Common use of Infringement of Third Party Intellectual Property Clause in Contracts

Infringement of Third Party Intellectual Property. (a) If any Third Party asserts a formal or informal claim against either Party (or any of their Affiliates, agents or sublicensees) alleging that any of the activities of Intrexon or its Affiliates or sublicensees with respect to the research, development or commercialization of Licensed Products infringes, misappropriates or violates the intellectual property rights of any Third Party, the Party first having notice of such claim shall promptly notify the other Party in writing. The notice shall set forth the facts of the claim in reasonable detail. (b) Intrexon shall defend against any such Third Party claim brought against it, CONKWEST or any Party’s Affiliates, agents or sublicensees if such claim does not involve the Licensed Patents or Know-How; provided, that CONKWEST shall be entitled to be represented in such defense by counsel of its own choosing at CONKWEST’s sole expense. CONKWEST shall defend against any such Third Party claim brought against it, Intrexon or any Party’s Affiliates, agents or sublicensees if such claim involves the Licensed Patents or Know-How; provided, that Intrexon shall be entitled to be represented in such defense by counsel of its own choosing at Intrexon’s sole expense. (c) All damages or other amounts, if any, payable to such Third Party pursuant to a final, unappealable court order or ruling or pursuant to a settlement effected in good faith (which settlement shall have been approved by both Parties, which approval shall not be unreasonably withheld, conditioned or delayed by either Party), together with all reasonable defense costs (including, without limitation, reasonable attorneys’ fees, experts and witness fees, and other customary litigation costs and expenses) (collectively, “Damages”) incurred by the Party controlling the defense, shall be borne (i) solely by CONKWEST to the extent such Damages are caused by or arise from the acts or omissions of CONKWEST, including without limitation any breach of a representation or warranty of CONKWEST hereunder, and (ii) solely by Intrexon to the extent such Damages are caused by or arise from the acts or omissions of Intrexon or its Affiliates and sublicensees pursuant to its activities under this Agreement. To the extent either Party owes an amount to the other in accordance with the preceding allocation of financial responsibility, the Party who owes such amount shall pay it promptly (and in any event within thirty (30) days) after such order, ruling or settlement.

Infringement of Third Party Intellectual Property. (a) If In the event that a Party becomes aware of any Third Party asserts a formal claim that the Development, manufacture, import, use or informal claim against either Party (or Commercialization of any of their Affiliates, agents or sublicensees) alleging that any of Licensed Product in the activities of Intrexon or its Affiliates or sublicensees with respect to Field in the research, development or commercialization of Licensed Products infringes, misappropriates Territory hereunder infringes or violates the intellectual property Intellectual Property rights of any Third PartyParty in the Territory, the such Party first having notice of such claim shall promptly notify the other Party in writing. The notice Parties shall set forth thereafter discuss the facts situation, and to the extent reasonably necessary, use reasonable good faith efforts attempt to agree in writing on a course of the claim in reasonable detailaction. (b) Intrexon If, within thirty (30) calendar days of the notice set forth above, the Parties fail to agree in writing upon an appropriate course of action with respect to such infringement or violation in the Territory, then, with respect to any claim or allegation that the practice of any Athenex Know-How or technology covered by the Athenex Intellectual Property Rights pursuant to, in each case, this Agreement in the Field in the Territory is alleged to or does infringe the intellectual property rights of any Third Party (an “IP Claim”), Athenex shall have the obligation, to seek a license, defend against or settle any action in the Territory, or to initiate and prosecute legal action in the Territory to resolve such IP Claim. Athenex shall keep Almirall reasonably informed as to the progress of any IP Claim. Almirall shall render, all assistance reasonably requested in connection with any action, defense, or settlement or license negotiations thereof undertaken by Athenex. However, the control of such IP Claim, including whether to initiate any legal proceeding and/or the settlement thereof, or enter into a license with respect to the subject matter thereof, shall solely be under the control of Athenex; provided that Athenex shall not take any decision, or settle any such Third Party claim brought against itor proceeding, CONKWEST or enter into any Partylicense agreement, in a manner that materially adversely affects Almirall’s Affiliatesrights under this Agreement or which results in any material monetary payment by or financial loss to Almirall, agents or sublicensees if such claim does not involve the Licensed Patents or Know-How; provided, that CONKWEST shall be entitled to be represented in such defense by counsel of its own choosing at CONKWESTwithout Almirall’s sole expense. CONKWEST shall defend against any such Third Party claim brought against it, Intrexon or any Party’s Affiliates, agents or sublicensees if such claim involves the Licensed Patents or Know-How; provided, that Intrexon shall be entitled to be represented in such defense by counsel of its own choosing at Intrexon’s sole expense. (c) All damages or other amounts, if any, payable to such Third Party pursuant to a final, unappealable court order or ruling or pursuant to a settlement effected in good faith (which settlement shall have been approved by both Partieswritten consent, which approval consent shall not be unreasonably withheld, conditioned or