Non-Infringement To the Company’s Knowledge, there is no unauthorized use, unauthorized disclosure, infringement, misappropriation or other violation of any Company-Owned Intellectual Property by any third party, and neither the Company nor any Subsidiary has brought any Action or sent any notices to any third party regarding the foregoing. Neither the Company nor any Subsidiary has any Liability for infringement, misappropriation, or other violation of any Third-Party Intellectual Property. The operation of the Company’s business, including (i) the design, development, manufacturing, reproduction, marketing, licensing, sale, offer for sale, importation, distribution, provision or use of any Company Product or Company-Owned Intellectual Property and (ii) the Company’s use of any product, device, process or service used in the Company’s business as previously conducted, currently conducted and as proposed to be conducted by the Company, has not, does not and will not infringe (directly or indirectly, including via contribution or inducement), misappropriate or otherwise violate any Third-Party Intellectual Property, breach any terms of service, click-through agreement or any other agreement or rules, policies or guidelines applicable to use of such Third-Party Intellectual Property, and does not constitute unfair competition or unfair trade practices under the Law of any jurisdiction in which Company conducts its business or in which Company Products are manufactured, marketed, distributed, licensed or sold (and there is no basis for any such claim). Neither the Company nor any Subsidiary has been sued in any Action or received any written communications (including any third-party reports by users) alleging that the Company or any Subsidiary has infringed, misappropriated, or otherwise violated or, by conducting its business, would infringe, misappropriate, or otherwise violate any Intellectual Property of any other Person or entity. No Company Intellectual Property or Company Product is subject to any Action, Order, settlement agreement or right that restricts in any manner the use, transfer or licensing thereof by the Company, any Subsidiary, or that may affect the validity, use or enforceability of any Company Intellectual Property.
Third Party Infringement (a) In the event that either ALGORX or BRIDGE becomes aware of any product made, used, imported, offered for sale or sold in the Territory in the Field which it believes to infringe a BRIDGE Patent Right or constitute a misappropriation of BRIDGE Know-How in the Field, such Party (the "Notifying Party") shall promptly advise the other Party of all the relevant facts and circumstances known by the Notifying Party in connection with the infringement or misappropriation.
(b) The Parties agree that ALGORX shall have the first right, at its own expense, but not the obligation, to enforce any BRIDGE Patent Rights or BRIDGE Know-How against such infringement or misappropriation. BRIDGE shall fully cooperate with ALGORX with respect to the investigation and prosecution of such alleged infringement or misappropriation including consenting to the joining of BRIDGE, at ALGORX expense, as a party to such action, as ALGORX deems necessary or appropriate.
(c) BRIDGE shall have the right (at its own expense), but not the obligation, to enforce, and ALGORX does hereby grant to BRIDGE the right to enforce, any BRIDGE Patent Rights or BRIDGE Know-How against such infringement or misappropriation, and ALGORX shall fully cooperate with BRIDGE with respect to the investigation and prosecution of such alleged infringement or misappropriation including consenting to the joining of BRIDGE, at BRIDGE expense, as a Party to such action, if necessary. BRIDGE may, in its sole discretion, exercise this right if:
(i) ALGORX shall fail, within six (6) months after notifying BRIDGE or receiving notice from BRIDGE of the infringement, to institute an action or take other substantial measures to axxxx such alleged infringement, or
(ii) ALGORX earlier notifies BRIDGE in writing that ALGORX does not plan to terminate such infringement or institute such action.
(d) The Party prosecuting such infringement action shall have the right to control such litigation and shall bear all legal expenses (including court costs and legal fees and expenses), including settlement thereof; provided, however that no settlement or consent judgment or other voluntary final disposition of any infringement action brought by a Party pursuant to this Article 9.2 may be entered into without the prior written consent of the other Party if such settlement would require the other Party to be subject to an injunction or to make a monetary payment or would restrict the claims in or admit any invalidity of any of the BRIDGE Patent Rights.
