Common use of During the Term Clause in Contracts

During the Term. (a) LICENSEE shall have the first right and obligation to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY against infringement or interference claims in the LICENSED TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALS. This right and obligation includes bringing any legal action for infringement and defending any counter claim of invalidity or action of a third party for declaratory judgment for non-infringement or non-interference. If, in the reasonable opinion of both LICENSEE’s and YALE’s respective counsel, YALE is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE as a party; provided, however, that (i) YALE shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE as a party; and (iii) LICENSEE shall keep YALE reasonably apprised of all developments in any such action. LICENSEE may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered without YALE’s prior written consent. LICENSEE shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and expense of LICENSEE, YALE shall have no obligation regarding the legal actions described in this Section unless required to participate by law. However, YALE shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-pocket expenses and second shall be applied to YALE’s out-of-pocket expenses, including legal fees. Thereafter, any remaining amount of such recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses as aforesaid and (ii) the amount of such compensatory damages as aforesaid. LICENSEE shall make such payment to YALE within thirty (30) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALE. (b) Promptly after LICENSEE (a) receives notification from YALE of infringement by a third party or (b) otherwise first becomes aware of an infringement by a third party, whichever is earlier, LICENSEE shall investigate such infringement and take other steps, including, without limitation, contacting the person believed to be infringing, to determine the nature and extent of any such infringement and, if LICENSEE determines that such infringement is occurring, notify such infringing person to cease. If such infringement shall nonetheless continue, then LICENSEE shall proceed in a timely manner in accordance with Section 11.2(a). If LICENSEE fails to initiate such actions to investigate and determine the nature and extent of such infringement within sixty (60) days after the earlier of such notice from YALE or the date LICENSEE first becomes aware of such infringement or if LICENSEE fails to commence a legal action under Section 11.2(a) in a timely manner, as the case may be, then YALE may by notice to LICENSEE demand that LICENSEE take such actions or commence such legal action. If LICENSEE shall fail to take such action or commence such legal action, as the case may be, within sixty (60) days after such demand by YALE, then YALE shall have the right to take such action or to initiate such legal action, as the case may be, at its own expense. If YALE initiates such legal action YALE may use the name of LICENSEE as party plaintiff to uphold the LICENSED PATENTS. In such case, LICENSEE shall provide reasonable assistance to YALE if requested to do so. YALE may settle such actions solely through its own counsel. Any recovery shall be retained by YALE. In case YALE initiates such legal action in accordance with this Section 11.2(b), then YALE may terminate the LICENSE in the country where such legal action is taken.

During the Term. (a) LICENSEE shall have the first right and obligation right, but shall not be obligated, to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY LICENSED PATENTS against infringement or interference claims in the FIELD and in the LICENSED TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALSparties. This right and obligation includes bringing any legal action for infringement and defending any counter claim counterclaim of invalidity or action of a third party for declaratory judgment for non-infringement or non-interference. If, in the reasonable opinion of both LICENSEE’s and YALE’s respective counselcounsels, YALE is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE as a party; provided, however, that (i) YALE shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE as a party; and (iii) LICENSEE shall keep YALE reasonably apprised of all material developments in any such action. LICENSEE may settle such suits suits, whether by agreement, consent, judgment, voluntary dismissal or otherwise, solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no any such settlement that imposes any restrictions or obligations on YALE shall be entered without into only with YALE’s prior written consent. LICENSEE shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and reasonable expense of LICENSEE, YALE shall have no obligation regarding the legal actions described in this Section Article 11.2 unless required to participate by law. However, YALE shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-out of pocket expenses and second shall