Common use of Third Party Infringement Claims Clause in Contracts

Third Party Infringement Claims. In the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement Claim”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3.

Third Party Infringement Claims. In If the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketingproduction, sale or distribution use of such the any Licensed Product to Purchaser Customers in or outside the Territory by Purchaser hereunder results in a claim, suit or proceeding alleging patent infringement against Licensee or Licensor (a or their respective Affiliates, licensees or Sublicensees) (collectively, “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect The Party subject to such Infringement Action shall have the Third Party Infringement Claim, Seller right to direct and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense thereof, at its own expense with counsel of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimits choice; provided, however, that (i) if such settlement does not impose any obligation or burden on Infringement Action involves the Territory, Licensee shall have the right to assume the defense thereof in the Territory and to direct and control the defense thereof, at its own expense with counsel of its choice, (ii) if such Infringement Action involves Japan, Licensor shall have the right to assume the defense thereof within Japan and to direct and control the defense thereof, at its own expense with counsel of its choice, (iii) if such Infringement Action involves both the Territory and Japan, the Parties shall cooperate in good faith with respect to their respective defenses of such Infringement Actions, and (iv) in all cases the other party Party may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, the Party that is defending the Infringement Action (the “Defending Party”) agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action and the Parties shall reasonably cooperate in the defense of any such suit or Infringement Action. If Licensee is the Defending Party, Licensee agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Licensed Product or the manufacture, use or sale of the Licensed Product within or outside the Territory, without the prior written consent of the other party (Licensor, which consent shall not be unreasonably withheld). The party controlling withheld or delayed; and similarly if Licensor is the defense of Defending Party, Licensor agrees not to settle such Infringement Action, or make any Third Party admissions or assert any position in such Infringement Claim shall keep Action, in a manner that would adversely affect the other partyLicensed Product, at its requestor the manufacturing, materially informed use or sale of the status and progress of Licensed Product, in the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim Territory, without the prior written consent of the party controlling such defense. The non-controlling partyLicensee, its employees, agents and Affiliates which shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall not be obligated to indemnify the other party hereunder for modification unreasonably withheld or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3delayed.

Third Party Infringement Claims. In If the event any claim or action production, sale, offer for infringement of any patent, trademarksale, or other intellectual property right shall be made use of the Compound or brought by Product pursuant to this Agreement results in a third party claim, suit or proceeding alleging patent infringement against Seller, Purchaser La Jolla or any of BioMarin CF (or their respective Affiliates because ofAffiliates, licensees or in anticipation ofSublicensees) (collectively, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect Party hereto in writing, and the Parties shall promptly confer to consider the Third Party Infringement Claim, Seller claim or assertion and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment appropriate course of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) aboveaction. Unless the Parties otherwise agreed to by the partiesagree in writing, Seller shall control the defense any Third each Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any itself against a suit that names such Third Party Infringement Claimas a defendant; provided, however, that such settlement does not impose any obligation or burden on the other party without Party may participate in the prior written consent defense and/or settlement thereof at its own expense with counsel of its choice. The Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the manufacture, use or sale of the other party (which consent shall not be unreasonably withheld). The party controlling Compound or Products within the defense Territory, or that admits the infringement or validity of any Third Party Patent, without the approval of the other Party, such approval not to be unreasonably withheld. In any event, each Party shall reasonably assist the other Party and cooperate in connection with any litigation in which such Party is not that named as a defendant, at the defending Party’s request and expense. Further, the Party that is subject to the Infringement Claim shall Action agrees to keep the other party, Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The out-of-pocket costs incurred by the Parties in defending an Infringement Action (other than any expenses incurred by the Party who has elected to participate in the defense and/or settlement thereof at its request, materially informed own expense with counsel of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim its choice as provided above) shall in accordance with this Section 11.4 shall be settled by shared as Other Operating Expense pursuant to the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3Financial Appendix.

Third Party Infringement Claims. (a) In the event any Licensed Product becomes the subject of a claim or action for infringement of any patent, trademark, patent or other intellectual property proprietary right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers infringement anywhere in the Territory world by Purchaser hereunder virtue of the incorporation of the Patents Rights therein (a “Third Party Infringement Claim”), the party first receiving Parties shall promptly give notice to the other and meet to consider the Third Party Infringement Claim and the appropriate course of action and LICENSEE shall remit any payments due to SLU under this Agreement in escrow from the date of such notice Third Party Infringement Claim until final resolution of such claim (the “Period”). LICENSEE shall have the right, but not the obligation, to conduct the defense at its own expense of any such Third Party Infringement Claim brought against LICENSEE and/or SLU, in which event SLU shall cooperate with LICENSEE as reasonably requested, at LICENSEE’s expense. In no event may a settlement, consent judgment or other voluntary final disposition of the Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party entered into without the prior written consent of the other party (SLU, which consent shall not be unreasonably withheld). The party controlling . (b) In the defense of any event a Third Party Infringement Claim shall keep is dismissed by a final unappealable decision, monies held in escrow pending such final unappealable decision (“the other party, at its request, materially informed Monies”) will be remitted to SLU as entire fulfillment of LICENSEE’s financial obligations hereunder during the status and progress of Period. (c) In the defense of the Third Party Infringement Claim. No event a Third Party Infringement Claim is upheld, whether by a Court or a settlement, an amount equal to the Monies minus [***] percent ([***]%) of the consideration actually paid to the Third Party with respect to such claim will be remitted to SLU as entire fulfillment of LICENSEE’s obligations hereunder during the Period. The balance of the Monies will be remitted to LICENSEE. Thereafter, LICENSEE shall be settled by pay to SLU a royalty of [***] percent ([***]%) on Net Sales in the party who is not controlling the defense of country where such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3was brought.

Third Party Infringement Claims. In If the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketingproduction, sale or distribution use of such the Compound or any Product to Purchaser Customers in the Territory by Purchaser hereunder pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort or GSK (a or their respective Affiliates, licensees or Sublicensees) (collectively, “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect The Party subject to such Infringement Action shall have the Third Party Infringement Claimfirst right, Seller but not the obligation, to direct and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimthereof; provided, however, that such settlement does not impose any obligation or burden on the other party Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. The Party who is subject to the Infringement Action agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Compound or the manufacture, use or sale of the Compound or any Product within or outside the Territory, without the prior written consent of the other party (Party, which consent shall not be unreasonably withheld)withheld or delayed. GSK may [… * …]. As used herein, “Damages” shall mean out-of-pocket costs incurred by GSK, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against GSK, and any amounts paid by GSK in a settlement of the action that is approved by XenoPort, such approval not to be unreasonably withheld or delayed. The party controlling Parties shall assist one another and cooperate in any such action at the defense of any Third Party Infringement Claim shall keep the other party, at its other’s reasonable request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3.

Third Party Infringement Claims. In If the event any claim Manufacture, use or action for sale of the Products in the Field in the Advaccine Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement of any patent, trademark, against Inovio or other intellectual property right shall be made Advaccine (or brought by a third party against Seller, Purchaser or any of their respective Affiliates because ofAffiliates, licensees or in anticipation ofSublicensees) (collectively, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect Subject to Article 11, the Third Party for which the Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to Action is brought against (the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment“Accused Party”) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed have the right to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) direct and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party such Infringement Claim described in clause (b) above. The party controlling the defense Action, at its own expense with counsel of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimits choice; provided, however, that such settlement does not impose any obligation or burden on the other party Party may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, the Accused Party agrees to keep the other Party reasonably informed of all material developments in connection with any such Infringement Action for which the Accused Party exercises its right to direct and control the defense. The Accused Party agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the rights or interests of the other Party, without the prior written consent of the other party (Party, which consent shall not be unreasonably withheld)withheld or delayed. The party controlling Subject to Article 11, if the Accused Party does not exercise its right to direct and control the defense of any Third an Infringement Action that is brought against the other Party, then the other Party Infringement Claim shall have such right and it shall agree to keep the other party, at its request, materially Accused Party reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the status and progress rights or interests of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim Accused Party, without the prior written consent of the party controlling such defense. The non-controlling partyAccused Party, its employees, agents and Affiliates which shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall not be obligated to indemnify the other party hereunder for modification unreasonably withheld or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3delayed.