delayed by either Party), together with delayed. Athenex shall pay for all reasonable defense costs (including, without limitation, reasonable attorneys’ fees, experts and witness fees, and other customary litigation costs and expenses) (collectively, “Damages”) expenses incurred by Athenex in such defense, action, settlement or pursuant to such license, and, subject to subsection (f) below, Athenex shall pay all damages awarded or settlement payments made (including future royalty or similar payments) to such Third Party with respect thereto. (c) If the Party controlling Parties agree that it is preferable for Almirall to, or in the event an IP Claim has been initiated against Almirall, Almirall decides to, undertake the defense, action, settlement, or seeking of a license with respect to an IP Claim or Third Party Intellectual Property rights, the reasonable, documented costs of any legal action commenced, any infringement action defended, or settlement or license entered into with respect to any IP Claim shall be borne solely by Athenex, provided, however, that Almirall shall not enter into any settlement or compromise of, or license with respect to, any IP Claim which results in any financial loss to or payment by Athenex, or may adversely affect (1) any Athenex Intellectual Property, (2) any corresponding Patents or other Intellectual Property rights outside the Territory, or (3) either Party’s ability to Develop, manufacture, or Commercialize Licensed Products, or Compound, or, in the case of Athenex, other products incorporating the Compound, without the prior written consent of Athenex, which consent shall not be unreasonably withheld, conditioned or delayed, and Athenex shall, subject to subsection (f) below, pay all damages awarded or settlement or license payments reasonably made (including future royalty or similar payments) to such Third Party with respect to the resolution of the IP Claim. (d) With respect to any IP Claim, in the event that any Party is legally unable to initiate, prosecute, or defend such action solely in its own name, the other Party will join such action voluntarily and will execute all documents necessary for the Party to prosecute, defend and maintain such action. In connection with any IP Claim, the Parties will cooperate fully and will provide each other with any information or assistance that either reasonably may request and all costs incurred in relation to such action shall, subject to subsection (f) below, be borne solely by Athenex. (e) Almirall shall have the sole right, but not the obligation, to defend any action against it, any Affiliate thereof, or any Sublicensee of either of the foregoing with respect to any claim of infringement or violation of any Third Party’s intellectual property rights, other than an IP Claim by Almirall’s, its Affiliates’, or its or their Sublicensees’ Development, manufacture, or Commercialization of Licensed Products in the Field in the Territory. (f) Notwithstanding anything to the contrary, (i) solely by CONKWEST Athenex shall not be obligated under this Section 6.4 to bear any amounts for damages, or payment obligations with respect to any IP Claims (other than running royalties on sales of Licensed Products in the extent such Damages are caused by Territory), due to Third Parties pursuant to an IP Claim or arise from the acts disposition, settlement or omissions of CONKWEST, including without limitation any breach execution of a representation or warranty license with respect thereto, exceeding in the aggregate (taking into account all IP Claims) the sum of CONKWEST hereunderall amounts previously paid to Athenex under Article 4, other than running royalties on Net Sales under Section 4.5 (as they may be adjusted) and (ii) solely by Intrexon Athenex shall not be obligated under this Section 6.4 to bear any amount of running royalties on sales of Licensed Products in the extent such Damages are caused by or arise from the acts or omissions of Intrexon or its Affiliates and sublicensees Territory in any particular Calendar Quarter due to Third Parties pursuant to its activities an IP Claim or disposition, settlement or execution of a license with respect thereto exceeding the running royalties on Net Sales during such Calendar Quarter due under this AgreementSection 4.5 (as they may be adjusted). To Almirall shall be responsible for any amounts for damages, or payment obligations (including running royalties), with respect to any IP Claim that exceed the extent either Party owes an amount to the other foregoing limitations and shall reimburse Athenex for any amounts incurred in accordance with the preceding allocation excess of financial responsibility, the Party who owes such amount shall pay it promptly (and in any event limitations within thirty (30) daysdays of Almirall’s receipt of an invoice therefor. The Parties acknowledge and agree that the intent of this subsection (f) after is to ensure that the maximum amounts for damages or other payments that Athenex would have to bear under this Section 6.4 are equal to the total amounts paid to Athenex under Article 4, and shall interpret the preceding portions hereof accordingly. (g) Notwithstanding anything to the contrary, (i) Athenex shall not have obligations to Almirall or otherwise with respect to any claims of infringement or violation of Third Party intellectual property rights under this Section 6.4 with respect to (1) any API, other than a Compound proposed or made by Almirall, that is incorporated into any Licensed Product (or the use or manufacture of such orderAPI) or (2) any changes to any Licensed Product (or its use or manufacture) proposed or made by Almirall or any Affiliate thereof and (ii) if, ruling or settlementas a consequence of an infringement of a Third Party intellectual property right, Almirall is not entitled to continue Developing and Commercializing the Licensed Product as provided in the Agreement, then Almirall shall be entitled to terminate the Agreement without prejudice to any other Almirall’s right under this Agreement.

