Common use of EMulate Patents Clause in Contracts

EMulate Patents. Subject to this Section 9.3(b), EMulate has the first right, as between EMulate and Hapbee, to bring and control any action or proceeding with respect to infringement of any EMulate Patent worldwide, at its own expense and by counsel of its own choice. Hapbee has the right, at its own expense, to be represented in any such action by counsel of its own choice, and EMulate and its counsel will reasonably cooperate with Hapbee and its counsel in strategizing, preparing, and presenting any such action or proceeding. If EMulate fails to bring an action or proceeding with respect to infringement of any EMulate Patent described in the preceding sentence within (i) one hundred twenty (120) days following the notice of alleged infringement or (ii) ten (10) days before the time limit, if any, set forth in the appropriate laws and regulations for the filing of such actions, whichever comes first, Hapbee has the right, but not the obligation, to bring and control any such action at its own expense and by counsel of its own choice. Upon Hapbee’s request, EMulate will timely join any such litigation and cooperate with Hapbee in connection with such infringement action. Except as otherwise agreed to by the Parties as part of a cost-sharing arrangement, any recovery or damages realized as a result of such action or proceeding will be used first to reimburse the Parties’ documented out-of-pocket legal expenses relating to the action or proceeding, and any remaining damages relating to the Authorized Product (including without limitation, lost sales, leases, rentals or lost profits with respect to the Authorized Product) will be retained by the Party bringing suit, and if such Party is Hapbee, such remaining damages will be deemed Net Income subject to the royalty provisions of Section 7.3.