Third Party Infringement Claims. In the event any claim or action for infringement 11.1 The parties shall notify each other promptly in writing of any patentclaim, trademark, suit or other intellectual property right shall be made proceeding threatened or brought initiated by a any third party against Seller, Purchaser or any relating to the use by Licensee of their respective Affiliates because of, or in anticipation ofthe Patents, the manufacture and supply of Product by Seller to Purchaser hereunder, Technology or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder Proprietary Information as permitted under this Agreement (a “Third Party Infringement Claim”), the party first receiving such notice of the . 11.2 If Biocoat fails to initiate action to defend any Third Party Infringement Claim within 30 days of such notice, Licensee shall promptly notify have the other party. With respect right, but not the obligation, to the Third Party Infringement Claimtake any action that it deems necessary or appropriate, Seller and Purchaser each hereby agrees that all Damages arising from or related in its sole discretion, to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from defend any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser . Licensee shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall have full control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control over the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling that Biocoat does not defend including, but not limited to, the defense of right to enter into any settlement with respect to such claim. 11.3 If any Third Party Infringement Claim is threatened or initiated, the obligation of Licensee to make royalty payments under this Agreement shall cease as of the date such Third Party Infringement Claim is threatened or initiated; provided, however that all such royalty obligations shall continue to accrue, with interest at the prime rate posted by Chase Manhattan Bank, New York, NY., until the parties have settled such Third Party Infringement Claim or a court of competent jurisdiction has entered a final nonappealable judgment. If such final judgment results in a finding that Licensee’s use of the Patents, the Technology and the Proprietary Information does not infringe any valid claim of such third party, Licensee shall promptly pay the amount of accrued and unpaid royalties due Biocoat, if any, and shall resume payment of royalties otherwise payable under this Agreement. If such final judgment results in a finding that use of the Patents, the Technology or the Proprietary Information infringes any valid claim of such third party, Licensee shall have no obligation to pay any accrued and unpaid royalties or any further royalties to Biocoat. If a threatened Third Party Infringement Claim does not result in a suit or proceeding being initiated within six (6) months of the sole right date of such threat, Licensee shall pay promptly the amount of accrued and unpaid royalties due Biocoat, if any, and shall resume payment of royalties otherwise payable under this Agreement. 11.4 Licensee shall be entitled to offset against any accrued and unpaid royalties and any future royalties that would otherwise be payable under this Agreement all damages, losses, costs and expenses (including reasonable attorneys’ fees and amounts paid in settlement) suffered or incurred by Licensee in connection with any Third Party Infringement Claim. 11.5 Biocoat agrees to furnish Licensee with full information concerning any Third Party Infringement Claim, and to render to Licensee full cooperation to facilitate the defense or settlement of any such claim. If Biocoat does not defend or settle any Third Party Infringement Claim, Biocoat shall the opportunity to be represented by counsel in any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status sole option and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3expense.

Third Party Infringement Claims. In (a) If claims are made against TPC or its AFFILIATES or LICENSEE (or its sublicensees) with respect to use of the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or PROPERTY in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder connection with PRODUCTS (a “Third Party Infringement Claim”"THIRD-PARTY INFRINGEMENT CLAIMS"), then TPC and LICENSEE agree to consult with each other on a suitable course of action. In no event shall either party have the party first receiving such notice right, without the prior consent of the Third Party Infringement Claim shall promptly notify the other party. With respect , to acknowledge the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment validity of the Lawsuit THIRD-PARTY INFRINGEMENT CLAIM or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from to take any Third Party Infringement Claim with respect to other action which materially impairs the use ability of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure contest the claim of such third party or the rights of the other party to use or protect the PROPERTY; PROVIDED, HOWEVER, that Damages arising either party may obtain or seek a license from any Third Party Infringement Claim are allocated such third party so long as such license does not acknowledge the validity of the THIRD-PARTY INFRINGEMENT CLAIM. Each party shall have the right to participate fully at its own expense in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) abovesuch THIRD-PARTY INFRINGEMENT CLAIM. The party controlling the defense of any Third Party Infringement Claim TPC shall have the sole right to defend or settle handle any such Third Party Infringement Claimclaims made against it with respect to use of the PROPERTY in connection with TPC's BRANDED PRODUCTS; providedPROVIDED, howeverHOWEVER, that such settlement does not impose any obligation or burden on the other party TPC shall not, without the prior written consent of LICENSEE, acknowledge the other party (which consent shall not be unreasonably withheld). The party controlling the defense validity of any Third Party Infringement Claim shall keep such claim or take any other action if such acknowledgement or action materially impairs LICENSEE's rights under this AGREEMENT or LICENSEE's rights to use or protect the other partyPROPERTY; PROVIDED, at its requestHOWEVER, materially informed that TPC may obtain or seek a license from such third party so long as such license does not acknowledge the validity of the status and progress claim. (b) LICENSEE agrees to make, within a reasonable timeframe, reasonable modifications requested by TPC in LICENSEE's use of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who PROPERTY if TPC reasonably determines such action is not controlling the defense of necessary to resolve or settle a claim or suit unless such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3modifications would have a materially negative effect on LICENSEE's business.

Third Party Infringement Claims. In If the event any claim Manufacture, use or action for sale of the Licensed Products in the Field in the Terns Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement of any patent, trademark, against Genfit or other intellectual property right shall be made Terns (or brought by a third party against Seller, Purchaser or any of their respective Affiliates because ofAffiliates, licensees or in anticipation ofSublicensees) (collectively, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect Subject to Article 11, the Third Party for which the Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to Action is brought against (the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment“Accused Party”) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed have the right to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) direct and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party such Infringement Claim described in clause (b) above. The party controlling the defense Action, at its own expense with counsel of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimits choice; provided, however, that such settlement does not impose any obligation or burden on the other party Party may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, the Accused Party agrees to keep the other Party reasonably informed of all material developments in connection with any such Infringement Action for which the Accused Party exercises its right to direct and control the defense. The Accused Party agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the rights or interests of the other Party, without the prior written consent of the other party (Party, which consent shall not be unreasonably withheld)withheld or delayed. The party controlling Subject to Article 11, if the Accused Party does not exercise its right to direct and control the defense of any Third an Infringement Action that is brought against the other Party, then the other Party Infringement Claim shall have such right and it shall agree to keep the other party, at its request, materially Accused Party reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the status and progress rights or interests of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim Accused Party, without the prior written consent of the party controlling such defense. The non-controlling partyAccused Party, its employees, agents and Affiliates which shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall not be obligated to indemnify the other party hereunder for modification unreasonably withheld or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3delayed.

Third Party Infringement Claims. In 9.5.1 If the event any claim Exploitation of a Product results in a claim, suit or action for proceeding alleging patent infringement of any patentagainst either Party (or its Affiliates, trademark, licensees or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder Sublicensees) (a “Third Party Infringement Claim”), the party first receiving including any defense or counterclaim in connection with a Competitive Infringement initiated in connection with Section 9.4.2, such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect Party hereto in writing. 9.5.2 [***]. 9.5.3 Licensor shall, and shall cause its Affiliates to, use Commercially Reasonable Efforts to ensure that its licensors assist and cooperate with Licensee, as Licensee may reasonably request from time to time, in connection with its activities set forth in this Section 9.5, including where necessary, being joined as a party plaintiff if reasonably necessary to establish standing for such action, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that [***] shall reimburse [***] and its Affiliates and its licensors for their reasonable and verifiable out-of-pocket costs, damages and expenses, including reasonable attorneys’ fees (further provided the Third Party Infringement Claim, Seller and Purchaser each hereby agrees Parties shall have used Commercially Reasonable Efforts to utilize the same legal counsel) that all Damages arising from such entity may incur in connection with such assistance or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claimjoinder, including any fees, royalties or other amounts agreed to be paid award of costs against it. 9.5.4 Licensee shall keep Licensor reasonably informed of all material developments in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim connection with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claim; provided, however, that that, with respect to such settlement does not impose comments provided by Licensor and received no later than [***] Business Days prior to any obligation or burden on filing deadline regarding any statement Licensee proposes to make in connection with the other party without the prior written consent enforcement of the other [***], Licensee will implement such Licensor comments, provided further, that notwithstanding the foregoing, if the intended statement is consistent with a previous statement made publicly in Prosecution or any enforcement action by Licensor regarding ImmTOR, Licensee shall be permitted to make such statement regardless of Licensor’s comments. 9.5.5 Any damages or awards, including royalties, awarded to the party (which consent shall not be unreasonably withheld). The party controlling the defense of alleging patent infringement under any Third Party Infringement Claim defended under this Section 9.5 shall keep the other partybe borne by [***]. For clarity, at its request, materially informed of the status and progress of the defense of the if [***] is required to make any payment to a Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of including any Third Party Infringement Claim in the investigation and defense which becomes an Acquisition Entity of Licensor) to settle such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party such Third Party Payment shall be obligated to indemnify a Third Party Payment for the other party hereunder for modification or misuse purposes of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.36.5.3.

