Common use of Infringement Actions by Third Parties Clause in Contracts

Infringement Actions by Third Parties. Subject to the obligations of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective Affiliates, or FRESENIUS’ Sublicensees, is sued by a Third Party for infringement of a Third Party’s patent because of the use of the Xcellerate™ Technology in the Field in the Territory, the Party which has been sued shall promptly notify the other Party in no event later than [*] days of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS shall have the right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE all evidence and assistance in its control. If FRESENIUS does not elect within [*] days after receipt of such notice to so control the defense of such suit, XCYTE may undertake such control at its own expense, and FRESENIUS shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS shall cooperate fully in the defense of such suit and furnish to XCYTE all evidence and assistance in FRESENIUS’ control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 shall be paid by or to the Party which controls the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counsel.

Infringement Actions by Third Parties. Subject to the obligations of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective AffiliatesIf a Party, or FRESENIUS’ Sublicenseesto its knowledge, is any of its sublicensees or customers shall be sued by a Third Party party for infringement of a Third Party’s patent because of the development, manufacture, use or sale of the Xcellerate™ Technology in the Field in the TerritoryLicensed Products, the such Party which has been sued shall promptly notify the other Party in no event later than [*] days writing of the institution of such suit. The notice Party sued shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS shall have the right, in its sole discretion, to control the defense of such suit at its own expense; provided, and XCYTE however, if the Party being sued is being indemnified for such claim by the other Party, then the indemnifying Party shall have the right to be represented by advisory counsel control the defense of its own selection, at its own expense, and the claim in accordance with Section 9. Each Party shall cooperate fully in the defense of such suit and shall furnish to XCYTE the other Party all evidence and assistance in its control. If FRESENIUS does The Party sued shall make a preliminary decision to defend or not elect defend its interests in such suit and shall so notify the other Party in writing of its decision within [*] ** days after receipt of the institution of such notice a suit. If a Party after electing to so defend a suit should at any time elect to drop such defense, said Party shall immediately notify the other Party in writing and permit such other Party to control the suit at such other Party's expense, in the name of the Party initiating the defense. If the Party sued notifies the other Party in writing per the above that it shall not defend or continue the defense of such a suit, XCYTE may undertake then the other Party shall have the right, but not the obligation, to defend its interests in such control at its own expensea suit, and FRESENIUS shall then have the right to be represented by advisory counsel of its own selection and at its own expenselitigate, and FRESENIUS shall cooperate fully in the defense settle or otherwise dispose of such suit and furnish to XCYTE all evidence and assistance in FRESENIUS’ control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event as it sees fit, provided, however, that TAP may the Party controlling the suit not settle or otherwise consent to an adverse judgment in such suit in a manner that diminishes would materially impact or adversely affect the rights or interests of the non-controlling Party without the express written consent of the non-controlling PartySantarus Patent Rights. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 Section 6.3 shall be paid by or to the Party which controls the litigation; provided, however, that if subject to any claims against the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost for breach of its legal fees for such advisory counselor indemnification under this Agreement or otherwise available at law or in equity.

Infringement Actions by Third Parties. Subject to the obligations If MN or any of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective Affiliates, or FRESENIUS’ Sublicensees, is its Affiliates shall be sued by a Third Party for infringement of a patent held by such Third Party’s patent Party because of the use manufacture, importation, use, offer for sale or sale of the Xcellerate™ Technology in the Field in the TerritoryCompound or Products under MPC Intellectual Property, the Party which has been sued MN shall promptly notify the other Party MPC in no event later than [*] days writing of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS MN shall have the first right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE in which event MPC shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE MN all evidence and assistance in its MPC’s control. If FRESENIUS MN does not elect within [*] thirty (30) days after receipt of such notice from MN to MPC to so control the defense of such suit, XCYTE MPC may undertake such control at its own expense, and FRESENIUS MN shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS MN shall cooperate fully in the defense of such suit and furnish to XCYTE MPC all evidence and assistance in FRESENIUS’ MN’s control. The Party controlling the suit shall keep the other Party reasonably informed of the status of may not settle the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements The royalty or damages payable other payments required to be paid by MN or its Affiliates to any Third Party as the result of a judgment or settlement under this Section 8.9 shall be creditable against the royalty payments pursuant to Section 4.3 due MPC with respect to legal proceedings covered by this Article 12 shall be paid by or to the Party which controls the litigation; sale of such Product in such country, provided, however, that if in no event shall the other Party has elected royalties payable to MPC pursuant to Section 4.3 be represented by advisory counsel, reduced to less than fifty percent (50%) of the other Party shall receive the actual reasonable cost of its legal fees for such advisory counselamount due under this Agreement.

