Common use of Infringement Claims Clause in Contracts

Infringement Claims. (a) Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against all Loss suffered or incurred by the Indemnified Party arising in connection with an Infringement Claim. (b) If an Infringement Claim is made: (i) the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as reasonably requested by the Indemnifying Party; (ii) the Indemnifying Party is responsible for, and subject to clause 9.4(b)(iii) will have the right solely to control, the defence and settlement of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified Party, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Party, the Indemnified Party may participate in the defence of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or by the Indemnifying Party with respect to the Infringement Claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Party. (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro in accordance with this Agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro that is equivalent in functionality, performance and quality; or

Infringement Claims. (a) Each If any party shall learn of a claim or assertion that the manufacture, use or sale of the Product in the Territory infringes or otherwise violates the intellectual property rights of any Third Party, then the party becoming so informed shall promptly, but in all events within [***] (Indemnifying Party[***]) indemnifies days thereof, notify the other party (Indemnified Party) against all Loss suffered parties to this Agreement of the claim or incurred by the Indemnified Party arising in connection with an Infringement Claimassertion. (b) If an Infringement Claim warranted in the opinion of Santarus, after consultation with S2 and VeroScience, Santarus shall take such legal action as is made: (i) advisable in Santarus’ reasonable opinion to defend such infringement claims in the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim Territory. S2 shall cooperate fully with, and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as reasonably requested by the Indemnifying Party; (ii) the Indemnifying Party is responsible forby, Santarus in any such defense, and subject to clause 9.4(b)(iii) will have Santarus shall reimburse S2 for its *** Certain information on this page has been omitted and filed separately with the right solely to control, the defence Securities and settlement of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified Party, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Party, the Indemnified Party may participate in the defence of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or by the Indemnifying Party Exchange Commission. Confidential treatment has been requested with respect to the Infringement Claimomitted portions. out-of-pocket expenses incurred in providing such cooperation. S2 may be represented by counsel of its own selection at its own expense in any Enforcement Action. If (i) Santarus elects in writing not to defend any infringement claim with respect to the Product in the Territory, the Indemnified Party must act reasonably in considering the settlement offer if requested (ii) within [***] ([***]) days following a written request by S2 or VeroScience to do so by the Indemnifying Party. (c) If an Infringement Claim is made and the Supplier is the Indemnifying PartySantarus fails to defend such a claim, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro in accordance with this Agreement without any modification; or (iii) procure Santarus otherwise fails to defend an infringement claim or take other reasonable action to protect the parties’ rights related to the Product, or to xxxxx such infringement, then, VeroScience shall have the first right, at its sole discretion, to defend such infringement claim in its own name using counsel of its choice, at its own expense, and with the right to control the course of such defense (and Santarus and S2 shall provide all reasonable assistance, other than financial, to VeroScience for such defense, at VeroScience’s expense, and Santarus and S2 shall have the Customer nonright to join and participate in the defense of such infringement claim whether or not such joinder is requested by VeroScience). If VeroScience elects in writing not to exercise such right, or within [***] ([***]) days following a written request by S2 to do so VeroScience fails to defend an infringement claim, then, in compliance with the in-infringing replacements license agreement with respect to applicable Product patent rights licensed from a Third Party, if any, S2 shall have the right, at its sole discretion, to defend an infringement claim in its own name using counsel of its choice, at its own expense, and with the right to control the course of such defense (and VeroScience and Santarus shall provide all reasonable assistance, other than financial, to S2 for ProcurePro such defense, at S2’s expense, and VeroScience and Santarus shall have the right to join and participate in the defense of such infringement claim whether or not such joinder is requested by S2); provided, however, that S2 shall obtain VeroScience’s and Santarus’ consent (not to be unreasonably withheld) in advance of the grant of any license, covenant not to xxx, right of reference, right of supply, other intellectual property right or other settlement in any such infringement claim defense. In each infringement claim defense, each party shall have the right to fund a portion of the defense. Any recovery received as a result of any defense shall be used first to reimburse the parties for their out-of-pocket costs and expenses (including attorneys’ and professional fees) incurred in connection with such defense (and not previously reimbursed). If such recovery is equivalent insufficient to cover all such costs and expenses of each party, it shall be shared in functionalityproportion to the total of such costs and expenses incurred by each party. Any amounts remaining thereafter, performance to the extent relating to the Product in the Territory or an Included Additional Product in the Territory, shall be shared by the parties [***]. For clarity, S2 and qualityVeroScience shall be responsible to make any payments required to Third Party Rights Holders out of their share; orprovided, that neither S2 nor VeroScience shall be obligated to pay Third Party Rights Holders more than the amounts such parties receive in connection with such Enforcement Action.

