Common use of Infringement Claims by Third Parties Clause in Contracts

Infringement Claims by Third Parties. If the manufacture, sale, use or other Exploitation of a Licensed Compound or Licensed Product in the Territory pursuant to this Agreement results in, or may result in, any claim, suit or proceeding by a Third Party alleging infringement by AbbVie or any of its Affiliates or its or their Sublicensees, distributors or customers (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an enforcement action initiated pursuant to Section 7.5, the Party first becoming aware of such alleged Third Party Infringement Claim shall [****] notify the other Party thereof in writing. As between the Parties, AbbVie shall have the [****] right in the United States and the [****] right in the OUS Territory, but, in either case, not the obligation, to defend and control the defense of (including to settle) any such Third Party Infringement Claim at its sole cost and expense (but subject to Section 7.8.4 and Article 10), using counsel of its own choice. Licensor may participate in any such Third Party Infringement Claim with counsel of its choice at its sole cost and expense; provided that AbbVie shall retain control of such Third Party Infringement Claim. If AbbVie or its designee does not take [****] reasonable steps to defend or control the defense of any such Third Party Infringement Claim in the United States (a) within [****] following the first notice provided above with respect to the Third Party Infringement Claim or (b) provided such date occurs after the first such notice of the Third Party Infringement Claim is provided, [****] before the time limit, if any, set forth in appropriate laws and regulations for filing of such actions, whichever comes first, then Licensor, with the prior approval of [****] (not to be unreasonably withheld, delayed or conditioned), may defend or control the defense of any such Third Party Infringement Claim at its sole cost and expense. The Party defending or controlling the defense of any such Third Party Infringement Claim shall keep the other Party [****] informed of all material developments in connection with any Third Party Infringement Claim. The other Party shall, and shall cause its Affiliates to, assist and cooperate with the Party defending or controlling the defense of any such Third Party Infringement Claim, as such Party may [****] request from time to time, in connection with its activities set forth in this Section 7.7, including 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 records, documents (including laboratory notebooks) and other evidence and making inventors and other of its employees available at reasonable business hours; provided that the Party defending or controlling the defense of any such Third Party Infringement Claim shall reimburse the other Party for its [****] Costs incurred in connection therewith (which reimbursement, for clarity, shall constitute a Third Party Payment). Nothing in this Section 7.7 will limit any indemnification rights or obligations of a Party under Article 10.

Infringement Claims by Third Parties. If 23.5.1 Each Party shall promptly notify the manufacture, sale, use or other Exploitation Party in writing of any allegation by a Licensed Compound or Licensed Product 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 results in, infringe or misappropriate or may result in, any claim, suit infringe or proceeding by a misappropriate the Intellectual Property Rights in the Territory of such Third Party alleging infringement by AbbVie or any of its Affiliates or its or their Sublicensees, distributors or customers (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an enforcement action initiated pursuant to Section 7.5, . The Parties shall discuss which Party shall defend the Party first becoming aware of such alleged Third Party Infringement Claim shall [****] notify the other Party thereof in writing. As between the Parties, AbbVie shall have the [****] right in the United States and the [****] right in the OUS Territory, but, in either case, not the obligation, to defend and control the defense of (including to settle) any such Third Party Infringement Claim at its sole cost and expense (but subject to Section 7.8.4 and Article 10), using counsel of its own choice. Licensor may participate in any such Third Party Infringement Claim with counsel of its choice at its sole cost and expense; provided that AbbVie shall retain control of such Third Party Infringement Claim. If AbbVie or its designee does not take [****] reasonable steps , and absent mutual agreement otherwise, each Party shall have the right to defend or control the defense of any such Third Party Infringement Claim in the United States (a) within [****] following the first notice provided above with respect to the Third Party Infringement Claim or (b) provided such date occurs after the first such notice brought against it, by counsel of the its own choice. If a Third Party Infringement Claim is providedbrought against one Party (the “Defending Party”) but not the other Party, [****] before the time limitnon-Defending Party shall have the right, if anyat its own expense, set forth in appropriate laws and regulations for filing of such actions, whichever comes first, then Licensor, with the prior approval of [****] (not to be unreasonably withheld, delayed or conditioned), may defend or control the defense of any represented in such Third Party Infringement Claim at by counsel of its sole cost and expense. The own choice. 