be applied to YALE’s out-of-out of pocket expenses, in each case including legal fees. Thereafter, If there is any remaining amount excess recovery following payment of such recovery by LICENSEE up to the expenses: (A) any amount of compensatory damages recovered by LICENSEE specifically for lost profits or sales shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, treated as NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during in the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE EARNED ROYALTIES payable to YALE in respect of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE such NET SALES; (B) any amount recovered specifically as punitive or treble damages shall pay YALE [**] percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses be treated as aforesaid SUBLICENSE INCOME; and (iiC) if both clause (A) and clause (B) apply, the amount of such compensatory damages excess recovery shall apply to clause (A) and clause (B) in the same proportion as aforesaid. LICENSEE shall make such payment to YALE within thirty (301) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise recovered specifically for lost profits or sales bears to such payment to YALE(2) the amount recovered specifically as punitive or treble damages. (b) Promptly after In the event LICENSEE fails to initiate and pursue commercially reasonable steps within one hundred twenty (a120) receives days of (i) notification of infringement from YALE of to eliminate the infringement by a third party or interference or (bii) the date LICENSEE otherwise first becomes aware of an infringement by a third partyinfringement, whichever is earlier, LICENSEE shall investigate such infringement and take other steps, including, without limitation, contacting the person believed to be infringing, to determine the nature and extent of any such infringement and, if LICENSEE determines that such infringement is occurring, notify such infringing person to cease. If such infringement shall nonetheless continue, then LICENSEE shall proceed in a timely manner in accordance with Section 11.2(a). If LICENSEE fails to initiate such actions to investigate and determine the nature and extent of such infringement within sixty (60) days after the earlier of such notice from YALE or the date LICENSEE first becomes aware of such infringement or if LICENSEE fails to commence a legal action under Section 11.2(a) in a timely manner, as the case may be, then YALE may by notice to LICENSEE demand that LICENSEE take such actions or commence such legal action. If LICENSEE shall fail to take such action or commence such legal action, as the case may be, within sixty (60) days after such demand by YALE, then YALE shall have the right to take such action or to initiate such legal action, as the case may be, action at its own expense. If YALE initiates If, in the reasonable opinion of YALE’s and LICENSEE’s respective counsel, LICENSEE is required to be a named party in any such legal action suit for standing purposes, YALE may use the name of join LICENSEE as party plaintiff a party, subject to uphold the LICENSED PATENTSsame conditions to the joining of YALE set forth in Article 11.2(a). In such case, LICENSEE shall provide reasonable assistance to YALE if requested to do so. YALE may settle settle, whether by agreement, consent, judgment, voluntary dismissal or otherwise, such actions solely through its own counsel; provided, however, that any such settlement that imposes any restrictions or obligations on LICENSEE shall be entered into only with LICENSEE’s prior written consent. Any recovery shall be retained by YALE. In case YALE initiates such legal action in accordance with this Section 11.2(b), then YALE may terminate the LICENSE in the country where such legal action is taken.

During the Term. (a) LICENSEE shall have the first right and obligation to (i) defend its or its SUBLICENSEE’s use of the ENPP TECHNOLOGY against infringement or interference claims in the LICENSED TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALS. This right and obligation includes bringing any legal action for infringement and defending any counter claim of invalidity or action of a third party THIRD PARTY for declaratory judgment for non-infringement noninfringement or non-interference. If, in the reasonable opinion of both LICENSEE’s and YALE’s respective counsel, YALE is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE as a party; provided, however, that (i) YALE shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE as a party; and (iii) LICENSEE shall keep YALE reasonably apprised of all developments in any such action. LICENSEE may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered without YALE’s prior written consent. LICENSEE shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and expense of LICENSEE, YALE shall have no obligation regarding the legal actions described in this Section unless required to participate by law. However, YALE shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-pocket expenses and second shall be