Infringement A. Licensee and CMCC shall each inform the other promptly in writing with reasonably sufficient facts of any alleged infringement by a third-party of the Patent Rights in the Field of Use within the scope of this Agreement and of any available evidence thereof. B. Licensee will have the first right, but not the obligation, at its own costs and expense, to defend the Patent Rights throughout the Territory with respect to the Field of Use (subject to consultation with CMCC on strategy, filings and selection and use of outside counsel), provided that Licensee will not settle or compromise any claim, without the prior approval of CMCC, which may not be withheld, conditioned or delayed, unreasonably and will not make any admission as to CMCC without the prior approval of CMCC. C. During the Term, Licensee shall have the first right, but not the obligation, to prosecute at its own expense any infringement of the Patent Rights provided however that if such alleged infringer is an academic institution, a non-profit entity or a foundation (each a “NP Party”), then to the extent Licensee’s rights to prosecute such action are not limited or compromised by such delay because of a tolling or statute of limitations with respect to bringing a cause of action, CMCC shall have two (2) months from receipt from Licensee of sufficient facts of alleged infringement so that CMCC may investigate and persuade such NP Party to desist. Licensee shall not take any action against such NP Party during such two month period. If CMCC is unsuccessful within such two months or waives its initial right with respect to a NP Party, then Licensee shall have the right to proceed as set forth herein. CMCC may join Licensee as a party plaintiff in any such suit described herein, at its own expense, and hereby consents to join Licensee as a party plaintiff, at Licensee’s expense, if CMCC is required as a necessary party for such suit. Any recovery of damages by Licensee for each such suit shall be applied first in satisfaction of any unreimbursed expenses and legal fees of CMCC and Licensee relating to such suit and next toward reimbursement of CMCC for any payments under Article IV past due or withheld and applied pursuant to this Article VIII. Any balance remaining will then be divided [***] to Licensee and [***] to CMCC. Notwithstanding the foregoing, such right to bring such an infringement action permitted under this Paragraph C shall remain in effect only for so long as the license granted hereunder remains exclusive. No settlement, consent judgment or other voluntary final disposition of the suit may be entered into without the consent of CMCC, which consent shall not be unreasonably withheld, conditioned or delayed. Licensee shall indemnify CMCC against any order for costs that may be made against CMCC in such proceedings caused by Licensee which are not due to the negligence, recklessness or intentional misconduct of any CMCC Indemnitee (defined below), breach by CMCC of any of its obligations under this Agreement or CMCC’s use of any Patent Right. D. If within [***] after having been notified of any alleged infringement, Licensee shall have been unsuccessful in persuading the alleged infringer to desist or alternatively actively negotiating a license agreement with such alleged infringer and shall not have brought or shall not be diligently prosecuting an infringement action, or if Licensee shall notify CMCC of its intention not to bring suit against any alleged infringer then, CMCC shall have the right, but shall not be obligated, to prosecute at its own expense any infringement of the Patent Rights. E. In the event Licensee shall undertake the enforcement and/or defense of the Patent Rights by litigation pursuant to Paragraph C of this Article VIII, Licensee may withhold up to [***] of the payments otherwise thereafter due to CMCC under Article IV above and apply the same toward reimbursement of up to [***] of Licensee’s expenses, including reasonable attorneys’ fees, in connection therewith, provided that Licensee sends a quarterly report to CMCC detailing such expenses, offset and withholdings. F. In the event that a declaratory judgment action alleging invalidity or non-infringement of any of the Patent Rights shall be brought against Licensee, CMCC, at its option, shall have the right, within [***] after commencement of such action, to participate in the defense of the action at its own expense under the lead of Licensee however in collaboration with CMCC. G. In any infringement suit which either Party may institute to enforce the Patent Rights pursuant to this Agreement, the other Party hereto shall cooperate in all reasonable respects and, to the extent reasonably possible, have its employees testify when requested and make available relevant records, papers, information, samples, specimens, and the like. H. Licensee shall during the exclusive period of this Agreement have the sole right subject to the terms and conditions hereof to sublicense any alleged infringer for future use of the Patent Rights to the extent licensed by this Agreement. Any upfront fees paid to Licensee as part of such a sublicense shall be shared between Licensee and CMCC as if they were Non-Royalty Sublicensing Income.
