Common use of Infringement Claimed by Third Parties Clause in Contracts

Infringement Claimed by Third Parties. (a) In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, or import of a Licensed Product in the Territory (the “Third Party Claim”), or threatens to commence such a Third Party Claim, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other Party. Meda shall, using counsel reasonably acceptable to BDSI, at Meda’s own cost and expense, defend any and all such Third Party Claims or proceedings, and BDSI shall, at Meda’s cost and expense, provide such assistance and cooperation to Meda as may be necessary to successfully defend any such Third Party Claims. The above notwithstanding, Meda may only settle or enter into any form of voluntary disposition of any such claim with BDSI’s prior written consent, such consent not to be unreasonably withheld, provided that any such settlement or voluntary disposition which (i) admits fault or wrongdoing, or incurs liability, on the part of BDSI or (ii) adversely affects any of the Licensed Patent Rights, Licensed Know-How, or Marks shall require BDSI’s prior written consent, which BDSI may withhold in its sole discretion. The above notwithstanding, if Meda elects not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI or a Third Party under an agreement between BDSI and such Third Party, or the grant of rights from BDSI to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability provisions of Section 13.06(e), the License may be terminated or rendered nonexclusive by BDSI to the extent Arius’ License (as defined in Section 3.02 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreement, upon notice to Meda within *** of Meda’s election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control the defense of such claims at BDSI’s cost and expense using counsel of its own choice. (b) If it becomes necessary (as reasonably determined by either Party based on the advice of patent counsel and good faith discussions between the Parties) to obtain a license under a Patent Right Controlled by a Third Party in order to permit Meda, its Affiliates, or its Sublicensees to exercise the rights granted under this Agreement because such Patent Right might otherwise be infringed by the manufacture, use, sale, offer for sale or importation of a Licensed Product in a given country within the Territory (or Meda, its Affiliates, or its Sublicensee are required to make any payments to settle, or satisfy any judgment in, any such infringement proceeding, provided (a) each Party is provided a reasonable opportunity to review and discuss any proposed settlement, voluntary disposition, or license and (b) any such amount paid under any such settlement, voluntary disposition, or license is Commercially Reasonable, then the amount of the Royalties due hereunder for such Licensed Product in such country in any calendar quarter shall be reduced by *** percent (***%) of the payment paid by Meda or its Affiliates or Sublicensees to such Third Party (or to BDSI as reimbursement for payments made or owed by BDSI to such a Third Party, if BDSI is the direct licensee of such Third Party as contemplated below) in respect of such country in such quarter, provided that, notwithstanding the foregoing, the Royalties payable to BDSI under this Agreement shall not in any event be reduced to an amount less than the greater of (Y) *** percent (***%) of the Royalties that would otherwise have been payable to BDSI absent the application of this Section 7.04(b) or (Z) *** percent (***%) of Net Sales. Notwithstanding anything to the contrary in this Agreement, if and as requested by BDSI, Meda shall enable, and shall cause its Affiliates and Sublicensees to enable, BDSI (and not Meda or any Affiliate thereof or Sublicensee) to be the Party to enter into a license with such Third Party for such Patent Right and, in such an event, Meda shall be responsible for and promptly pay, in addition to the consideration otherwise due BDSI under this Agreement, any royalties, license fees, milestone fees, maintenance fees, and similar amounts due under such Third Party license agreement to the extent related to or triggered by the exercise of the rights granted hereunder by Meda, its Affiliates, or Sublicensees, subject to the adjustment of payments otherwise due to BDSI as described above.