Infringement Actions by Third Parties. Subject to the obligations of each Party pursuant to Article 16, if FRESENIUS, XCYTE If MN or their respective Affiliates, its sublicensees or FRESENIUS’ Sublicensees, is customers shall be sued by a Third Party for infringement of a patent held by such Third Party’s patent Party because of the use manufacture, importation, marketing, use, offer for sale or sale of the Xcellerate™ Technology in the Field in the TerritoryCompound or Licensed Products, the Party which has been sued MN shall promptly notify the other Party KR in no event later than [*] days writing of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS MN shall have the first right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE in which event KR shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE MN all evidence and assistance in its KR’s control. If FRESENIUS MN does not elect within [*] thirty (30) days after receipt of such notice from MN to KR to so control the defense of such suit, XCYTE KR may undertake such control at its own expense, and FRESENIUS MN shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS MN shall cooperate fully in the defense of such suit and furnish to XCYTE KR all evidence and assistance in FRESENIUS’ MN’s control. The Party controlling the suit shall keep the other Party reasonably informed of the status of may not settle the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements Third Party royalty or damages payable with respect other payments required to legal proceedings covered by be paid as the result of a judgment or settlement under this Article 12 Section 8.9 shall be paid borne equally by or the Parties, subject to the Party which controls the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost provisions of its legal fees for such advisory counselArticle 12.

Infringement Actions by Third Parties. Subject to the obligations of each Party pursuant to Article 16If PMC, if FRESENIUS, XCYTE CORIXA or their respective Affiliates, or FRESENIUS’ PMC's Sublicensees, is sued by a Third Third-Party for infringement of a Third Third-Party’s 's patent because of the manufacture, use or sale of Product or manufacture or use of the Xcellerate™ Technology in the Field in the TerritoryMaterial, the Party which has been sued shall promptly notify the other Party in no event later than [*] days writing of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS CORIXA shall have the right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE in which event PMC shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE CORIXA all evidence and assistance in its control. If FRESENIUS CORIXA does not elect within [*] thirty (30) days after receipt of such notice to so control the defense of such suit, XCYTE PMC may undertake such control at its own expense, and FRESENIUS CORIXA shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS CORIXA shall cooperate fully in the defense of such suit and furnish to XCYTE PMC all evidence and assistance in FRESENIUS’ CORIXA's control. The Party controlling the suit shall keep the other Party reasonably informed of the status of may not settle the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 10 shall be paid by or to the Party which controls the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counsel.

Infringement Actions by Third Parties. Subject to In the obligations of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective Affiliates, or FRESENIUS’ Sublicensees, is sued by event that a Third Party for infringement of files an action against a party, its Affiliates, distributors or sublicensees alleging that such party’s or its Affiliates’, distributors’ or sublicensees’ activities under this Agreement infringe such Third Party’s patent because or other intellectual property rights, such party shall give written notice to the other party, and the parties will consult and cooperate on the best course of action. If the use of alleged infringing process, method or composition is claimed under the Xcellerate™ Licensed Technology in the Field in the Territory, the Party which has been sued shall promptly notify the other Party in no event later than [*] days of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS UP shall have the right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE in which event AltaRex shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE UP all evidence and assistance in its control. If FRESENIUS UP does not elect within [*] thirty (30) days after receipt of such notice to so control the defense of such suit, XCYTE AltaRex may undertake such control at its own expense, and FRESENIUS UP shall then have the right to be represented by advisory counsel of its own selection and selection, at its own expense, and FRESENIUS UP shall cooperate fully in the defense of such suit and furnish to XCYTE AltaRex all evidence and assistance in FRESENIUS’ UP’s control. The Party party controlling the suit shall keep the other Party reasonably informed of the status of may not settle the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party party without the express written consent of the non-controlling Partyparty. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 Section 9.6 shall be paid by or to the Party party which controls the litigation; provided, however, that if subject to the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counselparty’s indemnification obligations under Article 10 below.