Third Party Infringement Claims. In the event any claim or action for infringement If a Party becomes aware of any patentThird Party claim that the development, trademark, manufacture or other intellectual property right shall be made or brought by Commercialization of a third party against Seller, Purchaser or Licensed Product infringes the Patent Rights of any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers Third Party in the Territory by Purchaser hereunder (collectively, a “Third Party Infringement Claim”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty in writing. With respect to Chromocell shall have the right, within thirty (30) days after receiving written notice of a Third Party Infringement Claim, Seller and Purchaser each hereby agrees to assume the defense thereof, as well as the right to take other appropriate action that all Damages arising from it believes is reasonably required to defend any such actual or related to the Third Party Infringement Claim (including threatened claim of infringement; provided that any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) counterclaims shall be shared as follows: handled in accordance with the enforcement provision of Section 6.4.2; and provided, further, (a) Except as provided that Benuvia and its counsel (at the sole cost and expense of Benuvia) may participate in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall but not control the defense any Third Party Infringement Claim described in clause (aconduct of) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claim; provided, however, and (b) that no settlement of any such Third Party Infringement Claim shall be entered into unless Benuvia shall have consented to such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party in writing (which consent shall not be unreasonably withheld, conditioned or delayed). The party controlling If Chromocell assumes the defense of a Third Party Infringement Claim, Chromocell shall (w) conduct the defense of the Third Party Infringement Claim in good faith, (x) have the right to appoint lead counsel in the defense of any such lawsuit and to control the litigation, (y) be responsible for all legal fees and costs in such litigation (other than Benuvia’s counsel and other legal fees incurred by Benuvia), and (z) be responsible for any and all financial compensation for damages awarded therein subject to indemnification obligations by Benuvia of Chromocell if and to the extent that any Third Party Infringement Claim shall keep the other party, at its request, materially informed is upheld based on actions of the status and progress of Benuvia. In order for Benuvia to have an opportunity to effectively participate in the defense of the Third Party Infringement Claim, Chromocell shall (1) ensure that its counsel, upon reasonable request by Benuvia in writing, provides Benuvia or its counsel promptly with copies of requested pleadings and written claims, demands, notices or other documents obtained in connection with such lawsuit, as permitted by law or otherwise and (2) consider in good faith the recommendations made by Benuvia. No Benuvia agrees that it shall join such suit if the relevant court would lack jurisdiction if Benuvia was absent from such suit, and Benuvia shall execute such legal papers and cooperate, at Chromocell’s expense, in the defense of such suit as may be reasonably requested by Xxxxxxxxxx. If Chromocell does not assume the defense of the Third Party Infringement Claim as set forth in this Section 6.5, Benuvia shall be settled by (A) have the party who is right but not controlling the obligation to appoint lead counsel in the defense of any such Third Party Infringement Claim without lawsuit and to control the prior written consent litigation, (B) be responsible for all legal fees and costs in such litigation (other than Chromocell’s counsel), and (C) be responsible for any and all financial compensation for damages awarded therein subject to indemnification obligations by Chromocell of Benuvia if and to the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of extent that any Third Party Infringement Claim is upheld based on actions of Chromocell. Chromocell agrees that it shall join such suit if the relevant court would lack jurisdiction if Chromocell, its Affiliates and/or Chromocell Sublicensees was absent from such suit, and Chromocell, its Affiliates and/or Chromocell Sublicensees shall execute such legal papers and cooperate, at Benuvia’s expense, in the investigation defense of such suit as may be reasonably required by Benuvia. For the avoidance of doubt, if Benuvia assumes the defense of a Third Party Infringement Claim, Chromocell and its counsel (at the sole expense of Chromocell) may participate in (but not control the conduct of) the defense of such Third Party Infringement Claim. Notwithstanding the aboveIn any case, and by way no settlement of clarification, neither party any such Third Party Infringement Claim shall be obligated entered into unless Benuvia first consults with and solicits input in writing from Chromocell regarding the terms of any such settlement and obtains Chromocell’s consent to indemnify such settlement, such consent not to be unreasonably withheld, conditioned or delayed. Further, Benuvia shall (1) ensure that its counsel, upon reasonable request by Xxxxxxxxxx in writing, provides Chromocell or its counsel promptly with copies of requested pleadings and written claims, demands, notices or other documents obtained in connection with such lawsuit, as permitted by law or otherwise and (2) consider in good faith the other party hereunder for modification or misuse of the Product recommendations made by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3Chromocell.

Third Party Infringement Claims. In the event any (a) If either Party or its Affiliates or its or their Sublicensees becomes aware of a claim or action for infringement assertion that the Manufacture, Development or Commercialization of any patent, trademark, Praluent Product infringes or other otherwise violates the intellectual property right shall be made or brought by a third party against Seller, Purchaser or rights of any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement Claim”)in such Party’s Territory, the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty in writing of this claim or assertion within five (5) Business Days. With As soon as reasonably practicable after the receipt of such notice, the Parties shall meet and consider the appropriate course of action with respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment such allegation of the Lawsuit or otherwise; andinfringement. (b) Purchaser Subject to Section 14.1(c), the Parties shall be 100% responsible for cooperate, share all Damages arising from any Third Party Infringement Claim material notices and filings in a timely manner, provide all reasonable assistance to each other and use commercially reasonable efforts to mutually agree upon an appropriate course of action, including, as appropriate, with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) material court filings and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense or settlement of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend such claim or settle any such Third Party Infringement Claimassertion; provided, however, that such settlement does not impose any obligation or burden on a Party (the other party without “Controlling Party”) shall have the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling first right to defend and control the defense of any claimed infringement action commenced by a Third Party Infringement Claim shall keep naming it as a defendant alleging that the Manufacture, Development or Commercialization of any Praluent Product infringes or otherwise violates the intellectual property rights of such Third Party in the Controlling Party’s Territory at its sole cost and expense, using counsel of its own choice even if the other partyParty is also named as a defendant, at its requestto the extent that such claimed infringement or violation solely relates to the Manufacture, materially informed Development or Commercialization of the status Praluent Products in the Controlling Party’s Territory and progress does not relate to the other Party’s Territory or to the manufacture, development or commercialization of other products; provided further that, if the Controlling Party fails to initiate and maintain the defense of any such action that names the Third other Party Infringement Claim. No Third as a defendant, then such other Party Infringement Claim shall be settled by have the party who is not controlling right to control the defense of such Third action at its own cost and expense by providing written notice to the Controlling Party. (c) Subject to Section 14.1(c), unless otherwise agreed by the Parties, each Party Infringement Claim without shall bear [* * *] Out-of-Pocket Costs and internal costs (except for the prior written consent costs and expenses of the party controlling such defense. The non-controlling partyControlling Party’s cooperation pursuant to Section 11.3(b), its employeesif only one Party defends a claim) incurred in connection with any litigation under this Section 11.3. (d) For the avoidance of doubt, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense subject to Section 14.1(c), neither Party will enter into any settlement of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the suit involving any Praluent Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3that [* * *].