Infringement Claimed by Third Parties. (a) In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, BEMA Patent Rights or import of a Licensed Product Marks used in the Territory (the “Third Party Claim”“), or threatens to commence such a Third Party Claim, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other Party. Meda shallArius may, using its choice of counsel reasonably acceptable to BDSI, and at Meda’s its own cost and expense, defend any and all such Third Party Claims or proceedings, and BDSI Arius Two shall, at Meda’s Arius’ cost and expense, provide such assistance and cooperation to Meda Arius as may be necessary to successfully defend any such Third Party Claims. The above notwithstanding, Meda may only settle or enter into any form of voluntary disposition of any such claim with BDSIwithout Arius Two’s prior written consent, such consent not to be unreasonably withheld, provided that Arius may only settle any such claim so long as the terms of such settlement or voluntary disposition which do not (ia) admits fault or wrongdoingimpair Arius Two’s rights hereunder, (b) impair Arius Two’s rights in the BEMA Patent Rights and the Marks, or incurs liability, (c) impose any additional costs directly on the part of BDSI or (ii) adversely affects any of the Licensed Patent Rights, Licensed Know-How, or Marks shall require BDSI’s prior written consent, which BDSI may withhold in its sole discretionArius Two. The above notwithstanding, if Meda Arius elects not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI Arius Two or a Third Party under an agreement between BDSI Arius Two and such Third Party, or the grant of rights from BDSI Arius Two to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability provisions of Section 13.06(e13.05(d), the License may be terminated or rendered nonexclusive by BDSI Arius Two, in its sole discretion, upon 30 days’ notice to the extent Arius within 30 days of Arius’ License (as defined in Section 3.02 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreement, upon notice to Meda within *** of Meda’s election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control the defense of such claims at BDSIArius Two’s cost and expense using counsel of its own choice. (b) If it becomes necessary (as reasonably determined by either Party based on the advice of patent counsel and good faith discussions between the Parties) to obtain a license under a Patent Right Controlled by a Third Party in order to permit Meda, its Affiliates, or its Sublicensees to exercise the rights granted under this Agreement because such Patent Right might otherwise be infringed by the manufacture, use, sale, offer for sale or importation of a Licensed Product in a given country within the Territory (or Meda, its Affiliates, or its Sublicensee are required to make any payments to settle, or satisfy any judgment in, any such infringement proceeding, provided (a) each Party is provided a reasonable opportunity to review and discuss any proposed settlement, voluntary disposition, or license and (b) any such amount paid under any such settlement, voluntary disposition, or license is Commercially Reasonable, then the amount of the Royalties due hereunder for such Licensed Product in such country in any calendar quarter shall be reduced by *** percent (***%) of the payment paid by Meda or its Affiliates or Sublicensees to such Third Party (or to BDSI as reimbursement for payments made or owed by BDSI to such a Third Party, if BDSI is the direct licensee of such Third Party as contemplated below) in respect of such country in such quarter, provided that, notwithstanding the foregoing, the Royalties payable to BDSI under this Agreement shall not in any event be reduced to an amount less than the greater of (Y) *** percent (***%) of the Royalties that would otherwise have been payable to BDSI absent the application of this Section 7.04(b) or (Z) *** percent (***%) of Net Sales. Notwithstanding anything to the contrary in this Agreement, if and as requested by BDSI, Meda shall enable, and shall cause its Affiliates and Sublicensees to enable, BDSI (and not Meda or any Affiliate thereof or Sublicensee) to be the Party to enter into a license with such Third Party for such Patent Right and, in such an event, Meda shall be responsible for and promptly pay, in addition to the consideration otherwise due BDSI under this Agreement, any royalties, license fees, milestone fees, maintenance fees, and similar amounts due under such Third Party license agreement to the extent related to or triggered by the exercise of the rights granted hereunder by Meda, its Affiliates, or Sublicensees, subject to the adjustment of payments otherwise due to BDSI as described above.

Infringement Claimed by Third Parties. (a) In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, or import of a the Licensed Product in the Territory (the “Third Party Claim”), or threatens to commence such a Third Party Claim, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other Party. Meda shall, using counsel reasonably acceptable to BDSI, at Meda’s own cost and expense, defend any and all such Third Party Claims or proceedings, and BDSI shall, at Meda’s cost and expense, provide such assistance and cooperation to Meda as may be necessary to successfully defend any such Third Party Claims. The above notwithstanding, without BDSI’s prior written consent, Meda may only settle or enter into any form of voluntary disposition of any such claim with BDSI’s prior written consent, such consent not to be unreasonably withheld, provided that any such settlement or voluntary disposition which (i) admits fault or wrongdoing, or incurs liability, on the part of BDSI or (ii) adversely affects any of the Licensed Patent Rights, Licensed Know-How, or Marks shall require BDSI’s prior written consent, which BDSI may withhold in its sole discretion. The above notwithstanding, if Meda elects not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI or a Third Party under an agreement between BDSI and such Third Party, or the grant of rights from BDSI to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability provisions of Section 13.06(e13.05(e), the License may be terminated or rendered nonexclusive by BDSI to the extent Arius’ License (as defined in Section 3.02 3.01 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreement, upon notice to Meda within *** of Meda’s election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control the defense of such claims at BDSI’s cost and expense using counsel of its own choice. (b) If it becomes necessary (as reasonably determined by either Party based on the advice of patent counsel and good faith discussions between the Parties) to obtain a license under a Patent Right Controlled by a Third Party in order to permit Meda, its Affiliates, or its Sublicensees to exercise the rights granted under this Agreement because such Patent Right might otherwise be infringed by the manufacture, use, sale, offer for sale or importation of a Licensed Product in a given country within the Territory (or Meda, its Affiliates, or its Sublicensee are required to make any payments to settle, or satisfy any judgment in, any such infringement proceeding, provided (a) each Party is provided a reasonable opportunity to review and discuss any proposed settlement, voluntary disposition, or license and (b) any such amount paid under any such settlement, voluntary disposition, or license is Commercially Reasonable, then the amount of the Royalties due hereunder for such Licensed Product in such country in any calendar quarter shall be reduced by *** percent (***%) of the payment paid by Meda or its Affiliates or Sublicensees to such Third Party (or to BDSI as reimbursement for payments made or owed by BDSI to such a Third Party, if BDSI is the direct licensee of such Third Party as contemplated below) in respect of such country in such quarter, provided that, notwithstanding the foregoing, the Royalties payable to BDSI under this Agreement shall not in any event be reduced to an amount less than the greater of (Y) *** percent (***%) of the Royalties that would otherwise have been payable to BDSI absent the application of this Section 7.04(b) or (Z) *** percent (***%) of Net Sales. Notwithstanding anything to the contrary in this Agreement, if and as requested by BDSI, Meda shall enable, and shall cause its Affiliates and Sublicensees to enable, BDSI (and not Meda or any Affiliate thereof or Sublicensee) to be the Party to enter into a license with such Third Party for such Patent Right and, in such an event, Meda shall be responsible for and promptly pay, in addition to the consideration otherwise due BDSI under this Agreement, any royalties, license fees, milestone fees, maintenance fees, and similar amounts due under such Third Party license agreement to the extent related to or triggered by the exercise of the rights granted hereunder by Meda, its Affiliates, or Sublicensees, subject to the adjustment of payments otherwise due to BDSI as described above.

