Common use of Defense of Infringement Proceedings Clause in Contracts

Defense of Infringement Proceedings. 9.4.1 If any complaint alleging infringement or violation of any patent or other proprietary rights is made against Hana, its Affiliate, Licensee or Sublicensee with respect to the Manufacture, use or sale of a Product, the following shall apply: (a) Hana shall promptly notify INEX in writing upon receipt of any such complaint setting out full details thereof and shall keep INEX fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by Hana (on behalf of itself, a Licensee or a Sublicensee); (b) if such complaint gives rise to an indemnification obligation under any of the Definitive Agreements in favor of Hana (or its Affiliate or Licensee or Sublicensee) on the part of INEX, then INEX shall defend such suit and all costs and expenses incurred by Hana (or any Affiliate or Licensee or Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by INEX; (c) if such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of Hana on the part of INEX, then Hana shall have the right but not the obligation to defend such suit and all costs and expenses incurred by Hana (or any Affiliate or Licensee or Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana (or any Affiliate or Licensee or Sublicensee, as the case may be); and (d) in any event, INEX and Hana shall assist one another and cooperate in any such litigation at each Party’s own expense. 9.4.2 If any complaint alleging infringement or violation of any patent or other proprietary rights is made against INEX, its Affiliate, licensee or sublicensee with respect to the Manufacture, use or sale of a Product, the following procedure shall apply: (a) INEX shall promptly notify Hana in writing upon receipt of any such complaint setting out full details thereof and shall keep Hana fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by INEX; (b) if such a complaint gives rise to an indemnification obligation under the Definitive Agreements in favor of INEX on the part of Hana, then Hana shall defend such suit and all costs and expenses incurred by INEX (or its Affiliate) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana; (c) if such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of INEX on the part of Hana, then INEX shall have the right but not the obligation to defend such suit and all costs and expenses incurred by INEX (or its Affiliate) in investigating, resisting, litigating and settling such a compliant, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by INEX; (d) in any event, INEX and Hana shall assist one another and cooperate in any such litigation at each Party’s own expense. 9.4.3 With regard to costs and expenses incurred by Hana (or any Licensee or Sublicensee) under Sections 9.4.1(c) or 9.4.2(b) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party (the “Offset Amount”), but not including any punitive award (the “Punitive Amount”), Hana (or any Licensee or Sublicensee) shall be entitled to offset or credit [*] of the Offset Amount against future payments otherwise due INEX as set forth in Section 3.7.1. With regard to any Punitive Amount (eg. willful infringement), the same is not included in the Offset Amount and is not to be offset or credited against future payments due INEX. 9.4.4 In the event a complaint is made under either of Sections 9.4.1 or 9.4.2, no settlement or consent judgment or other voluntary final disposition may be entered into without the consent of the other Party if such settlement would require the other Party to be subject to an injunction or to make a monetary payment or would restrict the claims in or admit any invalidity of any Patents or significantly adversely affect the rights of the other Party.

Defense of Infringement Proceedings. 9.4.1 If any complaint alleging infringement or violation of any patent or other proprietary rights is made against HanaAradigm, its Affiliate, Licensee Affiliate or a Sublicensee with respect to the Manufacturemanufacture, use or sale of a Licensed Product, the following procedure shall applybe adopted: (a) Hana Aradigm shall promptly notify INEX in writing upon receipt of any such complaint setting out full details thereof and shall keep INEX fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by Hana Aradigm (on behalf of itself, a Licensee its Affiliate or a Sublicensee);, provided that it is understood that Aradigm shall have the right but not the obligation to defend such suit, and (b) if such complaint gives rise to an indemnification obligation under any of the Definitive Agreements in favor of Hana (or its Affiliate or Licensee or Sublicensee) on the part of INEX, then INEX shall defend such suit and all costs and expenses incurred by Hana Aradigm (its Affiliate or any Affiliate or Licensee or Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages damages and/or costs to any Third Party, shall be paid by INEX; Aradigm (c) if such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of Hana on the part of INEX, then Hana shall have the right but not the obligation to defend such suit and all costs and expenses incurred by Hana (its Affiliate or any Affiliate or Licensee or Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana (or any Affiliate or Licensee or Sublicensee, as the case may be); and. (dc) in In any event, INEX and Hana Aradigm shall assist one another and cooperate in any such litigation at each the other’s request at the expense of the requesting Party’s own expense. 