applied to YALE’s out-of-pocket expenses, including legal fees. Thereafter, any remaining amount of such recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] percent Percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses as aforesaid and (ii) the amount of such compensatory damages as aforesaid. LICENSEE shall make such payment to YALE within thirty (30) days [**] after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALE. (b) Promptly after LICENSEE (a) receives notification from YALE of infringement by a third party THIRD PARTY or (b) otherwise first becomes aware of an infringement by a third partyTHIRD PARTY, whichever is earlier, LICENSEE shall investigate such infringement and take other steps, including, without limitation, contacting the person believed to be infringing, to determine the nature and extent of any such infringement and, if LICENSEE determines that such infringement is occurring, notify such infringing person to cease. If such infringement shall nonetheless continue, then LICENSEE shall proceed in a timely manner in accordance with Section 11.2(a). If LICENSEE fails to initiate such actions to investigate and determine the nature and extent of such infringement within sixty (60) days [**] after the earlier of such notice from YALE or the date LICENSEE first becomes aware of such infringement or if LICENSEE fails to commence a legal action under Section 11.2(a) in a timely manner, as the case may be, then YALE may by notice to LICENSEE demand that LICENSEE take such actions or commence such legal action. If LICENSEE shall fail to take such action or commence such legal action, as the case may be, within sixty (60) days [**] after such demand by YALE, then YALE shall have the right to take such action or to initiate such legal action, as the case may be, at its own expense. If YALE initiates such legal action YALE may use the name of LICENSEE as party plaintiff to uphold the LICENSED PATENTS. In such case, LICENSEE shall provide reasonable assistance to YALE if requested to do so. YALE may settle such actions solely through its own counsel, including though the granting of a license to the ENPP TECHNOLOGY to the infringing THIRD PARTY. Any recovery shall be retained by YALE. In case YALE initiates such legal action in accordance with this Section 11.2(b), then YALE may terminate the LICENSE in the country where such legal action is taken.

During the Term. (a) LICENSEE shall have the first right and obligation to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY LICENSED PATENTS against infringement or interference claims in the LICENSED FIELD and in the TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALSparties. This right and obligation includes bringing any legal action for infringement and defending any counter claim of invalidity or action of a third party for declaratory judgment for non-infringement or non-interferencenoninterference. If, in the reasonable opinion of both LICENSEE’s and YALE’s respective counsel, YALE is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE as a party; provided, however, that (i) YALE shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE as a party; and (iii) LICENSEE shall keep YALE reasonably apprised of all developments in any such action. LICENSEE may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered without YALE’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Without limiting the foregoing, YALE may withhold its consent to any settlement that would in any manner constitute or incorporate an admission by YALE or require YALE to take or refrain from taking any action. LICENSEE shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and expense of LICENSEE, YALE shall have no obligation regarding the legal actions described in this Section Article 11.2 unless required to participate by law. However, YALE shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-out of pocket expenses and second shall be applied to YALE’s out-of-out of pocket expenses, including legal fees. Thereafter, any remaining amount of such Any excess recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE over those expenses shall be treated as if it were SUBLICENSE INCOME with the applicable percentage under Article 7.3 payable to YALE and the balance retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses as aforesaid and (ii) the amount of such compensatory damages as aforesaid. LICENSEE shall make such payment to YALE within thirty (30) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALE. (b) Promptly after In the event LICENSEE fails to initiate and pursue or participate in the actions described in Article 11.2(a) within sixty (60) days of (a) receives notification of infringement from YALE of infringement by a third party or (b) the date LICENSEE otherwise first becomes aware of an infringement by a third partyinfringement, whichever is earlier, LICENSEE shall investigate such infringement and take other steps, including, without limitation, contacting the person believed to be infringing, to determine