Infringement Claimed by Third Parties. (a) In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, BEMA Patent Rights or import of a Licensed Product Marks in the Territory (the “Third Party Claim”), or threatens to commence such a Third Party Claim, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other Party. Meda shallArius may, using its choice of counsel reasonably acceptable to BDSI, and at Meda’s its own cost and expense, defend any and all such Third Party Claims or proceedings, and BDSI Arius Two shall, at Meda’s Arius’ cost and expense, provide such assistance and cooperation to Meda Arius as may be necessary to successfully defend any such Third Party Claims. The above notwithstanding, Meda may only settle or enter into any form of voluntary disposition of any such claim with BDSIwithout Arius Two’s prior written consent, such consent not to be unreasonably withheld, provided that Arius may only settle any such claim so long as the terms of such settlement or voluntary disposition which do not (ia) admits fault or wrongdoingimpair Arius Two’s rights hereunder, (b) impair Arius Two’s rights in the BEMA Patent Rights and the Marks, or incurs liability, (c) impose any additional costs directly on the part of BDSI or (ii) adversely affects any of the Licensed Patent Rights, Licensed Know-How, or Marks shall require BDSI’s prior written consent, which BDSI may withhold in its sole discretionArius Two. The above notwithstanding, if Meda Arius elects not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI Arius Two or a Third Party under an agreement between BDSI Arius Two and such Third Party, or the grant of rights from BDSI Arius Two to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability provisions of Section 13.06(e14.05(d), the License may be terminated or rendered nonexclusive by BDSI to the extent Arius’ License (as defined Arius Two, in Section 3.02 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreementits sole discretion, upon *** notice to Meda Arius within *** of Meda’s Arius’ election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control the defense of such claims at BDSIArius Two’s cost and expense using counsel of its own choice. (b) If it becomes necessary (as reasonably determined by either Party based on the advice of patent counsel and good faith discussions between the Parties) to obtain a license under a Patent Right Controlled by a Third Party in order to permit Meda, its Affiliates, or its Sublicensees to exercise the rights granted under this Agreement because such Patent Right might otherwise be infringed by the manufacture, use, sale, offer for sale or importation of a Licensed Product in a given country within the Territory (or Meda, its Affiliates, or its Sublicensee are required to make any payments to settle, or satisfy any judgment in, any such infringement proceeding, provided (a) each Party is provided a reasonable opportunity to review and discuss any proposed settlement, voluntary disposition, or license and (b) any such amount paid under any such settlement, voluntary disposition, or license is Commercially Reasonable, then the amount of the Royalties due hereunder for such Licensed Product in such country in any calendar quarter shall be reduced by *** percent (***%) of the payment paid by Meda or its Affiliates or Sublicensees to such Third Party (or to BDSI as reimbursement for payments made or owed by BDSI to such a Third Party, if BDSI is the direct licensee of such Third Party as contemplated below) in respect of such country in such quarter, provided that, notwithstanding the foregoing, the Royalties payable to BDSI under this Agreement shall not in any event be reduced to an amount less than the greater of (Y) *** percent (***%) of the Royalties that would otherwise have been payable to BDSI absent the application of this Section 7.04(b) or (Z) *** percent (***%) of Net Sales. Notwithstanding anything to the contrary in this Agreement, if and as requested by BDSI, Meda shall enable, and shall cause its Affiliates and Sublicensees to enable, BDSI (and not Meda or any Affiliate thereof or Sublicensee) to be the Party to enter into a license with such Third Party for such Patent Right and, in such an event, Meda shall be responsible for and promptly pay, in addition to the consideration otherwise due BDSI under this Agreement, any royalties, license fees, milestone fees, maintenance fees, and similar amounts due under such Third Party license agreement to the extent related to or triggered by the exercise of the rights granted hereunder by Meda, its Affiliates, or Sublicensees, subject to the adjustment of payments otherwise due to BDSI as described above.