Common use of Infringement Claims by Third Parties Clause in Contracts

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory, or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed Patents in the Territory, the Party first having notice of the claim or assertion shall promptly notify the other Party, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of action. Unless the Parties otherwise agree in writing, each Party shall have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). If WuXi is named in such legal action *** CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. but not Arcus, then Arcus shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section in the Territory that admits to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior written consent. In any event, the other Party shall reasonably assist the Defending Party and cooperate in any such litigation at the Defending Party’s cost and the Defending Party shall reimburse the other Party’s reasonable, documented, out-of-pocket costs associated therewith.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation use of such Licensed an Optioned Biologic or Optioned Product in the Field in the TerritoryTerritory pursuant to this Agreement results in, or may result in, any claim, suit, or proceeding by a Third Party alleging patent infringement by a Party (ii) if a declaratory judgment action is brought naming either or its Affiliates or Sublicensees), such Party as a defendant and alleging invalidity of any of the Licensed Patents in the Territory, the Party first having notice of the claim or assertion shall promptly notify the other Party, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of actionParty thereof in writing. Unless the Parties otherwise agree in writing, each Party shall have the right to defend itself against a suit any such claim, suit, or proceeding that names it such Party as a defendant (defendant; provided that the “Defending Party”)other Party may participate in any such claim, suit, or proceeding with counsel of its choice. If WuXi is named Without limitation of the foregoing, if a Party finds it necessary or desirable to join the other Party as a party to any such action, such other Party shall execute all papers and perform such acts as shall be reasonably required. 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 pleadings filed in such legal action *** CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. but not Arcus, then Arcus shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section in the Territory that admits to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of allow the other Party or requires an admission of liability, wrongdoing or fault on reasonable opportunity to participate in the part defense of the other claims. The Party without who is subject to an infringement action agrees not to settle such other Party’s prior written consentaction, or make any material admissions or assert any position in such action, in a manner that [***]. In any eventExcept as otherwise agreed by the Parties, the other Party shall reasonably assist the Defending Party and cooperate in any such litigation at the Defending Party’s cost and the Defending Party shall reimburse the other Party’s reasonable, documented, outOut-of-pocket Pocket Costs incurred by a Party in performing activities pursuant to this Section 9.4 shall be included in Allowable Expenses, or if Denali has exercised the Denali Worldwide Royalty Option with respect to the relevant Collaboration Program, borne by Takeda subject to Takeda’s right to offset [***] of such costs associated therewithagainst its royalty obligations to Denali.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developeddeveloped, made, Commercialized commercialized or otherwise exploited by or under authority of Arcus Licensee becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory, or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed Patents in the Territory, the Party first having notice of the claim or assertion shall promptly notify the other Party, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of action. Unless the Parties otherwise agree in writing, each Party shall have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). If WuXi Biologics is named in such legal action *** CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. but not ArcusLicensee, then Arcus Licensee shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section in the Territory that admits to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior written consent. In any event, the other Party shall reasonably assist the Defending Party and cooperate in any such litigation at the Defending Party’s cost and the Defending Party shall reimburse the other Party’s reasonable, documented, out-of-pocket costs associated therewith.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory, or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed Patents in the TerritoryPatents, the Party first having notice of the claim or assertion shall promptly notify the other Party, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of action. Unless the Parties otherwise agree in writing, each Party shall have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). If WuXi Abmuno is named in such legal action *** CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. but not Arcus, then Arcus shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section in the Territory that admits to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior written consent. In any event, the other Party shall reasonably assist the Defending Party and cooperate in any such litigation at the Defending Party’s cost and the Defending Party shall reimburse the other Party’s reasonable, documented, reasonable out-of-pocket costs associated therewith.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory, or (ii) if a declaratory judgment action is brought naming either 23.5.1 Each Party as a defendant and alleging invalidity of any of the Licensed Patents in the Territory, the Party first having notice of the claim or assertion shall promptly notify the other PartyParty in writing of any allegation by a Third Party in the Territory that any Compound and/or Product development, Commercialization (including import or export) or manufacturing activities conducted by the Parties pursuant to this Agreement infringe or misappropriate or may infringe or misappropriate the Intellectual Property Rights in the Territory of such Third Party (a “Third Party Infringement Claim”). The Parties shall discuss which Party shall defend the Third Party Infringement Claim, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of action. Unless the Parties otherwise agree in writingabsent mutual agreement otherwise, each Party shall have the right to defend itself control the defense of any such Third Party Infringement Claim brought against it, by counsel of its own choice. If a suit that names it as a defendant Third Party Infringement Claim is brought against one Party (the “Defending Party”). If WuXi is named in such legal action *** CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. ) but not Arcusthe other Party, then Arcus the non-Defending Party shall have the right to joinright, at its own expense, any such legal action and to be represented in such action Third Party Infringement Claim by counsel of its own counselchoice. 