Common use of Infringement Claimed by Third Parties Clause in Contracts

Infringement Claimed by Third Parties. 12.5.1 If a Third Party commences, or threatens to commence, any proceeding against a Party alleging infringement of such Third Party’s intellectual property by the Exploitation by a Party, its Affiliates, subcontractors, Sublicensees, Distributors or customers of (a) any Research Compound or Research Product, which Exploitation occurred during the Voyager Research Period, (b) any Selected Research Compound or Selected Research Product, which Exploitation occurred during the Voyager Development Period or (c) any Licensed Compound or Licensed Product (each of (a)-(c), a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an infringement action initiated pursuant to Section 12.3.2, the Party first becoming aware of such alleged infringement shall promptly notify the other Party thereof in writing. 12.5.2 Without limiting the right of the Party against whom a Third Party Infringement Claim is filed to seek indemnification for such Third Party Infringement Claim covered pursuant to Article 15, as between the Parties, notwithstanding any right of the Indemnifying Party to control as set forth in Section 15.3, (a) prior to the License Option Effective Date, Voyager shall have the first right, but not the obligation, at its sole cost and expense, using counsel of its own choice, to control the defense and settlement of any Third Party Infringement Claim, and (b) from and after the License Option Effective Date, AbbVie shall have the first right, but not the obligation, at its sole cost and expense, using counsel of its own choice, to control the defense and settlement of any Third Party Infringement Claim, except in each case ((a) and (b)) to the extent such Third Party Infringement Claim relates to an AbbVie Research Antibody, in which case AbbVie shall have the sole right (except that, to the extent that such Third Party Infringement Claim is brought against Voyager, AbbVie shall have the first right), but not the obligation, at its sole cost and expense, using counsel of its own choice, to control the defense and settlement of such Third Party Infringement Claim. The non-controlling Party may participate in any such claim, suit or proceeding with counsel of its choice at its sole cost and expense. If the Party with the first right to control such Third Party Infringement Claim or its designee elects (in a written communication submitted to the non-controlling Party within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such claim, suit or proceeding, within such time periods so that the non-controlling Party is not prejudiced by any delays, the non-controlling Party may conduct and control the defense of any such claim, suit or proceeding at its sole cost and expense, except, with respect to Voyager as the non-controlling Party, to the extent such Third Party Infringement Claim relates to an AbbVie Research Antibody and is not brought against Voyager. Where a Party controls such an action, the other Party shall, and shall cause its Affiliates to, assist and cooperate with the controlling Party, as such controlling Party may reasonably request from time to time, in connection with its activities set forth in this Section 12.5, including executing legal papers and cooperating in the defense, furnishing a power of attorney solely for such purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and, in the case of Voyager, making available its employees as well as inventors, applicable records and documents (including laboratory notebooks) with respect to the relevant Patent Rights; provided that the controlling Party shall reimburse such other Party for its reasonable and verifiable out-of-pocket costs and expenses incurred in connection therewith. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit or proceeding. Each Party agrees to provide the other Party with copies of all material pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims.