Infringement of Third Party Intellectual Property. (a) If any Third Party asserts a formal or informal claim against either Each Party (or any of their Affiliates, agents or sublicenseesthe "Accused Party") alleging that any of the activities of Intrexon or its Affiliates or sublicensees with respect to the research, development or commercialization of Licensed Products infringes, misappropriates or violates the intellectual property rights of any Third Party, the Party first having notice of such claim shall promptly notify the other Party in writing. The notice shall set forth (the facts "Non-Accused Party") of any pending or threatened claim that (a) such Accused Party is infringing, violating, misappropriating, or misusing the claim in reasonable detail. intellectual property rights of a Third Party if such alleged infringement, violation, misappropriation, or misuse is reasonably likely to have resulted from such Accused Party's exercise of its rights or performance of its obligations hereunder, or (b) Intrexon shall defend against any such Third of the Parties' Intellectual Property licensed hereunder, or the Parties' rights thereto, are wholly or partially invalid, unenforceable, should be shortened in duration or are otherwise compromised in priority or effectiveness. The Non-Accused Party claim brought against it, CONKWEST or any Party’s Affiliates, agents or sublicensees if such claim does not involve the Licensed Patents or Know-How; provided, that CONKWEST shall be entitled to be represented in such defense by counsel of its own choosing at CONKWEST’s sole expense. CONKWEST shall defend against any such Third Party claim brought against it, Intrexon or any Party’s Affiliates, agents or sublicensees if such claim involves the Licensed Patents or Know-How; provided, that Intrexon shall be entitled to be represented in such defense by counsel of its own choosing at Intrexon’s sole expense. (c) All damages or other amounts, if any, payable to such Third Party pursuant to a final, unappealable court order or ruling or pursuant to a settlement effected in good faith (which settlement shall have been approved by both Parties, which approval shall not be unreasonably withheld, conditioned or delayed by either Party), together with all reasonable defense costs (including, without limitation, reasonable attorneys’ fees, experts and witness fees, and other customary litigation costs and expenses) (collectively, “Damages”) incurred by the Party controlling right to join the defense, shall be borne (i) solely by CONKWEST to the extent such Damages are caused by or arise from the acts or omissions of CONKWEST, including without limitation any breach of a representation or warranty of CONKWEST hereunder, and (ii) solely by Intrexon to the extent such Damages are caused by or arise from the acts or omissions of Intrexon or its Affiliates and sublicensees pursuant to its activities under this Agreement. To the extent either Party owes an amount to the other in accordance with the preceding allocation of financial responsibility, the Party who owes such amount shall pay it promptly (and in any event suit; provided that within thirty (30) daysdays after receipt of written notice of the claim, the Non-Accused Party shall notify the Accused Party of its election to join such suit with respect to any pending or threatened claim under clause (a) after or (b) of the preceding sentence. If the Non-Accused Party elects to join such ordersuit, ruling then the Parties shall cooperate in the defense and settlement of any such claim. Such defense and settlement shall be conducted jointly by the Parties and they shall share any resulting expenses on an equal basis. The Accused Party and shall keep the Non-Accused Party reasonably informed of the status of any suit with respect to any pending or settlementthreatened claim as described herein.

