Common use of Defense and Settlement of Third Party Claims Clause in Contracts

Defense and Settlement of Third Party Claims. If either (a) any Amgen Product or Kite Product Exploited by or under authority of either Party becomes the subject of a Third Party’s claim or assertion of infringement of a patent, or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Patent Rights contained in Collaboration Patents, Kite Patents or Amgen Patents, 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 (the “Defending Party”). None of the Parties shall enter into any settlement of any claim described in this Section 9.4 (Defense and Settlement of Third Party Claims) that admits to the invalidity or unenforceability of any Patent Right Controlled by the other Party (or otherwise effects the scope, validity or enforceability of such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consent. In any event, the other Party shall reasonably assist the Defending Party and cooperate in any such litigation at the Defending Party’s request and expense. Additionally, if the Defending Party is not the Party that Controls the Patent Right in question, then the other Party has the right to join any such action.

Defense and Settlement of Third Party Claims. If either (a) any Amgen Product If a Third Party asserts that a patent, trademark or Kite Product Exploited other intellectual properties owned by it is infringed by the importation, manufacture, use or under authority sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party becomes the subject learns of a Third Party’s claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of infringement of a patentthe Lead Carrier, the Commercial Carrier or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any of the Patent Rights contained in Collaboration PatentsThird Party, Kite Patents or Amgen Patents, the then such Party first having notice of the claim or assertion shall will 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 Party in writing. Novartis has the right, each Party shall if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). None of the Parties shall enter into any settlement of any claim described in this Section 9.4 (Defense and Settlement of Third Party Claims) that admits to the invalidity or unenforceability of any Patent Right Controlled by the other Party (or otherwise effects the scope, validity or enforceability of control such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consentdefense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall reasonably consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist the Defending Party and cooperate in any such infringement litigation at the Defending defending Party’s request and expensereasonable request. Additionally, if If the Defending Party controlling such defense is not the Party that Controls the Patent Right in questionagainst whom such action was originally brought, then the other Party has controlling such defense will not agree to the right to join settlement of any such actionaction without the prior written consent of the other Party. *** - indicates material omitted pursuant to a Confidential Treatment Request and filed separately with the Securities and Exchange Commission.

Defense and Settlement of Third Party Claims. If either (a) any Amgen Product If a Third Party asserts that a patent, trademark or Kite Product Exploited other intellectual properties owned by it is infringed by the importation, manufacture, use or under authority sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party becomes the subject learns of a Third Party’s claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of infringement of a patentthe Lead Carrier, the Commercial Carrier or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any of the Patent Rights contained in Collaboration PatentsThird Party, Kite Patents or Amgen Patents, the then such Party first having notice of the claim or assertion shall will 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 Party in writing. Novartis has the right, each Party shall if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). None of the Parties shall enter into any settlement of any claim described in this Section 9.4 (Defense and Settlement of Third Party Claims) that admits to the invalidity or unenforceability of any Patent Right Controlled by the other Party (or otherwise effects the scope, validity or enforceability of control such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consentdefense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall reasonably consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist the Defending Party and cooperate in any such infringement litigation at the Defending defending Party’s request and expensereasonable request. Additionally, if If the Defending Party controlling such defense is not the Party that Controls the Patent Right in questionagainst whom such action was originally brought, then the other Party has controlling such defense will not agree to the right to join settlement of any such actionaction without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. If either (a) any Amgen Product If a Third Party asserts that a patent, trademark or Kite Product Exploited other intellectual properties owned by it is infringed by the importation, manufacture, use or under authority sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party becomes the subject learns of a Third Party’s claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of infringement of a patentthe Lead Carrier, the Commercial Carrier or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any of the Patent Rights contained in Collaboration PatentsThird Party, Kite Patents or Amgen Patents, the then such Party first having notice of the claim or assertion shall will 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 Party in writing. Novartis has the right, each Party shall if it so wishes, to be solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. Novartis will have the first right, but not the obligation, to defend against any such claim at its own expense. If Novartis does not assume control of such defense, then Emisphere will have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). None of the Parties shall enter into any settlement of any claim described in this Section 9.4 (Defense and Settlement of Third Party Claims) that admits to the invalidity or unenforceability of any Patent Right Controlled by the other Party (or otherwise effects the scope, validity or enforceability of control such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consentdefense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status 31. *** - indicates material omitted pursuant to a Confidential Treatment Request and filed separately with the Securities and Exchange Commission. of such action and shall reasonably consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist the Defending Party and cooperate in any such infringement litigation at the Defending defending Party’s request and expensereasonable request. Additionally, if If the Defending Party controlling such defense is not the Party that Controls the Patent Right in questionagainst whom such action was originally brought, then the other Party has controlling such defense will not agree to the right to join settlement of any such actionaction without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. 7.4.1 If either (a) a Third Party asserts that IP Protection Right owned by it is infringed by the importation, manufacture, use or sale of any Amgen Product Licensed Combinations, or Kite Product Exploited by Licensed Products, or under authority of Collaboration Combinations, or Collaboration Products, or if either Party becomes the subject learns of a Third Party’s claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of infringement of a patentthe Licensed Combinations, or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity Licensed Products, or Collaboration Combinations, or Collaboration Products infringes or otherwise violates the intellectual property rights of any of Third Party, then such Party (hereinafter the Patent Rights contained in Collaboration Patents, Kite Patents or Amgen Patents, the Party first having notice of the claim or assertion shall “Defending Party”) will 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 Party in writing. The Defending Party shall have the sole right, each but not the obligation, to control defense of actions; and if the Defending Party does not assume control of such defense, then the other Party shall have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). None of the Parties shall enter into any settlement of any claim described in this Section 9.4 (Defense and Settlement of Third Party Claims) that admits to the invalidity or unenforceability of any Patent Right Controlled by the other Party (or otherwise effects the scope, validity or enforceability of control such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consentdefense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall reasonably consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist the Defending Party and cooperate in any such infringement litigation at the Defending defending Party’s request and expensereasonable request. Additionally, if If the Defending Party controlling such defense is not the Party that Controls the Patent Right in questionagainst whom such 10508642_1 CONFIDENTIAL action was originally brought, then the other Party has controlling such defense will not agree to the right to join settlement of any such actionaction without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. If either (a) any Amgen Product If a Third Party asserts that a patent, trademark or Kite Product Exploited other intellectual properties owned by it is infringed by the importation, manufacture, use or under authority sale of the Lead Carrier, the Commercial Carrier or the Back-Up Carrier or if either Party becomes the subject learns of a Third Party’s claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of infringement of a patentthe Lead Carrier, the Commercial Carrier or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity the Back-Up Carrier infringes or otherwise violates the intellectual property rights of any of the Patent Rights contained in Collaboration PatentsThird Party, Kite Patents or Amgen Patents, the then such Party first having notice of the claim or assertion shall will 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 Party in writing. *** solely responsible for defending against any such assertions and controlling any related litigation at its own cost and expense. *** will have the first right, each Party shall but not the obligation, to defend against any such claim at its own expense. If *** does not assume control of such defense, then *** will have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). None of the Parties shall enter into any settlement of any claim described in this Section 9.4 (Defense and Settlement of Third Party Claims) that admits to the invalidity or unenforceability of any Patent Right Controlled by the other Party (or otherwise effects the scope, validity or enforceability of control such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consentdefense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall reasonably consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist the Defending Party and cooperate in any such infringement litigation at the Defending defending Party’s request and expensereasonable request. Additionally, if If the Defending Party controlling such defense is not the Party that Controls the Patent Right in questionagainst whom such action was originally brought, then the other Party has controlling such defense will not agree to the right to join settlement of any such actionaction without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. If either (a) any