23.5.2 Each Defending Party defending or controlling the defense of any such Third Party Infringement Claim shall keep the other Party [****] reasonably informed of all material developments in connection with any Third Party Infringement Claim. The Each Defending Party agrees to provide the other Party shall, and shall cause its Affiliates to, assist and cooperate with the Party defending copies of all pleadings filed in any suit or controlling the defense of any proceeding relating to such Third Party Infringement Claim, as such . The Defending Party may [****] request from time to timeenter into a settlement or compromise of any Third Party Infringement Claim, in connection with provided that, if such settlement or compromise would admit Liability on the part of the non-Defending Party or any of its activities set forth in this Section 7.7Affiliates or would otherwise have a material adverse effect on the rights or interests of the non-Defending Party or its Affiliates, including furnishing the Defending Party shall not enter into such settlement or compromise without the prior written consent of the non-Defending Party. 23.5.3 If a power of attorney solely for such purpose or joining inThird Party Infringement Claim is brought against both Parties, or being named as a necessary party toinitially against one Party and the other Party is subsequently joined to the Proceedings, such action, providing access to relevant records, documents (including laboratory notebooks) and other evidence and making inventors and other of its employees available at reasonable business hours; provided that the all out-of-pocket expenses incurred by each Defending Party in defending or controlling the defense of any 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 reimburse be paid for by the Parties as follows: [**] by ARIAD SWISSCO and [**] by ARIAD US. [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. 23.5.4 If a Third Party Infringement Claim is brought against only one Defending Party and the other Party for its 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 [****] Costs incurred in connection therewith (which reimbursement, for clarity, shall constitute ]. 23.5.5 Any recovery by a Party of any sanctions or other amounts awarded to such Party against a Third Party Payment). Nothing asserting a Third Party Infringement Claim shall be applied in this the same manner as recoveries in an action as set forth in Section 7.7 will limit any indemnification rights or obligations 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 under Article 10Infringement Claim asserted by such Third Party, the provisions of Section 23.6 shall apply.

Infringement Claims by Third Parties. 11.5.1 If the manufacture, sale, use or other Exploitation of a Licensed Compound or Licensed Product in the Territory pursuant to this Agreement results in, or may is reasonably expected to result in, any claim, suit or proceeding by a Third Party alleging infringement by AbbVie a Party or any of its Affiliates or its or their Sublicensees, distributors Distributors or customers (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an enforcement Infringement action initiated pursuant to Section 7.511.4.2, the Party first becoming aware of such alleged Third Party Infringement Claim infringement shall [****] promptly notify the other Party thereof in writing. As . 11.5.2 Notwithstanding Section 14.3, as between the Parties, (a) except with respect to I-Mab’s obligations provided in the following clause (b), AbbVie shall have the [****] right in the United States and the [****] right in the OUS Territory, but, in either case, not the obligation, to defend and control the defense of (including to settle) any such Third Party Infringement Claim at its sole cost and expense expense, using counsel of its own choice and (but subject b) I-Mab shall defend and control the defense of any Third Party Infringement Claim brought against I-Mab or any of its Affiliates or Sublicensees related to Section 7.8.4 its or their activities in the I-Mab Territory, at its sole cost and Article 10)expense, using counsel of its own choice. Licensor may participate in ; provided that (i) each Party’s defense or settlement of any such Third Party Infringement Claim in its Territory shall be consistent with the terms of this Agreement, and (ii) each Party shall not admit infringement of such Licensed Product, without the other Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). The other Party may participate in any such claim, suit or proceeding with counsel of its choice at its sole cost and expense; provided that AbbVie shall retain control of such Third Party Infringement Claimexpense if permitted under Applicable Law. If AbbVie or its designee does not take [****] reasonable steps to defend or control a Party controls such an action, the defense of any such Third Party Infringement Claim in the United States (a) within [****] following the first notice provided above with respect to the Third Party Infringement Claim or (b) provided such date occurs after the first such notice of the Third Party Infringement Claim is provided, [****] before the time limit, if any, set forth in appropriate laws and regulations for filing of such actions, whichever comes first, then Licensor, with the prior approval of [****] (not to be unreasonably withheld, delayed or conditioned), may defend or control the defense of any such Third Party Infringement Claim at its sole cost and expense. The Party defending or controlling the defense of any such Third Party Infringement Claim shall keep the other Party [****] informed of all material developments in connection with any Third Party Infringement Claim. The other Party shall, and