Common use of Initial Right to Enforce Clause in Contracts

Initial Right to Enforce. Subject to Section ‎7.3(c), Processa (itself or through its Affiliate or Sublicensee) shall have the first right, but not the obligation, to initiate a suit, or take other appropriate action that it believes is reasonably required to protect (i.e., prevent or axxxx actual or threatened infringement or misappropriation of) or otherwise enforce the Processa Intellectual Property, Elion Intellectual Property and Joint Intellectual Property with respect to an Infringement Claim; provided, however, that Processa shall (i) consult with Elion in good faith with respect to any claim that any Elion Patent Right, Processa Patent Right or Joint Patent Right is invalid or unenforceable and (ii) implement any reasonable comment from Elion regarding any aspect of defending against any such claim described in clause (i). Any such suit by Processa shall be brought either in the name of Elion or its Affiliate, the name of Processa or its Affiliate, or the names of Processa, Elion and their respective Affiliates, as may be required by the Law of the forum. For this purpose, Elion shall execute such legal papers and cooperate in the prosecution of such suit, including providing full access to documents, information and witnesses as reasonably requested by Processa in connection with such suit, as may be reasonably requested by Processa; provided that Processa shall promptly reimburse all out-of-pocket expenses (including reasonable counsel fees and expenses) actually incurred by Elion in connection with such cooperation. For clarity, as between Elion and Processa, (A) Elion shall have the sole right, but not the obligation, to protect Elion Intellectual Property against any suspected misappropriation or infringement that does not constitute an Infringement Claim and (B) the Parties shall jointly determine by mutual agreement whether and how to protect Joint Intellectual Property against any suspected misappropriation or infringement that does not constitute an Infringement Claim, and the provisions of this ‎ARTICLE VII shall not apply with respect thereto.

Initial Right to Enforce. (i) Subject to Section ‎7.3(c7.3(c), Processa (itself or through its Affiliate or Sublicensee) shall have the first right, but not the obligation, to initiate a suit, or take other appropriate action (an “Action”) that it believes is reasonably required to protect (i.e., prevent or axxxx xxxxx actual or threatened infringement or misappropriation of) or otherwise enforce the Processa Intellectual Property, Elion Ocuphire Intellectual Property and Joint Intellectual Property with respect to an Infringement Claim; provided, however, that Processa shall (i) consult with Elion Ocuphire in good faith with respect to any claim that any Elion Patent Right, Processa Ocuphire Patent Right or Joint Patent Right is invalid or unenforceable and (ii) implement any reasonable comment from Elion Ocuphire regarding any aspect of defending against any such claim described claim, (ii) not take any position with respect to such Action in clause any way that is reasonably likely to directly and adversely affect the scope, validity or enforceability of the Ocuphire Intellectual Property or Joint Intellectual Property; and (i)c) if Processa does not intend to prosecute or defend an Action, or ceases to diligently pursue such an Action, in either case solely for an Infringement Claim, it shall promptly inform Ocuphire in such a manner that such Action will not be prejudiced and Section 7.3(b)(ii) shall apply. Any such suit Action by Processa shall be brought either in the name of Elion Ocuphire or its Affiliate, the name of Processa or its Affiliate, or the names of Processa, Elion Ocuphire and their respective Affiliates, as may be required by the Law of the forum. For this purpose, Elion Ocuphire shall execute such legal papers and cooperate in the prosecution of such suitAction, including providing full access to documents, information and witnesses as reasonably requested by Processa in connection with such suitAction, as may be reasonably requested by Processa; provided that Processa shall promptly reimburse all out-of-pocket expenses (including reasonable counsel fees and expenses) actually incurred by Elion Ocuphire in connection with such cooperation. (ii) If (A) Processa informs Ocuphire that it does not intend to prosecute an Infringement Claim in respect of the Ocuphire Intellectual Property or Joint Intellectual Property, (B) within ninety (90) days after notice of the Infringement Claim in respect of the Ocuphire Intellectual Property or Joint Intellectual Property Processa has not commenced any Action in respect of such intellectual property, or (C) if Processa thereafter ceases to diligently pursue such Action, then Ocuphire shall have the right (but not the obligation), at its own expense, upon notice to Processa to take appropriate action to address such Infringement Claim, including by initiating its own Action or taking over prosecution of any Action initiated by Processa. In such event, Ocuphire shall keep Processa fully informed about such Action and Processa shall provide all reasonable cooperation requested by Ocuphire in connection with such Action; provided that Ocuphire shall promptly reimburse all out-of-pocket expenses (including reasonable counsel fees and expenses) actually incurred by Processa in connection with such cooperation. Ocuphire shall not take any position with respect to such Action in any way that is reasonably likely to directly and adversely affect the scope, validity or enforceability of the Joint Intellectual Property. Ocuphire’s right to enforcement as described in this Section 7.3(b)(ii) with respect to an Infringement Claim is applicable solely to the extent permitted by applicable Law. (iii) For clarity, as between Elion Ocuphire and Processa, (A) Elion Ocuphire shall have the sole right, but not the obligation, to protect Elion Ocuphire Intellectual Property against any suspected misappropriation or infringement that does not constitute an Infringement Claim and (B) the Parties shall jointly determine by mutual agreement whether and how to protect Joint Intellectual Property against any suspected misappropriation or infringement that does not constitute an Infringement Claim, and the provisions of this ‎ARTICLE ARTICLE VII shall not apply with respect thereto.

