Common use of Defense of Third Party Infringement Claims Clause in Contracts

Defense of Third Party Infringement Claims. 11.1 Nutrislice will defend, indemnify and hold You harmless against any claims asserting that the Software infringes any intellectual property right of a third party, and will pay any and all damages finally awarded by a court and actually paid by You, or agreed to in a final settlement by Xxxxxxxxxx and attributable to such claim. Nutrislice’s obligations under this provision are subject to Your not having compromised or settled such claim and You doing the following: (a) notifying Nutrislice of the claim in writing, as soon as You learn of it; (b) providing Nutrislice with all reasonable assistance and information to enable Nutrislice to perform Nutrislice’s duties under this Section; and (c) allowing Nutrislice sole control of the defense and all related settlement negotiations. Notwithstanding the foregoing, You may participate at Your expense in the defense of any such claim with Your own counsel, provided that Nutrislice retains sole control of the claim. You have the right to approve any settlement that affirmatively places on You an obligation that has a material adverse effect on You other than the obligations to cease using the affected Software or to pay sums indemnified under this Section. Such approval will not be unreasonably withheld. 11.2 In the unlikely event that the Software is found to infringe any intellectual property right of a third party, or if Nutrislice determines in Nutrislice’s sole opinion that the Software is likely to be found to infringe the same, then Nutrislice will either: (i) obtain for You the right to continue to use the Software; or (ii) modify the Software so as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality; or, if Nutrislice determines in its sole opinion that “(i)” and/or “(ii)” are not reasonable, Nutrislice may (iii) terminate Your rights and Nutrislice’s obligations under this Agreement with respect to such Software, and in such case shall refund to You the remaining, unused pre-paid fees for any Subscription or Services. Notwithstanding the above, Nutrislice will not be liable for any infringement claim to the extent that it is based upon: (1) modification of the Software other than by Nutrislice; (2) combination, use, or operation of the Software with products not specifically authorized by Nutrislice to be combined with the Software; (3) use of the Software other than in accordance with this Agreement; or (4) Your continued use of infringing Software after Nutrislice, for no additional charge, supplies or offers to supply modified or replacement non- infringing Software. 11.3 THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND NUTRISLICE’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, ALL WARRANTIES AGAINST INFRINGMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, OR IMPLIED ARE EXPRESSLY DISCLAIMED.

Defense of Third Party Infringement Claims. 11.1 Nutrislice will defendA. If, indemnify and hold You harmless against any claims asserting pursuant to notice under Section 7.3 or otherwise, LICENSEE becomes aware that the Software infringes Licensed Product is infringing or is being claimed or threatening to infringe the rights of any intellectual property right of a third party, and will pay it shall have the right, but not the obligation, to control any and all damages finally awarded by discussions or legal proceedings directed against the Licensed Product. In any such action, LICENSOR shall, at LICENSEE’S expense, fully cooperate with LICENSEE, including without limitation, being joined as a court and actually paid by You, or agreed to in a final settlement by Xxxxxxxxxx and attributable party to such claimaction and, to the extent possible, having its employees testify when requested and making available relevant records, papers, information, samples, specimens, and the like. Nutrislice’s obligations under this provision are subject In addition, LICENSOR shall use its commercially reasonable best efforts to Your not having compromised or settled such claim and You doing obtain the following: (a) notifying Nutrislice cooperation of the claim University and any other third party licensor in writing, as soon as You learn of it; (b) providing Nutrislice connection with all reasonable assistance and information to enable Nutrislice to perform Nutrislice’s duties under this Section; and (c) allowing Nutrislice sole control of the defense and all related settlement negotiations. Notwithstanding the foregoing, You may participate at Your expense in the defense of any such claim with Your own counsel, provided that Nutrislice retains sole control of the claim. You have the right to approve Licensed Product. B. If LICENSEE defends any settlement that affirmatively places on You an obligation that has a material adverse effect on You other than the obligations to cease using the affected Software or to pay sums indemnified action under this Section. Such approval will not Section 7.5, then all legal expenses (including court costs and attorneys' fees) shall be unreasonably withheldborne by LICENSEE, and LICENSEE shall be entitled to first recover such expenses out of any judgment, settlement or compromise, and the remainder shall be included as Net Sales for which royalties are due under Section 4.4 of this Agreement. 