(e) Any damages or costs recovered by a Party in connection with any action filed by it as permitted hereunder shall be allocated as follows: (i) first, to reimburse the prosecuting Party for its own costs and expenses incurred in prosecuting such action (including reasonable attorneys' fees), (ii) second, to reimburse the other Party for its out-of-pocket costs and expenses reasonably incurred (including reasonable attorneys' fees) by it in assisting such Party in that action, and then (iii) sharing the remainder as follows:
(1) if ALGORX is prosecuting the action, BRIDGE shall be entitled to a royalty on the defendant's infringing sales under BRIDGE's patent rights, as specified in column A of the table in Article 5.1 (or, if the claim is for misappropriation of BRIDGE Know-How, the royalty specified in column B of that table), and ALGORX shall retain the balance; and (2) if BRIDGE is prosecuting the action, ALGORX shall be entitled to that portion allocable to its lost profits or defendant's profits, whichever is less, from the defendant's infringing sales and Bridge shall retain the balance. In the event that the Parties agree to prosecute such infringement jointly, the Parties will split all damages or costs recovered equally, after first reimbursing each Party pari passu for any out-of-pocket expenses hereunder.
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.
Infringement 8.1 The parties shall promptly notify each other of any suspected infringement of any Licensed Patents.
i. During the Term, COMPANY shall, at its expense, have the right to enforce any Licensed Patents against such infringer and may defend any declaratory judgment action brought against it alleging the invalidity of a Licensed Patent. COMPANY agrees to defend LICENSOR against any counterclaim brought against it in such action. LICENSOR shall cooperate with COMPANY in such effort, and EMORY agrees that it will, at COMPANY’S expense, be joined as a party to such action, if necessary. It is LICENSOR’s intention that COMPANY be able to prosecute an alleged infringement without including LICENSOR as a party to the litigation, should LICENSOR choose at its discretion not to be a party to the litigation, and as such herein grants COMPANY the rights in Licensed Patents to xxx an infringer alone. Should GTRC choose not to join in such action and COMPANY is unable to initiate or prosecute such action in its name only by a ruling of a court of competent jurisdiction, GTRC shall assign to EMORY only such rights to the applicable Licensed Patent that may be necessary to permit COMPANY to initiate or prosecute such action without GTRC, provided that COMPANY shall be responsible for all reasonable attorney’s fees and costs associated with LICENSOR’s participation in such suit. COMPANY shall reimburse LICENSOR for any costs incurred, including reasonable attorneys’ fees, as part of any action brought by COMPANY.
ii. COMPANY shall not enter into any settlement agreement, voluntary dismissal, consent judgment or other voluntary final disposition in any action regarding the Licensed Patents, without the express written consent of LICENSOR if such agreement would or would be reasonably likely to have a material adverse effect on the validity or enforceability of the Licensed Patents, which consent shall not be unreasonably withheld, conditioned or delayed. Consent shall be deemed given hereunder if no objection is provided in writing within fifteen days of delivery of the request for such consent. Any recovery or settlement received (whether for punitive or exemplary damages, or any other recovery or settlement received, including compensatory damages or damages based on loss or revenues (hereinafter referred to as “Recovery”)), shall first be used to reimburse the documented out-of-pocket costs and expenses incurred by COMPANY and LICENSOR in pursuing such action, and to the extent any portion of the balance of the Recovery represents compensatory damages, for example, compensation for loss of revenues, such portion shall be deemed to be the Sales of Licensed Products in the fiscal quarter received by COMPANY, and COMPANY shall pay to LICENSOR an amount representing the royalty which would have been paid by COMPANY in accordance with the provisions of Article 3.2 had such portion of the Recovery been accrued by COMPANY as Sales. Any remaining amounts of such Recovery that represents, for example, additional damages (such as enhanced or punitive damages) shall be paid (a) [* * *] to the extent the Recovery is attributable to infringement in the United States of Licensed Patents and (b) otherwise [* * *].