9.4.2 If any complaint alleging infringement or violation of any patent or other proprietary rights is made against INEX, INEX or its Affiliate, licensee or sublicensee Affiliate with respect to the Manufacturemanufacture, use or sale of a Licensed Product, the following procedure shall applybe adopted: (a) INEX shall promptly notify Hana Aradigm in writing upon receipt of any such complaint setting out full details thereof and shall keep Hana fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by INEX; (b) if such a complaint gives rise to an indemnification obligation under the Definitive Agreements in favor of INEX on the part of Hana, then Hana shall defend such suit and all costs and expenses incurred by INEX (or its Affiliate) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana; (c) if such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of INEX on the part of Hana, then writing. INEX shall have the right but not the obligation to defend such suit and all costs and expenses incurred by INEX (or at its Affiliate) in investigating, resisting, litigating and settling such a compliant, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by INEX;own expense. (db) in In any event, INEX and Hana Aradigm shall assist one another and cooperate in any such litigation at each the other’s request at the expense of the requesting Party’s own expense. 9.4.3 With regard to costs and expenses incurred by Hana (or any Licensee or Sublicensee) under Sections 9.4.1(c) or 9.4.2(b) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party (the “Offset Amount”), but not including any punitive award (the “Punitive Amount”), Hana (or any Licensee or Sublicensee) shall be entitled to offset or credit [*] of the Offset Amount against future payments otherwise due INEX as set forth in Section 3.7.1. With regard to any Punitive Amount (eg. willful infringement), the same is not included in the Offset Amount and is not to be offset or credited against future payments due INEX. 9.4.4 In the event a complaint is made under either of Sections 9.4.1 or 9.4.2, no settlement or consent judgment or other voluntary final disposition may be entered into without the consent of the other Party if such settlement would require the other Party to be subject to an injunction or to make a monetary payment or would restrict the claims in or admit any invalidity of any Patents Licensed Patent(s) or significantly adversely affect the rights of the other Party. The Parties further acknowledge that solely to the extent that any final disposition of the litigation that will restrict the claims in or admit any invalidity of any Loading Patent(s) or significantly adversely affect UBC’s rights, any such disposition of the litigation requires the full consultation with and approval by UBC under the UBC License Agreement.

Defense of Infringement Proceedings. 9.4.1 Subject to the consent of the University under the UBC License granting INEX the right to prosecute such litigation and subject further to the University consenting to INEX granting Hana the right to prosecute such litigation, the following shall apply: (a) If any complaint alleging infringement or violation of any patent or other proprietary rights is made against HanaHana or its Sublicensee, its Affiliate, Licensee or Sublicensee with respect to the Manufacture, use or sale of a Product, the following procedure shall applybe adopted: (ai) Hana shall promptly notify INEX in writing upon receipt of any such complaint setting out full details thereof and shall keep INEX fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by Hana (on behalf of itself, a Licensee itself or a Sublicensee); (bii) if such complaint gives rise to an indemnification obligation under any of the Definitive Agreements agreements in favor of Hana (or its Affiliate or Licensee or Sublicensee) on the part of INEX, then INEX shall defend such suit and all costs and expenses incurred by Hana (or any Affiliate or Licensee or its Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages damages and/or costs to any Third Party, shall be paid by INEX; (ciii) if such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of Hana on the part of INEX, then Hana shall have the right but not the obligation to defend such suit and all costs and expenses incurred by Hana (or any Affiliate or Licensee or Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana (or any Affiliate or Licensee or Sublicensee, as the case may be); and (div) in any event, INEX and Hana shall assist one another and cooperate in any such litigation at each Party’s own expense. 9.4.2 (b) If any complaint alleging infringement or violation of any patent or other proprietary rights is made against INEX, its Affiliate, licensee Affiliate or sublicensee with respect to the Manufacture, use or sale of a Product, the following procedure shall apply: (ai) INEX shall promptly notify Hana in writing upon receipt of any such complaint setting out full details thereof and shall keep Hana fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by INEXINEX(on behalf of itself, its Affiliate or a sublicensee); (bii) if such a complaint gives rise to an indemnification obligation under the Definitive Agreements in favor of INEX (or its Affiliate or sublicensee) on the part of Hana, then Hana shall defend such suit and all costs and expenses incurred by INEX (or its AffiliateAffiliate or sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana; (ciii) if If such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of INEX (or its Affiliate or sublicensee) on the part of Hana, then INEX shall have the right but not the obligation to defend such suit and all costs and expenses incurred by INEX (or its AffiliateAffiliate or sublicensee) in investigating, resisting, litigating and settling setline such a compliantcomplaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by INEX; (div) in In any event, INEX and Hana shall assist one another and cooperate in any such litigation at each Party’s own expense. 