Third Party Infringement Claims. (a) In the event the making, using, offering for sale, selling or importation of any Active Agent Product becomes the subject of a claim, against either Party, of infringement of any patent or other proprietary right of any third party anywhere in the world by virtue of the incorporation of any portion of the Licensed IP or New IP therein, such Party shall promptly give notice to the other Party and meet to consider the claim and the appropriate course of action. (b) In the event of a Third-Party claim or action against Extab alleging that the practice of the Licensed IP in discovering, developing, making, using, offering for sale, selling importing or having imported Active Agent Product within the Field in a country infringes such Third Party’s patent in such country, and Extab is ordered by a competent court of law or government agency from which no appeal can be had or is taken within the allowed time limits or is obligated by a settlement agreement to pay royalties or other payments to such Third Party on account of such infringement claim or action, then any such sums paid or agreed to he paid by Extab to such Third Party to resolve such infringement claim or action shall also be creditable on a dollar for dollar basis against any future royalties due from Extab to Sopharma to the extant only that such payment relates to the practice of the Licensed Patent Rights In discovering, developing, making, using, offering for sale, selling importing or having imported Active Agent Product within the Field in a country. (c) In the event of a Third-Party claim or action against either Party alleging that the practice of the New IP in discovering, developing, making, using, offering for sale, selling importing or having imported Active Agent Product within the Field in a country infringes such Third Party’s patent in such country, and this Party is ordered by a competent court of law or government agency from which no appeal can be had or is taken within the allowed time limits or is obligated by a settlement agreement to pay this expense to such Third Party on account of such infringement claim or action, then any such monies paid or agreed shall be paid by the Party held liable. (d) Extab and Sopharma shall have the right to conduct the defense against any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement Claim”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: under Subsection 7.5 (a) Except as provided in clause or (b) belowbrought against Extab or Sopharma, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claimas the case may be, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right and authority to defend settle any such suit in consultation between both Parties, provided that either Party shall not make any admission or take any action or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party suit without the prior written consent approval of the other party (Party, which consent approval shall not be unreasonably withheld). The party controlling , delayed or conditioned. (e) Any reasonable expenses incurred by Extab in connection with the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense conduct of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling partydefense concerning Licensed IP, its employeesincluding, agents but not limited to, attorneys fees and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of costs, may be offset against any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and future royalties owed by way of clarification, neither party shall be obligated Extab to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3Sopharma.

Third Party Infringement Claims. In If the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketingproduction, sale or distribution use of such any Product to Purchaser Customers in the Licensed Territory by Purchaser hereunder pursuant to this Agreement results in a claim, suit or proceeding alleging patent Infringement (a collectively, “Third Party Infringement ClaimActions”)) against OptiNose or Avanir or their respective Affiliates, the party first receiving licensees or sublicensees, such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect OptiNose shall have the first right, but not the obligation, to the Third Party Infringement Claim, Seller direct and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described Actions and Avanir may participate in clause (b) above. The party controlling the defense and/or settlement thereof, at its own expense with counsel of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimits choice; provided, however, that such settlement does not impose any obligation or burden on if the other party without the prior written consent Third Party Infringement Action is filed against Avanir, OptiNose shall: (i) notify Avanir of its intention to assume control of the other party (which consent shall not be unreasonably withheld). The party controlling defense and actually initiates the defense of any such Third Party Infringement Claim Action within [***] of Avanir or OptiNose first becoming aware of the same; and (ii) indemnify and hold harmless Avanir and the Avanir Indemnitees against any Liabilities arising from such Third Party Infringement Action and/or OptiNose’s control of the defense thereof, [***]. Subject to this Section 9.4 above, the Party subject to such Third Party Infringement Action shall keep have the first right, but not the obligation, to direct and control the defense thereof; provided, however, that the other party, Party may participate in the defense and/or settlement thereof at its requestown expense with counsel of its choice. In any event, materially informed of the status and progress of Party that is subject to the Third Party Infringement Action (or the Party controlling the defense of the Third Party Infringement Claim. No Action, as the case may be) agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Third Party Infringement Claim shall be settled by the party Action. The Party who is not subject to the Third Party Infringement Action (or the Party controlling the defense of the Third Party Infringement Action, as the case may be) shall not, [***] settle such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling partyAction, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of or make any Third Party Infringement Claim admissions or assert any position in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the aboveAction, and by way of clarification, neither party shall in a manner that would be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either partyreasonably likely to: [***]. The provisions of this Section 17.4 Parties shall be notwithstanding assist one another and cooperate in any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3such action at the other’s reasonable request.

Third Party Infringement Claims. (a) In the event the making, using, offering for sale, selling or importation of any Active Agent Product becomes the subject of a claim, against either Party, of infringement of any patent or other proprietary right of any third party anywhere in the world by virtue of the incorporation of any portion of the Licensed Patent Rights therein, such Party shall promptly give notice to the other Party and meet to consider the claim and the appropriate course of action. (b) In the event of a Third-Party claim or action against Multicell alleging that the practice of the Licensed Patent Rights in discovering, developing, making, using, offering for sale, selling importing or having imported Active Agent Product within the Field in a country infringes such Third Party's patent in such country, and Multicell is ordered by a competent court of law from which no appeal can be had or is taken within the allowed time limits or is obligated by a settlement agreement to pay royalties or other payments to such Third Party on account of such infringement claim or action, then any such sums paid or agreed to be paid by Multicell to such Third Party to resolve such infringement claim or action shall also be creditable on a dollar for dollar basis against any future royalties due from Multicell to Amarin to the extent only that such payment relates to the practice of the Licensed Patent Rights in discovering, developing, making, using, offering for sale, selling importing or having imported Active Agent Product within the Field in a country. (c) Multicell shall have the right to conduct the defense against any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement Claim”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: under Subsection 7.4 (a) Except as provided in clause or (b) belowbrought against Multicell or Amarin, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right and authority to defend settle any such suit in consultation with Amarin, provided that Multicell shall not make any admission or take any action or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party suit without the prior written consent approval of the other party (Amarin, which consent approval shall not be unreasonably withheld), delayed or conditioned. The party controlling Amarin shall cooperate with Multicell, as reasonably requested by Multicell, in connection with the defense of any Third Party Infringement Claim shall keep the other partyagainst such claim or action, at its request, materially informed of Multicell's expense. Any reasonable expenses incurred by Multicell in connection with the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense conduct of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employeesincluding, agents but not limited to, attorneys fees and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of costs, may be offset against any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and future royalties owed by way of clarification, neither party shall be obligated Multicell to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3Amarin.

Third Party Infringement Claims. In If the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketingmanufacture, sale or distribution use of such Product to Purchaser Customers the Products in the Field in the Territory by Purchaser hereunder pursuant to this Agreement results in a claim, suit or proceeding alleging Patent infringement against KemPharm or Company, or their respective Affiliates, licensees or Sublicensees (a each, an “Third Party Infringement ClaimAction”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect Company shall have the right, [*****], but not the obligation, to defend any Infringement Action and to compromise or settle such Infringement Action. If Company declines or fails to assert its intention to defend such Infringement Action within [*****] days after sending (in the Third Party event that KemPharm is the notifying Party) or receipt (in the event that Company is the notifying Party) of notice under this Section 9.4, then KemPharm shall have the right to defend such Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) aboveAction. The party controlling the defense of any Third Party defending such Infringement Claim Action shall have the sole and exclusive right to defend or settle select counsel for such Infringement Action. Each Party shall share with the other Party all Information available to it regarding such Infringement Actions, pursuant to a mutually agreeable “common defense agreement” executed by the Parties under which the Parties agree to their shared, mutual interest in the outcome of any such Third Party Infringement ClaimActions; provided, however, that such settlement does not impose any obligation or burden on no Party shall be required to disclose Information to the other party Party to the extent such disclosure would cause the loss of attorney/client privilege. Neither Party shall settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the rights or interests of the other Party hereunder, without the prior written consent of the other party (Party, which consent shall not be unreasonably withheldwithheld or delayed. For clarity, the foregoing sentence shall not serve to limit or condition Company’s exercise of its rights under Section 8.5(d)(iii). The party Subject to the respective indemnity obligations of the Parties set forth in Article 11, the Party controlling the defense of any Third Party the Infringement Claim Action shall keep pay all costs associated with such Infringement Action other than the expenses of the other partyParty if the other Party elects to join such Infringement Action (as provided in the last sentence of this Section 9.4); provided, that, without limitation of KemPharm’s indemnification obligations under Article 11, [*****]. Each Party shall have the right to join an Infringement Action defended by the other Party, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3own expense.

