Common use of Claimed Infringement Clause in Contracts

Claimed Infringement. In the event that any action, suit or proceeding is brought against Scriptgen, Monsanto or any Secondary Affiliate, licensee or Sublicensee of Scriptgen or Monsanto, alleging the infringement of the intellectual property rights of a third party by reason of the discovery, development, manufacture, use, sale, importation or offer for sale of a Development Compound or a Royalty Bearing Product by Monsanto or its Secondary Affiliates or its or their licensees or Sublicensees, Monsanto will have the obligation to defend itself and its Secondary Affiliates and Scriptgen and its Secondary Affiliates and the licensees and Sublicensees of Scriptgen and Monsanto, in such action, suit or proceeding at Monsanto's expense. Scriptgen shall have the right to separate counsel at its own expense in any such action or proceeding and Monsanto will reimburse Scriptgen for all reasonable expenditures incurred in connection therewith. In the event that any action, suit or proceeding is brought against Scriptgen, Monsanto or any Secondary Affiliate, licensee or Sublicensee of Scriptgen or Monsanto, alleging the infringement of the intellectual property rights of a third party by reason of the discovery, development, manufacture, use, sale, importation or offer for sale of a Development Compound or a Royalty Bearing Product by Scriptgen or its Secondary Affiliates or its or their licensees or Sublicensees, Scriptgen will have the obligation to defend itself and its Secondary Affiliates and Monsanto and its Secondary Affiliates and the licensees and Sublicensees of Scriptgen and Monsanto, in such action, suit or proceeding at Scriptgen's expense. Monsanto shall have the right to separate counsel at its own expense in any such action or proceeding and Scriptgen will reimburse Monsanto for all reasonable expenditures incurred in connection therewith. Notwithstanding any other provision of this Agreement, in the event that a third party shall bring (i) any action, suit or proceeding against Monsanto or any Secondary Affiliate, licensee or Sublicensee of Monsanto and (ii) any action, suit or proceeding against Scriptgen or any Secondary Affiliate, licensee or Sublicensee of Scriptgen, both of which actions, suits or proceedings arise from or relate to the same facts or circumstances, Monsanto and Scriptgen shall each have the sole and exclusive right, at their own expense, to select counsel to represent it or its Secondary Affiliate, licensee or Sublicensee with respect to any such action, suit or proceeding. Expenses, costs and damages imposed on Monsanto or Scriptgen in such action, suit or proceeding shall be shared by Monsanto and Scriptgen based on the relative fault of each party as determined at the final outcome of such suit, action or proceeding. The Parties will cooperate with each other in the defense of any such suit, action or proceeding. The Parties will give each other prompt written notice of the commencement of any such suit, action or proceeding or claim or infringement and will furnish each other a copy of each communication relating to the alleged infringement, but the failure to do so shall not affect the Parties obligations under this Section and under Section 9 except to the extent a Party is actually damaged thereby. Neither shall not compromise, litigate, settle or otherwise dispose of any such suit, action or proceeding which involves the use of patent rights of the other Party without that Other Party's advice and prior written consent, provided that such other Party shall not unreasonably withhold its consent to any settlement which will provide an unconditional release of that other Party and which does not have a material adverse effect on that other Party's business.