Infringement Claims. Scholar Rock and JBI shall each promptly, but in any event no later than ten (a10) Each party (Indemnifying Party) indemnifies days after receipt of notice of such action, notify the other party in writing if any Third Party at any time provides written notice of a claim to, or brings an action, suit or proceeding against, either Party, or any of their respective Affiliates or sublicensees or subcontractors, claiming infringement of its patent rights or unauthorized use or misappropriation of its Know-How, based upon an assertion or claim arising out of the Development, Manufacture or Commercialization of a Collaboration Molecule, Lead Molecule or Licensed Product (Indemnified Party) against all Loss suffered or incurred by the Indemnified Party arising in connection with an “Infringement Claim.”). With respect to any Infringement Claim, the Parties shall attempt to negotiate in good faith a resolution with respect thereto. If the Parties cannot settle such Infringement Claim with the appropriate Third Party within thirty (30) days after the receipt of the notice of such action, then the following applies: (b) If an 11.5.1 In the event that such Infringement Claim is made: brought (i) the Indemnified Party must promptly notify the Indemnifying Party solely against JBI in respect of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as reasonably requested by the Indemnifying Party; such Collaboration Molecule, Lead Molecule or Licensed Product or (ii) the Indemnifying Party is responsible forjointly against JBI and Scholar Rock in respect of such Collaboration Molecule, and subject to clause 9.4(b)(iii) will Lead Molecule or Licensed Product, then JBI shall have the right solely first right, but not the obligation, to control, the defence and settlement of defend against any such Infringement Claim at its expense. If JBI agrees to defend against the Infringement Claim, provided that the Indemnifying Party must: (A) updateScholar Rock will cooperate and assist JBI in any such litigation at JBI’s expense, subject to Scholar Rock’s obligation under Section 8.4, and consult with, JBI shall be deemed to be the Indemnified Party about “Controlling Party.” In the progress of the Infringement Claim; (B) not settle the event that such Infringement Claim is brought solely against Scholar Rock in a manner that does respect of such Collaboration Molecule, Lead Molecule or Licensed Product, then in each such case Scholar Rock shall have the first right, but not unconditionally release the Indemnified Partyobligation, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to defend against any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Party, the Indemnified Party may participate in the defence of the such Infringement Claim at the Indemnifying Party’s its expense; and (iv) and if terms of settlement are proposed . If Scholar Rock agrees to or by the Indemnifying Party with respect to defend against the Infringement Claim, JBI will cooperate and assist Scholar Rock in any such litigation at Scholar Rock’s expense and Scholar Rock shall be deemed to be the Indemnified “Controlling Party.” 11.5.2 The Controlling Party must act reasonably will have the exclusive right to hire, fire and direct an attorney to represent it (and in considering the event that the claim is brought against both Parties, to represent it and the other Party) with respect to such Infringement Claims. The Controlling Party will have the exclusive right to settle any Infringement Claim without the consent of the other Party, unless (i) such settlement offer if requested could have a material adverse impact upon the other Party or its rights or ability to do so by perform its obligations under this Agreement, in which case the Indemnifying consent of such other Party shall be required and/or (ii) such settlement could otherwise have a material adverse impact on the Licensed Technology or Collaboration Molecules, Lead Molecules and/or Licensed Products, in which case the consent of the other Party shall be required. For purposes of clarity, any settlement that would involve the waiver of rights or payment from such other Party shall be deemed to have an adverse impact and shall require the consent) of such other Party. 11.5.3 If a Party wishes to assume sole control of the defense of any such Infringement Claim with respect to which it has the option to be the Controlling Party, then such Party may do so upon written notice to the other Party. If a Party does not exercise its right to control the defense of such Infringement Claim within ten (c10) If Business Days, then the Parties shall jointly control the defense of any such Infringement Claim or, in the case of Scholar Rock not exercising its right to control the defense of an Infringement Claim, JBI shall control such Infringement Claim is made with full cooperation by Scholar Rock, and the Supplier is the Indemnifying PartyJBI shall pay all expenses related thereto, the Supplier may (at its election): subject to Scholar Rock’s obligation under Section 8.4, and in such event, (i) modify ProcurePro each Party shall have the right but not the obligation, to retain its own counsel to participate in order to avoid any infringementsuch Infringement Claim, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure neither Party may settle such Infringement Claim without the consent of the other Party. If a Party shall become engaged in or participate in any suit described in this Section 11.5, the other Party shall cooperate, and shall cause its and its Affiliates’ employees, agents, and, to the extent reasonably possible, subcontractors and consultants to cooperate, with such Party, at such Party’s expense, in all reasonable respects in connection therewith. 