Common use of Infringement of Third Party IP Clause in Contracts

Infringement of Third Party IP. (a) If either Party becomes aware that its activities performed hereunder may constitute actual or alleged infringement or misappropriation of the intellectual property rights of a Third Party in the Territory, it shall promptly notify the other Party and the Parties shall discuss a strategy to defend or mitigate against any actual or alleged infringement. (b) Braeburn shall have the first right, but not the obligation, to defend any action in the Territory related to the intellectual property rights of any Third Party or to initiate and prosecute legal action related to the intellectual property rights of any Third Party at its own expense and in the name of Braeburn and/or Knight. Knight shall render, at its expense, all assistance reasonably requested in connection with any action taken by Braeburn. However, the control of such action, including whether to initiate any legal proceeding and/or the settlement thereof, shall solely be under the control of Braeburn; provided, however, that if such settlement adversely affects Knight’s rights under this Agreement, or Knight’s ability to Commercialize the Sublicensed Products within the Territory, CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. or otherwise requires Knight to admit wrongdoing, fault, or liability, Braeburn will not settle or compromise any such proceeding without the consent of Knight, such consent not to be unreasonably withheld, conditioned or delayed. (c) If Braeburn elects not to defend an infringement action in the Territory as provided in Section 8.4(b), and Knight elects to do so, the cost of any agreed-upon course of action, including the costs of any legal action commenced or any infringement action defended, shall be borne solely by Knight; provided, however, that if such settlement adversely affects Braeburn’s intellectual property rights or its rights under this Agreement, or Braeburn’s ability to Commercialize the Sublicensed Products outside the Territory, results in any monetary payment by or financial loss to Braeburn or otherwise requires Braeburn to admit wrongdoing, fault, or liability, Knight will not settle or compromise any such proceeding without the consent of Braeburn, such consent not to be unreasonably withheld, conditioned or delayed. (d) For any such legal action or defense, in the event that any Party is 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 such action, the Parties will cooperate fully and will provide each other with any information or assistance that either reasonably may request.

Infringement of Third Party IP. (a) If either Party becomes aware that its activities performed hereunder may constitute actual or alleged infringement or misappropriation During the License Term, in the event of the initiation of any suit by a third party against Alliant that a Licensed Product or the manufacture, use, sale, or importation of a Licensed Product in North America infringes such third party’s intellectual property rights of a Third Party in the Territoryrights, it Alliant shall promptly notify BioMarin in writing, and Alliant shall have the other Party right to defend such suit at its expense and the Parties Alliant shall discuss a strategy provide BioMarin with notice of its intent to defend or mitigate against not defend such suit, provided that BioMarin shall have the right to participate in such action at BioMarin’s expense. If BioMarin participates in such action, Alliant shall have sole control of the conduct of any actual such action, provided that BioMarin shall have the right to provide ongoing comments and advice regarding its position in such action, which comments shall be considered in good faith by Alliant. BioMarin shall, at the request and expense of Alliant, cooperate and provide reasonable assistance in any action described in this Section and, if required by law, join such action. Alliant shall not settle or alleged infringementaccept any settlement from any third party without the prior written consent of BioMarin, which consent shall not be unreasonably withheld or delayed. (b) Braeburn shall have During the first rightLicense Term, but not the obligation, if (i) Alliant fails to defend such suit within a reasonable period of no longer than thirty (30) calendar days from the date of receipt of written notice regarding the suit, or no later than five (5) Business Days prior to the applicable deadline, and (ii) within such period of time, Alliant has not provided a commercially reasonable argument for failing to defend such suit, BioMarin may request that Alliant grant BioMarin the right to take such action as it deems necessary to defend its rights in the Licensed Products, which request will not be unreasonably denied. Alliant shall, at the request and expense of BioMarin, cooperate and provide reasonable assistance in any action described in the Territory related to the intellectual property rights of any Third Party or to initiate and prosecute legal action related to the intellectual property rights of any Third Party at its own expense and in the name of Braeburn and/or Knight. Knight shall renderthis Section and, at its expenseif required by law, all assistance reasonably requested in connection with any action taken by Braeburn. However, the control of such action, including whether to initiate any legal proceeding and/or the settlement thereof, shall solely be under the control of Braeburn; provided, however, that if such settlement adversely affects Knight’s rights under this Agreement, or Knight’s ability to Commercialize the Sublicensed Products within the Territory, CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. or otherwise requires Knight to admit wrongdoing, fault, or liability, Braeburn will not settle or compromise any such proceeding without the consent of Knight, such consent not to be unreasonably withheld, conditioned or delayed. (c) If Braeburn elects not to defend an infringement action in the Territory as provided in Section 8.4(b), and Knight elects to do so, the cost of any agreed-upon course of action, including the costs of any legal action commenced or any infringement action defended, shall be borne solely by Knight; provided, however, that if such settlement adversely affects Braeburn’s intellectual property rights or its rights under this Agreement, or Braeburn’s ability to Commercialize the Sublicensed Products outside the Territory, results in any monetary payment by or financial loss to Braeburn or otherwise requires Braeburn to admit wrongdoing, fault, or liability, Knight will not settle or compromise any such proceeding without the consent of Braeburn, such consent not to be unreasonably withheld, conditioned or delayed. (d) For any such legal action or defense, in the event that any Party is 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 such actionevents, the Parties expenses for defense will cooperate fully and will provide each other with be borne by BioMarin. BioMarin shall not settle or accept any information settlement from any third party without the prior written consent of Alliant, which consent shall not be unreasonably withheld or assistance that either reasonably may requestdelayed.