the nature and extent of any such infringement and, if LICENSEE determines that such infringement is occurring, notify such infringing person to cease. If such infringement shall nonetheless continue, then LICENSEE shall proceed in a timely manner in accordance with Section 11.2(a). If LICENSEE fails to initiate such actions to investigate and determine the nature and extent of such infringement within sixty (60) days after the earlier of such notice from YALE or the date LICENSEE first becomes aware of such infringement or if LICENSEE fails to commence a legal action under Section 11.2(a) in a timely manner, as the case may be, then YALE may by notice to LICENSEE demand that LICENSEE take such actions or commence such legal action. If LICENSEE shall fail to take such action or commence such legal action, as the case may be, within sixty (60) days after such demand by YALE, then YALE shall have the right to take initiate legal action such action or to initiate such legal action, as the case may be, that described in Article 11.2(a) at its own expense. If YALE initiates such legal action expense and YALE may use the name of LICENSEE as party plaintiff to uphold the LICENSED PATENTS. In such case, LICENSEE shall provide reasonable assistance to YALE if requested to do so. YALE may settle such actions solely through its own counsel. Any recovery shall first be applied to YALE’s out of pocket expenses and second shall be applied to LICENSEE’s out of pocket expenses, including legal fees. Any excess recovery over those expenses shall be allocated as follows: [***] shall be paid to LICENSEE and [***] shall be retained by YALE. . (c) In case the event LICENSEE is permanently enjoined from exercising its LICENSE under this AGREEMENT pursuant to an infringement action brought by a third party, or if both LICENSEE and YALE initiates elect not to undertake the defense or settlement of a suit alleging infringement for a period of twelve (12) months from notice of such legal action in accordance with this Section 11.2(b)suit, then YALE may either party shall have the right to terminate the LICENSE this AGREEMENT in the country where the suit was filed with respect to the licensed patent following thirty (30) days’ written notice to the other party in accordance with the terms of Article 13. (d) Notwithstanding the foregoing, neither LICENSEE nor YALE shall take any action to enforce the LICENSED PATENTS against any third party engaged in providing global access to affordable pharmaceutical products in low- or lower-middle-income countries, as designated by the Word Bank, in any such legal countries, where such action is takenintended to prevent the sale of LICENSED PRODUCTS in any such countries at prices below prices in those countries that are not low- or lower-middle income countries. However, LICENSEE and/or YALE may take such action in any such country if such action is intended to prevent the sale or manufacturing of LICENSED PRODUCTS in such countries for commercialization in countries that are not low- or lower-middle-income countries.

During the Term. (a) LICENSEE shall have the first right right, but not the obligation, to assert and obligation to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY against LICENSED PATENTS respecting infringement or interference claims other violation of INTELLECTUAL PROPERTY RIGHTS relating to the ROYALTY-BEARING PRODUCTS by THIRD PARTIES in the LICENSED TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALSusing counsel of its own selection. This right and obligation includes bringing any legal action for infringement and defending any counter claim of invalidity a THIRD PARTY respecting the LICENSED PATENTS such as a counter claim or action of a third party for declaratory judgment for invalidity, non-infringement infringement, or non-interferenceunenforceability. If, in the reasonable opinion of both LICENSEE’s and YALE’s MXXXXXX’x respective counsel, YALE MOFFITT is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE MOFFITT as a partyparty and MOFFITT shall consensually appear in such action; provided, however, that (i) YALE MOFFITT shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE MOFFITT as a party; and (iii) LICENSEE shall keep YALE MOFFITT reasonably apprised of all developments in any such action. No settlement, consent judgment, or other voluntary final disposition of any action by LICENSEE that admits the invalidity, unenforceability, or scope of the LICENSED PATENTS may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered into without YALE’s the prior written consentconsent of MOFFITT, such consent not to be unreasonably withheld, delayed or conditioned. LICENSEE MOFFITT shall bear the expense of their own legal expenses with respect to any such legal actionslitigation. Except for providing reasonable assistance, at the request and expense of LICENSEE, YALE MOFFITT shall have no obligation regarding the legal actions described in this Section 10.2 unless required to participate by law. However, YALE MOFFITT shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-pocket expenses OUT OF POCKET COSTS and second shall be applied to YALE’s out-of-pocket expensesMXXXXXX’x OUT OF POCKET COSTS, including legal fees. Thereafter, any remaining amount of such recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE MOFFITT shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] recover twenty percent ([**]20%) of the amount, if any, of any such excess recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses as aforesaid and (ii) the amount of such compensatory damages as aforesaid. LICENSEE shall make such payment to YALE within thirty (30) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALEover those expenses. (b) Promptly after LICENSEE (a) receives notification from YALE of infringement by a third party or (b) otherwise first becomes aware of an infringement by a third party, whichever is earlier, LICENSEE shall investigate such infringement and take other steps, including, without limitation, contacting In the person believed to be infringing, to determine the nature and extent of any such infringement and, if LICENSEE determines that such infringement is occurring, notify such infringing person to cease. If such infringement shall nonetheless continue, then LICENSEE shall proceed in a timely manner in accordance with Section 11.2(a). If event LICENSEE fails to initiate such and pursue or participate in the actions to investigate and determine described in the nature and extent of such infringement preceding paragraph (a) within sixty (60) days after the earlier of such notice from YALE or the date LICENSEE first becomes becoming aware of an infringement of LICENSED PATENTS or other violation of intellectual property rights relating to the ROYALTY-BEARING PRODUCTs or (b) upon notice by LICENSEE to MOFFITT that it does not intend to initiate, pursue or participate in such infringement or if LICENSEE fails to commence a legal action under Section 11.2(a) in a timely manneraction(s), as the case may bewhichever is earlier, then YALE may by notice to LICENSEE demand that LICENSEE take such actions or commence such legal action. If LICENSEE shall fail to take such action or commence such legal action, as the case may be, within sixty (60) days after such demand by YALE, then YALE MOFFITT shall have the right to initiate or take such action or to initiate over such legal action, as the case may be, action at its own expense. If YALE initiates such legal action YALE expense and MOFFITT may use the name of LICENSEE as a party plaintiff in such action if, in the reasonable opinion of LICENSEE’s and MXXXXXX’x respective counsel, LICENSEE is required to uphold the LICENSED PATENTSbe a named party to any such suit for standing purposes. In such case, LICENSEE shall provide reasonable assistance to YALE MOFFITT if requested to do so. YALE No settlement, consent judgment, or other voluntary final disposition of any action by MOFFITT that admits the invalidity, unenforceability, or scope of the LICENSED PATENTS may settle be entered into without the prior written consent of LICENSEE, such actions solely through its own counselconsent not to be unreasonably withheld, delayed or conditioned. Any recovery shall first be retained applied to MXXXXXX’x OUT OF POCKET COSTS and second shall be applied to LICENSEE’s OUT OF POCKET COSTS, including legal fees. Any excess recovery over those fees shall be split between MOFFITT and LICENSEE on a pro rata basis as determined by YALE. In case YALE initiates such the relative total OUT OF POCKET COSTS incurred by each party in pursuing the legal action in accordance with this Section 11.2(b), then YALE may terminate the LICENSE in the country where such legal action is takenaction.

During the Term. (a) LICENSEE Licensee shall have the first right and obligation to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY Licensed Patents against infringement or interference claims challenges in the LICENSED TERRITORY Field and in the Licensed Territory by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOWparties, LICENSED METHODS or LICENSED MATERIALS. This right and obligation which includes bringing any legal action for infringement and defending any counter claim of invalidity or action of a third party for declaratory judgment for non-infringement or non-interferencechallenge. If, in the reasonable opinion of both LICENSEE’s Licensee's and YALE’s Dartmouth's respective counsel, YALE Dartmouth is required to be a named party to any such suit for standing purposes, LICENSEE Licensee may join YALE Dartmouth as a party; provided, however, that (i) YALE Dartmouth shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE Licensee and that LICENSEE Licensee has joined YALE Dartmouth as a party; , and (iii) LICENSEE Licensee shall keep YALE Dartmouth reasonably apprised of all developments in any such action. LICENSEE Licensee may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered without YALE’s Dartmouth's prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. LICENSEE