11.5.4 If, as a result of any Infringement Claim, any royalties or other Losses are payable to such Third Party as a result of the Development, Manufacture or Commercialization of a Collaboration Molecule, Lead Molecule or Licensed Product in the Field, then JBI shall be responsible for the Customer payment of all rights required such amounts, subject to continue using and exploiting ProcurePro in accordance with this Agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro that is equivalent in functionality, performance and quality; orScholar Rock’s obligation under Section 8.4.

Infringement Claims. (a) Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against all Loss suffered or incurred by the Indemnified Party arising in connection with an Infringement Claim. (b) If an Infringement Claim is made: (i) the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as reasonably requested by the Indemnifying Party; (ii) the Indemnifying Party is responsible for, and subject to clause 9.4(b)(iii) will have the right solely to control, the defence and settlement of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified Party, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent;; and (iii) if the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Party, the Indemnified Party may participate in the defence of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or by the Indemnifying Party with respect to the Infringement Claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Party. (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro in accordance with this Agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro that is equivalent in functionality, performance and quality; or

Infringement Claims. (a) Each party (Indemnifying Party) indemnifies If any item used by BancTec to provide the Services other than a DFS Resource becomes, or in BancTec’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, BancTec will, in addition to indemnifying DFS Indemnitees as provided in this Section 17 and to the other party rights DFS may have under this Agreement, (Indemnified Partyi) against all Loss suffered promptly at BancTec’s expense secure the right to continue using the item, or incurred (ii) if this cannot be accomplished with Commercially Reasonable Efforts, then at BancTec’s expense, replace or modify the item to make it non-infringing or without misappropriation; provided, however, that any such replacement or modification may not degrade the performance or quality of the affected components of the Services or disrupt DFS’ business operations, or (iii) if neither of the foregoing can be accomplished by BancTec with Commercially Reasonable Efforts, and only in such event, then upon at least 180 days’ prior written notice to DFS, BancTec may remove the Indemnified Party arising item from the Services, in connection with an Infringement Claimwhich case BancTec’s charges will be equitably adjusted to reflect such removal. If removal of the item from Services causes the loss or degradation of the Services or any portion of the Services that is material to DFS, such loss or degradation will constitute a material breach of this Agreement by BancTec in respect of which DFS may exercise its termination and other rights and remedies. (b) If any DFS Resource becomes, or in DFS’ reasonable opinion is likely to become, the subject of an Infringement Claim is made: infringement or misappropriation Claim, DFS will, in addition to indemnifying BancTec Indemnitees as provided in this Section 17 and to the other rights BancTec may have under this Agreement, (i) promptly at DFS’ expense secure the Indemnified Party must promptly notify right to continue using the Indemnifying Party of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as reasonably requested by the Indemnifying Party; item, or (ii) if this cannot be accomplished with Commercially Reasonable Efforts, then at DFS’ expense, replace or modify the Indemnifying Party is responsible foritem to make it non-infringing or without misappropriation; provided, and subject to clause 9.4(b)(iii) will have Services Agreement 29 CONFIDENTIAL however, that any such replacement or modification may not degrade the right solely to control, the defence and settlement performance or quality of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress affected components of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified PartyServices or disrupt DFS’ business operations, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if neither of the Indemnifying Party fails foregoing can be accomplished by DFS with Commercially Reasonable Efforts, and only in such event, then upon at least 180 days’ prior written notice to respond toDFS, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice BancTec may remove the item from the Indemnified PartyServices, the Indemnified Party may participate in the defence of the Infringement Claim at the Indemnifying Partywhich case BancTec’s expense; and (iv) and if terms of settlement are proposed charges will be equitably adjusted to or by the Indemnifying Party with respect to the Infringement Claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Partyreflect such removal. (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro in accordance with this Agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro that is equivalent in functionality, performance and quality; or

