Common use of Third Party Defense or Counterclaim Clause in Contracts

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 7.3, that any INS Patent or ViroPharma Patent is invalid or unenforceable, then the Party pursuing such infringement action 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 respond to such defense or defend against such counterclaim (as applicable) and, if ViroPharma (or its Sublicensees or any of its or their respective Affiliates) is pursuing the applicable infringement action under Section 7.3, ViroPharma (or its Sublicensees or any of its or their respective Affiliates) shall allow INS to control such response or defense (as applicable) 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 shall have the first right, but not the obligation, through counsel reasonably acceptable to INS, to respond to such defense or defend against such counterclaim (as applicable) and, if INS is pursuing the applicable infringement action under Section 7.3, INS shall allow ViroPharma to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Party controlling such response or defense. If either Party (and such Party’s licensors, to the extent permitted by its agreements therewith, and Sublicensees, if any) determines not to assume or fails to assume such defense within relevant timeframes, 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.

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 7.38.3, that any INS Patent Lupin Patent, Lupin Improvement Patent, Salix Patent, or ViroPharma Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. With respect to the INS Lupin Patents, INS the Lupin Improvement Patents, and the Joint Platform Patents, Lupin shall have the first right, but not the obligation, through counsel reasonably acceptable to ViroPharmaSalix, to respond to such defense or defend against such counterclaim (as applicable) and, if ViroPharma Salix (or its Sublicensees or any of its or their respective Affiliates) is pursuing the applicable infringement action under Section 7.38.3, ViroPharma Salix (or its Sublicensees or any of its or their respective Affiliates) shall allow INS Lupin to control such response or defense (as applicable) 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 Salix Patents and the Joint Patents other than the Joint Platform Patents, ViroPharma Salix shall have the first right, but not the obligation, through counsel reasonably acceptable to INSLupin, to respond to such defense or defend against such counterclaim (as applicable) and, if INS Lupin is pursuing the applicable infringement action under Section 7.38.3, INS Lupin shall allow ViroPharma Salix to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Party controlling such response or defense. If either Party (and such Party’s licensors, to the extent permitted by its agreements therewith, and Sublicensees, if any) determines not to assume or fails to assume such defense within relevant timeframes, 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 INSLupin, with respect to the INS Lupin Patents, the Lupin Improvement Patents and the Joint Patents, or ViroPharmaSalix, with respect to the ViroPharma Salix Patents and the Joint Patents, prior to ceasing to defend, settling or otherwise compromising any such action or claim, such consent not to be unreasonably withheld or delayed.

Third Party Defense or Counterclaim. If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 7.39.3, that any INS Licensed Patent or ViroPharma Joint Patent is invalid or unenforceable, then the Party pursuing such infringement action shall promptly give written notice to the other Party. With Subject to any rights of Tulane under the Tulane License, with respect to the INS Licensed Patents and Joint Patents, INS Licensee shall have the first right, but not the obligation, through counsel reasonably acceptable to ViroPharmaof its choosing, to respond to such defense or defend against such counterclaim (as applicable) and, if ViroPharma (or its Sublicensees or any of its or their respective Affiliates) Licensor is pursuing the applicable infringement action under Section 7.39.3, ViroPharma (or its Sublicensees or any of its or their respective Affiliates) Licensor shall allow INS to control such response or defense (as applicable) 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 shall have the first right, but not the obligation, through counsel reasonably acceptable to INS, to respond to such defense or defend against such counterclaim (as applicable) and, if INS is pursuing the applicable infringement action under Section 7.3, INS shall allow ViroPharma Licensee to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by the Parties in accordance with the principles set forth in Section 9.3, as though Licensee were the enforcing Party controlling such response or defensethereunder. If either Party (and such Party’s licensors, to the extent permitted by its agreements therewith, and Sublicensees, if any) Licensee determines not to assume or fails to assume such defense within relevant timeframesdefense, the other Party Licensor shall, at its sole cost and expense, have the right to defend against such action or claim; provided, however, that . The Party conducting such other Party response or defense shall obtain the written consent of INSLicensor, with respect to the INS Tulane Patent and Joint Patents, or ViroPharmaLicensee, with respect to the ViroPharma Licensed Patents or Joint Patents, prior to ceasing to defend, settling or otherwise compromising any such action or claim, such consent not to be unreasonably withheld or delayed. Any amounts recovered by either Party in connection with a response or defense pursuant to this Section 9.5.1 shall be allocated between the Parties in accordance with Section 9.3, as though the defending Party were the enforcing Party thereunder.