shall cause its Affiliates to, assist and cooperate with the Party defending or controlling the defense of any such Third Party Infringement ClaimParty, as such controlling Party may [****] reasonably request from time to time, in connection with its activities set forth in this Section 7.711.5, including if necessary, 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 records, documents (including laboratory notebooks) and other evidence and making inventors and other of its employees available at reasonable business hours; provided that the controlling Party defending shall reimburse such other Party for its reasonable and verifiable Out-of-Pocket Costs incurred in connection therewith; provided, further, that neither Party shall take any action in, or controlling settle, any Third Party Infringement Claim under this Section 11.5.2 in a manner that is inconsistent with the terms of this Agreement or imposes any Out-of-Pocket Costs or liability on or involves any admission by the other Party without the prior written consent of such other Party (which consent shall not be unreasonably withheld, conditioned or delayed). Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit or proceeding. For clarity, the defense of a Third Party Infringement Claim includes filing a declaratory judgement action, a revocation or nullity action, a post-grant proceeding or any challenge in the applicable court or patent authority against a Patent of a Third Party involved in such Third Party Infringement Claim shall reimburse the other Party for its [****] Costs incurred in connection therewith (which reimbursement, for clarity, shall constitute a Third Party Payment). Nothing in this Section 7.7 will limit any indemnification rights or obligations of a Party under Article 10Claim.

Infringement Claims by Third Parties. If the manufacture, sale, use or other Exploitation of a Licensed Compound or Licensed Product in the Territory [**] pursuant to this Agreement results in, or may is reasonably expected to result in, any claim, suit or proceeding by a Third Party alleging infringement by AbbVie a Party or any of its Affiliates or its or their (sub)licensees/Sublicensees, distributors or customers (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an enforcement action initiated pursuant to Section 7.59.4, the Party first becoming aware of such alleged Third Party Infringement Claim shall [****] promptly notify the other Party thereof in writing. As between the Parties, AbbVie prior to the Continuation Date, Xxxxx shall have the [****] right in sole right, but not the United States obligation, to defend and control the [****] right in defense of (including to settle) any such Third Party Infringement Claim at its sole cost and expense (but subject to Article 12), using counsel of its own choice; provided that Xxxxx shall obtain the OUS Territorywritten consent of Gilead prior to settling or compromising any such Third Party Infringement Claim. As between the Parties, butfrom and after the Continuation Date, in either caseGilead shall have the sole right, but not the obligation, to defend and control the defense of (including to settle) any such Third Party Infringement Claim at its sole cost and expense (but subject to Section 7.8.4 8.7 and Article 1012), using counsel of its own choice. Licensor In each case, the non-controlling Party may participate in any such Third Party Infringement Claim with counsel of its choice at its sole cost and expense; provided that AbbVie the controlling Party shall retain control of such Third Party Infringement Claim. If AbbVie or its designee does not take [****] reasonable steps to defend or control the defense of any Where a Party controls such Third Party Infringement Claim in the United States (a) within [****] following the first notice provided above with respect to the Third Party Infringement Claim or (b) provided such date occurs an action, after the first such notice of Continuation Date, the Third Party Infringement Claim is provided, [****] before the time limit, if any, set forth in appropriate laws and regulations for filing of such actions, whichever comes first, then Licensor, with the prior approval of [****] (not to be unreasonably withheld, delayed or conditioned), may defend or control the defense of any such Third Party Infringement Claim at its sole cost and expense. The Party defending or controlling the defense of any such Third Party Infringement Claim shall keep the other Party [****] informed of all material developments in connection with any Third Party Infringement Claim. The other Party shall, and shall cause its Affiliates to, assist and cooperate with the Party defending or controlling the defense of any such Third Party Infringement ClaimParty, as such controlling Party may [****] reasonably request from time to time, in connection with its activities set forth in this Section 7.79.6, including 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 records, documents (including laboratory notebooks) and other evidence and making inventors and other of its employees available at reasonable business hours; provided that the controlling Party defending or controlling the defense of any such Third Party Infringement Claim shall reimburse the such other Party for its [****] reasonable and verifiable Out-of-Pocket Costs incurred in connection therewith (which reimbursementtherewith. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, for clarity, shall constitute a Third Party Payment)suit or proceeding. Nothing in this Section 7.7 9.6 will limit any indemnification rights or obligations of a Party under Article 1012.