Infringement Claimed by Third Parties. 12.5.1 If In the event a Third Party commences, commences or threatens to commence, commence any proceeding suit or action against a Party Party, alleging infringement of such Third Party’s intellectual property rights by the Exploitation development, manufacture, having manufactured, use, marketing, promotion, distribution, commercialization, sale, offer to sell, having sold, export or import of Drug Products by a PartyREPLIDYNE, its AffiliatesAffiliates or its sublicensees or DSP or DSP’s Affiliates in the event such DSP’s Affiliate enters into a Co-Promotion agreement in accordance with Section 8.2, subcontractors, Sublicensees, Distributors or customers of (a) any Research Compound or Research Product, which Exploitation occurred during the Voyager Research Period, (b) any Selected Research Compound or Selected Research Product, which Exploitation occurred during the Voyager Development Period or (c) any Licensed Compound or Licensed Product (each of (a)-(c), a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an infringement action initiated pursuant to Section 12.3.2, the Party first becoming aware of such alleged infringement shall promptly notify the other Party thereof in writing. 12.5.2 Without limiting the right of the Party against whom a Third Party Infringement Claim such proceeding is filed to seek indemnification for such Third Party Infringement Claim covered pursuant to Article 15, as between the Parties, notwithstanding any right of the Indemnifying Party to control as set forth in Section 15.3, (a) prior threatened or commenced shall give prompt notice to the License Option Effective Date, Voyager other Party (hereinafter referred to as “Infringement Notice”). REPLIDYNE shall have the first right, but not the obligation, at its sole cost and expense, using counsel of its own choice, to control the defense and settlement of any Third such suit or action, provided that REPLIDYNE notifies DSP that it intends to exercise such right at the time REPLIDYNE gives DSP the Infringement Notice, or if REPLIDYNE is not the Party giving the Infringement ClaimNotice, and then within thirty (b30) days after receipt of the Infringement Notice from and after the License Option Effective Date, AbbVie shall have the first DSP. If REPLIDYNE fails to notify DSP of its intent to exercise such right within such thirty (30) day time period or if REPLIDYNE notifies DSP within such thirty (30) days that it does not intend to exercise such right, but not the obligation, at its sole cost and expense, using counsel of its own choice, to DSP shall then control the defense settlement and settlement of any Third Party Infringement Claim, except in each case ((a) and (b)) to the extent such Third Party Infringement Claim relates to an AbbVie Research Antibody, in which case AbbVie shall have the sole right (except that, to the extent that such Third Party Infringement Claim is brought against Voyager, AbbVie shall have the first right), but not the obligation, at its sole cost and expense, using counsel of its own choice, to control the defense and settlement of such Third Party Infringement Claim. The non-controlling Party may participate in any such claim, suit or proceeding with counsel of its choice at its sole cost and expense. If the Party with the first right to control such Third Party Infringement Claim or its designee elects (in a written communication submitted to the non-controlling Party within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such claim, suit or proceeding, within such time periods so that the non-controlling Party is not prejudiced by any delays, the non-controlling Party may conduct and control the defense of any such claim, suit or proceeding at action solely on its sole cost and expenseown behalf, exceptbut not on behalf of REPLIDYNE, with respect its Affiliates or sublicensees. Either Party shall not have the right to Voyager as settle any such suit or action in any manner that includes the non-controlling Party, to grant of a license in the extent such Third Party Infringement Claim relates to an AbbVie Research Antibody and is not brought against Voyager. Where a Party controls such an action, Territory or that could have any adverse effect on the other Party shall, and shall cause its Affiliates to, assist and cooperate with without the controlling Party, as such controlling Party may reasonably request from time to time, in connection with its activities set forth in this Section 12.5, including executing legal papers and cooperating in the defense, furnishing a power prior written consent of attorney solely for such purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and, in the case of Voyager, making available its employees as well as inventors, applicable records and documents (including laboratory notebooks) with respect to the relevant Patent Rights; provided that the controlling Party shall reimburse such other Party for its reasonable and verifiable out-of-pocket costs and expenses incurred in connection therewithwhich consent shall not be unreasonably withheld or delayed. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit or proceeding. Each Party agrees to provide the other Party with copies of all material pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims[ *** ].