8.2 If COMPANY fails, within [* * *] days after receiving notice of a potential infringement that would or would be reasonably likely to have a material adverse effect the validity or enforceability of the Licensed Patents , to institute an action against such infringer or notifies LICENSOR that it does not plan to institute such action, then LICENSOR shall have the right to do so at its own expense unless COMPANY notifies LICENSOR that COMPANY is engaged in bona fide negotiations for the grant to the alleged infringer of a sublicense. COMPANY shall cooperate with LICENSOR in such effort including being joined as a party to such action if necessary. LICENSOR shall be entitled to retain all damages or costs awarded in such action. Should either LICENSOR or COMPANY be a party to a suit under the provisions of this Article and thereafter elect to abandon such suit, the abandoning party shall give timely notice to the other party who may, at its discretion, continue prosecution of such suit.
Infringement Claims You may submit an infringement claim notice to us at our Contact Formavailable here if you have a good faith belief that Your Content has been copied and made accessible through the Services (including as a part of the Service Content or Third Party Content) in violation of your Inte lectual Property Rights. A copyright infringement claims notice must include at (i) the identification of such a legedly infringing materials, including information su ficient for us to locate it within our Services, ( i) a demand that such a legedly infringing materials be removed or access disabled, ( i) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (iv) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is a legedly infringed; (v) contact information for you, such as address, phone number, and, if available, an email address; and (vi) must be signed by you or the person authorized to act on behalf of the owner of the a legedly infringed work (the “Notice Requirements”). Pursuant to 17 U.S.C. 512(c)(3), if the above Notice Requirements are not met, we may disregard the notice. Pursuant 17 U.S.C. 512(f), be advised that knowingly making a material misrepresentation that online material or activity is infringing or that material or activity was removed or disabled by mistake or misidentification, may subject you to heavy civil penalties. These penalties include monetary damages, including costs and attorneys' fees, incurred by the a leged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider who is injured by your misrepresentation. If we make a decision to remove Your Content in response to a complaint, we may notify you and provide you with contact information for the complaining party. You may also object to such determination by writing to our designated agent, which must contain the fo lowing information pursuant to 17 U.S.C. 512(g)(3), (i) your physical or electronic signature; ( i) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; ( i) a statement under penalty of perjury that the you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (iv) your name, address, phone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are located outside of the United States, for any judicial district in which the service provider may be found, and that you wil accept service of process from the person who provided notification under subsection 17 U.S.C. 512(c)(1)(C) or an agent of such person.
Claimed Infringement Each Party will promptly notify the other Party if a Third Party brings any Action alleging patent infringement by Lian or Landos or any of their respective Affiliates or Sublicensees with respect to the Development, Manufacture or Commercialization of any Licensed Product or Joint Patent Rights (any such Action, an “Infringement Claim”) in the Territory. Lian will have the right, but not the obligation, to control the defense and response to any such Infringement Claim in the Territory with respect to Lian’s activities, at Lian’s sole cost and expense, and Landos will have the right, at its own expense, to be represented in any such Infringement Claim in the Territory by counsel of its own choice. Landos will have the sole right, but not the obligation, to control the defense and response to any such Infringement Claim with respect to Landos’ activities, including any such Infringement Claim in the Territory or outside of the Territory. Upon the request of the Party controlling the response to the Infringement Claim, the other Party will reasonably cooperate with the controlling Party in the reasonable defense of such Infringement Claim. The other Party will have the right to consult with the controlling Party concerning any Infringement Claim and to participate in and be represented by independent counsel in any associated litigation. If the Infringement Claim is brought against both Parties, then each Party will have the right to defend against the Infringement Claim. The Party defending an Infringement Claim under this Section 7.4 (Claimed Infringement) will (a) consult with the other Party as to the strategy for the prosecution of such defense, (b) consider in good faith any comments from the other Party with respect thereto and (c) keep the other Party reasonably informed of any material steps taken and provide copies of all material documents filed, in connection with such defense. The Party controlling the defense against an Infringement Claim will have the right to settle such Infringement Claim on terms deemed reasonably appropriate by such Party, provided, that, neither Party will have the right to settle any Infringement Claim under this Section 7.4 (Claimed Infringement) in a manner that diminishes the rights or interests of the other Party under this Agreement without the consent of such other Party, which consent will not be unreasonably withheld.