Infringement Claims. (a) Each party (Indemnifying Party) indemnifies If any item used by BancTec to provide the Services other than a DFS Resource becomes, or in BancTec’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, BancTec will, in addition to indemnifying DFS Indemnitees as provided in this Section 17 and to the other party rights DFS may have under this Agreement, (Indemnified Partyi) against all Loss suffered promptly at BancTec’s expense secure the right to continue using the item, or incurred (ii) if this cannot be accomplished with Commercially Reasonable Efforts, then at BancTec’s expense, replace or modify the item to make it non-infringing or without misappropriation; provided, however, that any such replacement or modification may not degrade the performance or quality of the affected components of the Services or disrupt DFS’ business operations, or (iii) if neither of the foregoing can be accomplished by BancTec with ***, and only in such event, then upon at least *** days’ prior written notice to DFS, BancTec may remove the Indemnified Party arising item from the Services, in connection with an Infringement Claimwhich case BancTec’s charges will be equitably adjusted to reflect such removal. If removal of the item from Services causes the loss or degradation of the Services or any portion of the Services that is material to DFS, such loss or degradation will constitute a material breach of this Agreement by BancTec in respect of which DFS may exercise its termination and other rights and remedies. (b) If any DFS Resource becomes, or in DFS’ reasonable opinion is likely to become, the subject of an Infringement Claim is made: infringement or misappropriation Claim, DFS will, in addition to indemnifying BancTec Indemnitees as provided in this Section 17 and to the other rights BancTec may have under this Agreement, (i) promptly at DFS’ expense secure the Indemnified Party must promptly notify right to continue using the Indemnifying Party of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as reasonably requested by the Indemnifying Party; item, or (ii) if this cannot be accomplished with ***, then at DFS’ expense, replace or modify the Indemnifying Party is responsible foritem to make it non-infringing or without misappropriation; provided, and subject to clause 9.4(b)(iii) will have however, that any such replacement or modification may not degrade the right solely to control, the defence and settlement performance or quality of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress affected components of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified PartyServices or disrupt DFS’ business operations, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if neither of the Indemnifying Party fails foregoing can be accomplished by DFS with Commercially Reasonable Efforts, and only in such event, then upon at least *** days’ prior written notice to respond toDFS, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice BancTec may remove the item from the Indemnified PartyServices, in which case BancTec’s charges will be equitably adjusted to reflect such removal. *** Certain information on this page has been omitted and filed separately with the Indemnified Party may participate in the defence of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or by the Indemnifying Party Commission. Confidential treatment has been requested with respect to the Infringement Claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Partyomitted portions. (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro in accordance with this Agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro that is equivalent in functionality, performance and quality; or

Infringement Claims. (a) Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against all Loss suffered or incurred by the Indemnified Party arising in connection with an Infringement Claim. (b) If an Infringement Claim is made: (i) the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as reasonably requested by the Indemnifying Party; (ii) the Indemnifying Party is responsible for, and subject to clause 9.4(b)(iii) will have the right solely to control, the defence and settlement of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified Party, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent;; and (iii) if the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Party, the Indemnified Party may participate in the defence of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or by the Indemnifying Party with respect to the Infringement Claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Party. (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro in accordance with this Agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro that is equivalent in functionality, performance and quality; or

