Common use of Third Party Technology Clause in Contracts

Third Party Technology. If a Party identifies (or if a Third Party notifies a Party of) any Patent owned or controlled by a Third Party that it reasonably believes Covers the Development, Commercialization, other use or manufacture (including processing) of any Product for use in the Field in the Territory, then such Party (the “Noticing Party”) shall provide notice of such Third Party’s Patent to the other Party (the “Noticed Party”) through the Noticed Party’s members on the JSC. In addition, the Noticing Party shall disclose to the Noticed Party through its members on the JSC other relevant information with respect to such Third Party Patent in the Noticing Party’s control; provided that prior to the disclosure of such information, the Parties shall enter into a joint interest agreement in order to protect the attorney-client and other similar privileges and confidentiality with respect to such matters on standard and customary terms and conditions (any, a “Joint Interest Agreement”). In such case, the JSC shall promptly (and in no case later than thirty (30) days after the date of such notice) meet to determine the appropriate strategy(ies) with respect to such Third Party Patent (including seeking appropriate licenses or other rights or developing appropriate work arounds with respect thereto). In the event the JSC agrees to seek a license or other right under such Patent from the Third Party, Angioblast shall take the lead with respect thereto; however, it shall keep Cephalon reasonably informed with respect to the negotiation of any such license or right including notifying Cephalon in advance of meetings with such Third Party and allow Cephalon to reasonably participate therein. Additionally, Angioblast shall provide Cephalon a copy of any proposed agreement with respect to such Patent prior to its execution for its review and comment, and Angioblast will consider such comments in good faith. Angioblast shall ensure that under any such agreement it will Control (in accordance with Section 1.19) such Patent so that such Patent shall be an Angioblast Patent for purposes of this Agreement. Each Party shall be responsible [***] of all amounts payable to such Third Party as a result of Angioblast’s entering into such license agreement or either Party’s exercise of any rights under such Patents (including any milestones and royalties) in accordance with the terms and conditions of this Agreement.

Third Party Technology. If a (a) The licenses granted under Sections 10.1 and 10.2 include rights licensed to either Party identifies (or if a by Third Parties. Any sublicense of Third Party notifies technology hereunder shall be subject to the terms and conditions of the license under which such sublicense is granted. The Parties acknowledge that the Corgentech Technology includes technology from The Xxxxxxx and Women's Hospital, Inc. ("BWH") pursuant to the BWH License and the Xxxxxx Xxxxxxxx Junior University ("Stanford") pursuant to the Stanford License. In accordance with Section 13.3 of the BWH License, Articles 7, 8 and 9 of the BWH License are expressly incorporated into this Agreement for the benefit of BWH. In accordance with Section 13.3 of the Stanford License, Articles 7, 8 and 9 of the Stanford License are expressly incorporated into this Agreement for the benefit of Stanford. BMS has reviewed the BWH License and Stanford License and agrees to comply with any applicable terms thereof disclosed to it. (b) The Parties may become aware of rights held by Third Parties that may be desirable to obtain by license or other means for the development, manufacture, use or sale of Licensed Product. In such event, the JSC will determine whether rights under such technology should be sought in the Co-Promotion Territory, and the Parties will determine whether such rights should be sought in the Royalty Territory as provided in Section 6.7(b). (i) If the development, manufacture or Commercialization of the Licensed Product by BMS or Corgentech in the Co-Promotion Territory in accordance with this Agreement would infringe any Third Party Patent right (other than a Patent to which BMS is granted a license or sublicense pursuant to this Agreement) or either Party of) believes it necessary or desirable to obtain a license under such Third Party's Patent rights to avoid any Patent owned claims or controlled litigation concerning infringement by a Third Party that it reasonably believes Covers the Development, Commercialization, other use against BMS or manufacture (including processing) of any Product for use in the Field in the Territory, then such Party (the “Noticing Party”) shall provide notice of such Third Party’s