Common use of Infringement Claims by Third Parties Clause in Contracts

Infringement Claims by Third Parties. If the manufacture, sale, or use of a Discovery Construct 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 patent infringement by Genentech (or its Affiliates or Sublicensees), Genentech shall promptly notify BicycleTx thereof in writing. Genentech shall have the first right, but not the obligation, to defend and control the defense of any such claim, suit, or proceeding at its own expense, using counsel of its own choice. BicycleTx may participate in any such claim, suit, or proceeding with counsel of its choice at its own expense. Without limitation of the foregoing, if Genentech finds it necessary or desirable to join BicycleTx as a party to any such action, BicycleTx shall, at Genentech’s expense, execute all papers and perform such acts as shall be reasonably required. If Genentech elects (in a written communication submitted to BicycleTx 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 BicycleTx is not prejudiced by any delays, BicycleTx may conduct and control the defense of any such claim, suit, or proceeding at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Any recoveries by Genentech of any sanctions awarded to Genentech and against a party asserting a claim being defended under this Section 9.6 shall be applied first to reimburse each Party for its reasonable out-of-pocket costs of defending or participating in such claim, suit, or proceedings, on a pro rata basis. The balance of any such recoveries shall be [***].

Infringement Claims by Third Parties. If the manufacture, sale, or use of a Discovery Construct 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 patent infringement by Genentech AbbVie (or its Affiliates or Sublicensees), Genentech AbbVie shall promptly notify BicycleTx Harpoon thereof in writing. Genentech AbbVie shall have the first right, but not the obligation, to defend and control the defense of any such claim, suit, or proceeding at its own expense, using counsel of its own choice. BicycleTx Harpoon may participate in any such claim, suit, or proceeding with counsel of its choice at its own expense. Without limitation of the foregoing, if Genentech AbbVie finds it necessary or desirable to join BicycleTx Harpoon as a party to any such action, BicycleTx Harpoon shall, at GenentechAbbVie’s expense, execute all papers and perform such acts as shall be reasonably required. If Genentech AbbVie elects (in a written communication submitted to BicycleTx Harpoon 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 BicycleTx Harpoon is not prejudiced by any delays, BicycleTx Harpoon may conduct and control the defense of any such claim, suit, or proceeding at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Any recoveries by Genentech of any sanctions awarded to Genentech and against a party asserting a claim being defended [***] under this Section 9.6 shall be applied first to reimburse each Party for its reasonable out-of-pocket costs of defending or participating in such claim, suit, or proceedings, on a pro rata basis. The balance of any such recoveries 8.4 shall be [***].

Infringement Claims by Third Parties. If the manufacture, sale, or use of a Discovery Construct Probody, Discovery PDC 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 patent infringement by Genentech AbbVie (or its Affiliates or Sublicensees), Genentech AbbVie shall promptly notify BicycleTx Licensor thereof in writing. Genentech AbbVie shall have the first right, but not the obligation, to defend and control the defense of any such claim, suit, or proceeding at its own expenseexpense (but subject to - 45 - deduction as provided below), using counsel of its own choice. BicycleTx Licensor may participate in any such claim, suit, or proceeding with counsel of its choice at its own expense. Without limitation of the foregoing, if Genentech AbbVie finds it necessary or desirable to join BicycleTx Licensor as a party to any such action, BicycleTx shall, at Genentech’s expense, Licensor shall execute all papers and perform such acts as shall be reasonably required, provided that AbbVie reimburses any out-of-pocket costs incurred by Licensor as a result. If Genentech AbbVie elects (in a written communication submitted to BicycleTx Licensor 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 BicycleTx Licensor is not prejudiced by any delays, BicycleTx Licensor may conduct and control the defense of any such claim, suit, or proceeding at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Any recoveries by Genentech of any sanctions awarded to Genentech and against a party asserting a claim being defended under this Section 9.6 shall be applied first to reimburse each Party for its reasonable out-of-pocket costs of defending or participating in such claim, suit, or proceedings, on a pro rata basis. The balance of any such recoveries shall be [***].

Infringement Claims by Third Parties. If the manufacture, sale, or use of a Discovery Construct 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 patent infringement by Genentech AbbVie (or its Affiliates or Sublicensees), Genentech AbbVie shall promptly notify BicycleTx Harpoon thereof in writing. Genentech Subject to Section 11.2, AbbVie shall have the first right, but not the obligation, to defend and control the defense of any such claim, suit, or proceeding at its own expense, using counsel of its own choice. BicycleTx Harpoon may participate in any such claim, suit, or proceeding with counsel of its choice at its own expense. The assumption of the defense of a claim that may be subject to Section 11.2 by either AbbVie or Harpoon shall not be construed as an acknowledgment that Harpoon is liable to indemnify any AbbVie Indemnitee in respect of such indemnity claim, nor shall it constitute a waiver by Harpoon of any defenses it may assert against an AbbVie Indemnitee’s claim for indemnification. Without limitation of the foregoing, if Genentech AbbVie finds it necessary or desirable to join BicycleTx Harpoon as a party to any such action, BicycleTx Harpoon shall, at GenentechAbbVie’s expense, execute all papers and perform such acts as shall be reasonably required. If Genentech AbbVie elects (in a written communication submitted to BicycleTx Harpoon 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 BicycleTx Harpoon is not prejudiced by any delays, BicycleTx Harpoon may conduct and control the defense of any such claim, suit, or proceeding at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Any recoveries by Genentech of any sanctions awarded to Genentech and against a party asserting a claim being defended [***] under this Section 9.6 shall be applied first to reimburse each Party for its reasonable out-of-pocket costs of defending or participating in such claim, suit, or proceedings, on a pro rata basis. The balance of any such recoveries 7.4 shall be [***].