Infringement Claims. If the manufacture, sale or use of Product in the Territory pursuant to this Agreement results in any claim, suit or proceeding alleging patent infringement against ADVANCIS or GSK, such Party shall promptly notify the other Party hereto. If GSK is not named as a party in such a claim, suit or proceeding, GSK may, at its own expense and through counsel of its own choice, seek leave to intervene in such claim, suit or proceeding. ADVANCIS agrees not to oppose such intervention If GSK, and not ADVANCIS, is named as a party to such claim, suit or proceeding, GSK shall have the right to control the defense and settlement of such claim, suit or proceeding, at its own expense, using counsel of its own choice, however ADVANCIS, at its own expense and through counsel of its own choice, may seek to intervene if the claim, suit or proceeding relates to the commercialization of the Product in the Territory, and in such event, GSK agrees not to oppose such intervention. If GSK is named as a party and ADVANCIS shall, at any time, tender its defense to GSK, then GSK shall defend ADVANCIS in such claim, suit or proceeding, at GSK's own expense and through counsel of its own choice, and GSK shall control the defense and settlement of any such claim, suit or proceeding; provided, GSK shall not enter into any agreement, settlement or compromise or make any decision or admission (i) that extends or purports to exercise GSK's rights under Licensed Technology beyond the rights granted pursuant to this Agreement, (ii) regarding (a) Each party wrongdoing on the part of ADVANCIS, or (Indemnifying Partyb) indemnifies that adversely affects the validity, enforceability, infringement or scope of any ADVANCIS Patents or patent claiming a Joint Invention, without the prior written consent of ADVANCIS, which consent shall not be unreasonably withheld. The Parties shall cooperate with each other party (Indemnified Party) against all Loss suffered or incurred by the Indemnified Party arising in connection with an Infringement Claim. (b) If an Infringement Claim is made: (i) any such claim, suit or proceeding and shall keep each other reasonably informed of all material developments in connection with any such claim, suit or proceeding. Subject to the Indemnified Party must promptly notify the Indemnifying Party terms of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense Section 4.6, GSK shall assume full responsibility for the purposes payment of managing the Infringement Claim as reasonably requested by the Indemnifying Party; (ii) the Indemnifying Party is responsible for, and subject to clause 9.4(b)(iii) will have the right solely to control, the defence and settlement of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified Partyany award for damages, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree of any amount due pursuant to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance entered into by GSK with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Party, the Indemnified Party may participate in the defence of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or by the Indemnifying such Third Party with respect to the Infringement Claimany such claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Partysuit or proceeding. (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro in accordance with this Agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro that is equivalent in functionality, performance and quality; or

Infringement Claims. (a) Each party (Indemnifying Party) indemnifies the other party (Indemnified Party) against all Loss suffered or incurred by the Indemnified Party arising in connection with an Infringement Claim. (b) If an Infringement Claim is made: (i) the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as reasonably requested by the Indemnifying Party; (ii) the Indemnifying Party is responsible for, and subject to clause 9.4(b)(iii) will have the right solely to control, the defence and settlement of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified Party, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent;; and (iii) if the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Party, the Indemnified Party may participate in the defence of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or by the Indemnifying Party with respect to the Infringement Claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Party. (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro Hyra iQ in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcureProHyra iQ; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro Hyra iQ in accordance with this Agreement agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro Hyra iQ that is equivalent in functionality, performance and quality; or (iv) cease to provide Hyra iQ.