Infringement of Third Party IP. (a) If either Party becomes aware that its activities performed hereunder may constitute actual or alleged infringement or misappropriation of the intellectual property rights of a Third Party in the Territory, it shall promptly notify the other Party and the Parties shall discuss a strategy to defend or mitigate against any actual or alleged infringement. (b) Braeburn shall have the first right, but not the obligation, to defend any action in the Territory related to the intellectual property rights of any Third Party or to initiate and prosecute legal action related to the intellectual property rights of any Third Party at its own expense and in the name of Braeburn and/or Knight. Knight shall render, at its expense, all assistance reasonably requested in connection with any action taken by Braeburn. However, the control of such action, including whether to initiate any legal proceeding and/or the settlement thereof, shall solely be under the control of Braeburn; provided, however, that if such settlement adversely affects Knight’s rights under this Agreement, or Knight’s ability to Commercialize the Sublicensed Products within the Territory, CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. or otherwise requires Knight to admit wrongdoing, fault, or liability, Braeburn will not settle or compromise any such proceeding without the consent of Knight, such consent not to be unreasonably withheld, conditioned or delayed. (c) If Braeburn elects not to defend an infringement action in the Territory as provided in Section 8.4(b), and Knight elects to do so, the cost of any agreed-upon course of action, including the costs of any legal action commenced or any infringement action defended, shall be borne solely by Knight; provided, however, that if such settlement adversely affects Braeburn’s intellectual property rights or its rights under this Agreement, or Braeburn’s ability to Commercialize the Sublicensed Products outside the Territory, results in any monetary payment by or financial loss to Braeburn or otherwise requires Braeburn to admit wrongdoing, fault, or liability, Knight will not settle or compromise any such proceeding without the consent of Braeburn, such consent not to be unreasonably withheld, conditioned or delayed. (d) For any such legal action or defense, in the event that any Party is 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 such action, the Parties will cooperate fully and will provide each other with any information or assistance that either reasonably may request.

Infringement of Third Party IP. (a) If either Party becomes aware that its activities performed hereunder may constitute actual or alleged infringement or misappropriation of the intellectual property rights of a Third Party in the Territory, it shall promptly notify the other Party and the Parties shall discuss a strategy to defend or mitigate against any actual or alleged infringement. (b) Braeburn shall have the first right, but not the obligation, to defend any action in the Territory related to the intellectual property rights of any Third Party or to initiate and prosecute legal action related to the intellectual property rights of any Third Party at its own expense and in the name of Braeburn and/or Knight. Knight shall render, at its expense, all assistance reasonably requested in connection with any action taken by Braeburn. However, the control of such action, including whether to initiate any legal proceeding and/or the settlement thereof, shall solely be under the control of Braeburn; provided, however, that if such settlement adversely affects Knight’s rights under this Agreement, or Knight’s ability to Commercialize the Sublicensed Products within the Territory, CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. or otherwise requires Knight to admit wrongdoing, fault, or liability, Braeburn will not settle or compromise any such proceeding without the consent of Knight, such consent not to be unreasonably withheld, conditioned or delayed. (c) If Braeburn elects not to defend an infringement action in the Territory as provided in Section 8.4(b), and Knight elects to do so, the cost of any agreed-upon course of action, including the costs of any legal action commenced or any infringement action defended, shall be borne solely by Knight; provided, however, that if such settlement adversely affects Braeburn’s intellectual property rights or its rights under this Agreement, or Braeburn’s ability to Commercialize the Sublicensed Products outside the Territory, results in any monetary payment by or financial loss to Braeburn or otherwise requires Braeburn to admit wrongdoing, fault, or liability, Knight will not settle or compromise any such proceeding without the consent of Braeburn, such consent not to be unreasonably withheld, conditioned or delayed. (d) For any such legal action or defense, in In the event that any Party is unable to initiatethird party makes any written assertion against Service Provider, prosecuteany of its Affiliates, or defend its or their representatives, or Service Provider reasonably determines, with advice from counsel, that there is a material risk, that (i) the provision of the Services infringes or otherwise violates the Intellectual Property rights of any third party or (ii) Service Provider, any of its Affiliates, or its or their representatives, are liable to any third party in connection with the provision of the Services to a Recipient, in each case to the extent such action solely liability is not due to a breach of this Agreement by Service Provider, then Service Provider may provide written notice to the applicable Recipient describing, in reasonable detail, such liability or liability risk, and the circumstances giving rise thereto. If such Recipient does not provide written assurances of its assumption of responsibility for all of Service Provider’s, any of its Affiliates’, or its or their representatives’ reasonable out-of-pocket costs and expenses in connection with such matters, or timely pay for any such costs and expenses on a monthly, as incurred basis, then, upon ten (10) days prior written notice, Service Provider may terminate the Services giving rise to such costs and expenses; except that such Recipient shall have no such obligation if due to Service Provider’s gross negligence or willful misconduct, or use of Service Provider’s own nameIntellectual Property (which, for purposes of clarity, excludes Acquired Intellectual Property). For clarity, the other Party will join applicable Recipient who is receiving the infringing Services is responsible for liabilities to third parties for Intellectual Property infringement arising from the provision of the Services, except to the extent (i) due to the failure by Service Provider to maintain any existing agreements with third parties acquired as Purchased Assets (or any replacement contracts that Service Provider may elect to enter into during the Term), subject to and in accordance with this Agreement, but excluding to the extent such action voluntarily and will execute all documents necessary Recipient would have been required to make payments under this Agreement had the relevant agreement been maintained, or (ii) caused by the gross negligence or willful misconduct of the Service Provider, breach of this Agreement by Service Provider, or use of Service Provider’s own Intellectual Property (which, for the Party to prosecutepurposes of clarity, defend and maintain such action. In connection with any such action, the Parties will cooperate fully and will provide each other with any information or assistance that either reasonably may requestexcludes Acquired Intellectual Property).