Patent to the other Party (the “Noticed Party”) through the Noticed Party’s members on the JSC. In addition, the Noticing Party shall disclose to the Noticed Party through its members on the JSC other relevant information with respect to such Third Party Patent in the Noticing Party’s control; provided that prior to the disclosure of such information, the Parties shall enter into a joint interest agreement in order to protect the attorney-client and other similar privileges and confidentiality with respect to such matters on standard and customary terms and conditions (any, a “Joint Interest Agreement”). In such case, the JSC shall promptly (and in no case later than thirty (30) days after the date of such notice) meet to determine the appropriate strategy(ies) with respect to such Third Party Patent (including seeking appropriate licenses or other rights or developing appropriate work arounds with respect thereto). In the event the JSC agrees to seek a license or other right under such Patent from the Third Party, Angioblast shall take the lead with respect thereto; however, it shall keep Cephalon reasonably informed Corgentech with respect to the negotiation Co-Promotion Territory, then the Party first having such knowledge or opinion shall promptly bring such matter to the attention of the other Party, and the Parties shall discuss the basis for such alleged infringement. (ii) If either Party (the "Objecting Party") does not agree that it is necessary or desirable to obtain such a license to avoid infringing a Third Party's Patent rights, then, subject to Section 10.4(c)(iii), neither Party shall seek such license and the Objecting Party shall indemnify, defend and hold the other Party harmless from and against any and all from any claims by such Third Party that the manufacture, use or sale of Licensed Products in the Co-Promotion Territory infringes such Third Party's Patent rights. If the Objecting Party is unable to or fails to indemnify, defend or hold the other Party harmless as provided in such Section 15.1(b) from claims arising as a result of the Objecting Party's decision not to pursue a license pursuant to this Section 10.4(c), then the other Party may offset or credit any Losses incurred by any BMS Indemnitee (if Corgentech is the Objecting Party) or Corgentech Indemnity (if BMS is the Objecting Party) in connection therewith against any payments due to such Objecting Party under this Agreement without any cap on the amount of the offset or credit. (iii) If the Parties agree that it is necessary to seek such a license, then Corgentech shall have the first right to take the lead on negotiating the terms of any such license. If Corgentech does not take such lead, then BMS may do so. The Parties shall cooperate in negotiating the terms of such license or right including notifying Cephalon in advance of meetings with such Third Party and allow Cephalon shall obtain the consent of the other Party prior to reasonably participate therein. Additionally, Angioblast shall provide Cephalon a copy making any proposal regarding the terms of any proposed such license. If one or both Parties enter into such a Third Party license agreement, then (A) any amount payable by BMS to Corgentech under Section 3.8 or Section 6.4 in respect of Profit or Loss or Development Costs will be reduced by [*] of the amount of any royalties, milestones, license fees and similar payments reasonably allocable to the development, manufacture, use or sale of the Licensed Product in the Co-Promotion Territory that are payable by BMS to such Third Party under such agreement with respect to such Patent prior to its execution the development, manufacture, use or sale of the Licensed Product for its review and comment, and Angioblast use or sale in the Co-Promotion Territory or (B) BMS will consider such comments in good faith. Angioblast shall ensure that under any such agreement it will Control (in accordance with Section 1.19) such Patent so that such Patent shall be an Angioblast Patent reimburse Corgentech for purposes of this Agreement. Each Party shall be responsible [***] of all amounts the amount of any royalties, milestones, license fees and similar payments reasonably allocable to the development, manufacture, use or sale of the Licensed Product in the Co-Promotion Territory that are payable by Corgentech to such Third Party as a result of Angioblast’s entering into such license agreement or either Party’s exercise of any rights under such Patents (including any milestones and royalties) agreement with respect to the development, manufacture, use or sale of the Licensed Product for use or sale in accordance with the terms and conditions of this AgreementCo-Promotion Territory.