9.4.3 (c) With regard to costs and expenses incurred by Hana (or any Licensee or Sublicensee) under Sections 9.4.1(c7.7(a)(iii) or 9.4.2(b7.7(b)(ii) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party (the “Offset Amount”), but not including any punitive award (the “Punitive Amount”), Hana (or any Licensee or Sublicensee) shall be entitled to offset or credit [***] percent ([***]%) of the Offset Amount against future payments otherwise due INEX as set forth in Section 3.7.15.7(f)(i). With regard to any Punitive Amount (eg. willful infringement), the same is not included in the Offset Amount and is not to be offset or credited against future payments due INEX. 9.4.4 (d) In the event a complaint is made under either of Sections 9.4.1 7.7(a) or 9.4.27.7(b), no settlement or consent judgment or other voluntary final disposition may be entered into without the consent of the other Party or the University if such settlement would require the other Party or the University to be subject to an injunction or to make a monetary payment or would restrict the claims in or admit any invalidity of any Licensed Patents or significantly adversely affect the rights of the other PartyParty or the University. (e) If as a result of a proceeding alleging infringement or violation of any patent or other proprietary rights is made against Hana or its Sublicensee with respect to the Manufacture, use or sale of a Product, Hana agrees with a complainant to not pursue a Product which would otherwise generate a Royalty, the Parties agree that, in the event the University desires to acquire a co-exclusive right with Hana to the patent(s) for use of the Product for a specific field in the Hana Field, Hana agrees to enter negotiations with the University for such a co-exclusive right.

Defense of Infringement Proceedings. 9.4.1 If any complaint alleging infringement or violation of any patent or other proprietary rights is made against Hana, its Affiliate, Licensee or Sublicensee with respect to the Manufacture, use or sale of a Product, the following shall apply: (a) Hana shall promptly notify INEX in writing upon receipt of any such complaint setting out full details thereof and shall keep INEX fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by Hana (on behalf of itself, a Licensee or a Sublicensee); (b) if such complaint gives rise to an indemnification obligation under any of the Definitive Agreements in favor of Hana (or its Affiliate or Licensee or Sublicensee) on the part of INEX, then INEX shall defend such suit and all costs and expenses incurred by Hana (or any Affiliate or Licensee or Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by INEX; (c) if such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of Hana on the part of INEX, then Hana shall have the right but not the obligation to defend such suit and all costs and expenses incurred by Hana (or any Affiliate or Licensee or Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana (or any Affiliate or Licensee or Sublicensee, as the case may be); and (d) in any event, INEX and Hana shall assist one another and cooperate in any such litigation at each Party’s own expense. 9.4.2 If any complaint alleging infringement or violation of any patent or other proprietary rights is made against INEX, its Affiliate, licensee or sublicensee with respect to the Manufacture, use or sale of a Product, the following procedure shall apply:: INFORMATION MARKED BY [***] HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAS BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. (a) INEX shall promptly notify Hana in writing upon receipt of any such complaint setting out full details thereof and shall keep Hana fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by INEX; (b) if such a complaint gives rise to an indemnification obligation under the Definitive Agreements in favor of INEX on the part of Hana, then Hana shall defend such suit and all costs and expenses incurred by INEX (or its Affiliate) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana; (c) if such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of INEX on the part of Hana, then INEX shall have the right but not the obligation to defend such suit and all costs and expenses incurred by INEX (or its Affiliate) in investigating, resisting, litigating and settling such a compliant, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by INEX; (d) in any event, INEX and Hana shall assist one another and cooperate in any such litigation at each Party’s own expense. 9.4.3 With regard to costs and expenses incurred by Hana (or any Licensee or Sublicensee) under Sections 9.4.1(c) or 9.4.2(b) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party (the “Offset Amount”), but not including any punitive award (the “Punitive Amount”), Hana (or any Licensee or Sublicensee) shall be entitled to offset or credit [***] percent ([***]%) of the Offset Amount against future payments otherwise due INEX as set forth in Section 3.7.1. With regard to any Punitive Amount (eg. willful infringement), the same is not included in the Offset Amount and is not to be offset or credited against future payments due INEX. 9.4.4 In the event a complaint is made under either of Sections 9.4.1 or 9.4.2, no settlement or consent judgment or other voluntary final disposition may be entered into without the consent of the other Party if such settlement would require the other Party to be subject to an injunction or to make a monetary payment or would restrict the claims in or admit any invalidity of any Patents or significantly adversely affect the rights of the other Party.