Infringement Claims. (a) Each In the event that a party receives notice of a third party claim alleging that the manufacture, use or sale of a Product infringes the patents of a third party (Indemnifying Party) indemnifies or a breach of the License Agreement), the party receiving notice shall promptly notify the other party in writing of such claim (Indemnified Party) against all Loss suffered or incurred by the Indemnified Party arising in connection with an "Infringement Claim"). Any notice of an Infringement Claim shall set forth in reasonable detail the available facts, circumstances and basis of the claim. ACS shall be the lead party (the "Lead Party") with respect to Infringement Claims relating to Products under this Agreement; provided, however, to the extent the Infringement Claim relates to the paclitaxel coating on the stents comprising Products or to the method of applying such coating, Cook shall be the Lead Party with respect to such portion of the Infrxxxxment Claim. (b) If . The party which is not the Lead Party with respect to an Infringement Claim is made: sometimes referred to herein as the "Second Party". The Lead Party shall assume, through counsel of its own choosing (i) the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim so long as reasonably requested by acceptable to the Indemnifying Second Party; (ii) the Indemnifying Party is responsible for, and subject to clause 9.4(b)(iii) will have the right solely to controlat its own expense, the defence and settlement of defense against the Infringement Claim, provided and the Second Party shall cooperate with it in connection therewith (including by furnishing such information as the Lead Party may reasonably request), provided, that the Indemnifying Second Party must: (A) updatemay participate in such defense through counsel chosen by it, and consult with, at its own expense. If the Indemnified Lead Party about the progress of the Infringement Claim; (B) is not settle contesting the Infringement Claim in a manner that does not unconditionally release good faith, then the Indemnified PartySecond Party may, upon at least ten (10) days' notice to the Lead Party (unless the Lead Party shall assume such settlement or on terms that require defense within such ten (10) day period), conduct and control, through counsel of its own choosing and at the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations expense of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Lead Party, the Indemnified settlement or defense thereof, and the Lead Party shall cooperate with it in connection therewith. Despite the Pro Rata Basis sharing of Infringement Liabilities set forth in Section 11.2 below, a party ("First Party") shall have no obligation to contribute to amounts paid in settlement of an Infringement Claim if such settlement is effected by the other party without the express prior written consent of the First Party, which consent shall not be unreasonably conditioned, withheld or delayed. Except as provided in Section 8.7, neither party may participate settle or otherwise consent to an adverse judgment relating to an Infringement Claim that diminishes the rights or interest of the other party without the express prior written consent of the other party, which consent shall not be unreasonably conditioned, withheld or delayed. Except as otherwise provided herein, each party will be responsible for its own costs and expenses of participating in the defence of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or by the Indemnifying Party with respect to defense against the Infringement Claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Party. Infringement Liabilities (as defined below) shall not include these costs and expenses of participation. (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro in accordance with this Agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro that is equivalent in functionality, performance and quality; or

Infringement Claims. (a) Each party (Indemnifying Party) indemnifies Licensor and the Licensee shall cooperate to police diligently the Licensed Marks. The Licensee shall promptly notify Licensor in writing of any unauthorized use, infringement, misappropriation, dilution, act of unfair competition or other party (Indemnified Party) against all Loss suffered or incurred by violation with respect to the Indemnified Party arising Licensed Marks in connection with the Licensed Products (an “Infringement”) of which it becomes aware or suspects. As between the parties, Licensor shall have the sole initial right to take, and to determine whether or not to take, any action(s) it deems appropriate with respect to any Infringement Claimat Licensor’s own cost. Licensee shall fully cooperate with Licensor in connection with any such actions, including by joining as a party to, or by providing documents or testimony. (b) If an Infringement Claim is made: Licensor shall notify Licensee within sixty (i60) days of Licensee's notice pursuant to Section 2.6(a) as to whether Licensor will initiate action against the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as reasonably requested by the Indemnifying Party; (ii) the Indemnifying Party is responsible foralleged infringement, and subject Licensor shall state its reason if it declines to clause 9.4(b)(iiiinitiate such action. Unless Licensor has a commercially reasonable reason for not bringing an action (which reason cannot be the cost of litigation) will have the right solely which outweighs Licensee's reasons for wishing an action to control, the defence and settlement of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified Partybe brought, or on terms that require the Indemnified Party if Licensor fails to do or cease doing anythingprovide notice within sixty (60) days, then Licensee may undertake enforcement action with respect to such Infringement with prior written notice to Licensor, at Licensee’s own expense. Neither Licensor nor Licensee shall enter into any settlements in respect of Infringements without the Indemnified Partyother party’s prior written consent; and , unless such settlement is for strictly monetary recovery from the third party and/or injunctive relief running against the third party, and the party (CLicensor or Licensee) not agree proposing to any terms of enter into the settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations is bearing the entire cost of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if the Indemnifying Party fails to respond to, defend or oppose action. The parties shall share in any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice recovery from the Indemnified Party, the Indemnified Party may participate third party in proportion to their participation in the defence cost of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or enforcement action, determined by the Indemnifying Party with respect to the Infringement Claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Partyout-of-pocket disbursements. (c) If an Infringement Claim is made Licensor shall have the right (but not the obligation) to undertake and to control the Supplier is the Indemnifying Party, the Supplier may (defense at its election):own expense of any and all allegations and claims, whether or in a registry proceeding or court, that Licensee’s use of the Licensed Marks infringes, dilutes, misappropriates, or competes unfairly with, any intellectual or industrial property right of any third party, (each, a “Claim”). Licensee shall have the right to participate in (but not control) the defense to a Claim, at its own expense. Any settlement of such action shall require the consent of both Licensor and Licensee, which consent shall not be unreasonably withheld, delayed or conditioned. (id) modify ProcurePro Nothing in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro in accordance with this Agreement without shall constitute a representation or warranty by either Licensor or Licensee, whether express or implied, that the Licensed Marks are registrable, are valid and enforceable in any modification; (iii) procure for part of the Customer non-infringing replacements for ProcurePro world, or that is equivalent in functionality, performance and quality; oruse of the Licensed Marks does not infringe upon the intellectual or industrial property rights of any Person.

Infringement Claims. (a) Each party (Indemnifying PartyIf the Software Product becomes, or in Motio’s opinion is likely to become, the subject of an infringement claim, Motio may, at its option and expense, either: i) indemnifies procure for you the other party (Indemnified Partyright to continue using the Software Product, ii) against all Loss suffered replace or incurred modify the Software Product so that it becomes non-infringing, or iii) accept return of the Software Product and give you a refund for the License Fees paid by you, less a reasonable allowance for the Indemnified Party arising in connection with an Infringement Claimperiod of time you have used the Software Product. (b) If an Infringement Claim Subject to the limitations otherwise set forth in this Agreement, Motio will indemnify you against any third party claims of infringement. Motio will pay you the damages, costs and expenses (including reasonable attorneys’ fees) finally awarded against you by a court of competent jurisdiction (or in a written settlement agreement signed by Motio) directly attributable to such third party claims of infringement. This indemnification obligation is made: subject to the following requirements: (i) the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and you will provide assistance at the Indemnifying Party’s expense for the purposes Motio with prompt written notice of managing the Infringement Claim as reasonably requested by the Indemnifying Party; any such claim; (ii) you will permit Motio, at its sole discretion, to assume and control the Indemnifying Party is responsible for, and subject to clause 9.4(b)(iii) will have the right solely to control, the defence defense and settlement of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified Party, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consentany such claim; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if you will not prejudice the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Party, the Indemnified Party may participate in the defence defense of the Infringement Claim at the Indemnifying Party’s expenseaction or claim; and (iv) you will mitigate such damages, costs and if terms of expenses, as far as reasonably possible; and (v) you will provide Motio with such assistance, documents, authority and information as it may reasonably require in relation to the action or claim and defense or settlement are proposed to thereof. c) Notwithstanding the foregoing, Motio will have no obligation under this Section or by the Indemnifying Party otherwise with respect to the Infringement Claim, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Party.any infringement claim based upon: (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting use of the functionality, performance and quality of ProcurePro; (ii) procure for the Customer all rights required to continue using and exploiting ProcurePro