Common use of Third Party Claims of Infringement Clause in Contracts

Third Party Claims of Infringement. In the event that any Third Party brings a claim against MBI or UHN or any of their respective Affiliates that the manufacture, use, sale, distribution, marketing or importation of a Licensed Product infringes rights in Intellectual Property owned or otherwise controlled by such Third Party (an “Infringement Suit”), the following shall apply: (a) the Party receiving a claim, or learns of the threat of such a claim, shall give the other Party prompt written notice detailing as many facts as possible concerning the claim; (b) MBI, in its sole discretion, shall have the first right, but not an obligation, to defend against the Infringement Suit; (c) if MBI does not take steps to defend against the Infringement Suit within 90 days after the date that notice thereof was received from or delivered to UHN, UHN may take such legally permissible action as it deems necessary or appropriate to defend against the Infringement Suit, but shall not be obligated to do so; (d) the Party defending against the Infringement Suit (in this section, the “Litigating Party”) shall have the right to control such litigation and shall bear all legal expenses (including court costs and legal fees), but it shall have no right to settle any dispute in any manner which would abridge the rights of the other Party under this Agreement. By way of example and not by way of limitation, neither Party may stipulate or admit to the invalidity or unenforceability of any Intellectual Property Rights relating to the Licensed Technology. Before any action is taken by either Party which could abridge the rights of the other Party hereunder, the parties agree to, in good faith, consult with each other with a goal of adopting a mutually satisfactory position; (e) the Litigating Party shall keep the other Party fully informed of the actions and positions taken or proposed to be taken by the Litigating Party and the actions and positions taken by all other parties to such litigation; and (f) in the event that MBI defends against the Infringement Suit, UHN may elect to participate formally in the Infringement Suit to the extent that the court may permit, provided that any additional expenses generated by UHN’s formal participation shall be paid by UHN.

Third Party Claims of Infringement. In the event that any Third Party brings a claim against MBI or UHN or any of their respective Affiliates that the manufacture, use, sale, distribution, marketing or importation of a Licensed Product infringes rights in Intellectual Property owned or otherwise controlled by such Third Party (an “Infringement Suit”), the following shall apply: (a) the Party receiving a claim, or learns of the threat of such a claim, shall give the other Party prompt written notice detailing as many facts as possible concerning the claim; (b) MBI, in its sole discretion, shall have the first right, but not an obligation, to defend against the Infringement Suit; (c) if MBI does not take steps to defend against the Infringement Suit within 90 days after the date that notice thereof was received from or delivered to UHN, UHN may take such legally permissible action as it deems necessary or appropriate to defend against the Infringement Suit, but shall not be obligated to do so; (d) the Party defending against the Infringement Suit (in this section, the “Litigating Party”) shall have the right to control such litigation and shall bear all legal expenses (including court costs and legal fees), but it shall have no right to settle any dispute in any manner which would abridge the rights of the other Party under this Agreement. By way of example and not by way of limitation, neither Party may stipulate or admit to the invalidity or unenforceability of any Intellectual Property Rights relating to the Additional Licensed Technology. Before any action is taken by either Party which could abridge the rights of the other Party hereunder, the parties agree to, in good faith, consult with each other with a goal of adopting a mutually satisfactory position; (e) the Litigating Party shall keep the other Party fully informed of the actions and positions taken or proposed to be taken by the Litigating Party and the actions and positions taken by all other parties to such litigation; and (f) in the event that MBI defends against the Infringement Suit, UHN may elect to participate formally in the Infringement Suit to the extent that the court may permit, provided that any additional expenses generated by UHN’s formal participation shall be paid by UHN.