Claimed Infringement. (a) In the event that a Valid Claim included in the Patent Rights is finally held to be invalid by a court of competent jurisdiction from which appeal can no longer be taken, Licensee shall thereafter be permanently relieved, to the extent of such holding of invalidity, from any actionfurther obligation to pay accrued unpaid royalties under this Agreement, suit unless the Product is covered by another Valid Claim within the Patent Rights licensed hereunder which have not been held to be invalid or proceeding is brought against Scriptgenlimited in scope as provided above. (b) Licensor makes no warranty, Monsanto and hereby expressly disclaims nay warranty, that the Product, the Patent Rights, the Licensed Technology, the Licensee, its Sublicensees, Affiliates, and/or successors or any Secondary Affiliate, licensee or Sublicensee of Scriptgen or Monsanto, alleging the assigns are free from infringement of the any intellectual property rights of a third party by reason of others. Licensor shall not be obligated to assist or defend the discoveryLicensee, development, manufacture, use, sale, importation or offer for sale of a Development Compound or a Royalty Bearing Product by Monsanto or its Secondary Affiliates or its or their licensees or Sublicensees, Monsanto will have the obligation Affiliates, successors or assigns in any action alleging infringement of such intellectual property rights of others. Licensor shall not be liable to defend itself and Licensee, its Secondary Affiliates and Scriptgen and its Secondary Affiliates and the licensees and Sublicensees Sublicensees, Affiliates, successors or assigns for or on account of Scriptgen and Monsanto, in such action, suit or proceeding at Monsanto's expense. Scriptgen shall have the right to separate counsel at its own expense any damages which may be assessed in any such action infringement action, or proceeding and Monsanto will reimburse Scriptgen for all reasonable expenditures any expenses or costs incurred in connection therewith. Nothing in this Agreement shall be construed as: (i) a warranty as to validity of any Patent Rights; (ii) a warranty that the Product, Patent Rights, and/or Licensed Technology are not covered in whole or in party by patents or other intellectual property rights held by third-parties; (iii) an obligation of Licensor to initiate or prosecute any infringement suits with respect to any Product, Patent Rights and/or Licensed Technology; (iv) an obligation of Licensor to furnish any technical assistance to Licensee, its Sublicensees or Affiliates; or (v) a grant of any rights under patents of Licensor or its Affiliates other than the Patent Rights. Except as expressly set forth in this Agreement, Licensor makes no representations and extends no warranties of any kind with respect to the Product, Patent Rights and/or Licensed Technology or to the use, sale, or other disposition by Licensee, its Sublicensees and/or Affiliates. (c) Notwithstanding the provisions of Section 5.3(b), Licensor agrees that in the event that the Product becomes subject to royalty payments or licensing fees to a third party as a result of a court order or negotiated settlement agreement arising out of a third party intellectual property claim against the Product, subsequent royalty payments to Licensor under this agreement shall be reduced by 50% of the third party royalty payments or licensing fees. (d) In the event that the Product is finally held by a court of competent jurisdiction to infringe on any actionUnited States or foreign patent, suit copyright, trade secret or proceeding is brought against Scriptgen, Monsanto or any Secondary Affiliate, licensee or Sublicensee of Scriptgen or Monsanto, alleging the infringement of the other intellectual property rights right of a any third party by reason of the discoveryparty, developmentLicensor shall in its sole discretion and option, manufacture, use, sale, importation or offer for sale of a Development Compound or a Royalty Bearing Product by Scriptgen or its Secondary Affiliates or its or their licensees or Sublicensees, Scriptgen will have the either (i) release Licensee from any further obligation to defend itself and its Secondary Affiliates and Monsanto and its Secondary Affiliates and the licensees and Sublicensees of Scriptgen and Monsantopay accrued or future owing royalties under this Agreement, in such action, suit or proceeding at Scriptgen's expense. Monsanto shall have (ii) secure for Licensee the right to separate counsel at its own expense in continue using the Product, or (iii) replace or modify the Product to be non-infringement without material impairment of existing function. (e) The provisions of Section 5.3(c) notwithstanding, Licensor shall not have any such action liability or proceeding and Scriptgen will reimburse Monsanto for all reasonable expenditures incurred in connection therewith. Notwithstanding obligation under Section 5.3(c) to the extent that any other provision of this Agreement, in the event that a third party shall bring infringement or claim results from (i) any actionthe use of the Product, suit Patent Rights or proceeding against Monsanto Licensed Technology in combination with some other product or any Secondary Affiliatepharmaceutical formulation not supplied by Licensor where the Product, licensee Patent Rights or Sublicensee of Monsanto and Licensed Technology itself would not be infringing; or (ii) any action, suit or proceeding against Scriptgen or any Secondary Affiliate, licensee or Sublicensee of Scriptgen, both of which actions, suits or proceedings arise from or relate to the same facts or circumstances, Monsanto and Scriptgen shall each have the sole and exclusive right, at their own expense, to select counsel to represent it or its Secondary Affiliate, licensee or Sublicensee with respect to any such action, suit or proceeding. Expenses, costs and damages imposed on Monsanto or Scriptgen in such action, suit or proceeding shall be shared by Monsanto and Scriptgen based on the relative fault of each party as determined at the final outcome of such suit, action or proceeding. The Parties will cooperate with each other in the defense of any such suit, action or proceeding. The Parties will give each other prompt written notice modifications of the commencement of any such suitProduct, action Patent Rights or proceeding Licensed Technology where the Patent Rights or claim Licensed Technology, if not modified by or infringement and will furnish each other a copy of each communication relating to the alleged infringementfor Licensee, but the failure to do so shall would not affect the Parties obligations under this Section and under Section 9 except to the extent a Party is actually damaged thereby. Neither shall not compromise, litigate, settle or otherwise dispose of any such suit, action or proceeding which involves the use of patent rights of the other Party without that Other Party's advice and prior written consent, provided that such other Party shall not unreasonably withhold its consent to any settlement which will provide an unconditional release of that other Party and which does not have a material adverse effect on that other Party's businessbe infringing.