11.2 In C. If LICENSOR is named in any third party action regarding alleged infringement by the unlikely event that the Software is found Licensed Product and LICENSEE has not taken action pursuant to infringe any intellectual property right of a third party, or if Nutrislice determines in Nutrislice’s sole opinion that the Software is likely to be found to infringe the samesub-Section 7.5(A), then Nutrislice will either: (i) obtain for You the right to continue to use the Software; or (ii) modify the Software so LICENSEE shall, at LICENSOR’S expense, fully cooperate with LICENSOR, including without limitation, being joined as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality; or, if Nutrislice determines in its sole opinion that “(i)” and/or “(ii)” are not reasonable, Nutrislice may (iii) terminate Your rights and Nutrislice’s obligations under this Agreement with respect party to such Softwareaction and, and in such case shall refund to You the remaining, unused pre-paid fees for any Subscription or Services. Notwithstanding the above, Nutrislice will not be liable for any infringement claim to the extent that it is based upon: possible, having its employees testify when requested and making available relevant records, papers, information, samples, specimens, and the like. D. If LICENSOR defends any action under sub-Section 7.5(C), then all legal expenses (1including court costs and attorneys' fees) modification shall be borne by LICENSOR, and LICENSOR shall be entitled to first recover such expenses out of any judgment, settlement or compromise, and the Software other than by Nutrislice; (2) combination, use, or operation remainder shall be included as Net Sales for which royalties are due under Section 4.4 of the Software with products not specifically authorized by Nutrislice to be combined with the Software; (3) use of the Software other than in accordance with this Agreement; or (4) Your continued use of infringing Software after Nutrislice, for no additional charge, supplies or offers to supply modified or replacement non- infringing Software. 11.3 THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND NUTRISLICE’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, ALL WARRANTIES AGAINST INFRINGMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, OR IMPLIED ARE EXPRESSLY DISCLAIMED.

Defense of Third Party Infringement Claims. 11.1 Nutrislice will defendIf the research, indemnify and hold You harmless against development, manufacture, sale or use of any claims asserting that Product within the Software infringes any intellectual property right of a third party, and will pay any and all damages finally awarded by a court and actually paid by You, or agreed to Field in the Territory results in a final settlement by Xxxxxxxxxx and attributable to claim, suit or proceeding other than any such claim. Nutrislice’s obligations under this provision are , suit or proceeding subject to Your not having compromised the provisions of Section 19.2 or settled 19.3 hereof (collectively, the “Actions”) alleging patent infringement against either Party (or its respective Affiliates or Sublicensees), such claim and You doing Party shall promptly notify the following: (a) notifying Nutrislice of the claim other Party hereto in writing. MG or, as soon as You learn of it; if applicable, its Additional Partner, if any (bif the Action is brought outside the Territory) providing Nutrislice with all reasonable assistance and information Pharmion (if the Action is brought in the Territory) shall have the exclusive right to enable Nutrislice to perform Nutrislice’s duties under this Section; defend and (c) allowing Nutrislice sole control of the defense and all related settlement negotiations. Notwithstanding the foregoing, You may participate at Your expense in the defense of any such claim Action using counsel of its own choice (the “Controlling Party”); provided, however, that the other Party shall be kept informed of all material developments in connection with Your own counsel, provided that Nutrislice retains sole control of any such Action and the claim. You other Party shall have the right to approve participate with counsel of its own choice (at its sole cost and expense) and shall reasonably cooperate with the Controlling Party in the defense or settlement of such Action. The Controlling Party shall not enter into any settlement that affirmatively places on You an obligation that has a material adverse effect on You other than the obligations relating to cease using the affected Software any patent right or to pay sums indemnified technology licensed under this Section. Such approval will Agreement (for purposes of this Section 17.5 and Section 17.6, the “Licensed Technology” and “Licensed Patents”) that admits the invalidity, unenforceability or non-infringement of any Licensed Patent within the Field without the other Party’s approval, which shall not be unreasonably withheld. 