Infringement Actions by Third Parties. Subject to the obligations If MN or any of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective Affiliates, or FRESENIUS’ Sublicensees, is MN Affiliates shall be sued by a Third Party in a country or jurisdiction in the MN Territory for infringement of a patent held by such Third Party’s patent Party because of the use of MS Intellectual Property for the Xcellerate™ Technology in the Field in the Territorydevelopment, the Party which has been sued manufacture, importation, exportation, use, offer for sale, sale, market or distribution of Compound, API or Products, MN shall promptly notify the other Party MS in no event later than [*] days writing of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS MN shall have the first right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE in which event MS shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE MN all evidence and assistance in its MS’s control. If FRESENIUS MN does not elect within [*] thirty (30) days after receipt of such notice from MN to MS to so control the defense of such suit, XCYTE may MS shall have the right, but not the obligation, to undertake such control at its own expense, and FRESENIUS MN shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS shall MN shall, at its own expense, cooperate fully in the defense of such suit and furnish to XCYTE MS all evidence and assistance in FRESENIUS’ MN’s control. The Party controlling the suit shall keep the other Party reasonably informed of the status of not settle the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements In the event that royalty or damages payable with respect other payments are required to legal proceedings covered by this Article 12 shall be paid by MN or any MN Affiliates to such Third Party as the Party which controls result of a judgment or settlement under this Section 8.11, such royalty or other payments actually paid in such country or jurisdiction in any Calendar Quarter of such Royalty Year shall be creditable against the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counsel.subsequent Section 4.3 Royalty Payments and/or Section

Infringement Actions by Third Parties. Subject to the obligations of each Party pursuant to Article 16If EOS, if FRESENIUS, XCYTE SGI or their respective Affiliates, or FRESENIUS’ EOS's Sublicensees, is sued by a Third Third-Party for infringement of a Third Third-Party’s 's patent because of the use of the Xcellerate™ Technology in the Field in the TerritoryDrug Conjugation Technology, the Party which has been sued shall promptly notify the other Party in no event later than [*] thirty (30) days of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s 's control. If FRESENIUS or its Sublicensees are sued, FRESENIUS SGI shall have the right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE in which event EOS shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE SGI all evidence and assistance in its control. If FRESENIUS SGI does not elect within [*] thirty (30) days after receipt of such notice to so control the defense of such suit, XCYTE EOS may undertake such control at its own expense, and FRESENIUS SGI shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS SGI shall cooperate fully in the defense of such suit and furnish to XCYTE EOS all evidence and assistance in FRESENIUS’ SGI's control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 shall be paid by or to the Party which controls the litigation; providedPROVIDED, howeverHOWEVER, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counsel.

Infringement Actions by Third Parties. Subject to In the obligations of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective Affiliates, or FRESENIUS’ Sublicensees, is sued by event that a Third Party for infringement of files an action against a party, its Affiliates, distributors or sublicensees alleging that such party's or its Affiliates', distributors' or sublicensees' activities under this Agreement infringe such Third Party’s 's patent because or other intellectual property rights, such party shall give written notice to the other party, and the parties will consult and cooperate on the best course of action. If the use of alleged infringing process, method or composition is claimed under the Xcellerate™ Licensed Technology in the Field in the Territory, the Party which has been sued shall promptly notify the other Party in no event later than [*] days of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS UP shall have the right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE in which event AltaRex shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE UP all evidence and assistance in its control. If FRESENIUS UP does not elect within [*] thirty (30) days after receipt of such notice to so control the defense of such suit, XCYTE AltaRex may undertake such control at its own expense, and FRESENIUS UP shall then have the right to be represented by advisory counsel of its own selection and selection, at its own expense, and FRESENIUS UP shall cooperate fully in the defense of such suit and furnish to XCYTE AltaRex all evidence and assistance in FRESENIUS’ UP's control. The Party party controlling the suit shall keep the other Party reasonably informed of the status of may not settle the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party party without the express written consent of the non-controlling Partyparty. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 Section 9.6 shall be paid by or to the Party party which controls the litigation; provided, however, that if subject to the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counselparty's indemnification obligations under Article 10 below.