Claimed Infringement. (a) In the event that a third party, at any time, provides written notice of a claim to, or brings an action, suit or proceeding is brought against Scriptgenagainst, Monsanto any Party or any Secondary Affiliateof their respective affiliates, licensee or Sublicensee of Scriptgen or Monsanto, alleging the claiming infringement of its patent rights or copyrights or unauthorized use or misappropriation of its technology, based upon an assertion or claim relating to the intellectual property rights of a third party by reason Licensed Product, such Party shall promptly notify each other Party of the discovery, development, manufacture, use, sale, importation claim or offer for sale the commencement of a Development Compound or a Royalty Bearing Product by Monsanto or its Secondary Affiliates or its or their licensees or Sublicensees, Monsanto will have the obligation to defend itself and its Secondary Affiliates and Scriptgen and its Secondary Affiliates and the licensees and Sublicensees of Scriptgen and Monsanto, in such action, suit or proceeding at Monsanto's expense. Scriptgen shall have the right to separate counsel at its own expense in any such action or proceeding and Monsanto will reimburse Scriptgen for all reasonable expenditures incurred in connection therewith. In the event that any action, suit or proceeding is brought against Scriptgen, Monsanto or any Secondary Affiliate, licensee or Sublicensee of Scriptgen or Monsanto, alleging the infringement of the intellectual property rights of a third party by reason of the discovery, development, manufacture, use, sale, importation or offer for sale of a Development Compound or a Royalty Bearing Product by Scriptgen or its Secondary Affiliates or its or their licensees or Sublicensees, Scriptgen will have the obligation to defend itself and its Secondary Affiliates and Monsanto and its Secondary Affiliates and the licensees and Sublicensees of Scriptgen and Monsanto, in such action, suit or proceeding at Scriptgen's expense. Monsanto shall have the right to separate counsel at its own expense in any such action or proceeding and Scriptgen will reimburse Monsanto for all reasonable expenditures incurred in connection therewith. Notwithstanding any other provision of this Agreement, in the event that a third party shall bring (i) any action, suit or proceeding against Monsanto or any Secondary Affiliate, licensee or Sublicensee of Monsanto and (ii) any action, suit or proceeding against Scriptgen or any Secondary Affiliate, licensee or Sublicensee of Scriptgen, both of which actions, suits or proceedings arise from or relate to the same facts or circumstances, Monsanto and Scriptgen shall each have the sole and exclusive right, at their own expense, to select counsel to represent it or its Secondary Affiliate, licensee or Sublicensee with respect to any such action, suit or proceeding, enclosing a copy of the claim and/or all papers served. ExpensesAt the request of Licensee, costs Licensor shall provide to Licensee advice regarding the technical merits of any such claim. (b) Licensor shall defend Licensee at Licensor’s sole cost and damages imposed on Monsanto expense, and will indemnify and hold harmless Licensee, from and against any and all claims, losses, costs, damages, fees and expenses arising out of or Scriptgen in connection with the infringement or alleged infringement by the Licensed Product of any United States or foreign patent, copyright, trade secret or other intellectual property right of any third party and any settlements relating thereto, provided that Licensor shall have sole control and authority with respect to the defense or settlement of any such action, suit claim or proceeding action and Licensee shall be shared by Monsanto and Scriptgen based on the relative fault of each party as determined at the final outcome of such suit, action or proceeding. The Parties will cooperate fully with each other Licensor in the defense or settlement of any such suitclaim or action. In the event that the Licensed Product becomes, action or proceeding. The Parties will give each in Licensor’s opinion is likely to become, the subject of a claim of infringement of any United States or foreign patent, copyright, trade secret or other prompt written notice intellectual property right of any third party, Licensor may, at its option, either secure for Licensee the right to continue using the Licensed Product, replace or modify the Licensed Product to make it non-infringing without impairment of function or, if neither of the commencement of any such