Software Product not in accordance with this Agreement without or for purposes not intended by Motio, ii) any modification; (use of the Software Product in combination with other products, equipment, software, or data which you are not authorized to use in conjunction with the Software Product, iii) procure for any use of any release of the Customer non-Software Product other than the most current release made available to you, iv) any modification of the Software Product by any person other than Motio, v) your continued alleged infringing replacements for ProcurePro activity after being informed of modifications that is equivalent would have avoided the alleged infringement, or vi) any combination of your use of the Software Product with any other activities of you or others. d) You shall defend, indemnify and hold Motio harmless from and against all claims arising from the activities described in functionality, performance and quality; orany of the foregoing clauses (c)(i)-(c)(vi). e) THIS SECTION STATES MOTIO’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

Infringement Claims. (a) The Parties agree that all third party royalties and other expenses, losses, costs, deficiencies, liabilities and damages (including legal fees) incurred or suffered by either of the Parties or their Affiliates arising out of a claim that the Product infringes any patents or other intellectual property right, shall be borne by the Party primarily responsible for the defense (the "DEFENDING PARTY"). Each party (Indemnifying Party) indemnifies of the Parties agrees to promptly notify the other party of any patent infringement claim or action by a Third Party which comes to its attention. The Parties agree that Connetics shall be primarily responsible for the infringement defense of any action arising (Indemnified Partyi) against all Loss suffered primarily from the manufacture of the Product (except as set forth in the following sentence) or incurred by (ii) from any other activities outside the Indemnified Party Territory. The Parties further agree that Medeva shall be primarily responsible for the infringement defense of any action arising (i) from the marketing or sale of the Product in the Territory, (ii) primarily from the manufacture of the Product if Medeva has assumed manufacturing responsibility for the Product, or (iii) primarily from any services Medeva may agree to provide in connection with an Infringement Claimthe fill and finish of bulk Product. As the person primarily responsible for the infringement defense, the Defending Party, acting for and on behalf of both Parties to this Agreement, shall communicate and negotiate with Third Parties, engage counsel reasonably acceptable to the other Party (the "NON-DEFENDING PARTY") and otherwise handle the defense of any such claim or action; provided, however, that the approval of a Party shall be required in writing prior to the other Party's entering into any settlement agreement on behalf of the first Party, which consent shall not be unreasonably withheld. (b) If an Infringement Claim is made: (i) The Non-defending Party agrees to cooperate with the Indemnified Defending Party must promptly notify to the Indemnifying Party of the Infringement Claim and will provide assistance at the Indemnifying Party’s expense for the purposes of managing the Infringement Claim as extent reasonably requested by and at the Indemnifying expense of the Defending Party; (ii) the Indemnifying , including, without limitation, being named as a party in such proceeding. The Non-defending Party is responsible formay choose to be represented by counsel of its choice and at its own expense at all meetings, and subject to clause 9.4(b)(iii) will have the right solely to control, the defence and settlement of the Infringement Claim, provided that the Indemnifying Party must: (A) update, and consult with, the Indemnified Party about the progress of the Infringement Claim; (B) not settle the Infringement Claim in a manner that does not unconditionally release the Indemnified Party, or on terms that require the Indemnified Party to do or cease doing anything, without the Indemnified Party’s prior written consent; and (C) not agree to any terms of settlement of any Infringement Claim which relate to acts, omissions, acknowledgements or representations of the Indemnified Party without the Indemnified Party’s prior written consent; (iii) if the Indemnifying Party fails to respond to, defend or oppose any Infringement Claim in accordance with this clause 9.4(b) following 10 Business Days’ notice from the Indemnified Party, the Indemnified Party may participate in the defence of the Infringement Claim at the Indemnifying Party’s expense; and (iv) and if terms of settlement are proposed to or by the Indemnifying Party with respect to the Infringement Claimall discussions, the Indemnified Party must act reasonably in considering the settlement offer if requested to do so by the Indemnifying Party. (c) If an Infringement Claim is made and the Supplier is the Indemnifying Party, the Supplier may (at its election): (i) modify ProcurePro in order to avoid any infringement, provided that it can do so without adversely affecting the functionality, performance and quality of ProcurePro; (ii) procure but counsel for the Customer all rights required Non-defending Party shall not be entitled to continue using and exploiting ProcurePro appear in accordance with this Agreement without any modification; (iii) procure for the Customer non-infringing replacements for ProcurePro that is equivalent in functionality, performance and quality; orlegal or judicial proceedings.