Common use of Infringement of Rights of Others Clause in Contracts

Infringement of Rights of Others. To the best of the University's knowledge as of the Effective Date, the University knows of no third parties' rights which would be infringed by practicing the inventions claimed in the Licensed Patents within the scope of the licenses granted to MSS hereunder or by the commercialization as contemplated hereunder of the University Innovations in existence as of the Effective Date. The University will promptly notify MSS in the event that it learns or has cause to believe at any time that any third parties' rights would or might be infringed by practicing the inventions claimed in any Licensed Patents or by any Product or Innovation being commercialized hereunder. In the event that a claim is made against MSS or a Third Party that the manufacture, use, sale, distribution or other commercial exploitation of a Product or Innovation infringes the Intellectual Property Rights of a third party, then MSS or the Third Party (as applicable) will fund the cost of any litigation resulting out of such claim, but will be entitled to recover up to two-thirds (or whatever other fraction of the Net Proceeds generated by such Product or Innovation the University is entitled to hereunder at the time such litigation commences) of its costs and any damages awarded against it out of the sinking fund established pursuant to Section 3.4 above and, to the extent the sinking fund contains insufficient funds, the University's current and future share of any Net Proceeds; provided that in the event MSS or the Third Party is found to have willfully infringed such third party's Intellectual Property Rights (and such willfulness was not caused by the University), then MSS or the Third Party shall not be entitled to recover any portion of any enhanced damages awarded based upon such willfulness, and provided further that the University will be entitled to have counsel of its own choosing participate in (but not control) any such litigation at the University's sole expense.