Defense of Infringement Proceedings. 9.4.1 If any complaint alleging infringement or violation of any patent or other proprietary rights is made against Hana, its Affiliate, Licensee Affiliate or Sublicensee with respect to the Manufacture, use or sale of a Product, the following shall apply: (a) Hana shall promptly notify INEX in writing upon receipt of any such complaint setting out full details thereof and shall keep INEX fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by Hana (on behalf of itself, a Licensee or a Sublicensee); (b) if such complaint gives rise to an indemnification obligation under any of the Definitive Agreements in favor of Hana (or its Affiliate or Licensee or Sublicensee) on the part of INEX, then INEX shall defend such suit and all costs and expenses incurred by Hana (or any Affiliate or Licensee or Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by INEX; (c) if such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of Hana on the part of INEX, then Hana shall have the right but not the obligation to defend such suit and all costs and expenses incurred by Hana (or any Affiliate or Licensee or Sublicensee) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana (or any Affiliate or Licensee or Sublicensee, as the case may be); and (d) in any event, INEX and Hana shall assist one another and cooperate in any such litigation at each Party’s own expense. 9.4.2 If any complaint alleging infringement or violation of any patent or other proprietary rights is made against INEX, its Affiliate, licensee Affiliate or sublicensee with respect to the Manufacture, use or sale of a Product, the following procedure shall apply: (a) INEX shall promptly notify Hana in writing upon receipt of any such complaint setting out full details thereof and shall keep Hana fully informed of the actions and positions taken by the complainant and taken or proposed to be taken by INEX; (b) if such a complaint gives rise to an indemnification obligation under the Definitive Agreements in favor of INEX on the part of Hana, then Hana shall defend such suit and all costs and expenses incurred by INEX (or its Affiliate) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by Hana;. (c) if If such complaint does not give rise to an indemnification obligation under the Definitive Agreements in favor of INEX on the part of Hana, then INEX shall have the right but not the obligation to defend such suit and all costs and expenses incurred by INEX (or its Affiliate) in investigating, resisting, litigating and settling setline such a compliantcomplaint, including the payment of any award of Damages and/or costs to any Third Party, shall be paid by INEX; (d) in In any event, INEX and Hana shall assist one another and cooperate in any such litigation at each Party’s own expense. 9.4.3 With regard to costs and expenses incurred by Hana (or any Licensee or Sublicensee) under Sections 9.4.1(c) or 9.4.2(b) in investigating, resisting, litigating and settling such a complaint, including the payment of any award of Damages and/or costs to any Third Party (the “Offset Amount”), but not including any punitive award (the “Punitive Amount”), Hana (or any Licensee or Sublicensee) shall be entitled to offset or credit [***] percent ([***]%) of the Offset Amount against future payments otherwise due INEX as set forth in Section 3.7.1. With regard to any Punitive Amount (eg. willful infringement), the same is not included in the Offset Amount and is not to be offset or credited against future payments due INEX. 9.4.4 In the event a complaint is made under either of Sections 9.4.1 or 9.4.2, no settlement or consent judgment or other voluntary final disposition may be entered into without the consent of the other Party if such settlement would require the other Party to be subject to an injunction or to make a monetary payment or would restrict the claims in or admit any invalidity of any Licensed Patents or significantly adversely affect the rights of the other Party.