23.5.2 Each Defending Party shall keep the other Party reasonably informed of all material developments in connection with any Third Party Infringement Claim. None Each Defending Party agrees to provide the other Party with copies of the Parties shall all pleadings filed in any suit or proceeding relating to such Third Party Infringement Claim. The Defending Party may enter into any a settlement or compromise of any claim described in this Section in the Territory that admits to the invalidityThird Party Infringement Claim, narrowing of scope provided that, if such settlement or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability compromise would admit Liability on the part of the other non-Defending Party or requires an admission any of liability, wrongdoing its Affiliates or fault would otherwise have a material adverse effect on the part rights or interests of the other Party without such other Party’s prior written consent. In any event, the other Party shall reasonably assist the non-Defending Party and cooperate in any such litigation at the Defending Party’s cost and or its Affiliates, the Defending Party shall reimburse not enter into such settlement or compromise without the prior written consent of the non-Defending Party. 23.5.3 If a Third Party Infringement Claim is brought against both Parties, or initially against one Party and the other Party’s reasonableParty is subsequently joined to the Proceedings, documented, all out-of-pocket costs associated therewithexpenses incurred by each Defending Party in defending such Third Party Infringement Claim in the Territory (including outside counsel fees), and all amounts payable by either Defending Party as a judgment based on such Third Party Infringement Claim or in settlement of such Third Party Infringement Claim (excluding payments pursuant to any Third Party License, which is governed by Section 23.6), shall be paid for by the Parties as follows: [***] by ARIAD SWISSCO and [***] by ARIAD US. 23.5.4 If a Third Party Infringement Claim is brought against only one Defending Party and the other Party is not subsequently joined to the Proceedings, all out-of-pocket expenses incurred by such Defending Party in defending such Third Party Infringement Claim in the Territory (including outside counsel fees), and all amounts payable by such Defending Party as a judgment based on such Third Party Infringement Claim or in settlement of such Third Party Infringement Claim (excluding payments pursuant to any Third Party License, which is governed by Section 23.6), shall be [***]. 23.5.5 Any recovery by a Party of any sanctions or other amounts awarded to such Party against a Third Party asserting a Third Party Infringement Claim shall be applied in the same manner as recoveries in an action as set forth in Section 23.4.5. 23.5.6 If a Defending Party elects to enter into an agreement with a Third Party to obtain a license under such Third Party’s Intellectual Property Rights (“Third Party License”) in settlement of a Third Party Infringement Claim asserted by such Third Party, the provisions of Section 23.6 shall apply.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory, or (ii) if a declaratory judgment action is brought naming either 23.5.1 Each Party as a defendant and alleging invalidity of any of the Licensed Patents in the Territory, the Party first having notice of the claim or assertion shall promptly notify the other PartyParty in writing of any allegation by a Third Party in the Territory that any Compound and/or Product development, Commercialization (including import or export) or manufacturing activities conducted by the Parties pursuant to this Agreement infringe or misappropriate or may infringe or misappropriate the Intellectual Property Rights in the Territory of such Third Party (a “Third Party Infringement Claim”). The Parties shall discuss which Party shall defend the Third Party Infringement Claim, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of action. Unless the Parties otherwise agree in writingabsent mutual agreement otherwise, each Party shall have the right to defend itself control the defense of any such Third Party Infringement Claim brought against it, by counsel of its own choice. If a suit that names it as a defendant Third Party Infringement Claim is brought against one Party (the “Defending Party”). If WuXi is named in such legal action *** CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. ) but not Arcusthe other Party, then Arcus the non-Defending Party shall have the right to joinright, at its own expense, any such legal action and to be represented in such action Third Party Infringement Claim by counsel of its own counselchoice. 23.5.2 Each Defending Party shall keep the other Party reasonably informed of all material developments in connection with any Third Party Infringement Claim. None Each Defending Party agrees to provide the other Party with copies of the Parties shall all pleadings filed in any suit or proceeding relating to such Third Party Infringement Claim. The Defending Party may enter into any a settlement or compromise of any claim described in this Section in the Territory that admits to the invalidityThird Party Infringement Claim, narrowing of scope provided that, if such settlement or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability compromise would admit Liability on the part of the other non-Defending Party or requires an admission any of liability, wrongdoing its Affiliates or fault would otherwise have a material adverse effect on the part rights or interests of the other Party without such other Party’s prior written consent. In any event, the other Party shall reasonably assist the non-Defending Party and cooperate in any such litigation at the Defending Party’s cost and or its Affiliates, the Defending Party shall reimburse not enter into such settlement or compromise without the prior written consent of the non-Defending Party. 23.5.3 If a Third Party Infringement Claim is brought against both Parties, or initially against one Party and the other Party’s reasonableParty is subsequently joined to the Proceedings, documented, all out-of-pocket costs associated therewithexpenses incurred by each Defending Party in defending such Third Party Infringement Claim in the Territory (including outside counsel fees), and all amounts payable by either Defending Party as a judgment based on such Third Party Infringement Claim or in settlement of such Third Party Infringement Claim (excluding payments pursuant to any Third Party License, which is governed by Section 23.6), shall be paid for by the Parties as follows: [**] by ARIAD SWISSCO and [**] by ARIAD US. 23.5.4 If a Third Party Infringement Claim is brought against only one Defending Party and the other Party is not subsequently joined to the Proceedings, all out-of-pocket expenses incurred by such Defending Party in defending such Third Party Infringement Claim in the Territory (including outside counsel fees), and all amounts payable by such Defending Party as a judgment based on such Third Party Infringement Claim or in settlement of such Third Party Infringement Claim (excluding payments pursuant to any Third Party License, which is governed by Section 23.6), shall be [**]. 23.5.5 Any recovery by a Party of any sanctions or other amounts awarded to such Party against a Third Party asserting a Third Party Infringement Claim shall be applied in the same manner as recoveries in an action as set forth in Section 23.4.5. 23.5.6 If a Defending Party elects to enter into an agreement with a Third Party to obtain a license under such Third Party’s Intellectual Property Rights (“Third Party License”) in settlement of a Third Party Infringement Claim asserted by such Third Party, the provisions of Section 23.6 shall apply.