Amgen Product or Kite Product Exploited by or under authority of either Party becomes the subject of a Third Party’s claim Party asserts that a Patent or assertion of infringement of a patentother right owned by it is infringed by the manufacture, use, sale, offer for sale or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity importation of any of the Patent Rights contained in Collaboration PatentsProduct, Kite Patents or Amgen Patents, 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 Astellas shall have the primary right, but not the obligation, to defend against any such assertions. In the event Astellas elects to defend against any such Third Party claims in accordance with this Section 10.5, Astellas shall have the sole right to control the defense of any such Third Party claims and to elect to settle such claims, provided that it shall consult with and keep Maxygen reasonably informed with respect thereto. Maxygen may join any defense brought by Astellas pursuant to this Section 10.5, with its own counsel at its own expense, or in the event that Astellas elects not to exercise its right to defend itself against a suit that names it as a defendant (the “Defending Party”). None of the Parties shall enter into any settlement of any claim described in this Section 9.4 (Defense and Settlement of such Third Party Claims) that admits claims, Maxygen shall have the right, but not the obligation, to the invalidity or unenforceability of any Patent Right Controlled by the other defend against such Third Party (or otherwise effects the scope, validity or enforceability of such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consentclaims with its own counsel at its own expense. In any event, each Party shall assist the other Party shall reasonably assist the Defending Party and cooperate in any such litigation at the Defending other Party’s request without expense to the requesting Party. Neither Party shall settle or consent to the entry of any judgment in any such case that would adversely affect the other Party’s rights hereunder without the other Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed. Astellas may include Damages under this Section 10.5 as Third Party Payments under Section 5.16 of the Financial Exhibit, provided however that such Damages are only included as Third Party Payments under Section 2.1.3(a) of the Financial Exhibit to the extent such Damages are attributable to patent infringement excluding any increase due to willful patent infringement. For purposes of this Agreement, “Damages” shall mean damages and expense. Additionallyother liabilities that are required to be paid to such Third Party, in restitution of or payment for the infringement, as part of any final judgment awarded against such Party and any amounts paid by such Party (with the other Party’s prior written consent) in a settlement of the assertion (if the Defending Party is not the Party that Controls the Patent Right in questionadditional claims have been asserted by such Third Party, then to the other Party has extent allocable to settlement of the right to join any such actionapplicable infringement claims).

Defense and Settlement of Third Party Claims. If either (a) any Amgen Product or Kite Product Exploited by or under authority of either Party becomes the subject of a Third Party’s claim Party asserts that a patent right or assertion of infringement of other right owned by it is infringed by the manufacture, use, sale or importation [*] by a patent, or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Patent Rights contained in Collaboration Patents, Kite Patents or Amgen Patents, 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 (the “Defending Party”), the Defending Party shall have the sole right to defend against any such assertions at its sole cost. None If such Third Party asserts that a patent right or other right owned by it is infringed by the manufacture, use, sale or importation [*] by both of the Parties, then the Parties shall enter into meet and confer, and both Parties shall have the sole right to defend against any settlement of any claim described in this Section 9.4 (Defense and Settlement of Third Party Claims) that admits such assertions with respect to the invalidity or unenforceability of any Patent Right Controlled by the other Party (or otherwise effects the scope, validity or enforceability of such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consentits activities at their respective sole cost. In any event, the The other Party shall reasonably assist the Defending Party and cooperate in any such litigation at the Defending Party’s request request, and expense. Additionally, if the Defending Party is not the shall reimburse such other Party that Controls the Patent Right any reasonable, documented, out-of-pocket costs incurred in questionconnection therewith. Subject to such control, then the other Party has the right to may join any defense and settlement pursuant to this Section 10.4 (Defense and Settlement of Third Party Claims), with its own counsel at its sole cost. Regardless of which Party is the Defending Party (or if both Parties are a Defending Party), the Defending Party shall seek and reasonably consider the other Party’s comments before determining the strategy for such matter. Without limiting the foregoing, the Defending Party shall keep the other Party advised of all material communications, actual and prospective filings or submissions regarding such action, and shall provide the other Party copies of and an opportunity to review and comment on any such communications, filings and submissions. [*] The Defending Party shall not settle or consent to the entry of any judgment in any enforcement action hereunder without the other Party’s prior written consent, not to be unreasonably withheld or delayed. Each Party shall keep the other reasonably informed of all claims and actions governed by this Section 10.4 (Defense and Settlement of Third Party Claims).

