Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties hereunder infringes or may infringe the intellectual property rights of such Third Party. Genentech shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Genentech’s activities under this Agreement at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Genentech fails to proceed in a timely fashion with regard to such defense, Curis shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Curis shall have the first right but not the obligation to control any defense of any such claim involving alleged infringement of Third Party rights by Curis’ activities under this Agreement at its own expense and by counsel of its own choice, and Genentech shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. If Curis fails to proceed in a timely fashion with regard to such defense, Genentech shall have the right but not the obligation to control any such defense of such claim at its own expense and by counsel of its own choice, and Curis shall have the right but not the obligation, at its own expense, to be represented in any such action by counsel of its own choice. Neither Party shall have the right to settle any infringement action under this Section 10.5 in a manner that diminishes the rights or interests of the other Party hereunder without the consent of such Party.
Infringement of Third Party Rights. 13.1 In the event that a Third Party institutes or threatens to institute a patent, trade secret or other infringement proceeding against either Party or its Affiliates during the Term, alleging that its or their manufacture, use or sale of the Product in the Territory infringes the Third Party’s Intellectual Property Rights (a “Third Party Action”), each Party shall promptly notify the other of the Third Party Action with such details as it has in its possession and the Parties shall promptly convene a meeting of the SC to discuss the best way to respond. *** Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.
13.2 Upon receipt of any such notice the SC shall discuss the potential infringement and to the extent necessary attempt to agree on a course of action. Such course of action may include:
(a) obtaining an appropriate license from the Third Party;
(b) contesting any claim or proceedings brought by the Third Party; or
(c) bringing a declaratory judgment action against such Third Party.
13.3 ZOGENIX shall have the first right but not the obligation, to take any action agreed upon by the Parties in respect of the Third Party Action. If within [***] days the Parties fail to agree upon an appropriate course of action through discussions of the SC, ZOGENIX may decide upon the course of action with respect to any Third Party Action and may commence such action or negotiate a license with such infringed Third Party.
13.4 Neither Party shall settle any Third Party Action relating to the Product if such settlement admits the invalidity or unenforceability of any of the Licensed Technology, except as agreed in writing between the Parties.
13.5 In the event that the SC determines that DESITIN is best positioned to commence any action in relation to or defence of the Third Party Action, DESITIN shall be entitled to credit up to [***]% of its reasonable costs and expenses (including legal and expert fees) or any Third Party royalties incurred against any royalty payment otherwise payable to ZOGENIX under this Agreement. In the event that no such royalty payments are payable by DESITIN under this Agreement at the time of the Third Party Action, up to [***]% of any reasonable costs and expenses or Third Party royalties incurred by DESITIN in connection with the Third Party Action shall be reimbursed by ZOGENIX on a Quarterly basis. In addition, in ...
Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either Party pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Neither Party shall have the right to settle any patent infringement litigation under this Section 8.6 in a manner that diminishes the rights or interests of the other Party without the written consent of such other Party (which shall not be unreasonably withheld).
Infringement of Third Party Rights. If, as a result of the manufacture, use or sale of any Product in any country of the Territory, a third party sues, threatens to xxx, or brings other action for patent infringement against Focal or Ethicon and/or any of their respective Affiliates (an "Infringement Claim"), or if either party shall become aware of third-party patent rights, Focal and Ethicon shall discuss in good faith an appropriate response to such claim and shall determine by mutual agreement an appropriate course of action.
(A) If an Infringement Claim exists with respect to an Initial Product or an Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined in good faith that a third-party patent poses a substantial risk to such Initial Product or Improved Product in any country in the Territory, then (1) Focal shall be responsible for obtaining such license from such third-party and shall pay all costs and fees associated with such license, and (2) Ethicon shall have the right to suspend performance of its obligations (other than payment obligations arising prior to such suspension) with respect to such Initial Product or Improved Product in the country or countries in which such Infringement Claim poses a substantial risk, such suspension right to remain in effect until Focal obtains a license from such third party or the Infringement Claim is otherwise resolved to Ethicon's satisfaction. As used above, the term "substantial risk" means that the claims of such third-party patent cover, the manufacture, use or sale of an Initial Product or Improved Product that comprises the Lung Sealant Formulation or the Dural Sealant Formulation.
(B) If an Infringement Claim exists with respect to a New, Product or an Improved Product that does not comprise the Lung Sealant Formulation or the Dural Sealant Formulation, and it is jointly determined to be necessary to obtain a license from such third party, Focal and Ethicon shall be jointly responsible for negotiating such license, it being understood that each shall make every effort to minimize the license fees and/or royalty payable to such third party, and each shall bear [*] of the costs and fees associated with such license. In the event that Ethicon shall be obligated to pay a license fee and/or royalty to any such third party in any country of the Territory, then Ethicon shall have the right to deduct an amount equal to [*] of such payments made by Ethicon to such third party (...