Infringement of Third Party Intellectual Property. (a) If any Third Party asserts a formal or informal claim against either Each Party (or any of their Affiliates, agents or sublicenseesthe “Accused Party”) alleging that any of the activities of Intrexon or its Affiliates or sublicensees with respect to the research, development or commercialization of Licensed Products infringes, misappropriates or violates the intellectual property rights of any Third Party, the Party first having notice of such claim shall promptly notify the other Party in writing. The notice shall set forth (the facts “Non-Accused Party”) of any pending or threatened claim that (a) such Accused Party is infringing, violating, misappropriating, or misusing the claim in reasonable detail. intellectual property rights of a Third Party if such alleged infringement, violation, misappropriation, or misuse is reasonably likely to have resulted from such Accused Party’s exercise of its rights or performance of its obligations hereunder, or (b) Intrexon shall defend against any such Third of the Parties’ Intellectual Property licensed hereunder, or the Parties’ rights thereto, are wholly or partially invalid, unenforceable, should be shortened in duration or are otherwise compromised in priority or effectiveness. The Non-Accused Party claim brought against it, CONKWEST or any Party’s Affiliates, agents or sublicensees if such claim does not involve the Licensed Patents or Know-How; provided, that CONKWEST shall be entitled to be represented in such defense by counsel of its own choosing at CONKWEST’s sole expense. CONKWEST shall defend against any such Third Party claim brought against it, Intrexon or any Party’s Affiliates, agents or sublicensees if such claim involves the Licensed Patents or Know-How; provided, that Intrexon shall be entitled to be represented in such defense by counsel of its own choosing at Intrexon’s sole expense. (c) All damages or other amounts, if any, payable to such Third Party pursuant to a final, unappealable court order or ruling or pursuant to a settlement effected in good faith (which settlement shall have been approved by both Parties, which approval shall not be unreasonably withheld, conditioned or delayed by either Party), together with all reasonable defense costs (including, without limitation, reasonable attorneys’ fees, experts and witness fees, and other customary litigation costs and expenses) (collectively, “Damages”) incurred by the Party controlling right to join the defense, shall be borne (i) solely by CONKWEST to the extent such Damages are caused by or arise from the acts or omissions of CONKWEST, including without limitation any breach of a representation or warranty of CONKWEST hereunder, and (ii) solely by Intrexon to the extent such Damages are caused by or arise from the acts or omissions of Intrexon or its Affiliates and sublicensees pursuant to its activities under this Agreement. To the extent either Party owes an amount to the other in accordance with the preceding allocation of financial responsibility, the Party who owes such amount shall pay it promptly (and in any event suit; provided that within thirty (30) daysdays after receipt of written notice of the claim, the Non-Accused Party shall notify the Accused Party of its election to join such suit with respect to any pending or threatened claim under clause (a) after or (b) of the preceding sentence. If the Non-Accused Party elects to join such ordersuit, ruling then the Parties shall cooperate in the defense and settlement of any such claim. Such defense and settlement shall be conducted jointly by the Parties and they shall share any resulting expenses on an equal basis. The Accused Party and shall keep the Non-Accused Party reasonably informed of the status of any suit with respect to any pending or settlementthreatened claim as described herein.

Infringement of Third Party Intellectual Property. VIVUS shall indemnify and hold Abboxx xxxmless against any judgment, damage, loss, cost or other expense (aincluding legal fees) If resulting from any Third Party asserts claim or suit alleging infringement of any patent or trademark owned by a formal third party arising from Abboxx'x xx its Affiliates' or informal claim against either Party (sublicensees' use or sale of the Products and/ or any Improvements and/ or use of their Affiliates, agents or sublicensees) alleging that any of the activities of Intrexon or its Affiliates or sublicensees with respect Trademarks in the Territory. Abboxx xxxll promptly give notice to the research, development or commercialization of Licensed Products infringes, misappropriates or violates the intellectual property rights VIVUS of any Third Partysuch claim or suit, and VIVUS shall have full control over the Party first having notice defense of such claim shall promptly notify or suit; provided that Abboxx xxxll have the other Party in writing. The notice shall set forth the facts of the claim in reasonable detail. (b) Intrexon shall defend against any such Third Party claim brought against itright to participate, CONKWEST or any Party’s Affiliatesat its own expense, agents or sublicensees if such claim does not involve the Licensed Patents or Know-How; provided, that CONKWEST shall be entitled to be represented in such defense by with counsel of its own choosing choosing, in such defense. Abboxx xxxll provide to VIVUS such reasonable assistance at CONKWEST’s sole VIVUS's expense as VIVUS may, from time to time, reasonably request. VIVUS, at its option and expense, may dispose of such claim or may conduct the defense of such suit. CONKWEST If Abboxx becomes obligated to make any payment, including but not limited to royalties and/ or damages, to any third party for patent, trademark or other intellectual property infringement allegedly attributable to the Products, in order to use and sell the Products in the Territory, such payments shall defend be creditable against Abboxx'x xxxchases of the Products, which would otherwise be payable to VIVUS hereunder. Abboxx xxxll use its best efforts to minimize its third-party payment obligations under this circumstance. VIVUS shall not dispose of any such Third Party claim brought against itor suit by agreement, Intrexon in any fashion which causes Abboxx xx be enjoined or otherwise prohibited from using or selling the Products in any Party’s Affiliates, agents country or sublicensees if such claim involves countries of the Licensed Patents or Know-How; provided, that Intrexon shall be entitled to be represented in such defense by counsel of its own choosing at Intrexon’s sole expense. (c) All damages or other amounts, if any, payable to such Third Party pursuant to a final, unappealable court order or ruling or pursuant to a settlement effected in good faith (which settlement shall have been approved by both Parties, which approval shall not be unreasonably withheld, conditioned or delayed by either Party), together with all reasonable defense costs (includingTerritory, without limitation, reasonable attorneys’ fees, experts and witness fees, and other customary litigation costs and expenses) (collectively, “Damages”) incurred by the Party controlling the defense, shall be borne (i) solely by CONKWEST to the extent such Damages are caused by or arise from the acts or omissions of CONKWEST, including without limitation any breach of a representation or warranty of CONKWEST hereunder, and (ii) solely by Intrexon to the extent such Damages are caused by or arise from the acts or omissions of Intrexon or its Affiliates and sublicensees pursuant to its activities under this Agreement. To the extent either Party owes an amount to the other in accordance with the preceding allocation of financial responsibility, the Party who owes such amount shall pay it promptly (and in any event within thirty (30) days) after such order, ruling or settlementAbboxx'x xxxor written consent.