Third Party Infringement Claims. In the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement Claim”), the party first receiving such notice of the Third Party Infringement Claim Licensee shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees Licensor in writing of any claims that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment Licensee’s use of the Lawsuit Technology, Licensor Patent Rights and/or Licensor Know-How infringes or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to improperly or unlawfully uses the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense proprietary rights of any Third Party Infringement Claim described in clause (b) aboveParty. The party controlling the defense of any Third Party Infringement Claim Licensor shall have the sole right, but not the obligation, to take all such steps and proceedings and to do all other acts and things as may in Licensor’s sole discretion be necessary to defend such claims and Licensee shall permit Licensor to have the sole conduct of any such steps and proceedings, including the right to settle them (whether or not Licensee is a party to them) provided that Licensor shall have no right to defend or settle any such Third Party Infringement Claim; providedclaims directed to the Product or Antibody, however, that such settlement does not impose any obligation either alone or burden on in combination with the other party without Technology where the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of Product or Antibody infringes any Third Party Infringement Claim intellectual property rights without Licensee’s written consent ( not to be unreasonably withheld or delayed). Licensee hereby agrees to co-operate fully as is reasonably necessary with Licensor, at Licensor’s sole cost and expense, including lending its name to the proceedings as may be necessary. Licensor shall keep be entitled to retain any and all monies received from such proceedings, after first reimbursing Licensee for any expenses of Licensee due pursuant to this Section 8.4. For clarity no Party shall enter into any settlement of any claim described in this Section 8.4 that adversely affects another Party’s proprietary rights, that requires another Party to pay money to a Third Party or that imposes liability on another Party without the other party, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior Party’s written consent of the party controlling such defense. The non-controlling partyconsent not to be unreasonably conditioned, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification withheld or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3delayed.

Third Party Infringement Claims. In If the event any claim production, sale or action for infringement use of any patentCompound or Product in the Territory pursuant to this Agreement results in a claim, trademark, suit or other intellectual property right shall be made proceeding alleging patent infringement against XenoPort or brought by a third party against Seller, Purchaser Astellas (or any of their respective Affiliates because ofor Subdistributors) (collectively, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect The Party subject to such Infringement Action shall have the Third Party Infringement Claim, Seller right to direct and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third thereof (including the conclusion of a potential settlement, but limited to the rights granted pursuant to this Agreement) using counsel reasonably acceptable to the other Party, and the Infringement Action shall be at the expense of the Party subject to such Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement ClaimAction; provided, however, that such settlement does not impose any obligation or burden on the other party Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. Astellas agrees not to settle any Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Product or the manufacture, use or sale thereof in or outside the Territory, without the prior written consent of XenoPort. XenoPort agrees not to settle any Infringement Action in a manner that would adversely affect the other party (which consent shall not be unreasonably withheld). The party controlling Product or the defense of any Third Party Infringement Claim shall keep manufacture, use or sale thereof in the other partyTerritory, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling Astellas. Astellas may treat its Damages from such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Infringement Action as Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the Royalties under Section 7.3.1 above, and XenoPort may treat its Damages from such Infringement Action as payments for Third Party IP under Section 2.5 above. As used herein, “Damages” shall mean out-of-pocket costs incurred by way a Party, including reasonable attorney’s fees, damages and other liabilities that are part of clarificationany final judgment awarded against such Party, neither party shall be obligated to indemnify the other party hereunder for modification or misuse and any amounts paid by such Party in a settlement of the Product action that is approved by the other party Party, such approval not to be unreasonably withheld or by wholesalers or the customers of either partydelayed. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement* CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, including Sections 17.1MARKED BY BRACKETS, 17.2 and 17.3IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Third Party Infringement Claims. In If the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketingmanufacture, sale or distribution use of such Product to Purchaser Customers the Licensed Products in the Field in the Luoxin Territory by Purchaser hereunder pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against Synergy or Luoxin (a or their respective Affiliates, licensees or sublicensees) (collectively, “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect Synergy shall have the right and the obligation to the Third Party Infringement Claim, Seller direct and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party such Infringement Claim described in clause (b) above. The party controlling the defense Action, at its own expense with counsel of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimits choice; provided, however, that Luoxin may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, Synergy agrees to keep Luoxin reasonably informed of all material developments in connection with any such settlement does Infringement Action for which Synergy exercises its right to direct and control the defense. Synergy agrees not impose to settle such Infringement Action, or make any obligation admissions or burden on assert any position in such Infringement Action, in a manner that would materially adversely affect the other party rights or interests of Luoxin, without the prior written consent of the other party (Luoxin, which consent shall not be unreasonably withheld)withheld or delayed. The party controlling If Synergy does not direct and control the defense of any Third Party an Infringement Claim Action that is brought against Luoxin in a timely manner, then Luoxin shall have such right and it shall agree to keep the other party, at its request, materially Synergy reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the status and progress rights or interests of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim Synergy, without the prior written consent of the party controlling such defenseSynergy, which shall not be unreasonably withheld or delayed. The non-controlling party, its employees, agents [*] Certain information on this page has been omitted and Affiliates shall reasonably cooperate filed separately with the party (Securities and its legal representatives) controlling Exchange Commission. Confidential treatment has been requested with respect to the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3omitted portion.

Third Party Infringement Claims. In If the event any claim production, sale or action for infringement use of any patentCompound or Product in the Territory pursuant to this Agreement results in a claim, trademark, suit or other intellectual property right shall be made proceeding alleging patent infringement against XenoPort or brought by a third party against Seller, Purchaser Astellas (or any of their respective Affiliates because ofor Subdistributors) (collectively, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect The Party subject to such Infringement Action shall have the Third Party Infringement Claim, Seller right to direct and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third thereof (including the conclusion of a potential settlement, but limited to the rights granted pursuant to this Agreement) using counsel reasonably acceptable to the other Party, and the Infringement Action shall be at the expense of the Party subject to such Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement ClaimAction; provided, however, that such settlement does not impose any obligation or burden on the other party Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. Astellas agrees not to settle any Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Product or the manufacture, use or sale thereof in or outside the Territory, without the prior written consent of XenoPort. XenoPort agrees not to settle any Infringement Action in a manner that would adversely affect the other party (which consent shall not be unreasonably withheld). The party controlling Product or the defense of any Third Party Infringement Claim shall keep manufacture, use or sale thereof in the other partyTerritory, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling Astellas. Astellas may treat its Damages from such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Infringement Action as Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the Royalties under Section 7.3.1 above, and XenoPort may treat its Damages from such Infringement Action as payments for Third Party IP under Section 2.5 above. As used herein, “Damages” shall mean out-of-pocket costs incurred by way a Party, including reasonable attorney’s fees, damages and other liabilities that are part of clarificationany final judgment awarded against such Party, neither party shall be obligated to indemnify the other party hereunder for modification or misuse and any amounts paid by such Party in a settlement of the Product action that is approved by the other party Party, such approval not to be unreasonably withheld or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3delayed.

Third Party Infringement Claims. In the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement Claim”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller [****] shall be 100% [****] responsible for all Damages [****] arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser [****] shall be 100% responsible [****] for all Damages [****] arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3.

Third Party Infringement Claims. In If the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketingmanufacture, sale or distribution use of such Product to Purchaser Customers the Licensed Products in the Field in the Collaboration Territory by Purchaser hereunder pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against KemPharm or KVK, or their respective Affiliates, licensees or sublicensees (a collectively, “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect to the Third Party Infringement Claim, Seller KemPharm shall direct and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party such Infringement Claim described in clause (b) above. The party controlling the defense Action, [*] with counsel of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimits choice; provided, however, that if KVK has not been named as a defendant, KVK may participate in the defense and/or settlement thereof, [*] with counsel of its choice. If KVK has been named as a defendant, KemPharm shall, whether through its own counsel or separate counsel in the event of a conflict, defend KVK [*], with regard solely to said Third Party Infringement Claims. In any event, KemPharm agrees to keep KVK reasonably informed of all material developments in connection with any such settlement does not impose Infringement Action for which KemPharm exercises its right to direct and control the defense and shall provide any obligation or burden on additional information about the Infringement Action that KVK reasonably requests. Each Party shall share with the other party Party all Information available to it regarding such Infringement Actions, pursuant to a mutually agreeable “common defense agreement” executed by the Parties under which the Parties agree to their shared, mutual interest in the outcome of any such Infringement Actions. KemPharm agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the rights or interests of KVK, without the prior written consent of the other party (KVK, which consent shall not be unreasonably withheld)withheld or delayed. If a license from a Third Party is reasonably required in order for KVK to Commercialize the Licensed Products or otherwise perform its obligations under this agreement, the Parties shall mutually agree on such license and negotiate in good faith as to the allocation of such license. The party controlling JSC shall review the defense of any Third Third-Party Infringement Claim shall keep the other party, licensed IP expenses at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claimleast annually. Notwithstanding the aboveforegoing, and by way under no circumstances shall KVK be responsible or pay for any licensing fees related to use or sale (i) prior to the Effective Date, (ii) after the Term of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1(iii) outside of the Field, 17.2 and 17.3or (iv) outside of the Collaboration Territory.