Patent Infringement 9.1 If either Party learns of the infringement of a Prospective Patent, in any jurisdiction within the Territory, it shall so inform the other Party in writing, including any evidence of such infringement. University may not notify a third party of the infringement of a Prospective Patent, save for its legal advisers, without first obtaining written consent of Licensee, which consent shall not be unreasonably denied or delayed. Both Parties shall use their reasonable commercial efforts in cooperation with each other to terminate such infringement.
9.2 Licensee shall have the sole right, but not the obligation, to institute, prosecute and control any action, suit or proceeding to enforce the Prospective Patent with respect to infringement of the Prospective Patent and to defend any declaratory judgment with respect thereto, in each case within the Territory (“Action”). University hereby agrees to assist and cooperate with Licensee, at Licensee’s expense (including payment for University’s expert’s time, and other expenses so long as such expenses are properly documented), to enable Licensee to prosecute and maintain such Action. University’s agreement to assist Licensee includes, at Licensee’s reasonable request and when it is required by law, government regulation or court order, University’s agreement to join or to procure its Affiliates to join as a nominal party to achieve sufficient legal standing for Licensee to prosecute and maintain such Action provided that, if University participates in the Action only as a nominal party, University shall have no responsibility (other than to join as a nominal party) nor be liable for any costs or expenses in relation to or arising from such Action. For clarity, such liabilities for costs or expenses shall be the responsibility of Licensee. If Licensee invites University or its Affiliates to take a more active role (other than as a nominal party) in an Action as a co-party, University shall have its sole discretion to decide joining or not and on terms to be agreed with Licensee on a case by case basis. Licensee shall have the right to settle any Action or consent to an adverse judgment thereto, in its sole discretion, except that Licensee may not settle such action by agreeing to the invalidation of a Prospective Patent or any claim therein without University’s prior written consent. Any recovery obtained as a result of an Action, whether by judgment, award, decree or settlement, shall first be applied to reimbursement of Licensee’s expenses in bringing such suit or proceeding (including any attorneys, expert and court fees), and the balance shall be considered to be Net Sales Value, and subject to the royalty payments at [***]% as set forth in Clause 5, and the remaining balance shall be recovered by Licensee as damages.
9.3 Subject to Clause 9.2, if University commences or defends any suit or proceedings on its own account, University shall do so at its own expense. University shall have the right to settle any such action or consent to an adverse judgment thereto, in its sole discretion, except that University may not settle such action that may impair, damage or otherwise adversely affect the licence granted to Licensee under Clause 2.1, Licensee’s use of such licence, any Licensed Product, or any of Licensee’s rights/obligations hereunder, without Licensee’s prior written consent, which consent may not be unreasonably withheld or delayed. Any recovery obtained as a result of such action, whether by judgment, award, decree, or settlement, shall first be applied to reimbursement of University’s expenses in bringing such suit or proceeding (including expert, attorneys and court fees), and the balance shall be distributed between University and Licensee at a ratio of 65:35 in all cases which do not result in a sub-licence to a third party. If a suit or proceedings result in a sub-licence to a third party, then any recovery, whether by judgment, award, decree, or settlement, shall first be applied to reimbursement of University’s expenses in bringing such suit or proceeding (including expert, attorneys and court fees), and the balance to be paid to Licensee, provided that such balance shall be shared between University and Licensee according to the provisions in Clause 5.3 herein.
No Infringement To the best of the Company's knowledge, the Company has not violated or infringed and is not currently violating or infringing, and the Company has not received any communications alleging that the Company (or any of its employees or consultants) has violated or infringed, any Intellectual Property of any other person or entity, to the extent that any such violation or infringement, either individually or together with all other such violations and infringements, would have a Material Adverse Effect.
Intellectual Property Infringement The Supplier warrants that the use or supply by UNDP of the goods sold under this Purchase Order does not infringe any patent, design, trade-name or trade-mark. In addition, the Supplier shall, pursuant to this warranty, indemnify, defend and hold UNDP and the United Nations harmless from any actions or claims brought against UNDP or the United Nations pertaining to the alleged infringement of a patent, design, trade-name or trade-mark arising in connection with the goods sold under this Purchase Order.
Non-Infringement Warranty Seller warrants that all Goods and Services do not and shall not infringe any patent, trademark, copyright, trade secret or other intellectual property right of a third party.