Third Party Claims of Infringement. In the event that any Third Party brings a claim against MBI AnorMED or UHN NeoRx or any of their respective Affiliates (for this purpose, “control” in the definition of Affiliate shall mean direct or indirect beneficial ownership of [*] interest in the income of a Person or such other relationship as, in fact, constitutes actual control) that the manufacture, use, sale, distribution, marketing or importation of a Licensed Compound or a Licensed Product infringes rights in Intellectual Property owned or otherwise controlled by such Third Party (an “Infringement Suit”), the following shall apply: (a) the Party party receiving a claim, or learns of the threat of such a claim, shall give the other Party party prompt written notice detailing as many facts as possible concerning the claim; (b) MBINeoRx, in its sole discretion, shall have the first right, but not an obligation, to defend against the Infringement Suit; (c) if MBI NeoRx does not take steps to defend against the Infringement Suit within 90 days after the date that notice thereof was received from or delivered to UHNAnorMED, UHN AnorMED may take such legally permissible action as it deems necessary or appropriate to defend against the Infringement Suit, but shall not be obligated to do so; (d) the Party party defending against the Infringement Suit (in this section, the “Litigating Party”) shall have the right to control such litigation and shall bear all legal expenses (including court costs and legal fees), but it shall have no right to settle any dispute in any manner which would abridge the rights of the other Party party under this Agreement. By way of example and not by way of limitation, neither Party party may stipulate or admit to the invalidity or unenforceability of any right in Intellectual Property Rights relating to the Licensed TechnologyProperty. Before any action is taken by either Party party which could abridge the rights of the other Party party hereunder, the parties agree to, in good faith, consult with each other with a goal of adopting a mutually satisfactory position; (e) the Litigating Party shall keep the other Party party fully informed of the actions and positions taken or proposed to be taken by the Litigating Party and the actions and positions taken by all other parties to such litigation; and (f) in the event that MBI NeoRx defends against the Infringement Suit, UHN AnorMED may elect to participate formally in the Infringement Suit to the extent that the court may permit, provided that any additional expenses generated by UHNAnorMED’s formal participation shall be paid by UHNAnorMED.

Third Party Claims of Infringement. (a) In the event that of the initiation of any suit (an “Infringement Suit”) in the Territory by a Third Party brings a claim against MBI RGX or UHN QLT or any of their respective Affiliates that sublicensees for Patent infringement arising from the manufacture, use, sale, distribution, distribution or marketing or importation of a Licensed Product infringes rights in Intellectual Property owned or otherwise controlled by such Third Party (an “Infringement Suit”the Collaboration Product(s), the following party sued shall apply: (a) the Party receiving a claim, or learns of the threat of such a claim, shall give promptly notify the other Party prompt written notice detailing as many facts as possible concerning the claim;party in writing. (b) MBI, in its sole discretion, In the event that a party alone is subject to an Infringement Suit: (1) that party shall have the first right, but not an the obligation, to defend against the Infringement Suit; (c2) if MBI does not take steps that party will provide the other party with the opportunity to participate in the defense of such Infringement Suit; and (3) the other party shall assist and cooperate with the party being sued in any such litigation at the expense of the party defending the litigation. If the party being sued fails to defend against the Infringement Suit within 90 days a reasonable time after the date that receiving notice thereof was received from or delivered to UHN, UHN may take such legally permissible action as it deems necessary or appropriate to defend against of the Infringement Suit, then the other party shall have the right, but not the obligation, to defend the Infringement Suit and the party being sued shall assist and cooperate with the other party in any such litigation. (c) In the event that both QLT and RGX are subject to an Infringement Suit: (1) each of RGX and QLT shall have the right, but not be obligated the obligation, to do so;jointly defend the Infringement Suit; and (2) the parties shall assist and cooperate with each other in any such litigation at the expense of the other party if such litigation is not jointly controlled. If either party fails to jointly defend the Infringement Suit with the other party within a reasonable time after receiving notice of the Infringement Suit, then the other party shall have the right, but not the obligation, to solely defend the Infringement Suit and the declining party shall assist and cooperate with the defending party in any such litigation. (d) The party or parties conducting the Party defending against the defense of an Infringement Suit (in this section, the “Litigating Party”) shall have full or joint control over its conduct, as the right case may be, provided that neither party shall make any admissions or concessions nor enter into any settlements with respect to control such litigation and shall bear all legal expenses (including court costs and legal fees), but it shall have no right to settle any dispute in any manner which would abridge the rights of an Infringement Suit without the other Party under this Agreement. By way of example and party’s prior written consent, which consent shall not by way of limitationbe unreasonably withheld, neither Party may stipulate conditioned or admit to the invalidity or unenforceability of any Intellectual Property Rights relating to the Licensed Technology. Before any action is taken by either Party which could abridge the rights of the other Party hereunder, the parties agree to, in good faith, consult with each other with a goal of adopting a mutually satisfactory