suitforegoing alternatives is reasonably available to Licensor, action or proceeding or claim or infringement terminate Licensee’s rights and will furnish each other a copy of each communication relating licenses to the alleged infringementLicensed Product under this Agreement and refund to Licensee all amounts paid by Licensee to Licensor during the previous five years. (c) The provisions of Section 7.5(b) notwithstanding, but the failure to do so Licensor shall not affect the Parties obligations under this Section and have any liability under Section 9 except 7.5(b) to the extent a Party is actually damaged thereby. Neither shall that any infringement or claim results from: (1) use of the Licensed Product in combination with some other product or pharmaceutical formulation not compromisesupplied by Licensor where the Licensed Product itself would not be infringing; or (2) modifications of the Licensed Product where the Licensed Product, litigateif not modified by or for Licensee, settle or otherwise dispose would not be infringing. (d) This Section 7.5 states the entire responsibility of Licensor under this Agreement, in the case of any such suit, action claimed infringement or proceeding which involves the violation of any third party’s rights or unauthorized use or misappropriation of patent rights of the other Party without that Other Party's advice and prior written consent, provided that such other Party shall not unreasonably withhold its consent to any settlement which will provide an unconditional release of that other Party and which does not have a material adverse effect on that other Party's businessthird party’s technology.

Claimed Infringement. (a) In the event that a third party at any time provides written notice of a claim to, or brings an action, suit or proceeding is brought against Scriptgenagainst, Monsanto any Party or any Secondary Affiliateof their respective affiliates or sublicensees, licensee or Sublicensee of Scriptgen or Monsanto, alleging the claiming infringement of the intellectual property its patent rights or copyrights or unauthorized use or misappropriation of a third party by reason its technology, based upon an assertion or claim arising out of the discovery, development, manufacture, use, sale, importation use or offer for sale of a Development Compound Licensed Products, such Party shall promptly notify each other Party of the claim or a Royalty Bearing Product by Monsanto or its Secondary Affiliates or its or their licensees or Sublicensees, Monsanto will have the obligation to defend itself and its Secondary Affiliates and Scriptgen and its Secondary Affiliates and the licensees and Sublicensees commencement of Scriptgen and Monsanto, in such action, suit or proceeding proceeding, enclosing a copy of the claim and/or all papers served. At the request of Drug, Lab Inventor shall provide to Drug advice regarding the technical merits of any such claim. (b) Lab Inventor shall defend Drug at Monsanto's Lab Inventor' cost and expense. Scriptgen , and will indemnify and hold harmless Drug, from and against any and all claims, losses, costs, damages, fees and expenses arising out of or in connection with the infringement or alleged infringement by a Licensed Product of any United States or foreign patent, copyright, trade secret or other intellectual property right of any third party and any settlements relating thereto, provided that Lab Inventor shall have sole control and authority with respect to the right to separate counsel at its own expense in defense or settlement of any such claim or action and Drug shall cooperate fully with Lab Inventor in the defense or proceeding and Monsanto will reimburse Scriptgen for all reasonable expenditures incurred in connection therewithsettlement of any such claim or action. In the event that any actionLicensed Product becomes, suit or proceeding in Lab Inventor's opinion is brought against Scriptgenlikely to become, Monsanto or any Secondary Affiliate, licensee or Sublicensee the subject of Scriptgen or Monsanto, alleging the a claim of infringement of the any United States or foreign patent, copyright, trade secret or other intellectual property rights right of a any third party by reason of the discoveryparty, development, manufacture, use, sale, importation or offer Lab Inventor may at its option either secure for sale of a Development Compound or a Royalty Bearing Product by Scriptgen or its Secondary Affiliates or its or their licensees or Sublicensees, Scriptgen will have the obligation to defend itself and its Secondary Affiliates and Monsanto