably informed of all material developments in connection with any Defense of such Infringement Claim, including by providing Bioeq with copies of draft and filed filings, motions, pleadings and other material submissions and communications (including oral communications) with the relevant judicial authority relating to such Defense of such Infringement Claim, sufficiently in advance, where reasonably possible, for Bioeq to comment on such Defense of such Infringement Claim. Licensee shall give due consideration to Bioeq’s comments. (e) Upon Licensee’s request, Bioeq shall fully cooperate with Licensee in any such Defense, including in connection with the discussions between the Parties as set forth in Section 9.4.2(b), and, if requested by Licensee, by being joined as a party or allowing Licensee to be joined as a party (vto the extent permitted by Applicable Law) Seller's compliance to the relevant Infringement Claim. Without limiting the foregoing, Bioeq shall, and shall use Commercially Reasonable Efforts to cause its Affiliates and their employees, CMOs, licensors, and other relevant contractors, representatives and agents (including, for the avoidance of doubt, [***], [***], and [***]) to be available and cooperate fully with Buyer's designsLicensee in such discussions, specification or instructions. In no event shall Seller's total liability including by making relevant witnesses, documents and information available to Buyer Licensee and Primary Outside Defense Counsel in connection with the Defense of such Infringement Claim. (f) The support provided by Bioeq and its Affiliates (including [***]) under this Section exceed 9.4.2 shall be free of charge to Licensee, except that Licensee shall reimburse [***] for their [***] costs incurred in connection with supporting the aggregate sum paid Defense of any Infringement Claim. (g) The costs of any support provided by Bioeq’s CMOs, licensors, and other relevant contractors (including [***] and [***]) under this Section 9.4.2 shall be borne by Licensee and shall constitute Qualifying IP Clearance Litigation Costs. (h) Licensee shall not enter into a settlement without [***] and in any such settlement Licensee shall always take into consideration the interest of Bioeq. (i) Any recoveries obtained upon the final judgement or settlement of any Infringement Claim shall first be used to Seller by Buyer reimburse Licensee for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller its costs incurred in compliance with Xxxxx's specifications and supplied to Buyer directly infringe any duly issued patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The foregoing states the sole and exclusive liability of the parties hereto for patent infringement and is in lieu of all warranties, express, implied, or statutory, in regard thereto. No license or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software or trade secretconnection therewith. Any such grant remaining recoveries shall be made in a separate written agreementregarded as Gross Margin.

Defense of Infringement Claims. If The Company agrees to (a) defend Subscriber against any demand, claim, action or suit by a third party files (each, a claim Claim) that the Services infringe any U.S. patent or brings U.S. copyright or misappropriates any trade secret of such third party and (b) indemnify Subscriber for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees) (collectively, Losses) finally awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim. Notwithstanding anything to the contrary contained herein, the Company shall have no liability or obligation to Subscriber or Authorized Users hereunder with respect to any Claim arising from or related to (A) any content provided by or accessed from any Authorized Users or third parties under license or otherwise, (B) Subscriber’s or an action against Buyer alleging that a product, as delivered by Seller to Buyer, infringes a Patent, copyright, trademark or other intellectual property right, and if Seller is promptly advised of any such claim or action by Xxxxx, then Seller shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time Authorized User’s use of the product is enjoined Services in any manner not expressly contemplated under the Agreement, (C) modifications or is discontinued because combinations of such actionthe Services with materials and/or information not provided by the Company, Seller shallor (D) Subscriber's or an Authorized User’s continuing allegedly infringing activity after being notified thereof. Should the use or operation of all or any part of the Services become, at its sole option and expenseor, either procure for Buyer in the reasonable opinion of the Company, be likely to become, the subject of any claim of infringement of any third party patent or copyright, or of any misappropriation of any trade secret of any third party, the Company shall have the right to continue using the product, replace or modify the product allegedly infringing aspects of the Services so that it becomes non-infringing or grant Buyer a credit to obtain the right for Subscriber to continue using such Services. If, in the purchase price Company’s reasonable opinion, neither of the product and accept its returnforegoing is commercially feasible, the Company shall have the right to terminate the Agreement. Seller In the event of such termination, the Company shall not have grant a refund of any liability fees paid in advance for access to or obligation under this Section if the infringement of a third party right is based in any way upon (i) the use of products in combination with other components, equipment or software not furnished by Seller; (ii) use the Services beyond the effective date of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if Seller has been advised of such use; or (v) Seller's compliance with Buyer's designs, specification or instructions. In no event shall Seller's total liability to Buyer under this Section exceed the aggregate sum paid to Seller by Buyer for the infringing products. If any suit or proceeding is brought against Seller based on a claim that the products manufactured by Seller in compliance with Xxxxx's specifications and supplied to Buyer directly infringe any duly issued patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyertermination. The foregoing states the sole and exclusive entire liability of the parties hereto for patent infringement Company, and is in lieu Subscriber's exclusive remedy, with respect to any actual or alleged violation of all warranties, express, implied, intellectual property rights by the Services or statutory, in regard thereto. No license any part thereof or right is granted by Seller to the Buyer under any patent, patent application, trademark, copyright, software or trade secret. Any such grant shall be made in a separate written agreementtheir use.