Third Party Infringement Claims. In If the event any claim Development, Manufacture, or action for infringement Commercialization of any patentLicensed Product in the Field in the Cutia Territory pursuant to this Agreement results in a claim, trademark, suit or other intellectual property right shall be made proceeding alleging patent infringement against Foamix or brought by a third party against Seller, Purchaser Cutia (or any of their respective Affiliates because ofAffiliates, licensees or in anticipation ofsublicensees) (collectively, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect to the Third Party Infringement Claim, Seller Foamix may direct and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim Action, at its own expense with counsel of its choice; provided, however, that Cutia may participate in the defense and settlement thereof, at its own expense with counsel of its choice. In any event, Foamix shall keep Cutia reasonably informed of all material developments in connection with any such Third 222330578 v11 Party Infringement Action for which Foamix exercises its right to direct and control the defense. Foamix agrees not to settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would materially adversely affect the rights or interests of Cutia, without the prior written consent of the party controlling such defenseCutia, which shall not be unreasonably withheld or delayed. The non-controlling party, If Foamix does not exercise its employees, agents right to direct and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling control the defense of any a Third Party Infringement Claim Action that is brought against Cutia, then Cutia may exercise such right and it shall keep Foamix reasonably informed of all material developments in the investigation and defense of connection with such Third Party Infringement Claim. Notwithstanding the aboveAction, and by way it shall not settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would materially adversely affect the rights or interests of clarificationFoamix, neither party without the prior written consent of Foamix, which shall not be obligated to indemnify the other party hereunder for modification unreasonably withheld or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3delayed.

Third Party Infringement Claims. In the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “"Third Party Infringement Claim”"), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller [***] shall be 100% [***] responsible for all Damages [***] arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser [***] shall be 100% responsible [***] for all Damages [***] arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3.

Third Party Infringement Claims. In If a Third Party sues a Party (the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, “Sued Party”) alleging that the manufacture and supply of Product by Seller to Purchaser hereunderSued Party’s, or the marketingSued Party’s Sublicensee’s, sale Development, Manufacture or distribution Commercialization of such any Product to Purchaser Customers in the Otsuka Territory by Purchaser hereunder infringes or will infringe such Third Party’s Patent Rights or misappropriates or will misappropriate such Third Party’s Know-How (a “Third Party Infringement ClaimSuit”), then the party first receiving such notice of the Third Sued Party Infringement Claim shall promptly notify the other partyParty of such Third Party Infringement Suit. With respect The Parties shall promptly meet to consider the appropriate course of action and may, if appropriate, agree on and enter into a “common interest agreement” wherein the Parties agree to their shared, mutual interest in the outcome of such Third Party Infringement Suit. Absent such agreement, the Sued Party shall defend the Third Party Infringement ClaimSuit; provided that Section 9.4 shall govern the right of Otsuka to assert a counterclaim of infringement of any Perception Patent Rights, Seller and Purchaser each hereby agrees that all Damages arising from Joint Patent Rights or related Otsuka Product Improvement Patents. At the Sued Party’s request [***], the other Party will provide reasonable assistance to the Sued Party in connection with the Sued Party’s defense of any such Third Party Infringement Claim (including any legal fees and associated costs incurred Suit. If the other Party has not joined in defending the such Third Party Infringement Claim Suit, the Sued Party will keep the other Party reasonably informed on a Calendar Quarter basis prior to and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any during the pendency of such Third Party Infringement Claim, including Suit. The Sued Party will not enter into any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described Suit that is instituted or threatened to be instituted against the other Party without the other Party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; except that, such consent will not be required if such settlement includes a release of all liability in clause (b) abovefavor of the other Party. The party controlling Further, the defense of Sued Party shall not settle or compromise any Third Party Infringement Claim shall have Suit, or knowingly take any other action in the sole right to defend or settle any such Third Party Infringement Claim; providedcourse thereof, however, in a manner that such settlement does not impose any obligation or burden on materially adversely affects the other party Party’s rights or interests, without the prior written consent of the such other party (which Party, such consent shall not to be unreasonably withheld), conditioned or delayed. The party controlling the defense [***]. If, as part of any a settlement or compromise of a Third Party Infringement Claim shall keep the other partySuit, at its request, materially informed of the status and progress of the defense of the Otsuka enters into an agreement with a Third Party Infringement Claim. No to obtain a license under or otherwise acquire rights to Third Party Infringement Claim shall be settled Intellectual Property Rights, all payments by the party who is not controlling the defense of Otsuka to such Third Party Infringement Claim without the prior written consent of the party controlling under such defense. The non-controlling partyagreement (including all upfront payments, its employeesmilestone payments, agents license fees, royalties and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of other amounts payable to such Third Party Infringement Claim. Notwithstanding for such rights) may be applied to the above, and by way of clarification, neither party shall be obligated royalty reduction pursuant to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.38.4.3(c).

Third Party Infringement Claims. In If the event any claim Manufacture, use or action for sale of the Licensed Products in the Field in the Kaken Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement of any patent, trademark, against Spruce or other intellectual property right shall be made Kaken (or brought by a third party against Seller, Purchaser or any of their respective Affiliates because ofAffiliates, licensees or in anticipation ofSublicensees) (collectively, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect Subject to Article 11, the Third Party for which the Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to Action is brought against (the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment“Accused Party”) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed have the right to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) direct and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party such Infringement Claim described in clause (b) above. The party controlling the defense Action, at its own expense with counsel of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimits choice; provided, however, that such settlement does not impose any obligation or burden on the other party Party may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, the Accused Party agrees to keep the other Party reasonably informed of all material developments in connection with any such Infringement Action for which the Accused Party exercises its right to direct and control the defense. The Accused Party agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the rights or interests of the other Party, without the prior written consent of the other party (Party, which consent shall not be unreasonably withheld)withheld or delayed. The party controlling Subject to Article 11, if the Accused Party does not exercise its right to direct and control the defense of any Third an Infringement Action that is brought against the other Party, then the other Party Infringement Claim shall have such right and it shall agree to keep the other party, at its request, materially Accused Party reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the status and progress rights or interests of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim Accused Party, without the prior written consent of the party controlling such defense. The non-controlling partyAccused Party, its employees, agents and Affiliates which shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall not be obligated to indemnify the other party hereunder for modification unreasonably withheld or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3delayed.

Third Party Infringement Claims. In the event any claim (a) If either DexCom or action for Xxxxxxx is put on notice that a Third Party is claiming infringement or misappropriation of any patent, trademark, or other its intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder rights (a “Third Party Infringement Claim”)) arising from Xxxxxxx’ or DexCom’s practice of the DexCom Technology, or if either Party determines, that the party first receiving such DexCom Technology or exercise thereof infringes upon the intellectual property rights of a Third Party, or if either DexCom or Xxxxxxx is put on notice of the any other Third Party Infringement Claim shall promptly notify claim that could reasonably result in any adverse effect to the DexCom Technology, DexCom and Xxxxxxx each agrees to give prompt notice to the other partyParty of any such claim or determination. With respect The Parties shall keep each other fully informed of all matters and updates relating to such claims or determinations; provided, that, where appropriate, one or more joint defense or other agreements between the Parties shall be entered, and neither Party will unreasonably withhold its consent to such an agreement. Nothing in this Section 8.2.4 or Xxxxxxx’ exercise of any rights herein (including but not limited to Xxxxxxx’ election to assume the defense of an Infringement Claim) shall limit in any manner any remedies that Xxxxxxx may have under this Agreement (including but not limited to the Third Party Infringement Claim, Seller right to be indemnified and Purchaser each hereby agrees that all Damages arising from held harmless by DexCom under Article 12) or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred at law or in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows:equity. (a) Except as provided in clause (b) belowNotwithstanding the indemnifying Party’s right to defend under Article 12, Seller in the event of an Infringement Claim relating to the Xxxxxxx Field or Xxxxxxx’ exercise of the Xxxxxxx License, or that could reasonably be expected to have an adverse effect on Xxxxxxx’ exercise of the Xxxxxxx License, Xxxxxxx shall be 100% responsible for all Damages arising from any Third Party have the right, but not the obligation, to defend such Infringement Claim, including any fees, royalties judicial or other amounts agreed administrative proceedings relating to such claims. Xxxxxxx shall be entitled to be paid reimbursed by DexCom for Xxxxxxx expenses (including but not limited to attorneys fees and court and expert costs) in settlement or upon judgment of connection with such defense to the Lawsuit or otherwise; and extent such expenses would be subject to any indemnification claim by Xxxxxxx under Section 12.2 (b) Purchaser “Third Party Action Costs”). Xxxxxxx shall be 100% responsible for all Damages arising from entitled to deduct any Third Party Infringement Claim with respect Action Costs from any amounts payable by Xxxxxxx to DexCom under this Agreement. In addition, in the event that Xxxxxxx acquires any rights or licenses to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense intellectual property of any Third Party which Xxxxxxx determines is necessary to continue to exercise and enjoy fully the Xxxxxxx License, Xxxxxxx shall be entitled to offset any license fees, royalties and compensation paid by Xxxxxxx in obtaining and exercising such Third Party rights in accordance with Section 7.5.3. In the event that Xxxxxxx elects not to defend such Infringement Claim, DexCom shall defend Xxxxxxx and its Affiliates from such Infringement Claim described in clause to the extent required by the provisions of Article 12 hereof. (bc) With respect to all Infringement Claims other than the Infringement Claims covered under Section 8.2.4(b) above, without Xxxxxxx’x prior written consent, DexCom shall not, and shall not permit its Affiliates or licensees to, take any action that could reasonably result in an adverse effect on Xxxxxxx’x exercise of the Xxxxxxx License in the Xxxxxxx Field under this Agreement. The party controlling If at any time any new claims or disclosures relating to an Infringement Claim are made that could reasonably be expected to have an adverse effect on Xxxxxxx’ exercise of the Xxxxxxx License, Xxxxxxx shall have the right upon notice to DexCom to assume the defense of any Third Party such Infringement Claim shall have in the sole right manner provided for under Section 8.2.4(b) above. (d) Any settlement or consent to defend or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party an adverse judgment relating to an Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated subject to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3.12.3 below