and its Secondary Affiliates and the licensees and Sublicensees of Scriptgen and Monsanto, in such action, suit or proceeding at Scriptgen's expense. Monsanto shall have Drug the right to separate counsel at its own expense in continue using the Licensed Product, replace or modify the Licensed Product to make it non-infringing without impairment of function or if neither of the foregoing alternatives is reasonably available to Lab Inventor, terminate Drug's rights and licenses to the Licensed Product under this Agreement and refund to Drug all amounts paid by Drug to Lab Inventor depreciated on a five year straight line basis. (c) The provisions of Section 5.5(b) notwithstanding, Lab Inventor shall not have any such action liability under Section 5.5(b) to the extent that any infringement or proceeding and Scriptgen will reimburse Monsanto for all reasonable expenditures incurred in connection therewith. Notwithstanding any other provision of this Agreement, in the event that a third party shall bring claim results from: (i) any action, suit use of the Licensed Product in combination with some other product or proceeding against Monsanto pharmaceutical formulation not supplied by Lab Inventor where the Licensed Product itself would not be infringing; or any Secondary Affiliate, licensee or Sublicensee of Monsanto and (ii) any actionmodifications of the Licensed Product where the Licensed Product, suit if not modified by or proceeding against Scriptgen for Drug, would not be infringing. (d) Except as otherwise provided in this paragraph (d), if Drug or any Secondary Affiliateof its sublicensees, licensee in order to operate under or Sublicensee exploit the license granted under Article II of Scriptgenthis Agreement in any country, both must, in Drug's or its sublicensee's reasonable judgment, make payments to one or more third parties to obtain a license or similar right under a patent or other technology in the absence of which actionsLicensed Products could not legally be developed, suits manufactured, used, marketed or proceedings arise from sold in such country, such third party payments shall reduce and be set off against the royalty payments or relate sublicense fees otherwise due to Lab Inventor in such country. Any payments by Drug or any of its sublicensees to one or more third parties to obtain a license or similar right under a patent or other technology pertaining to a pharmaceutical formulation being delivered by Licensed Products shall not reduce or be set off against the same facts royalty payments or circumstancessublicense fees due to Lab Inventor. During the course of negotiations between Drug or any of its sublicensees and such third party, Monsanto Lab Inventor shall render to Drug and Scriptgen Agent's sublicensees reasonable assistance as necessary for Drug or any of its sublicensees to secure such license or similar right. The negotiation and final terms of such license or similar right shall each have be in the sole discretion of Drug and exclusive right, at their own expense, to select counsel to represent it or its Secondary Affiliate, licensee or Sublicensee with respect to any such action, suit or proceeding. Expenses, costs and damages imposed on Monsanto or Scriptgen in such action, suit or proceeding shall be shared by Monsanto and Scriptgen based on sublicensees. (e) This Section 5.5 states the relative fault entire responsibility of each party as determined at the final outcome of such suit, action or proceeding. The Parties will cooperate with each other Lab Inventor under this Agreement in the defense case of any such suit, action claimed infringement or proceeding. The Parties will give each other prompt written notice of the commencement violation of any such suit, action third party's rights or proceeding unauthorized use or claim or infringement and will furnish each other a copy of each communication relating to the alleged infringement, but the failure to do so shall not affect the Parties obligations under this Section and under Section 9 except to the extent a Party is actually damaged thereby. Neither shall not compromise, litigate, settle or otherwise dispose misappropriation of any such suit, action or proceeding which involves the use of patent rights of the other Party without that Other Partythird party's advice and prior written consent, provided that such other Party shall not unreasonably withhold its consent to any settlement which will provide an unconditional release of that other Party and which does not have a material adverse effect on that other Party's businesstechnology.