Third Party Technology. If a Party identifies (or if a Third Party notifies a Party of) any Patent owned or controlled by a Third Party that it reasonably believes Covers the Development, Commercialization, other use or manufacture (including processing) of any Product for use in the Field in the Territory, then such Party (the “Noticing Party”) shall provide notice of such Third Party’s Patent to the other Party (the “Noticed Party”) through the Noticed Party’s members on the JSC. In addition, the Noticing Party shall disclose to the Noticed Party through its members on the JSC other relevant information with respect to such Third Party Patent in the Noticing Party’s control; provided that prior to the disclosure of such information, the Parties shall enter into a joint interest agreement in order to protect the attorney-client and other similar privileges and confidentiality with respect to such matters on standard and customary terms and conditions (any, a “Joint Interest Agreement”). In such case, the JSC shall promptly (and in no case later than thirty (30) days after the date of such notice) meet to determine the appropriate strategy(ies) with respect to such Third Party Patent (including seeking appropriate licenses or other rights or developing appropriate work arounds with respect thereto). In the event the JSC agrees to seek a license or other right under such Patent from the Third Party, Angioblast shall take the lead with respect thereto; however, it shall keep Cephalon reasonably informed with respect to the negotiation of any such license or right including notifying Cephalon in advance of meetings with such Third Party and allow Cephalon to reasonably participate therein. Additionally, Angioblast shall provide Cephalon a copy of any proposed agreement with respect to such Patent prior to its execution for its review and comment, and Angioblast will consider such comments in good faith. Angioblast shall ensure that under any such agreement it will Control (in accordance with Section 1.19) such Patent so that such Patent shall be an Angioblast Patent for purposes of this Agreement. Each Party shall be responsible [***] * of all amounts payable to such Third Party as a result of Angioblast’s entering into such license agreement or either Party’s exercise of any rights under such Patents (including any milestones and royalties) in accordance with the terms and conditions of this Agreement.

Third Party Technology. If a Party identifies (or if a Third Party notifies a Party of) any Patent owned or controlled by a Third Party that it reasonably believes Covers the Development, Commercialization, other use or manufacture (including processing) of any Product for use in the Field in the Territory, then such Party (the “Noticing Party”) shall provide notice of such Third Party’s Patent to the other Party (the “Noticed Party”) through the Noticed Party’s members on the JSC. In addition, the Noticing Party shall disclose to the Noticed Party through its members on the JSC other relevant information with respect to such Third Party Patent in the Noticing Party’s control; provided that prior to the disclosure of such information, the Parties shall ** Portions of the Exhibit have been omitted and have been filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. enter into a joint interest agreement in order to protect the attorney-client and other similar privileges and confidentiality with respect to such matters on standard and customary terms and conditions (any, a “Joint Interest Agreement”). In such case, the JSC shall promptly (and in no case later than thirty (30) days after the date of such notice) meet to determine the appropriate strategy(ies) with respect to such Third Party Patent (including seeking appropriate licenses or other rights or developing appropriate work arounds with respect thereto). In the event the JSC agrees to seek a license or other right under such Patent from the Third Party, Angioblast shall take the lead with respect thereto; however, it shall keep Cephalon reasonably informed with respect to the negotiation of any such license or right including notifying Cephalon in advance of meetings with such Third Party and allow Cephalon to reasonably participate therein. Additionally, Angioblast shall provide Cephalon a copy of any proposed agreement with respect to such Patent prior to its execution for its review and comment, and Angioblast will consider such comments in good faith. Angioblast shall ensure that under any such agreement it will Control (in accordance with Section 1.19) such Patent so that such Patent shall be an Angioblast Patent for purposes of this Agreement. Each Party shall be responsible responsible[***] of all amounts payable to such Third Party as a result of Angioblast’s entering into such license agreement or either Party’s exercise of any rights under such Patents (including any milestones and royalties) in accordance with the terms and conditions of this Agreement.