Infringement Claims by Third Parties. (a) If either (i) carrying out any Licensed Product Developedduties and obligations pursuant to this Agreement or conducting any activities contemplated under this Agreement results in, madeor is reasonably expected to result in, Commercialized any claim, suit, action or otherwise exploited proceeding by or under authority a Third Party alleging infringement of Arcus becomes the subject of a such Third Party’s claim patent or assertion of other Intellectual Property Rights (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an infringement of a patent relating action initiated pursuant to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory, or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed Patents in the TerritorySection 6.5, the Party first having notice becoming aware of the claim or assertion such Third Party Infringement Claim shall promptly notify the other PartyParty thereof in writing. As between the Parties, and to the Parties shall promptly confer to consider extent the claim or assertion and the appropriate course of action. Unless the Parties otherwise agree in writingThird Party Infringement Claim [***], each Party ONCORUS shall have the right first right, but not the obligation, to defend itself against a suit that names it as a defendant (and control the “Defending Party”)defense of any such Third Party Infringement Claim [***], using counsel of its own choice. NOF may participate in the defense of any such Third Party Infringement Claim with counsel of its choice at its sole cost and expense. If WuXi is named ONCORUS or its designee elects (in a written communication submitted to NOF within a reasonable amount of time after notice of the alleged Third Party Infringement Claim) not to defend or control the defense of, or otherwise fails to timely initiate and maintain the defense of, any such legal action Third Party Infringement Claim, then [*** CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. but not Arcus*], then Arcus NOF may conduct and control the defense of any such claim, suit or proceeding [***]. (b) If the Third Party Infringement Claim [***], NOF shall have the right first right, but not the obligation, to joindefend and control the defense of any such Third Party Infringement Claim [***], at using counsel of its own expensechoice. ONCORUS may participate in any such Third Party Infringement Claim with counsel of its choice [***]. If NOF or its designee elects (in a written communication submitted to ONCORUS within a reasonable amount of time after notice of the alleged Third Party Infringement Claim) not to defend or control the defense of, or otherwise fails to timely initiate and maintain the defense of, any such legal action Third Party Infringement Claim, ONCORUS may conduct and to be represented in such action by its own counsel. None of control the Parties shall enter into any settlement defense of any claim described in this Section in the Territory that admits to the invaliditysuch claim, narrowing of scope suit or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other proceeding [***]. (c) Where a Party or requires an admission of liability, wrongdoing or fault on the part of the other controls such a Third Party without such other Party’s prior written consent. In any eventInfringement Claim, the other Party shall, and shall reasonably cause its Affiliates, Sublicensees and employees to, assist the Defending Party and cooperate with the controlling Party [***], as such controlling Party may reasonably request from time to time and to the extent permissible under Applicable Law (including court rules) and dispute resolution practices in the relevant jurisdiction, in connection with its activities set forth in this Section 6.6, including, where necessary, furnishing a power of attorney solely for such purpose of joining in, or being named as a necessary party to, such a Third Party Infringement Claim, providing access to relevant documents and other evidence and making its employees available for interview during reasonable business hours; provided that [***]. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such litigation at the Defending Party’s cost and the Defending Third Party shall reimburse Infringement Claim. Each Party agrees to provide the other Party’s reasonableParty with copies of all material pleadings, documentedbriefs, out-of-pocket costs associated therewithexhibits and other materials filed in a suit, action or proceeding involving such Third Party Infringement Claim and to provide the other Party with a reasonable opportunity to participate in the defense of any Third Party Infringement Claim. Any recoveries awarded to a Party in connection with any Third Party Infringement Claim defended under this Section 6.6(c) shall be [***].