Infringement Claims by Third Parties. If the manufacture, sale, use or other Exploitation of a Licensed Compound or Licensed Product in the Territory [†] pursuant to this Agreement results in, or may is reasonably expected to result in, any claim, suit or proceeding by a Third Party alleging infringement by AbbVie or any of its Affiliates Patent or its or their Sublicensees, distributors or customers trademark rights by [†] (a “Third Party Infringement Claim”), including any in connection with a defense or counterclaim in connection with to an enforcement Infringement action initiated pursuant to Section 7.55.3, the Party first becoming aware of such alleged Third Party Infringement Claim infringement shall [****] promptly notify the other Party thereof in writing. As between the Parties, AbbVie [†] shall have the [****] right in the United States and the [****] right in the OUS Territoryfirst right, but, in either case, but not the obligation, to defend and control the defense of (including to settle) any such Third Party Infringement Claim at its sole cost and expense (but subject to Section 7.8.4 and Article 10), using counsel of its own choice. Licensor may participate in any such Third Party Infringement Claim with counsel of its choice at its sole cost and expense; provided that AbbVie shall retain control of such Third Party Infringement Claim. If AbbVie or its designee does not take [****] reasonable steps to defend or control the defense of any such Third Party Infringement Claim in the United States (a) within [****] following the first notice provided above with respect to the Third Party Infringement Claim or (b) provided such date occurs after the first such notice of the Third Party Infringement Claim is provided, [****] before the time limit, if any, set forth in appropriate laws and regulations for filing of such actions, whichever comes first, then Licensor, with the prior approval of [****] (not to be unreasonably withheld, delayed or conditioned), may defend or control the defense of any such Third Party Infringement Claim at its sole cost and expense. The Party defending or controlling the defense of any such Third Party Infringement Claim shall keep the other Party [****] informed of all material developments in connection with any Third Party Infringement Claim. The other Party shall, and shall cause its Affiliates to, assist and cooperate with the Party defending or controlling the defense of any such Third Party Infringement Claim, as at [†] cost and expense, using counsel of [†] choice; provided that [†] may participate in the defense using counsel of its choice at [†] cost and expense. If [†] or its designee elects (in a written communication submitted to [†] 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 action or proceeding, [†] may conduct and control the defense of any such action or proceeding at [†] cost and expense; provided that [†] may participate in the defense using counsel of its choice at [†] cost and expense. The non-controlling Party may [****] request from time to time, shall assist and cooperate with the controlling Party in connection with its activities set forth in this Section 7.7S † DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION ection 5.5, including furnishing and the controlling Party shall reimburse the non-controlling Party for its reasonable out-of-pocket costs incurred in connection therewith. Any recoveries awarded to 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 records, documents (including laboratory notebooks) and other evidence and making inventors and other of its employees available at reasonable business hours; provided that the Party defending or controlling the defense of in connection with any such Third Party Infringement Claim defended under this Section 5.5 shall be applied first to reimburse the other such Party for its reasonable out-of-pocket costs of defending such claim, suit or proceedings, with the balance of any such recoveries being retained or provided to such Party and, in the case of [****†] Costs incurred as the recovering party, included in connection therewith (which reimbursement, for clarity, shall constitute a Third Party Payment). Nothing in this Section 7.7 will limit any indemnification rights or obligations of a Party under Article 10[†].