Infringement Actions by Third Parties. Subject to 6.8.1 Each Party shall notify the other Party promptly in writing of any claim of, or action for, infringement of any Patents owned or licensed by Third Parties which is threatened, made or brought against either Party by reason of either Party's performance of its obligations under this Agreement or development, manufacture, use or sale of each any Assays or the New Analyzer that detect Collaboration Markers in the PRC or Other Marketing Territories. 6.8.2 Each Party pursuant to Article 16will be responsible for any infringement of any Third Party IPRs during the performance of its obligations under this Agreement for activities provided by such party or parties. For clarity, if FRESENIUSsuch activities provided by JBT include the New Analyzer, XCYTE components thereof, and [***]; activities provided by Response include Raw Materials, Assays, [***]. In the event that such an action for infringement is commenced by a Third Party solely against a Party or both Parties jointly and/or any of their respective Affiliates, as the case may be, with respect to material(s) or FRESENIUS’ Sublicensees, is sued product(s) provided or developed by a Third such Party for infringement of a Third Party’s patent because of the use of the Xcellerate™ Technology in the Field in the Territoryor Parties (Providing Party or Providing Parties), the Providing Party which has been sued shall promptly notify the other Party in no event later than [*] days of the institution of defend such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS shall have the right, in its sole discretion, to control the defense of such suit action at its own expense, and XCYTE the other Party (in the case of one Providing Party) hereby agrees to assist and cooperate with such Providing Party to the extent necessary in the defense of such suit. The Providing Party shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of settle any such suit and furnish to XCYTE all evidence and assistance in its control. If FRESENIUS does not elect within [*] days after receipt of such notice to so control the defense of such suit, XCYTE may undertake such control at its own expense, and FRESENIUS shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS shall cooperate fully in the defense of such suit and furnish to XCYTE all evidence and assistance in FRESENIUS’ control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle action or otherwise consent to an adverse judgment in thereto, and the other Party's consent is not required if such suit that diminishes settlement or consent does not render an adverse effect or otherwise impair the rights or interests of the non-controlling other Party. In the event that such an action for infringement is commenced against both Parties for activities provided by both, JBT and Response will jointly defend such action and share the cost equally. 6.8.3 In addition, each Party without shall indemnify, defend, hold the express written consent other Party harmless from and against claims or suits arising during the Term of this Agreement from infringement of Third Party IPRs as a result of the non-controlling permitted use of the Third Party IPR licensed to such other Party by or on behalf of the providing Party, where such use is within the scope of the rights granted in accordance with the terms of this Agreement and the infringement would not have arisen but for such use. 6.8.4 The total amount payable by JBT under this Agreement and the Technology Development Agreement contains all fees (a) which result from infringement of any third party rights within China and Other Marketing Territories and is Response’s responsibility; and (b) for any Third Party IPR which should be used for purposes of the Technology Development Agreement and this Agreement within China and Other Marketing Territories and is Response’s responsibility, and JBT will not pay extra fees. Any judgments, awards, settlements or damages payable Response will not be responsible for any infringement outside of China and such Other Marketing Territories. [***]Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to legal proceedings covered by this Article 12 shall be paid by or to the Party which controls the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counselomitted portions.

Infringement Actions by Third Parties. Subject to the obligations of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective AffiliatesIf a Party, or FRESENIUS’ Sublicenseesto its knowledge, is any of its Affiliates or Sublicensees shall be sued by a Third Party or threatened to be sued for infringement of a patent or other intellectual property rights of a Third Party’s patent Party because of the reasonable development, manufacture, use or sale of the Xcellerate™ Technology in the Field in the TerritoryCollaboration Compounds, the Collaboration Lead Compounds or Products or any other action undertaken by such Party which has been sued under this Agreement, such Party shall promptly notify the other Party in no event later than [*] days writing of the institution or threat of such suitaction. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS Party sued or its Sublicensees are sued, FRESENIUS threatened to be sued shall have the right, in its sole discretion, to control the defense and settlement of such suit claim at its own expense, and XCYTE shall have in which event the right to be represented by advisory counsel of its own selection, at its own expense, and other Party shall cooperate fully in the defense of such suit and furnish to XCYTE the Party sued all evidence and assistance in its control. If FRESENIUS does not elect within [*] days after receipt of such notice to so control the defense of such suit, XCYTE may undertake such control at its own expense, and FRESENIUS shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS shall cooperate fully in the defense of such suit and furnish to XCYTE all evidence and assistance in FRESENIUS’ control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 7 shall be paid by or to the Party which controls the litigation, subject to any claims against the other Party for breach of this Agreement or otherwise available at law or in equity. Any Third Party royalty payments required to be paid as the result of a judgment or settlement under this Article 7 shall be paid by the Party controlling the suit subject to any claims against the other Party for breach of this Agreement or otherwise available at law or in equity; provided, however, that in the case of a Product sold by Xxxxxx-Xxxxxxx, if such Third Party royalty payments arise from the infringement of a patent or other Party has elected to be represented by advisory counselintellectual property rights having a claim or claims which cover the screening activities or Background Technologies of Ligand under the Research Program, the other Third Party -------------- *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. royalty payments shall receive be equally shared by Xxxxxx-Xxxxxxx and Ligand, but in no event shall the actual reasonable cost of its legal fees royalty owed by Ligand under this provision exceed the royalty due to Ligand for such advisory counselthe Product under Article 6 .