Patent Infringement 9.1 If either Party learns of the infringement of a Prospective Patent, in any jurisdiction within the Territory, it shall so inform the other Party in writing, including any evidence of such infringement. University may not notify a third party of the infringement of a Prospective Patent, save for its legal advisers, without first obtaining written consent of Licensee, which consent shall not be unreasonably denied or delayed. Both Parties shall use their reasonable commercial efforts in cooperation with each other to terminate such infringement. 9.2 Licensee shall have the sole right, but not the obligation, to institute, prosecute and control any action, suit or proceeding to enforce the Prospective Patent with respect to infringement of the Prospective Patent and to defend any declaratory judgment with respect thereto, in each case within the Territory (“Action”). University hereby agrees to assist and cooperate with Licensee, at Licensee’s expense (including payment for University’s expert’s time, and other expenses so long as such expenses are properly documented), to enable Licensee to prosecute and maintain such Action. University’s agreement to assist Licensee includes, at Licensee’s reasonable request and when it is required by law, government regulation or court order, University’s agreement to join or to procure its Affiliates to join as a nominal party to achieve sufficient legal standing for Licensee to prosecute and maintain such Action provided that, if University participates in the Action only as a nominal party, University shall have no responsibility (other than to join as a nominal party) nor be liable for any costs or expenses in relation to or arising from such Action. For clarity, such liabilities for costs or expenses shall be the responsibility of Licensee. If Licensee invites University or its Affiliates to take a more active role (other than as a nominal party) in an Action as a co-party, University shall have its sole discretion to decide joining or not and on terms to be agreed with Licensee on a case by case basis. Licensee shall have the right to settle any Action or consent to an adverse judgment thereto, in its sole discretion, except that Licensee may not settle such action by agreeing to the invalidation of a Prospective Patent or any claim therein without University’s prior written consent. Any recovery obtained as a result of an Action, whether by judgment, award, decree or settlement, shall first be applied to reimbursement of Licensee’s expenses in bringing such suit or proceeding (including any attorneys, expert and court fees), and the balance shall be considered to be Net Sales Value, and subject to the royalty payments at [***]% as set forth in Clause 5, and the remaining balance shall be recovered by Licensee as damages. 9.3 Subject to Clause 9.2, if University commences or defends any suit or proceedings on its own account, University shall do so at its own expense. University shall have the right to settle any such action or consent to an adverse judgment thereto, in its sole discretion, except that University may not settle such action that may impair, damage or otherwise adversely affect the licence granted to Licensee under Clause 2.1, Licensee’s use of such licence, any Licensed Product, or any of Licensee’s rights/obligations hereunder, without Licensee’s prior written consent, which consent may not be unreasonably withheld or delayed. Any recovery obtained as a result of such action, whether by judgment, award, decree, or settlement, shall first be applied to reimbursement of University’s expenses in bringing such suit or proceeding (including expert, attorneys and court fees), and the balance shall be distributed between University and Licensee at a ratio of 65:35 in all cases which do not result in a sub-licence to a third party. If a suit or proceedings result in a sub-licence to a third party, then any recovery, whether by judgment, award, decree, or settlement, shall first be applied to reimbursement of University’s expenses in bringing such suit or proceeding (including expert, attorneys and court fees), and the balance to be paid to Licensee, provided that such balance shall be shared between University and Licensee according to the provisions in Clause 5.3 herein.
No Infringement To the best of the Company's knowledge, the Company has not violated or infringed and is not currently violating or infringing, and the Company has not received any communications alleging that the Company (or any of its employees or consultants) has violated or infringed, any Intellectual Property of any other person or entity, to the extent that any such violation or infringement, either individually or together with all other such violations and infringements, would have a Material Adverse Effect.