Infringement Claimed by Third Parties. 12.5.1 If In the event a Third Party claims, or the Parties hereto determine, that Watsxx xx or may be infringing the intellectual property rights of a Third Party based on Watsxx'x xxxrcise of its license grant from Genelabs [**], Genelabs shall obtain, at its expense, such rights as are necessary for Watsxx xx exploit the licenses granted hereunder free of any potential claim of such Third Party. In the event a Third Party commences, or threatens to commence, any a judicial or administrative proceeding against a Party alleging infringement of to this Agreement and such Third Party’s intellectual property by proceeding pertains to Genelabs Technology or the Exploitation by a PartyGenelabs Marks, its Affiliates, subcontractors, Sublicensees, Distributors or customers of (a) any Research Compound or Research Product, which Exploitation occurred during the Voyager Research Period, (b) any Selected Research Compound or Selected Research Product, which Exploitation occurred during the Voyager Development Period or (c) any Licensed Compound or Licensed Product (each of (a)-(c), a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an infringement action initiated pursuant to Section 12.3.2, the Party first becoming aware of such alleged infringement shall promptly notify the other Party thereof in writing. 12.5.2 Without limiting the right of the Party against whom a Third Party Infringement Claim such proceeding is filed to seek indemnification for such Third Party Infringement Claim covered pursuant to Article 15, as between the Parties, notwithstanding any right of the Indemnifying Party to control as set forth in Section 15.3, (a) prior threatened or commenced shall give prompt notice to the License Option Effective Date, Voyager shall have the first right, but not the obligationother Party. Genelabs shall, at its sole cost and expense, using counsel defend such claims or proceedings and Watsxx xxxll provide such assistance and cooperation to Genelabs as may be necessary to successfully defend any such claim or proceeding at Genelabs' expense and may deduct the expenses thereof from any amounts payable to Genelabs under this Agreement. Genelabs may not settle any such claim without Watsxx'x xxxor approval. However, if such claim or proceeding relates to or arises from the actions, activities or omissions of its own choiceWatsxx xxxer than the use by Watsxx xx the Genelabs Technology or the Genelabs Marks, to control the defense and settlement of any Third Party Infringement Claim, and (b) from and after the License Option Effective Date, AbbVie shall have the first right, but not the obligationWatsxx xxxll defend such claims or proceedings, at its sole cost and expense, using counsel of its own choiceand Watsxx xxxll indemnify Genelabs for any liabilities, to control the defense costs and settlement of any Third Party Infringement Claimexpenses, except in each case ((a) and (b)) to the extent such Third Party Infringement Claim relates to an AbbVie Research Antibodyincluding, in which case AbbVie shall have the sole right (except thatwithout limitation, to the extent that such Third Party Infringement Claim is brought against Voyagerreasonable attorneys' fees, AbbVie shall have the first right), but not the obligation, at its sole cost and expense, using counsel of its own choice, to control the defense and settlement of such Third Party Infringement Claim. The non-controlling Party may participate in any such claim, suit or proceeding with counsel of its choice at its sole cost and expense. If the Party with the first right to control such Third Party Infringement Claim or its designee elects (in a written communication submitted to the non-controlling Party within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such claim, suit or proceeding, within such time periods so that the non-controlling Party is not prejudiced by any delays, the non-controlling Party may conduct and control the defense of any such claim, suit or proceeding at its sole cost and expense, except, incurred with respect to Voyager as the non-controlling Party, to the extent such Third Party Infringement Claim relates to an AbbVie Research Antibody and is not brought against Voyager. Where a Party controls such an action, the other Party shall, and shall cause its Affiliates to, assist and cooperate with the controlling Party, as such controlling Party may reasonably request from time to time, in connection with its activities set forth in this Section 12.5, including executing legal papers and cooperating in the defense, furnishing a power of attorney solely for such purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and, in the case of Voyager, making available its employees as well as inventors, applicable records and documents (including laboratory notebooks) with respect to the relevant Patent Rights; provided that the controlling Party shall reimburse such other Party for its reasonable and verifiable out-of-pocket costs and expenses incurred in connection therewith. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit claim or proceeding. Each Party agrees to provide the other Party with copies of all material pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims.