11.2 In withheld or delayed unreasonably. The costs, liability and expenses (including attorneys’ and experts’ fees and amounts paid in settlement) incurred by the unlikely event that the Software is found to infringe any intellectual property right Controlling Party in respect of a third partysuch Actions (together, or if Nutrislice determines in Nutrislice’s sole opinion that the Software is likely to be found to infringe the same, then Nutrislice will either: “Liabilities”) shall (i) obtain for You to the right extent it relates to continue to use licenses or rights in North America and provided MG has not exercised its MG Opt-out Right, be included as part of Development Costs or Commercialization Costs, as the Software; or case may be and (ii) modify the Software so as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality; or, if Nutrislice determines in its sole opinion that “(i)” and/or “(ii)” are not reasonable, Nutrislice may (iii) terminate Your rights and Nutrislice’s obligations under this Agreement with respect to such Software, and in such case shall refund to You the remaining, unused pre-paid fees for any Subscription or Services. Notwithstanding the above, Nutrislice will not be liable for any infringement claim to the extent that it is based upon: relates (1a) modification of solely to licenses or rights in the Software Territory other than by Nutrislice; (2) combination, use, or operation of the Software with products not specifically authorized by Nutrislice to be combined with the Software; (3) use of the Software other than in accordance with this Agreement; North America or (4b) Your continued use of infringing Software after Nutrisliceto North America provided MG has exercised its MG Opt-out Right, be assumed by Pharmion, in which case Pharmion shall be entitled to treat its Liabilities as royalties paid to a third party under Article 11 in consideration for no additional charge, supplies or offers to supply modified or replacement non- infringing SoftwareThird Party IP under Section 11.3. 11.3 THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND NUTRISLICE’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, ALL WARRANTIES AGAINST INFRINGMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, OR IMPLIED ARE EXPRESSLY DISCLAIMED.

Defense of Third Party Infringement Claims. 11.1 Nutrislice will defend, indemnify and hold You harmless against any claims asserting that the Software infringes any intellectual property right of a third party, and will pay any and all damages finally awarded by a court and actually paid by You, or agreed to in a final settlement by Xxxxxxxxxx Nutrislice and attributable to such claim. Nutrislice’s obligations under this provision are subject to Your not having compromised or settled such claim and You doing the following: (a) notifying Nutrislice of the claim in writing, as soon as You learn of it; (b) providing Nutrislice with all reasonable assistance and information to enable Nutrislice to perform Nutrislice’s duties under this Section; and (c) allowing Nutrislice sole control of the defense and all related settlement negotiations. Notwithstanding the foregoing, You may participate at Your expense in the defense of any such claim with Your own counsel, provided that Nutrislice retains sole control of the claim. You have the right to approve any settlement that affirmatively places on You an obligation that has a material adverse effect on You other than the obligations to cease using the affected Software or to pay sums indemnified under this Section. Such approval will not be unreasonably withheld. 11.2 In the unlikely event that the Software is found to infringe any intellectual property right of a third party, or if Nutrislice determines in Nutrislice’s sole opinion that the Software is likely to be found to infringe the same, then Nutrislice will either: (i) obtain for You the right to continue to use the Software; or (ii) modify the Software so as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality; or, if Nutrislice determines in its sole opinion that “(i)” and/or “(ii)” are not reasonable, Nutrislice may (iii) terminate Your rights and Nutrislice’s obligations under this Agreement with respect to such Software, and in such case shall refund to You the remaining, unused pre-paid fees for any Subscription or Services. Notwithstanding the above, Nutrislice will not be liable for any infringement claim to the extent that it is based upon: (1) modification of the Software other than by Nutrislice; (2) combination, use, or operation of the Software with products not specifically authorized by Nutrislice to be combined with the Software; (3) use of the Software other than in accordance with this Agreement; or (4) Your continued use of infringing Software after Nutrislice, for no additional charge, supplies or offers to supply modified or replacement non- infringing Software. 11.3 THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND NUTRISLICE’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, ALL WARRANTIES AGAINST INFRINGMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, OR IMPLIED ARE EXPRESSLY DISCLAIMED.