Defense and Settlement of Third Party Claims. 7.4.1 If either (a) a Third Party asserts that IP Protection Right owned by it is infringed by the importation, manufacture, use or sale of any Amgen Product Licensed Combinations, or Kite Product Exploited by Licensed Products, or under authority of the Collaboration Combination, or Collaboration Products, or if either Party becomes the subject learns of a Third Party’s claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of infringement of a patentthe Licensed Combinations, or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity Licensed Products, or the Collaboration Combination, or Collaboration Products infringes or otherwise violates the intellectual property rights of any of Third Party, then such Party (hereinafter the Patent Rights contained in Collaboration Patents, Kite Patents or Amgen Patents, the Party first having notice of the claim or assertion shall “Defending Party”) will 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 Party in writing. The Defending Party shall have the sole right, each but not the obligation, to control defense of actions; and if the Defending Party does not assume control of such defense, then the other Party shall have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). None of the Parties shall enter into any settlement of any claim described in this Section 9.4 (Defense and Settlement of Third Party Claims) that admits to the invalidity or unenforceability of any Patent Right Controlled by the other Party (or otherwise effects the scope, validity or enforceability of control such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consentdefense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall reasonably consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist the Defending Party and cooperate in any such infringement litigation at the Defending defending Party’s request and expensereasonable request. Additionally, if If the Defending Party controlling such defense is not the Party that Controls the Patent Right in questionagainst whom such action was originally brought, then the other Party has controlling such defense will not agree to the right to join settlement of any such actionaction without the prior written consent of the other Party.

Defense and Settlement of Third Party Claims. 14.4.1 If either (a) a Third Party asserts that IP Right owned by it is infringed by the importation, manufacture, use or sale of any Amgen Licensed Compound or Licensed Product by Angiotec, or Kite Product Exploited by or under authority of if either Party becomes the subject learns of a Third Party’s claim or assertion that the development, manufacture, use, marketing, promotion, importation, exportation, offer for sale, sale or distribution of infringement of a patent, the Licensed Compounds or (b) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity the Licensed Products infringes or otherwise violates the intellectual property rights of any of the Patent Rights contained in Collaboration PatentsThird Party, Kite Patents or Amgen Patents, the then such Party first having notice of the claim or assertion shall will 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 Party in writing. Angiotech will have the sole right, each Party but not the obligation, to control such defense at its own expense. If Angiotech does not assume control of such defense, then CombinatoRx shall have the right to defend itself against a suit that names it as a defendant (the “Defending Party”). None of the Parties shall enter into any settlement of any claim described in this Section 9.4 (Defense and Settlement of Third Party Claims) that admits to the invalidity or unenforceability of any Patent Right Controlled by the other Party (or otherwise effects the scope, validity or enforceability of control such Patent Right), incurs any financial liability on the part of any other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s written consentdefense at its own expense. In any event, the Party not controlling such defense will have the right to be represented in any such action at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action and shall reasonably consider recommendations made by the other Party in respect thereto. The Party not controlling such defense will assist the Defending Party and cooperate in any such infringement litigation at the Defending defending Party’s request and expense's reasonable request. Additionally, if If the Defending Party controlling such defense is not the Party that Controls the Patent Right in questionagainst whom such action was originally brought, then the other Party has controlling such defense will not agree to the right to join settlement of any such actionaction without the prior written consent of the other Party.