Infringement Actions by Third Parties. Subject to the obligations If UT, or any of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective its Affiliates, sublicensees or FRESENIUS’ Sublicensees, is customers shall be sued by a Third Party for infringement of a Third Party’s 's patent because of the manufacture, use or sale of the Xcellerate™ Technology in the Field in the TerritoryProducts, the Party which has been sued UT shall promptly notify the other Party Cortech in no event later than [*] days writing of the institution of such suit. The notice If the alleged infringing process, method or composition is claimed under the Licensed Patent Rights, UT shall set forth promptly cease the facts manufacture, use, sale, offering for sale or importation of such infringement the allegedly infringing process, method or composition claimed under the Licensed Patent Rights and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS UT shall have the right, in its sole discretionsubject to the reasonable approval of Cortech, to control the defense of such suit at its UT's own expense, and XCYTE in which event Cortech shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE UT all evidence and assistance in its control. If FRESENIUS UT does not elect within [*] thirty (30) days after receipt of such notice to so control the defense of such suit, XCYTE Cortech may undertake such control at its own expense, and FRESENIUS UT shall then have the right to be represented by advisory counsel of its own selection and selection, at its own expense, and FRESENIUS UT shall cooperate fully in the defense of such suit and otherwise furnish to XCYTE Cortech all evidence and assistance in FRESENIUS’ UT's control. The Party party controlling the suit shall keep the other Party reasonably informed of the status of may not settle the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party party without the express written consent of the non-controlling Partyparty. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 8 shall be paid by or to the Party party which controls the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counsel.

Infringement Actions by Third Parties. Subject to the obligations If Nexell, or any of each Party pursuant to Article 16, if FRESENIUS, XCYTE or their respective its Affiliates, sublicensees or FRESENIUS’ Sublicensees, is customers shall be sued by a Third Party for infringement of a Third Party’s 's patent because of the manufacture, use or sale of the Xcellerate™ Technology in the Field in the TerritoryProducts, the Party which has been sued Nexell shall promptly notify the other Party Epimmune in no event later than [*] days writing of the institution of such suit. The notice If the alleged infringing process, method or composition is claimed under the Licensed Patent Rights, Nexell shall set forth promptly cease the facts manufacture, use, sale, offering for sale or importation of such infringement the allegedly infringing process, method or composition claimed under the Licensed Patent Rights and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS Nexell shall have the right, in its sole discretionsubject to the reasonable approval of Epimmune, to control the defense of such suit at its Nexell's own expense, and XCYTE in which event Epimmune shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE Nexell all evidence and assistance in its control. If FRESENIUS Nexell does not elect within [*] thirty (30) days after receipt of such notice to so control the defense of such suit, XCYTE Epimmune may undertake such control at its own expense, and FRESENIUS Nexell shall then have the right to be represented by advisory counsel of its own selection and selection, at its own expense, and FRESENIUS Nexell shall cooperate fully in the defense of such suit and otherwise furnish to XCYTE Epimmune all evidence and assistance in FRESENIUS’ Nexell's control. The Party party controlling the suit shall keep the other Party reasonably informed of the status of may not settle the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party party without the express written consent of the non-controlling Partyparty. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 7 shall be paid by or to the Party party which controls the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counsel.