Infringement of Third Party Intellectual Property. (a) If In the event any action is taken by a Third Party asserts a formal or informal claim against either Party (GSK or any Affiliate on the basis of their Affiliates, agents alleged infringement of a Patent of such Third Party or sublicensees) alleging that any of misappropriation of the activities know-how of Intrexon or its Affiliates or sublicensees with respect to the research, development or commercialization of Licensed Products infringes, misappropriates or violates the intellectual property rights of any a Third Party, or alleged infringement or passing off or misappropriation of a Third Party trademark, pursuant to the Party first having notice exercise by GSK or any Affiliate or Sublicensee of such claim its rights hereunder, GSK shall promptly notify inform Sepracor and GSK shall be entitled at GSK’s expense to take whatever reasonable action it considers necessary or useful and Sepracor will provide any and all reasonable assistance, free of charge, to GSK. Sepracor shall also have the other Party right, but not the obligation, to participate in writingany legal proceedings in connection with such action at its own expense and make recommendations to GSK concerning such action. The notice shall set forth the facts GSK will consider in good faith all reasonable suggestions of Sepracor with respect thereto, and agrees to keep Sepracor informed of the claim course such action or legal proceedings with respect thereto. GSK shall control the legal proceedings, including the right to enter into any settlement, in reasonable detail. (b) Intrexon shall defend against any such Third Party claim brought against it, CONKWEST or any Party’s Affiliates, agents or sublicensees order to be able to resume the exercise of the rights granted to GSK under the terms if such claim does not involve the Licensed Patents or Know-Howthis Agreement; provided, however, that CONKWEST shall be entitled to be represented GSK may not settle any such action, or make any admissions or assert any position in such defense by counsel action, in a manner that would adversely affect the rights or interests of its own choosing at CONKWEST’s sole expense. CONKWEST shall defend against Sepracor (whether within the GSK Territory or otherwise), or make any such Third Party claim brought against it, Intrexon or any Party’s Affiliates, agents or sublicensees if such claim involves financial payment without the Licensed Patents or Know-How; provided, that Intrexon shall be entitled to be represented in such defense by counsel prior written consent of its own choosing at Intrexon’s sole expense. (c) All damages or other amounts, if any, payable to such Third Party pursuant to a final, unappealable court order or ruling or pursuant to a settlement effected in good faith (which settlement shall have been approved by both PartiesSepracor, which approval consent shall not be unreasonably withheldwithheld or delayed. If as a result of such action or settlement, conditioned GSK has to pay any amount to the Third Party, including damages, license fees or delayed by either Party)royalties on sales of the Product, together with any and all reasonable defense costs (including, without limitation, reasonable attorneys’ fees, experts and witness fees, and other customary litigation costs and expenses) (collectively, “Damages”) incurred by such amounts as well as the Party controlling the defense, cost related to such action or settlement shall be borne (i) solely equally by CONKWEST to the extent such Damages are caused by or arise from the acts or omissions of CONKWEST, including without limitation any breach of a representation or warranty of CONKWEST hereunder, Sepracor and (ii) solely by Intrexon to the extent such Damages are caused by or arise from the acts or omissions of Intrexon or its Affiliates and sublicensees pursuant to its activities under this Agreement. To the extent either Party owes an amount to the other in accordance with the preceding allocation of financial responsibility, the Party who owes such amount shall pay it promptly (and in any event within thirty (30) days) after such order, ruling or settlementGSK.