position;delayed. (e) the Litigating Party shall keep the other Party fully informed of the actions and positions taken or proposed to be taken by the Litigating Party and the actions and positions taken by all other parties to such litigation; and (f) in In the event that MBI defends against the Infringement Suit, UHN may elect Collaboration Products or methods of use licensed to participate formally QLT under this Agreement are found to infringe the Intellectual Property rights of a Third Party and result in the Infringement Suit payment of Third Party royalties or other compensation by QLT or a QLT Affiliate or sub-licensee to the extent that Third Party, QLT may, in its sole discretion, reduce its future milestone and royalty payments to RGX in an amount equal to the court may permitThird Party royalties or other compensation paid to the Third Party, up to a maximum of [***] of the royalties and milestones payable to RGX under this Agreement provided that such reductions shall only be made where the infringement arises from the use of Intellectual Property licensed to QLT under this Agreement, and not any additional expenses generated by UHN’s formal participation other Intellectual Property that QLT chooses to use in the manufacture, use, sale, distribution or marketing of the Collaboration Product and provided further that reductions to milestones and royalty payments pursuant to this Section 7.11(e) shall not exceed [***] in the aggregate after taking into account any reductions pursuant to Section 7.6. Notwithstanding the foregoing, in no event will the royalties payable to RGX under this Agreement be paid by UHNless than the Minimum Royalty Rate. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Third Party Claims of Infringement. (a) In the event that of the initiation of any suit (an "INFRINGEMENT SUIT") in the Territory by a Third Party brings a claim against MBI Xenova or UHN QLT or any of their respective Affiliates that for Patent infringement arising from the manufacture, use, sale, distribution, distribution or marketing or importation of a Licensed Product infringes rights in Intellectual Property owned or otherwise controlled by such Third Party (an “Infringement Suit”)the Drug and/or the Product, the following party sued shall apply: (a) the Party receiving a claim, or learns of the threat of such a claim, shall give promptly notify the other Party prompt written notice detailing as many facts as possible concerning the claim;party in writing. (b) MBI, in its sole discretion, In the event that a party alone is subject to an Infringement Suit: (i) that party shall have the first right, but not an the obligation, to defend against the Infringement Suit; (cii) if MBI does not take steps that party will provide the other party with the opportunity to participate in the defense of such Infringement Suit; and (iii) the other party shall assist and cooperate with the party being sued in any such litigation. If the party being sued fails to defend against the Infringement Suit within 90 days a reasonable time after the date that receiving notice thereof was received from or delivered to UHN, UHN may take such legally permissible action as it deems necessary or appropriate to defend against of the Infringement Suit, then the other party shall have the right, but not the * Material has been omitted and filed with the Commission obligation, to defend the Infringement Suit and the party being sued shall assist and cooperate with the other party in any such litigation. (c) In the event that both QLT and Xenova are subject to an Infringement Suit: (i) each of Xenova and QLT shall have the right, but not be obligated the obligation, to do so;jointly defend the Infringement Suit; and (ii) the parties shall assist and cooperate with each other in any such litigation. If either party fails to jointly defend the Infringement Suit with the other party within a reasonable time after receiving notice of the Infringement Suit, then the other party shall have the right, but not the obligation, to solely defend the Infringement Suit and the declining party shall assist and cooperate with the defending party in any such litigation. (d) The party or parties conducting the Party defending against the defense of an Infringement Suit (in this section, the “Litigating Party”) shall have full or joint control over its conduct, as the right case may be, provided that neither party shall make any admissions or concessions nor enter into any settlements with respect to control such litigation and shall bear all legal expenses (including court costs and legal fees), but it shall have no right to settle any dispute in any manner which would abridge the rights of an Infringement Suit without the other Party under this Agreement. By way of example and party's prior written consent, which consent shall not by way of limitationbe unreasonably withheld, neither Party may stipulate conditioned or admit to the invalidity or unenforceability of any Intellectual Property Rights relating to the Licensed Technology. Before any action is taken by either Party which could abridge the rights of the other Party hereunder, the parties agree to, in good faith, consult with each other with a goal of adopting a mutually satisfactory position;delayed. (e) The costs of defending any Infringement Suit incurred by either party (i) shall be borne by Xenova if the Litigating Party shall keep the other Party fully informed infringement arises primarily from [*][*] (and primarily not [*][*]) or from a breach by Xenova of any of the actions warranties given by it under Section 12.1, (ii) shall be borne by QLT if the infringement arises from a breach by QLT of any of the warranties given by it under Section 12.2, and positions taken or proposed to (iii) shall otherwise be taken borne by the Litigating Party and the actions and positions taken by all other parties to such litigation; and (f) in the event that MBI defends against the Infringement Suit, UHN may elect to participate formally in the Infringement Suit each party [*]to the extent that [*] (thus, by way of example, if the court may permit, provided costs relate to the defence of a claim that any additional expenses generated by UHN’s formal participation shall be paid by UHNis [*]).