Infringement Actions by Third Parties. Subject to 6.8.1 Each Party shall notify the other Party promptly in writing of any claim of, or action for, infringement of any Patents owned or licensed by Third Parties which is threatened, made or brought against either Party by reason of either Party's performance of its obligations under this Agreement or development, manufacture, use or sale of each any Assays or the New Analyzer that detect Collaboration Markers in the PRC or Other Marketing Territories. 6.8.2 Each Party pursuant to Article 16will be responsible for any infringement of any Third Party IPRs during the performance of its obligations under this Agreement for activities provided by such party or parties. For clarity, if FRESENIUSsuch activities provided by JBT include the New Analyzer, XCYTE components thereof, and [***][10]; activities provided by Response include Raw Materials, Assays, [***]. In the event that such an action for infringement is commenced by a Third Party solely against a Party or both Parties jointly and/or any of their respective Affiliates, as the case may be, with respect to material(s) or FRESENIUS’ Sublicensees, is sued product(s) provided or developed by a Third such Party for infringement of a Third Party’s patent because of the use of the Xcellerate™ Technology in the Field in the Territoryor Parties (Providing Party or Providing Parties), the Providing Party which has been sued shall promptly notify the other Party in no event later than [*] days of the institution of defend such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS shall have the right, in its sole discretion, to control the defense of such suit action at its own expense, and XCYTE the other Party (in the case of one Providing Party) hereby agrees to assist and cooperate with such Providing Party to the extent necessary in the defense of such suit. The Providing Party shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of settle any such suit and furnish to XCYTE all evidence and assistance in its control. If FRESENIUS does not elect within [*] days after receipt of such notice to so control the defense of such suit, XCYTE may undertake such control at its own expense, and FRESENIUS shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS shall cooperate fully in the defense of such suit and furnish to XCYTE all evidence and assistance in FRESENIUS’ control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle action or otherwise consent to an adverse judgment in thereto, and the other Party's consent is not required if such suit that diminishes settlement or consent does not render an adverse effect or otherwise impair the rights or interests of the non-controlling other Party. In the event that such an action for infringement is commenced against both Parties for activities provided by both, JBT and Response will jointly defend such action and share the cost equally. 6.8.3 In addition, each Party without shall indemnify, defend, hold the express written consent other Party harmless from and against claims or suits arising during the Term of this Agreement from infringement of Third Party IPRs as a result of the non-controlling permitted use of the Third Party IPR licensed to such other Party by or on behalf of the providing Party, where such use is within the scope of the rights granted in accordance with the terms of this Agreement and the infringement would not have arisen but for such use. 6.8.4 The total amount payable by JBT under this Agreement and the Technology Development Agreement contains all fees (a) which result from infringement of any third party rights within China and Other Marketing Territories and is Response’s responsibility; and (b) for any Third Party IPR which should be used for purposes of the Technology Development Agreement and this Agreement within China and Other Marketing Territories and is Response’s responsibility, and JBT will not pay extra fees. Any judgments, awards, settlements or damages payable Response will not be responsible for any infringement outside of China and such Other Marketing Territories. 10 [***]Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to legal proceedings covered by this Article 12 shall be paid by or to the Party which controls the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counselomitted portions.

Infringement Actions by Third Parties. Subject to the obligations of each Party pursuant to Article 16If EOS, if FRESENIUS, XCYTE SGI or their respective Affiliates, or FRESENIUS’ EOS’s Sublicensees, is sued by a Third Third-Party for infringement of a Third Third-Party’s patent because of the use of the Xcellerate™ Technology in the Field in the TerritoryDrug Conjugation Technology, the Party which has been sued shall promptly notify the other Party in no event later than [*] days ([*])[*] of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS SGI shall have the right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE in which event EOS shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE SGI all evidence and assistance in its control. If FRESENIUS SGI does not elect within [*] days ([*])[*] after receipt of such notice to so control the defense of such suit, XCYTE EOS may undertake such control at its own expense, and FRESENIUS SGI shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS SGI shall cooperate fully in the defense of such suit and furnish to XCYTE EOS all evidence and assistance in FRESENIUS’ SGI’s control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable with respect to legal proceedings covered by this Article 12 shall be paid by or to the Party which controls the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost of its legal fees for such advisory counsel.

