Common use of Third Party Declaratory Judgment or Similar Action Clause in Contracts

Third Party Declaratory Judgment or Similar Action. If a Third Party asserts, in a declaratory judgment action or similar action or claim filed by such Third Party, that any INS Patent or ViroPharma Patent is invalid or unenforceable, then the Party first becoming aware of such action or claim shall promptly give written notice to the other Party. With respect to the INS Patents, INS shall have the first right, but not the obligation, through counsel reasonably acceptable to ViroPharma, to defend against such action or claim provided, that control of the defense of the INS Technology Controlled by INS pursuant to the Academic License is subject to the terms of the Academic License. With respect to the ViroPharma Patents, ViroPharma (or its Sublicensees or any of its or their respective Affiliates) shall have the first right, but not the obligation, through counsel reasonably acceptable to INS, to defend against such action or claim. Any costs and expenses with respect to such defense shall be borne by the Party controlling such response or defense. If either Party determines not to assume such defense or fails to assume such defense within forty-five (45) days (or twenty (20) days in the case of an action brought under the Xxxxx-Xxxxxx Act or within the timeframe of any other relevant regulatory or statutory framework that may govern) of learning of the action, the other Party shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that such other Party shall obtain the written consent of INS, with respect to the INS Patents, or ViroPharma, with respect to the ViroPharma Patents, prior to ceasing to defend, settling or otherwise compromising any such action or claim, such consent not to be unreasonably withheld or delayed.