Third Party Infringement Claims. In Each Party will promptly notify the event other Party if a Third Party brings any claim Action alleging patent infringement by Novartis or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser Arvinas or any of their respective Affiliates because ofor Sublicensees with respect to the Development, Manufacture or Commercialization of any Licensed Product (any such action, an “Infringement Claim”) in anticipation ofthe Territory. As between the Parties, (a) Novartis will have the manufacture sole right, but not the obligation, to control the defense and supply of Product by Seller response to Purchaser hereunder, or the marketing, sale or distribution of any such Product to Purchaser Customers Infringement Claim in the Territory by Purchaser hereunder (a “Third Party Infringement Claim”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With with respect to the Third Party Infringement ClaimNovartis’ and its Affiliates’ and Sublicensees’ activities, Seller at [**], and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) belowArvinas will have the sole right, Seller shall be 100% responsible for all Damages arising from but not the obligation, to control the defense and response to any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party such Infringement Claim with respect to Arvinas’ or its Affiliates’ activities, at [**]. Upon the use request of Purchaser Trademarks. Each party agrees the Party controlling the response to indemnify the Infringement Claim, [**], the other party Party will reasonably cooperate with the controlling Party in the reasonable defense of such Infringement Claim. The other Party will have the right to ensure that Damages arising from consult with the controlling Party concerning any Third Party Infringement Claim are allocated and to participate in accordance with clauses (a) and (b) abovebe represented by independent counsel [**] in any associated litigation. Unless otherwise agreed to by If the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third is brought against both Parties, then each Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall will have the sole right to defend or settle any such Third Party against the Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on . The Party defending an Infringement Claim under this Section 10.5 will (i) consult with the other party without Party as to the prior written consent strategy for the prosecution of such defense, (ii) consider in good faith any comments from the other party Party with respect thereto and (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall iii) keep the other party, at its request, materially Party reasonably informed of the status any material steps taken and progress provide copies of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling all material documents filed, in connection with such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) Party controlling the defense of any Third Party against an Infringement Claim in will have the investigation and defense right to settle such Infringement Claim on terms deemed reasonably appropriate by such Party, provided, that, such settlement shall not incur liability of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification Party or misuse otherwise adversely affect the rights of the Product by other Party, without the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3Party’s prior written consent.

Third Party Infringement Claims. In the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “"Third Party Infringement Claim”"), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim without the prior written consent of the party controlling such defense. The non-controlling party, its employees, agents and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3.

Third Party Infringement Claims. In If the event any claim Manufacture, use or action for sale of the Licensed Products in the Field in the 3D Medicines Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement of any patent, trademark, against Aravive or other intellectual property right shall be made 3D Medicines (or brought by a third party against Seller, Purchaser or any of their respective Affiliates because ofAffiliates, licensees or in anticipation ofSublicensees) (collectively, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect Subject to Article 11, the Third Party for which the Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to Action is brought against (the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment“Accused Party”) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed have the right to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) direct and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party such Infringement Claim described in clause (b) above. The party controlling the defense Action, at its own expense with counsel of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimits choice; provided, however, that such settlement does not impose any obligation or burden on the other party Party may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, the Accused Party agrees to keep the other Party reasonably informed of all material developments in connection with any such Infringement Action for which the Accused Party exercises its right to direct and control the defense. The Accused Party agrees not to settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the rights or interests of the other Party, without the prior written consent of the other party (Party, which consent shall not be unreasonably withheld)withheld or delayed. The party controlling Subject to Article 11, if the Accused Party does not exercise its right to direct and control the defense of any Third an Infringement Action that is brought against the other Party, then the other Party Infringement Claim shall have such right and it shall agree to keep the other party, at its request, materially Accused Party reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would materially adversely affect the status and progress rights or interests of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim Accused Party, without the prior written consent of the party controlling such defense. The non-controlling partyAccused Party, its employees, agents and Affiliates which shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall not be obligated to indemnify the other party hereunder for modification unreasonably withheld or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3delayed.

Third Party Infringement Claims. In If the event any claim Development, Manufacture, or action for infringement Commercialization of any patentLicensed Product in the Field in the Hansoh Territory pursuant to this Agreement results in a claim, trademark, suit or other intellectual property right shall be made proceeding alleging patent infringement against Keros or brought by a third party against Seller, Purchaser Hansoh (or any of their respective Affiliates because ofAffiliates, licensees or in anticipation ofsublicensees) (collectively, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim Hansoh shall have the sole right right, but not the obligation, to defend or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status direct and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling control the defense of such Third Party Infringement Claim Action, at its own expense with counsel of its choice; provided, however, that Keros may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, Hansoh agrees to keep Keros reasonably informed of all material developments in connection with any such Third Party Infringement Action for which Hansoh exercises its right to direct and control the defense. Hansoh agrees not to settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would materially adversely affect the rights or interests of Keros, without the prior written consent of the party controlling such defenseKeros, which shall not be unreasonably withheld or delayed. The non-controlling party, If Hansoh does not exercise its employees, agents right to direct and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling control the defense of a Third Party Infringement Action that is brought against Hansoh, then Keros shall have such right at its own expense and to use counsel of its choice, and it shall agree to keep Hansoh reasonably informed of all material developments in connection with such Third Party Infringement Action, and it shall not settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would materially adversely affect the rights or interests of Hansoh, without the prior written consent of Hansoh, which shall not be unreasonably withheld or delayed. With respect to any Third Party Infringement Claim Action in the investigation and defense of such Hansoh Territory, the Party controlling the response to the Third Party Infringement ClaimAction shall [***]. Notwithstanding In the aboveevent of any recovery in connection with a Third Party Infringement Action, and by way the Parties shall allocate any such recovery in accordance with Section 9.4(e)(i)-(ii), where, solely for the purposes of clarificationrecovery allocation under this Section 9.5, neither party the controlling Party under this Section 9.5 shall be obligated to indemnify deemed an “Enforcing Party” and the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 applicable Third Party Infringement Action resulting in such recovery shall be notwithstanding any conflicting provisions set forth deemed an “Enforcement Action” as described in this Agreement, including Sections 17.1, 17.2 and 17.3Section 9.4(e)(i)-(ii).