Initial Right to Enforce. (i) Subject to Section ‎7.3(c7.3(c), Processa (itself or through its Affiliate or Sublicensee) shall have the first right, but not the obligation, to initiate a suit, or take other appropriate action (an “Action”) that it believes is reasonably required to protect (i.e., prevent or axxxx actual or threatened infringement or misappropriation of) or otherwise enforce the Processa Intellectual Property, Elion Ocuphire Intellectual Property and Joint Intellectual Property with respect to an Infringement Claim; provided, however, that Processa shall (i) consult with Elion Ocuphire in good faith with respect to any claim that any Elion Patent Right, Processa Ocuphire Patent Right or Joint Patent Right is invalid or unenforceable and (ii) implement any reasonable comment from Elion Ocuphire regarding any aspect of defending against any such claim described claim, (ii) not take any position with respect to such Action in clause any way that is reasonably likely to directly and adversely affect the scope, validity or enforceability of the Ocuphire Intellectual Property or Joint Intellectual Property; and (i)c) if Processa does not intend to prosecute or defend an Action, or ceases to diligently pursue such an Action, in either case solely for an Infringement Claim, it shall promptly inform Ocuphire in such a manner that such Action will not be prejudiced and Section 7.3(b)(ii) shall apply. Any such suit Action by Processa shall be brought either in the name of Elion Ocuphire or its Affiliate, the name of Processa or its Affiliate, or the names of Processa, Elion Ocuphire and their respective Affiliates, as may be required by the Law of the forum. For this purpose, Elion Ocuphire shall execute such legal papers and cooperate in the prosecution of such suitAction, including providing full access to documents, information and witnesses as reasonably requested by Processa in connection with such suitAction, as may be reasonably requested by Processa; provided that Processa shall promptly reimburse all out-of-pocket expenses (including reasonable counsel fees and expenses) actually incurred by Elion Ocuphire in connection with such cooperation. (ii) If (A) Processa informs Ocuphire that it does not intend to prosecute an Infringement Claim in respect of the Ocuphire Intellectual Property or Joint Intellectual Property, (B) within ninety (90) days after notice of the Infringement Claim in respect of the Ocuphire Intellectual Property or Joint Intellectual Property Processa has not commenced any Action in respect of such intellectual property, or (C) if Processa thereafter ceases to diligently pursue such Action, then Ocuphire shall have the right (but not the obligation), at its own expense, upon notice to Processa to take appropriate action to address such Infringement Claim, including by initiating its own Action or taking over prosecution of any Action initiated by Processa. In such event, Ocuphire shall keep Processa fully informed about such Action and Processa shall provide all reasonable cooperation requested by Ocuphire in connection with such Action; provided that Ocuphire shall promptly reimburse all out-of-pocket expenses (including reasonable counsel fees and expenses) actually incurred by Processa in connection with such cooperation. Ocuphire shall not take any position with respect to such Action in any way that is reasonably likely to directly and adversely affect the scope, validity or enforceability of the Joint Intellectual Property. Ocuphire’s right to enforcement as described in this Section 7.3(b)(ii) with respect to an Infringement Claim is applicable solely to the extent permitted by applicable Law. (iii) For clarity, as between Elion Ocuphire and Processa, (A) Elion Ocuphire shall have the sole right, but not the obligation, to protect Elion Ocuphire Intellectual Property against any suspected misappropriation or infringement that does not constitute an Infringement Claim and (B) the Parties shall jointly determine by mutual agreement whether and how to protect Joint Intellectual Property against any suspected misappropriation or infringement that does not constitute an Infringement Claim, and the provisions of this ‎ARTICLE ARTICLE VII shall not apply with respect thereto.