Third Party Technology. If a (a) The licenses granted under Sections 10.1 and 10.2 include rights licensed to either Party identifies (or if a by Third Parties. Any sublicense of Third Party notifies technology hereunder shall be subject to the terms and conditions of the license under which such sublicense is granted. The Parties acknowledge that the Corgentech Technology includes technology from The Xxxxxxx and Women's Hospital, Inc. ("BWH") pursuant to the BWH License and the Xxxxxx Xxxxxxxx Junior University ("Stanford") pursuant to the Stanford License. In accordance with Section 13.3 of the BWH License, Articles 7, 8 and 9 of the BWH License are expressly incorporated into this Agreement for the benefit of BWH. In accordance with Section 13.3 of the Stanford License, Articles 7, 8 and 9 of the Stanford License are expressly incorporated into this Agreement for the benefit of Stanford. BMS has reviewed the BWH License and Stanford License and agrees to comply with any applicable terms thereof disclosed to it. (b) The Parties may become aware of rights held by Third Parties that may be desirable to obtain by license or other means for the development, manufacture, use or sale of Licensed Product. In such event, the JSC will determine whether rights under such technology should be sought in the Co-Promotion Territory, and the Parties will determine whether such rights should be sought in the Royalty Territory as provided in Section 6.7(b). (i) If the development, manufacture or Commercialization of the Licensed Product by BMS or Corgentech in the Co-Promotion Territory in accordance with this Agreement would infringe any Third Party Patent right (other than a Patent to which BMS is granted a license or sublicense pursuant to this Agreement) or either Party of) believes it [*] to obtain a license under such Third Party's Patent rights to avoid any Patent owned claims or controlled litigation concerning infringement by a Third Party that it reasonably believes Covers the Development, Commercialization, other use against BMS or manufacture (including processing) of any Product for use in the Field in the Territory, then such Party (the “Noticing Party”) shall provide notice of such Third Party’s Patent to the other Party (the “Noticed Party”) through the Noticed Party’s members on the JSC. In addition, the Noticing Party shall disclose to the Noticed Party through its members on the JSC other relevant information with respect to such Third Party Patent in the Noticing Party’s control; provided that prior to the disclosure of such information, the Parties shall enter into a joint interest agreement in order to protect the attorney-client and other similar privileges and confidentiality with respect to such matters on standard and customary terms and conditions (any, a “Joint Interest Agreement”). In such case, the JSC shall promptly (and in no case later than thirty (30) days after the date of such notice) meet to determine the appropriate strategy(ies) with respect to such Third Party Patent (including seeking appropriate licenses or other rights or developing appropriate work arounds with respect thereto). In the event the JSC agrees to seek a license or other right under such Patent from the Third Party, Angioblast shall take the lead with respect thereto; however, it shall keep Cephalon reasonably informed Corgentech with respect to the negotiation Co-Promotion Territory, then the Party first having such knowledge or opinion shall promptly bring such matter to the attention of the other Party, and the Parties shall discuss the basis for such alleged infringement. (ii) If either Party [*] to obtain such a license to avoid infringing a Third Party's Patent rights, then, subject to Section 10.4(c)(iii), [*] and [*]. If the Objecting Party is [*], then the other Party may [*] in connection therewith [*] under this Agreement [*]. (iii) If the Parties [*] to seek such a license, then [*] shall have the first right to take the lead on negotiating the terms of any such license. If [*] does not take such lead, then [*] may do so. The Parties shall cooperate in negotiating the terms of such license or right including notifying Cephalon in advance of meetings with such Third Party and allow Cephalon to reasonably participate therein. Additionally, Angioblast shall provide Cephalon a copy obtain the [*] making any proposal regarding the terms of any proposed such license. If one or both Parties enter into such a Third Party license agreement, then (A) any amount payable by BMS to Corgentech under Section 3.8 or Section 6.4 in respect of Profit or Loss or Development Costs will [*] of the amount of any [*] reasonably allocable to the [*] of the Licensed Product in the Co-Promotion Territory that are payable by BMS to such Third Party under such agreement with respect to such Patent prior to its execution for its review and comment, and Angioblast will consider such comments in good faith. Angioblast shall ensure that under any such agreement it will Control (in accordance with Section 1.19) such Patent so that such Patent shall be an Angioblast Patent for purposes of this Agreement. Each Party shall be responsible [***] of all amounts the Licensed Product for use or sale in the Co-Promotion Territory or (B) BMS will [*] of the amount of any [*] reasonably allocable to [*] the Licensed Product in the Co-Promotion Territory that are payable by Corgentech to such Third Party as a result of Angioblast’s entering into such license agreement or either Party’s exercise of any rights under such Patents (including any milestones and royalties) agreement with respect to [*] of the Licensed Product for use or sale in accordance with the terms and conditions of this AgreementCo-Promotion Territory.