Without limiting the foregoing, Dartmouth may withhold its consent to any settlement that would in any manner constitute or incorporate an admission of liability by Dartmouth or require Dartmouth to take or refrain from taking any action. Licensee shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and expense of LICENSEELicensee, YALE Dartmouth shall have no obligation regarding the legal actions described in this Section 11.2 unless required to participate by law. However, YALE Dartmouth shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-Licensee's out of pocket expenses and second shall be applied to YALE’s out-of-Dartmouth's out of pocket expenses, including legal fees. Thereafter, With respect to any remaining amount excess recovery received by Licensee after the payment of such recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses that constitute damages for lost sales of Licensed Products, such recovery shall be treated as aforesaid and (ii) Net Sales for which Dartmouth shall be paid Earned Royalties. Any excess recovery received by Licensee after the amount payment of such compensatory out-of-pocket expenses that does not constitute damages for lost sales of Licensed Products (including treble or punitive damages) shall be treated as aforesaidSublicense Income. LICENSEE shall make such payment to YALE within thirty (30) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALE.DARTMOUTH CONFIDENTIAL (b) Promptly after LICENSEE (a) receives notification from YALE of infringement by a third party or (b) otherwise first becomes aware of an infringement by a third party, whichever is earlier, LICENSEE shall investigate such infringement and take other steps, including, without limitation, contacting In the person believed to be infringing, to determine the nature and extent of any such infringement and, if LICENSEE determines that such infringement is occurring, notify such infringing person to cease. If such infringement shall nonetheless continue, then LICENSEE shall proceed in a timely manner in accordance with Section 11.2(a). If LICENSEE event Licensee fails to initiate such and pursue or participate in the actions to investigate and determine the nature and extent of such infringement described in Section 11.2(a) in a particular country within sixty (60) days after the earlier (a) notification of such notice infringement from YALE Dartmouth, or (b) the date LICENSEE Licensee otherwise first becomes aware of an infringement, whichever is earlier, Dartmouth may, in its sole discretion, convert the License granted in Section 2 solely with respect to such infringement particular country to a nonexclusive license, and issue licenses to third parties under the Licensed Patents to make, have made, use, sell, have sold, import, export, or if LICENSEE fails to commence a legal action under Section 11.2(a) practice Licensed Products within the Field in a timely mannersuch particular country. Additionally, as the case may be, then YALE may by notice to LICENSEE demand that LICENSEE take such actions or commence such legal action. If LICENSEE shall fail to take such action or commence such legal action, as the case may be, within sixty (60) days after such demand by YALE, then YALE Dartmouth shall have the right to take such action or to initiate such legal action, as the case may be, action at its own expense. If YALE initiates such legal action YALE expense and Dartmouth may use the name of LICENSEE Licensee as party plaintiff to uphold the LICENSED PATENTSLicensed Patents. In such case, LICENSEE Licensee shall provide reasonable assistance to YALE Dartmouth if requested to do so. YALE Dartmouth may settle such actions solely through its own counsel. Any recovery shall be retained by YALEDartmouth. In case YALE initiates such legal action in accordance with this This Section 11.2(b)) shall be of no force or effect during any such period in which a valid Sublicense with respect to the Licensed Patents is in effect; provided that Licensee hereby agrees during any such period to use commercially reasonable efforts, itself or through its Sublicensees, to enforce the Licensed Patents against infringers, and in the event that neither Licensee nor a relevant Sublicensee intends to take action to terminate an ongoing infringement after written request of Dartmouth to do so, Licensee and/or its relevant Sublicensee shall discuss in good faith with Dartmouth actions to be taken to address Dartmouth's reasonable concerns. DARTMOUTH CONFIDENTIAL (c) In the event Licensee is permanently enjoined from exercising its License under this Agreement pursuant to an infringement action brought by a third party, or if both Licensee and Dartmouth elect not to undertake the defense or settlement of a suit alleging infringement for a period of six (6) months from notice of such suit, then YALE may terminate Dartmouth shall have the LICENSE right to remove the applicable Licensed Patent in the country where such legal action is taken.the suit was filed from the scope of this Agreement following thirty