Third Party Infringement Claims. In Any Third Party Claims, to the event any claim extent arising out of or action for resulting from infringement of any patentThird Party intellectual property rights, trademarkincluding Patents, by the Exploitation of the Novartis Licensed Products (x) by or on behalf of Novartis (or its Affiliates or (sub)licensees) pursuant to this Agreement or the Supply Agreement, or other intellectual property right shall be made (y) by or brought by a third party against Seller, Purchaser on behalf of Fluidigm (or any of their respective its Affiliates because of, or (sub)licensees) in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, performing its obligations under this Agreement or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder Supply Agreement (a “Third Party Infringement ClaimClaims”), the party first receiving and any Losses resulting from or arising out of or in connection with any such notice of the Third Party Claim (such Losses, collectively, “Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgmentLosses”) shall be shared treated as follows: (a) Except as provided Novartis shall indemnify, defend and hold harmless each Fluidigm Party on demand, from and against any and all Third Party Infringement Losses arising out of or in clause (b) below, Seller shall be 100% responsible for all Damages arising connection with or resulting from any Third Party Infringement ClaimClaims, including to the extent arising or resulting from (i) any feesExcluded Cause, royalties [***] or other amounts agreed to be paid in settlement a breach by Novartis of this Agreement or upon judgment a breach by Novartis of the Lawsuit Supply Agreement, in each case in full or otherwise; and (bii) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use other cause, excluding a breach by Fluidigm of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to this Agreement or a breach by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense Fluidigm of any Third Party Infringement Claim described Knowledge representation in clause (b) above. The party controlling the defense Supply Agreement that the sale to Novartis of any Fluidigm Products does not infringe any intellectual property rights of Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement ClaimParties; provided, however, that in the case of clause (ii), such settlement does not impose obligation shall be limited so that Novartis bears only [***] of such Losses and Fluidigm bears [***] of such Losses. (b) Fluidigm shall indemnify, defend and hold harmless each Novartis Party on demand, from and against any obligation and all Third Party Infringement Losses arising out of or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of in connection with or resulting from any Third Party Infringement Claim shall keep Claims, to the extent arising or resulting from (i) a breach by Fluidigm of this Agreement or a breach by Fluidigm of any Knowledge representation in the Supply Agreement that the sale to Novartis of any Fluidigm Products does not infringe any intellectual property rights of Third Parties, in each case in full or (ii) any other partycause, at its requestexcluding any Excluded Cause, materially informed [***], or a breach by Novartis of this Agreement or a breach by Novartis of the status and progress Supply Agreement; provided, however, that in the case of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim clause (ii), such obligation shall be settled by the party who is not controlling the defense limited so that Fluidigm bears only [***] of such Third Party Infringement Claim without the prior written consent Losses and Novartis bears [***] of the party controlling such defenseLosses. The non-controlling party, its employees, agents [***] Information has been omitted and Affiliates shall reasonably cooperate filed separately with the party (Securities and its legal representatives) controlling Exchange Commission. Confidential treatment has been requested with respect to the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall be obligated to indemnify the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3omitted portions.

Third Party Infringement Claims. In If the event any claim Development, Manufacture, or action for infringement Commercialization of any patentLicensed Product in the Field in the Apollomics Territory pursuant to this Agreement results in a claim, trademark, suit or other intellectual property right shall be made proceeding alleging patent infringement against GlycoMimetics or brought by a third party against Seller, Purchaser Apollomics (or any of their respective Affiliates because ofAffiliates, licensees or in anticipation ofsublicensees) (collectively, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party Infringement Claim described in clause (b) above. The party controlling the defense of any Third Party Infringement Claim GlycoMimetics shall have the sole right right, but not the obligation, to defend or settle any such Third Party Infringement Claim; provided, however, that such settlement does not impose any obligation or burden on the other party without the prior written consent of the other party (which consent shall not be unreasonably withheld). The party controlling the defense of any Third Party Infringement Claim shall keep the other party, at its request, materially informed of the status direct and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling control the defense of such Third Party Infringement Claim Action, at its own expense with counsel of its choice; provided, however, that Apollomics may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, GlycoMimetics agrees to keep Apollomics reasonably informed of all material developments in connection with any such Third Party Infringement Action for which GlycoMimetics exercises its right to direct and control the defense. GlycoMimetics agrees not to settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would materially adversely affect the rights or interests of Apollomics, without the prior written consent of the party controlling such defenseApollomics, which shall not be unreasonably withheld or delayed. The non-controlling party, If GlycoMimetics does not exercise its employees, agents right to direct and Affiliates shall reasonably cooperate with the party (and its legal representatives) controlling control the defense of a Third Party Infringement Action that is brought against Apollomics, then Apollomics shall have such right at its own expense and to use counsel of its choice, and it shall agree to keep GlycoMimetics reasonably informed of all material developments in connection with such Third Party Infringement Action, and it shall not settle such Third Party Infringement Action, or make any admissions or assert any position in such Third Party Infringement Action, in a manner that would materially adversely affect the rights or interests of GlycoMimetics, without the prior written consent of GlycoMimetics, which shall not be unreasonably withheld or delayed. With respect to any Third Party Infringement Claim Action in the investigation and defense of such Apollomics Territory, the Party controlling the response to the Third Party Infringement ClaimAction shall bear all costs of such action. Notwithstanding In the aboveevent of any recovery in connection with a Third Party Infringement Action, and by way the Parties shall allocate any such recovery in accordance with Section 9.4(d)(i)-(iv), where, solely for the purposes of clarificationrecovery allocation under this Section 9.5, neither party the controlling Party under this Section 9.5 shall be obligated to indemnify deemed an “Enforcing Party” and the other party hereunder for modification or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 applicable Third Party Infringement Action resulting in such recovery shall be notwithstanding any conflicting provisions set forth deemed an “enforcement action” as described in this Agreement, including Sections 17.1, 17.2 and 17.3Section 9.4(d)(i)-(iv).

Third Party Infringement Claims. In If the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketingmanufacture, sale or distribution use of such Product to Purchaser Customers the Licensed Products in the Applicable Territory by Purchaser hereunder pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against SAMR or Aridis (a or their respective Affiliates, licensees or sublicensees) (collectively, “Third Party Infringement ClaimActions”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other partyParty hereto in writing. With respect SAMR shall have the right to the Third Party Infringement Claim, Seller direct and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows: (a) Except as provided in clause (b) below, Seller shall be 100% responsible for all Damages arising from any Third Party Infringement Claim, including any fees, royalties or other amounts agreed to be paid in settlement or upon judgment of the Lawsuit or otherwise; and (b) Purchaser shall be 100% responsible for all Damages arising from any Third Party Infringement Claim with respect to the use of Purchaser Trademarks. Each party agrees to indemnify the other party to ensure that Damages arising from any Third Party Infringement Claim are allocated in accordance with clauses (a) and (b) above. Unless otherwise agreed to by the parties, Seller shall control the defense any Third Party Infringement Claim described in clause (a) above and Purchaser shall control the defense of any Third Party such Infringement Claim described in clause (b) above. The party controlling the defense Action, at its own expense with counsel of any Third Party Infringement Claim shall have the sole right to defend or settle any such Third Party Infringement Claimits choice; provided, however, that Aridis may participate in the defense and/or settlement thereof, at its own expense with counsel of its choice. In any event, SAMR agrees to keep Aridis reasonably informed of all material developments in connection with any such settlement does Infringement Action for which SAMR exercises its right to direct and control the defense. SAMR agrees not impose to settle such Infringement Action, or make any obligation admissions or burden on assert any position in such Infringement Action, in a manner that, as Aridis notifies SAMR would materially adversely affect the other party rights or interests of Aridis, without the prior written consent of the other party (Aridis, which consent shall not be unreasonably withheld)withheld or delayed. The party controlling If SAMR does not exercise its right to direct and control the defense of an Infringement Action that is brought against SAMR, then Aridis shall have such right and it shall agree to keep SAMR reasonably informed of all material developments in connection with such Infringement Action and it shall not settle such Infringement Action, or make any Third Party admissions or assert any position in such Infringement Claim shall keep the other partyAction, at its requestin a manner that would, as Aridis notifies SAMR, materially informed adversely affect the rights or interests of the status and progress of the defense of the Third Party Infringement Claim. No Third Party Infringement Claim shall be settled by the party who is not controlling the defense of such Third Party Infringement Claim SAMR, without the prior written consent of the party controlling such defense. The non-controlling partySAMR, its employees, agents and Affiliates which shall reasonably cooperate with the party (and its legal representatives) controlling the defense of any Third Party Infringement Claim in the investigation and defense of such Third Party Infringement Claim. Notwithstanding the above, and by way of clarification, neither party shall not be obligated to indemnify the other party hereunder for modification unreasonably withheld or misuse of the Product by the other party or by wholesalers or the customers of either party. The provisions of this Section 17.4 shall be notwithstanding any conflicting provisions set forth in this Agreement, including Sections 17.1, 17.2 and 17.3delayed.