Infringement Claims by Third Parties. If In the manufactureevent that a third party, saleother than a Licensee, asserts any claim or cause of action alleging that the Debiotech Pump System (i) infringes of a patent or copyright of another person, or use (ii) unlawfully ****** - Material has been omitted and filed separately with the Commission. discloses or uses or misappropriates a trade secret or other intellectual property right of a Discovery Construct or Licensed Product in the Territory pursuant to this Agreement results inthird person, or may result in, any claim, suit, or proceeding by a Third Party alleging patent infringement by Genentech (or its Affiliates or Sublicensees), Genentech shall promptly notify BicycleTx thereof in writing. Genentech Animas shall have the first right to assume control and direct the investigation, defense and settlement of each such claim. Animas shall keep Debiotech fully informed of all developments of the case, including any counterclaims made by Animas. Animas shall, to the extent legally permissible and without waiving attorney client privilege, (a) provide Debiotech with copies of all pleadings, discoveries and other relevant material (including discussion papers, submissions, opinions, technical evaluations, expert or witness statements and any other material contemplated to be used in the proceedings or otherwise relevant to the proceedings, whether in draft or final form), and (b) allow, except to the extent it would prove impracticable, participation in defense strategy discussions; provided that, Debiotech shall agree to appropriate confidentiality undertakings. Debiotech and its agents, representatives and employees shall at all times have the right, but not the obligationat its own cost, to defend participate in the defense (and control assume the defense if Animas does not act in good faith in defending the claim). The Parties shall fully cooperate with each other in connection with the defense of any such claim, suitincluding by furnishing all available documentary or other evidence as is reasonably requested by the other. Animas shall not, or proceeding at its own expenseto the extent reasonably practicable, using counsel of its own choice. BicycleTx may participate in any such claim, suit, or proceeding with counsel of its choice at its own expense. Without limitation of settle the foregoing, if Genentech finds it necessary or desirable to join BicycleTx as a party to any such action, BicycleTx shall, at Genentech’s expense, execute all papers and perform such acts as shall be reasonably required. If Genentech elects (in a written communication submitted to BicycleTx within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, claim or otherwise fails consent to initiate and maintain the defense of, any such claim, suit, or proceeding, within such time periods so that BicycleTx is not prejudiced by any delays, BicycleTx may conduct and control the defense of any such claim, suit, or proceeding at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Any recoveries by Genentech of any sanctions awarded to Genentech and against a party asserting a claim being defended under this Section 9.6 shall be applied first to reimburse each Party for its reasonable out-of-pocket costs of defending or participating an adverse judgment in such claimclaim without the express written consent of Debiotech, suitwhich consent shall not be unreasonably withheld or delayed. In the event that Debiotech reasonably withholds its consent, whether such consent is requested before or proceedingsafter the settlement is reached, on a pro rata basis. The balance the provisions of any such recoveries Section 10.3 of this Agreement shall be [***]not apply.

Infringement Claims by Third Parties. If the manufacture, sale, or use of a Discovery T-Cell Receptor Construct 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 patent infringement by Genentech AbbVie (or its Affiliates or Sublicensees), Genentech AbbVie shall promptly notify BicycleTx Licensor thereof in writing. Genentech AbbVie shall have the first right, but not the obligation, to defend and control the defense of any such claim, suit, or proceeding at its own expense, using counsel of its own choice. BicycleTx Licensor may participate in any such claim, suit, or proceeding with counsel of its choice at its own expense. Without limitation of the foregoing, if Genentech AbbVie finds it necessary or desirable to join BicycleTx Licensor as a party to any such action, BicycleTx Licensor shall, at GenentechAbbVie’s expense, execute all papers and perform such acts as shall be reasonably required. If Genentech AbbVie elects (in a written communication submitted to BicycleTx Licensor 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 BicycleTx Licensor is not prejudiced by any delays, BicycleTx Licensor may conduct and control the defense of any such claim, suit, or proceeding at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Any recoveries by Genentech of any sanctions awarded to Genentech and against a party asserting a claim being defended [***] under this Section 9.6 shall be applied first to reimburse each Party for its reasonable out-of-pocket costs of defending or participating in such claim, suit, or proceedings, on a pro rata basis. The balance of any such recoveries 8.4 shall be [***].] [ ] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. EXECUTION VERSION