Third Party Claims of Infringement. (a) In the event that of the initiation of any suit (an “Infringement Suit”) in the Territory by a Third Party brings a claim against MBI RGX or UHN QLT or any of their respective Affiliates that sublicensees for Patent infringement arising from the manufacture, use, sale, distribution, distribution or marketing or importation of a Licensed Product infringes rights in Intellectual Property owned or otherwise controlled by such Third Party (an “Infringement Suit”the Collaboration Product(s), the following party sued shall apply: (a) the Party receiving a claim, or learns of the threat of such a claim, shall give promptly notify the other Party prompt written notice detailing as many facts as possible concerning the claim; party in writing. (b) MBI, in its sole discretion, In the event that a party alone is subject to an Infringement Suit: (1) that party shall have the first right, but not an the obligation, to defend against the Infringement Suit; ; (c2) if MBI does not take steps that party will provide the other party with the opportunity to participate in the defense of such Infringement Suit; and (3) the other party shall assist and cooperate with the party being sued in any such litigation at the expense of the party defending the litigation. If the party being sued fails to defend against the Infringement Suit within 90 days a reasonable time after the date that receiving notice thereof was received from or delivered to UHN, UHN may take such legally permissible action as it deems necessary or appropriate to defend against of the Infringement Suit, then the other party shall have the right, but not the obligation, to defend the Infringement Suit and the party being sued shall assist and cooperate with the other party in any such litigation. (c) In the event that both QLT and RGX are subject to an Infringement Suit: (1) each of RGX and QLT shall have the right, but not be obligated the obligation, to do so;jointly defend the Infringement Suit; and (2) the parties shall assist and cooperate with each other in any such litigation at the expense of the other party if such litigation is not jointly controlled. If either party fails to jointly defend the Infringement Suit with the other party within a reasonable time after receiving notice of the Infringement Suit, then the other party shall have the right, but not the obligation, to solely defend the Infringement Suit and the declining party shall assist and cooperate with the defending party in any such litigation. (d) The party or parties conducting the Party defending against the defense of an Infringement Suit (in this section, the “Litigating Party”) shall have full or joint control over its conduct, as the right case may be, provided that neither party shall make any admissions or concessions nor enter into any settlements with respect to control such litigation and shall bear all legal expenses (including court costs and legal fees), but it shall have no right to settle any dispute in any manner which would abridge the rights of an Infringement Suit without the other Party under this Agreement. By way of example and party’s prior written consent, which consent shall not by way of limitationbe unreasonably withheld, neither Party may stipulate conditioned or admit to the invalidity or unenforceability of any Intellectual Property Rights relating to the Licensed Technology. Before any action is taken by either Party which could abridge the rights of the other Party hereunder, the parties agree to, in good faith, consult with each other with a goal of adopting a mutually satisfactory position;delayed. (e) the Litigating Party shall keep the other Party fully informed of the actions and positions taken or proposed to be taken by the Litigating Party and the actions and positions taken by all other parties to such litigation; and (f) in In the event that MBI defends against the Infringement Suit, UHN may elect Collaboration Products or methods of use licensed to participate formally QLT under this Agreement are found to infringe the Intellectual Property rights of a Third Party and result in the Infringement Suit payment of Third Party royalties or other compensation by QLT or a QLT Affiliate or sub-licensee to the extent that Third Party, QLT may, in its sole discretion, reduce its future milestone and royalty payments to RGX in an amount equal to the court may permitThird Party royalties or other compensation paid to the Third Party, up to a maximum of [***] of the royalties and milestones payable to RGX under this Agreement provided that such reductions shall only be made where the infringement arises from the use of Intellectual Property licensed to QLT under this Agreement, and not any additional expenses generated by UHN’s formal participation other Intellectual Property that QLT chooses to use in the manufacture, use, sale, distribution or marketing of the Collaboration Product and provided further that reductions to milestones and royalty payments pursuant to this Section 7.11(e) shall not exceed [***] in the aggregate after taking into account any reductions pursuant to Section 7.6. Notwithstanding the foregoing, in no event will the royalties payable to RGX under this Agreement be paid by UHNless than the Minimum Royalty Rate. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.