Infringement of Third Party Rights. 5.1 If a third party objects to the Licensee’s use of the Software based on the claim that the use of the Software infringes such third party’s intellectual property right (hereinafter referred to as “Infringement Claim”), HW will defend the Licensee against that Infringement Claim and pay all costs, damages and legal fees that a court finally awards, provided that the Licensee promptly 1) notifies HW in writing of the Infringement Claim as soon as it becomes aware of such Infringement Claim, 2) allows HW to fully control the defence and any related settlement negotiations, and 3) cooperates with HW in the defence and any related settlement negotiations by providing HW with appropriate information and assistance needed for such defence or settlement.
5.2 In the event of an Infringement Claim, HW shall be entitled to either: 1) obtain the continued right for the Licensee to use the Software, 2) bring the infringement to an end by modifying the Software or replacing the Software with other software which, essentially, possesses the same functions as the affected Software, or 3) terminate this Licence Agreement with written notice and pay to the Licensee an amount equal to the Licence Fee actually paid for the licence to the Software by the Licensee. HW shall only be obliged to pay the stated amount to the Licensee if the infringement Claim is actually raised against the Licensee within a period of (5) five years following the commencement date of the Licence Agreement. If an Infringement Claim is raised against the Licensee after the stated period has expired, HW shall be entitled to terminate this Licence Agreement without payment of any amount to the Licensee. The performance of HW obligations under this Clause 5.2 shall be HW total aggregate liability and HW entire obligation to the Licensee as a consequence of all and any Infringement Claims, and the Licensee shall have no other claims against HW as a result of such Infringement Claim. Upon termination of this Licence Agreement, the Licensee shall promptly cease using the Software and fulfil the terms and conditions connected to termination as stated in Clause 11.7 of this Licence Agreement.
5.3 The limited warranty stated in Clause 5.1 and 5.2 is void if the Infringement Claim has resulted from accident, abuse or misapplication. Any modification of the Software by anyone other than HW voids the foregoing warranty on any portion of the Software modified or affected by such modification.
Infringement of Third Party Rights. Each party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Maxim shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by Maxim’s activities at its own expense and by counsel of its own choice, and Myriad shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. Myriad shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by Myriad’s activities at its own expense and by counsel of its own choice, and Maxim shall have the right, at its own expense, to be represented in any such action by counsel of its own choice. Neither party shall have the right to settle any patent infringement litigation under this Section 8.5 in a manner that diminishes the rights or interests of the other party without the written consent of such other party (which shall not be unreasonably withheld).
Infringement of Third Party Rights. If any Product used or sold by Artiva or its Affiliates or Sublicensees becomes the subject of a Third Party’s claim or assertion of infringement of a Patent, each Party shall promptly notify the other Party. Neither Party shall have the right to settle any patent infringement litigation under this Section 4.6 in a manner that diminishes the rights or interests of the other Party without the written consent of such other Party (which shall not be unreasonably withheld).
Infringement of Third Party Rights. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of RECEPTORS or LICENSEE pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Subject to the following sentence, RECEPTORS shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities at its own expense and by counsel of its own choice. If any Third Party claim alleges that the manufacture, use or sale of a LICENSED PRODUCT infringes such Third Party’s patent rights, then LICENSEE shall have the first right to control any defense of any such claim at its expense and by counsel of its own choice, and RECEPTORS shall have the right, at its own expense, to be represented in any such action by counsel of their own choice; provided that if LICENSEE does not defend against any such Third Party claim, then RECEPTORS may assume such defense at its expense and using counsel of its own choice, in which case RECEPTORS shall keep LICENSEE fully informed with regard to the defense of such Third Party claim. RECEPTORS shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by RECEPTORS’ activities at its own expense and by counsel of its own choice. Neither RECEPTORS nor LICENSEE shall have the right to settle any patent infringement litigation under this §12.09 in a manner that diminishes the rights or interests of the other Party without first consulting the other Party.
Infringement of Third Party Rights. In the event that a third party at any time provides notice to, or commences an action, suit or proceeding against, a party or such party's Affiliates, sub licensees or distributors, claiming infringement of the third party's patent rights or copyrights or unauthorized use or misappropriation of its technology, based upon an assertion or claim arising out of the making, having made, using, offering for sale, selling or importing of a Product, such party shall promptly notify the other party, and (i) neither party may settle such claim or action without the consent of the other party; (ii) the parties shall also discuss how the expenses and any recoveries from such action should be treated; and (iii) if the parties do not reach agreement, InNexus shall make the final decision at its own discretion and expense.
Infringement of Third Party Rights. If any Licensed Product manufactured, used or sold by either Party, its Affiliates, Sublicensees or Other Licensees becomes the subject of a Third Party’s claim or assertion of infringement of a Patent relating to the manufacture, use, sale, offer for sale or importation of Licensed Product, the Party first having notice of the claim or assertion shall promptly notify the other Party, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of action. Unless the Parties otherwise agree in writing, each Party shall have the right to defend itself against a suit that names it as a defendant, subject to the indemnification provisions of Article 9. Neither Party shall enter into any settlement of any claim described in this Section 6.6 that affects the other Party’s rights or interests without such other Party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed. In any event, the Parties shall reasonably assist one another and cooperate in any such litigation at the other Party’s request and expense.
