Common use of Infringement and Enforcement Clause in Contracts

Infringement and Enforcement. 3.1 I-Flow may, but has no obligation to, take any and all actions to enforce the Licensed Intellectual Property (including without limitation instituting litigation) against any suspected infringement or misappropriation by any Third Party (“Litigation”). I-Flow shall bear all the expenses and costs with respect to any such Litigation it elects to undertake and I-Flow shall be entitled to all damages recovered in such Litigation. 3.2 At I-Flow’s request, InfuSystem agrees to reasonably cooperate in any such Litigation. I-Flow agrees to pay InfuSystem’s reasonable out-of-pocket costs and expenses in connection with such Litigation. If InfuSystem desires to retain separate counsel in connection with such Litigation, however, InfuSystem shall bear its own costs and expenses concerning the Litigation, including, without limitation, the costs and expenses of such separate counsel. Notwithstanding InfuSystem’s participation in such Litigation, I-Flow shall retain the full right to control such Litigation, including, without limitation, any settlement of such Litigation. I-Flow shall have the right to settle any Litigation on such terms and conditions reasonably acceptable to InfuSystem. 3.3 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER (A) FOR ANY PUNITIVE, EXEMPLARY OR OTHER SPECIAL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, AND/OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, INCOME, PROFITS OR ANTICIPATED PROFITS, BUSINESS OR BUSINESS OPPORTUNITY, SAVINGS, DATA, OR BUSINESS REPUTATION), ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

Infringement and Enforcement. 3.1 I-Flow may, but has no obligation to, take any and all actions to enforce the Licensed Intellectual Property (including without limitation instituting litigation) against any suspected infringement or misappropriation by any Third Party (“"Litigation”"). I-Flow shall bear all the expenses and costs with respect to any such Litigation it elects to undertake and I-Flow shall be entitled to all damages recovered in such Litigation. 3.2 At I-Flow’s 's request, InfuSystem agrees to reasonably cooperate in any such Litigation. I-Flow agrees to pay InfuSystem’s 's reasonable out-of-pocket costs and expenses in connection with such Litigation. If InfuSystem desires to retain separate counsel in connection with such Litigation, however, InfuSystem shall bear its own costs and expenses concerning the Litigation, including, without limitation, the costs and expenses of such separate counsel. Notwithstanding InfuSystem’s 's participation in such Litigation, I-Flow shall retain the full right to control such Litigation, including, without limitation, any settlement of such Litigation. I-Flow shall have the right to settle any Litigation on such terms and conditions reasonably acceptable to InfuSystem. 3.3 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER (A) FOR ANY PUNITIVE, EXEMPLARY OR OTHER SPECIAL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, AND/OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, INCOME, PROFITS OR ANTICIPATED PROFITS, BUSINESS OR BUSINESS OPPORTUNITY, SAVINGS, DATA, OR BUSINESS REPUTATION), ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

Infringement and Enforcement. 3.1 I-Flow 7.1 If any time during the term of this Agreement, 3F learns or believes that any Third Party is infringing any of the Licensed Patents or Sublicensed Patents hereunder in the Fields of Use, 3F shall notify Xxxxxxx in writing of the existence of such alleged infringement. 7.2 Xxxxxxx may, but has no obligation to, take any and all actions to enforce the Licensed Intellectual Property Patents or Sublicensed Patents (including without limitation instituting litigation) against any suspected infringement or misappropriation by any Third Party in the Fields of Use (“Litigation”); provided, however, that Xxxxxxx agrees that, upon notice from 3F pursuant to Section 7.1, Xxxxxxx will make a good faith evaluation as to whether and when to institute any such Litigation, in light of the factors that Xxxxxxx believes are relevant, including without limitation the potential costs and risks associated with such Litigation. I-Flow Xxxxxxx shall bear all the expenses and costs with respect to any such Litigation it elects to undertake and I-Flow shall be entitled to all damages recovered in such Litigation.to 3.2 7.3 At I-Flow’s Xxxxxxx’ request, InfuSystem 3F agrees to reasonably cooperate in any such Litigation, including but not limited to participating in such Litigation as a named party. I-Flow Xxxxxxx agrees to pay InfuSystem3F’s reasonable out-of-pocket costs and expenses in connection with such Litigation. If InfuSystem In the event that 3F desires to retain separate counsel in connection with such Litigation, however, InfuSystem 3F shall bear its own costs and expenses concerning the Litigation, including, including without limitation, limitation the costs and expenses of such separate counsel. Notwithstanding InfuSystem3F’s participation in such Litigation, I-Flow Xxxxxxx shall retain the full right to control such Litigation, including, including without limitation, limitation any settlement of such Litigation. I-Flow Xxxxxxx shall have the right right, in its sole and absolute discretion, to settle any Litigation on such terms and conditions reasonably acceptable that Xxxxxxx deems to InfuSystembe appropriate. 3.3 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY7.4 With respect to any monetary award received by Xxxxxxx in the Litigation, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER or amounts received by Xxxxxxx in settlement of the Litigation: (Ai) FOR ANY PUNITIVEAttributable to infringement of the Sublicensed Patents in the Fields of Use, EXEMPLARY OR OTHER SPECIAL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOFand after deducting all Litigation Expenses, AND/OR 3F shall be entitled to receive twenty-four percent (B24%) FOR ANY INDIRECTof such award or settlement; or (ii) Attributable to infringement of the Licensed Patents in the Fields of Use, INCIDENTAL OR CONSEQUENTIAL DAMAGES and after deducting all Litigation Expenses, 3F shall be entitled to receive forty-eight percent (INCLUDING WITHOUT LIMITATION LOSS OF USE48%) of such award or settlement. 7.5 To the extent not governed by Section 7.4 above, INCOMEin the event that, PROFITS OR ANTICIPATED PROFITSin connection with any settlement of the Litigation, BUSINESS OR BUSINESS OPPORTUNITYXxxxxxx grants a license within the Fields of Use and receives on-going royalty payments for such license in the Fields of Use (“Granted License”) or, SAVINGS, DATA, OR BUSINESS REPUTATIONin the event that an injunction against future infringement is not granted and a party is permitted to continue to practice either the Licensed Patents or the Sublicensed Patents within the Fields of Use and Xxxxxxx receives on-going royalty payments for such practice in the Fields of Use (“Compelled License”), ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOFthen: (i) With respect to such royalty payments received for such Additional License for the Sublicensed Patents, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACTand after deducting all Litigation Expenses to the extent such Litigation Expenses have not been reimbursed pursuant to Section 7.4, BREACH OF WARRANTY3F shall be entitled to receive twenty-four percent (24%) of such payments; or (ii) With respect to such royalty payments received for such Additional License for the Licensed Patents, TORTand after deducting all Litigation Expenses to the extent such Litigation Expenses have not been reimbursed pursuant to Section 7.4, NEGLIGENCE OR ANY OTHER THEORY3F shall be entitled to receive forty-eight percent (48%) of such payments. 7.6 Nothing in this Agreement shall require Xxxxxxx to provide 3F with any compensation or portion of any recovery in connection with any litigation initiated by Heartport, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OFInc., KNEW OFor its successor or assignee, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGESin accordance with Section 5.4 of the Heartport License. 7.7 In no event shall any amounts pursuant to Sections 7.4 and/or 7.5 be payable by Xxxxxxx to 3F before thirty (30) days after Xxxxxxx actually receives payment of such amounts from the Third Party.