Infringement Claimed by Third Parties. 12.5.1 If In the event a Third Party commences, commences or threatens to commence, commence any proceeding suit or action against a Party Party, alleging infringement of such Third Party’s intellectual property rights by the Exploitation development, manufacture, having manufactured, use, marketing, promotion, distribution, commercialization, sale, offer to sell, having sold, export or import of Drug Products by a PartyREPLIDYNE, its AffiliatesAffiliates or its sublicensees or DSP or DSP’s Affiliates in the event such DSP’s Affiliate enters into a Co-Promotion agreement in accordance with Section 8.2, subcontractors, Sublicensees, Distributors or customers of (a) any Research Compound or Research Product, which Exploitation occurred during the Voyager Research Period, (b) any Selected Research Compound or Selected Research Product, which Exploitation occurred during the Voyager Development Period or (c) any Licensed Compound or Licensed Product (each of (a)-(c), a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an infringement action initiated pursuant to Section 12.3.2, the Party first becoming aware of such alleged infringement shall promptly notify the other Party thereof in writing. 12.5.2 Without limiting the right of the Party against whom a Third Party Infringement Claim such proceeding is filed to seek indemnification for such Third Party Infringement Claim covered pursuant to Article 15, as between the Parties, notwithstanding any right of the Indemnifying Party to control as set forth in Section 15.3, (a) prior threatened or commenced shall give prompt notice to the License Option Effective Date, Voyager other Party (hereinafter referred to as “Infringement Notice”). REPLIDYNE shall have the first right, but not the obligation, at its sole cost and expense, using counsel of its own choice, to control the defense and settlement of any Third such suit or action, provided that REPLIDYNE notifies DSP that it intends to exercise such right at the time REPLIDYNE gives DSP the Infringement Notice, or if REPLIDYNE is not the Party giving the Infringement ClaimNotice, and then within thirty (b30) days after receipt of the Infringement Notice from and after the License Option Effective Date, AbbVie shall have the first DSP. If REPLIDYNE fails to notify DSP of its intent to exercise such right within such thirty (30) day time period or if REPLIDYNE notifies DSP within such thirty (30) days that it does not intend to exercise such right, but not the obligation, at its sole cost and expense, using counsel of its own choice, to DSP shall then control the defense settlement and settlement of any Third Party Infringement Claim, except in each case ((a) and (b)) to the extent such Third Party Infringement Claim relates to an AbbVie Research Antibody, in which case AbbVie shall have the sole right (except that, to the extent that such Third Party Infringement Claim is brought against Voyager, AbbVie shall have the first right), but not the obligation, at its sole cost and expense, using counsel of its own choice, to control the defense and settlement of such Third Party Infringement Claim. The non-controlling Party may participate in any such claim, suit or proceeding with counsel of its choice at its sole cost and expense. If the Party with the first right to control such Third Party Infringement Claim or its designee elects (in a written communication submitted to the non-controlling Party within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such claim, suit or proceeding, within such time periods so that the non-controlling Party is not prejudiced by any delays, the non-controlling Party may conduct and control the defense of any such claim, suit or proceeding at action solely on its sole cost and expenseown behalf, exceptbut not on behalf of REPLIDYNE, with respect its Affiliates or sublicensees. Either Party shall not have the right to Voyager as settle any such suit or action in any manner that includes the non-controlling Party, to grant of a license in the extent such Third Party Infringement Claim relates to an AbbVie Research Antibody and is not brought against Voyager. Where a Party controls such an action, Territory or that could have any adverse effect on the other Party shall, and shall cause its Affiliates to, assist and cooperate with without the controlling Party, as such controlling Party may reasonably request from time to time, in connection with its activities set forth in this Section 12.5, including executing legal papers and cooperating in the defense, furnishing a power prior written consent of attorney solely for such purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and, in the case of Voyager, making available its employees as well as inventors, applicable records and documents (including laboratory notebooks) with respect to the relevant Patent Rights; provided that the controlling Party shall reimburse such other Party for its reasonable which consent shall not be unreasonably withheld or delayed. REPLIDYNE shall bear all costs, expenses, fees, charges, monies, license fees and verifiable out-of-pocket costs and expenses incurred in connection therewith. Each Party shall keep the other Party reasonably informed of all material developments or royalties in connection with any such claim, suit or proceeding. Each action by a Third Party agrees to provide the other Party with copies of all material pleadings filed in extent such action and are related solely to allow the other Party reasonable opportunity to participate methods or processes used by REPLIDYNE in the defense production of the claimsDrug Product (but excluding the Drug Substance), and both Parties shall share equally on all costs, expenses, fees, charges, monies, license fees and/or royalties in connection with any such suit or action by a Third Party to the extent such are not related solely to methods or processes used by REPLIDYNE in the production of the Drug Product.