Infringement Actions by Third Parties. Subject to the obligations If MN or any of each Party pursuant to Article 16, if FRESENIUS, XCYTE its Affiliates or their respective Affiliates, sublicensees or FRESENIUS’ Sublicensees, is customers shall be sued by a Third Party for infringement of a Third Party’s patent because of ** CERTAIN INFORMATION (INDICATED BY ASTERISKS) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. the use manufacture, importation, use, offer for sale or sale of the Xcellerate™ Technology in the Field in the TerritoryCompound or Products, the Party which has been sued MN shall promptly notify the other Party KR in no event later than [*] days writing of the institution of such suit. The notice shall set forth the facts of such infringement and provide evidence of such infringement that is within the notifying Party’s control. If FRESENIUS or its Sublicensees are sued, FRESENIUS MN shall have the first right, in its sole discretion, to control the defense of such suit at its own expense, and XCYTE in which event KR shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of such suit and furnish to XCYTE MN all evidence and assistance in its KR’s control. If FRESENIUS MN does not elect within [*] thirty (30) days after receipt of such notice from MN to KR to so control the defense of such suit, XCYTE KR may undertake such control at its own expense, and FRESENIUS MN shall then have the right to be represented by advisory counsel of its own selection and at its own expense, and FRESENIUS MN shall cooperate fully in the defense of such suit and furnish to XCYTE KR all evidence and assistance in FRESENIUS’ MN’s control. The Party controlling the suit shall keep the other Party reasonably informed of the status of may not settle the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements Third Party royalty payments required to be paid as the result of a judgment or damages payable with respect to legal proceedings covered by settlement under this Article 12 Section 8.9 shall be paid by or subject to the Party which controls the litigation; provided, however, that if the other Party has elected to be represented by advisory counsel, the other Party shall receive the actual reasonable cost provisions of its legal fees for such advisory counselSection 4.3 above.

Infringement Actions by Third Parties. Subject to (a) In the obligations event of each Party pursuant to Article 16, if FRESENIUS, XCYTE the institution or their respective Affiliates, or FRESENIUS’ Sublicensees, is sued threatened institution of any suit by a Third Party against a Party for patent infringement involving the manufacture, use, distribution, sale or marketing of a Third Party’s patent because of the use of the Xcellerate™ Technology in the Field Product in the Territory, the such Party which has been sued shall promptly notify the other Party in no event later than [*] days of the institution writing of such suit. This Section 6.9(a) shall govern any such suit unless otherwise covered by Section 10.1(e). The notice JEC shall set forth determine how the facts Parties will defend such suit and how the defense of such infringement action shall be controlled. The Parties shall equally share (a) all costs and provide evidence expenses (including, without limitation, reasonable fees of attorneys and other professionals) incurred by the Parties with respect to such defense, and (b) damages awarded to and settlements made with Third Parties bringing such suits. Each Party shall assist and cooperate with the other Party, at the other Party's reasonable request and expense, in the defense of any such suit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of such action, Endo shall continue to make all payments due under this Agreement. Any award paid by Third Parties as a result of such an infringement that is within action (whether by way of settlement or otherwise) shall be applied first to reimburse the notifying Party’s controlParties for all costs and expenses incurred by the Parties with respect to such action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be deemed to be Net Sales for the Product involved in such action and allocated between the Parties accordingly. (b) In the event of the institution or threatened institution of any suit by a Third Party against a Party for trademark infringement involving the manufacture, use, distribution, sale or marketing of a Product in the Territory, such Party shall promptly notify the other Party in writing of such suit. If FRESENIUS or its Sublicensees are sued, FRESENIUS Endo shall have the right, in its sole discretion, duty to defend such suit and shall control the defense of such suit action. Endo shall bear (a) all costs and expenses (including, without limitation, reasonable fees of attorneys and other professionals) incurred by it with respect to such defense, and (b) damages awarded to and settlements made with Third Parties bringing such suits. SkyePharma shall assist and cooperate with Endo, at its own Endo's reasonable request and expense, and XCYTE shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of any such suit and furnish (including, without limitation, consenting to XCYTE all evidence and assistance in its controlbeing named as a nominal party thereto). If FRESENIUS does not elect within [*] days after receipt Any award paid by Third Parties as a result of such notice an infringement action (whether by way of settlement or otherwise) shall be applied first to so control the defense of such suit, XCYTE may undertake such control at its own expense, reimburse Endo for all costs and FRESENIUS shall then have the right to be represented expenses incurred by advisory counsel of its own selection and at its own expense, and FRESENIUS shall cooperate fully in the defense of such suit and furnish to XCYTE all evidence and assistance in FRESENIUS’ control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable Endo with respect to legal proceedings covered by this Article 12 such action and, if after such reimbursement any funds shall remain from such award, they shall be paid by or to the Party which controls the litigation; provided, however, that if the other Party has elected deemed to be represented by advisory counsel, Net Sales for the other Party shall receive Product involved in such action and allocated between the actual reasonable cost of its legal fees for such advisory counselParties accordingly.