Third Party Technology. If 9.2.1 Unless mutually agreed to by the Parties through the JSC or otherwise in a Party identifies separate signed writing, Accuray, its Affiliates, and its contractors shall not use any product, software, program materials, trade secrets, information, or other Technology in performing the Development Services or in any Deliverable in a manner that would require, for the exercise of any of CyberHeart’s rights pursuant to this Agreement using or based upon the Deliverables, a license that is not granted to CyberHeart in this Agreement (or in the case of Intellectual Property to the extent used to manufacture CyberKnife Components, in the Manufacturing and Supply Agreement), except to the extent such Technology has been expressly identified in the Statement of Work that has been agreed upon by the Parties in advance of the particular Development Services as Intellectual Property Rights for which a license will be needed. Unless otherwise stated in the Statement of Work, Accuray shall be and remain fully responsible for obtaining all necessary rights and licenses to include such Technology in the Deliverables and to the extent necessary to authorize CyberHeart to exercise all of its rights and licenses of the scope set forth in this Agreement under the Intellectual Property Rights concerning such Technology incorporated or used in the Deliverables, or in the making or use of such Technology. Unless otherwise agreed to by the Parties, CyberHeart shall not be obligated to pay, and Accuray shall be responsible for, any royalties and license fees in connection with such Technology and the terms of any license with any such party shall provide that CyberHeart shall not be responsible to Accuray or any third party for any breach by Accuray of such third party licenses. 9.2.2 Except as otherwise provided in Section 9.2.1, if a Third Party notifies a Party of) any Patent owned or controlled by a Third Party that it reasonably believes Covers the Development, Commercialization, other use or manufacture (including processing) of any Product for use in the Field in the Territory, then such Party (the “Noticing PartyGrantor”) shall provide notice of such Third Party’s Patent is to grant a sublicense or other right to the other Party (the “Noticed PartyGrantee”) through under this Agreement or the Noticed Party’s members on Manufacturing and Supply Agreement under Intellectual Property Rights in-licensed by the JSC. In additionGrantor from a non-Affiliate third party after the Effective Date that is subject to royalty or other payment obligations to such third party (“Third Party Technology”), then the Noticing Party shall disclose grant of such rights to the Noticed Party through its members on Grantee under this Agreement shall be subject to the JSC other relevant information Grantee agreeing in writing to pay the Grantor (i) any and all royalties payable to the third party with respect to such Third Party Patent in the Noticing PartyTechnology that become payable by reason of Grantee’s control; provided that prior to the disclosure exercise of such informationrights hereunder and (ii) that portion of any upfront license fees, the Parties shall enter into a joint interest agreement in order to protect the attorney-client milestone payments and other similar privileges and confidentiality with respect (non-royalty) amounts reasonably allocated to such matters on standard and customary terms and conditions the rights granted to the Grantee hereunder (any, a “Joint Interest Agreement”). In such case, taking into consideration the JSC shall promptly (and in no case later than thirty (30) days after the date benefits of such notice) meet to determine the appropriate strategy(ies) with respect to rights under such Third Party Patent (including seeking appropriate licenses or other rights or developing appropriate work arounds with respect theretoTechnology to each Party). In Upon request of the event Grantee, the JSC agrees to seek a license or other right under such Patent from the Third Party, Angioblast Grantor shall take the lead with respect thereto; however, it shall keep Cephalon reasonably informed with respect disclose to the negotiation of any such license or right including notifying Cephalon in advance of meetings with such Third Party and allow Cephalon to reasonably participate therein. AdditionallyGrantee a true, Angioblast shall provide Cephalon a copy of any proposed agreement with respect to such Patent prior to its execution for its review and commentcomplete, and Angioblast will consider correct written description of such comments in good faithpayment obligations. Angioblast shall ensure that under any such agreement it will Control (in accordance with Section 1.19) such Patent so that such Patent Any failure to agree upon an allocation shall be an Angioblast Patent for purposes of this Agreement. Each Party shall be responsible [***] of all amounts payable to such Third Party as a result of Angioblast’s entering into such license agreement or either Party’s exercise of any rights settled under such Patents (including any milestones and royalties) in accordance with the terms and conditions of this AgreementArticle 16.