Infringement Actions by Third Parties. Subject to (a) In the obligations event of each Party pursuant to Article 16, if FRESENIUS, XCYTE the institution or their respective Affiliates, or FRESENIUS’ Sublicensees, is sued threatened institution of any suit by a Third Party against a Party for patent infringement involving the manufacture, use, distribution, sale or marketing of a Third Party’s patent because of the use of the Xcellerate™ Technology in the Field Product in the Territory, the such Party which has been sued shall promptly notify the other Party in no event later than [*] days of the institution writing of such suit. This Section 6.9(a) shall govern any such suit unless otherwise covered by Section 10.1(e). The notice JEC shall set forth determine how the facts Parties will defend such suit and how the defense of such infringement action shall be controlled. The Parties shall equally share (a) all costs and provide evidence expenses (including, without limitation, reasonable fees of attorneys and other professionals) incurred by the Parties with respect to such defense, and (b) damages awarded to and settlements made with Third Parties bringing such suits. Each Party shall assist and cooperate with the other Party, at the other Party’s reasonable request and expense, in the defense of any such suit (including, without limitation, consenting to being named as a nominal party thereto). During the pendency of such action, Endo shall continue to make all payments due under this Agreement. Any award paid by Third Parties as a result of such an infringement that is within action (whether by way of settlement or otherwise) shall be applied first to reimburse the notifying Party’s controlParties for all costs and expenses incurred by the Parties with respect to such action on a pro rata basis and, if after such reimbursement any funds shall remain from such award, they shall be deemed to be Net Sales for the Product involved in such action and allocated between the Parties accordingly. (b) In the event of the institution or threatened institution of any suit by a Third Party against a Party for trademark infringement involving the manufacture, use, distribution, sale or marketing of a Product in the Territory, such Party shall promptly notify the other Party in writing of such suit. If FRESENIUS or its Sublicensees are sued, FRESENIUS Endo shall have the right, in its sole discretion, duty to defend such suit and shall control the defense of such suit action. Endo shall bear (a) all costs and expenses (including, without limitation, reasonable fees of attorneys and other professionals) incurred by it with respect to such defense, and (b) damages awarded to and settlements made with Third Parties bringing such suits. SkyePharma shall assist and cooperate with Endo, at its own Endo’s reasonable request and expense, and XCYTE shall have the right to be represented by advisory counsel of its own selection, at its own expense, and shall cooperate fully in the defense of any such suit and furnish (including, without limitation, consenting to XCYTE all evidence and assistance in its controlbeing named as a nominal party thereto). If FRESENIUS does not elect within [*] days after receipt Any award paid by Third Parties as a result of such notice an infringement action (whether by way of settlement or otherwise) shall be applied first to so control the defense of such suit, XCYTE may undertake such control at its own expense, reimburse Endo for all costs and FRESENIUS shall then have the right to be represented expenses incurred by advisory counsel of its own selection and at its own expense, and FRESENIUS shall cooperate fully in the defense of such suit and furnish to XCYTE all evidence and assistance in FRESENIUS’ control. The Party controlling the suit shall keep the other Party reasonably informed of the status of the suit under this Article 12. In no event may the Party controlling the suit settle or otherwise consent to an adverse judgment in such suit that diminishes the rights or interests of the non-controlling Party without the express written consent of the non-controlling Party. Any judgments, awards, settlements or damages payable Endo with respect to legal proceedings covered by this Article 12 such action and, if after such reimbursement any funds shall remain from such award, they shall be paid by or to the Party which controls the litigation; provided, however, that if the other Party has elected deemed to be represented by advisory counsel, Net Sales for the other Party shall receive Product involved in such action and allocated between the actual reasonable cost of its legal fees for such advisory counselParties accordingly.