Common use of Defense of Claims Brought by Third Parties Clause in Contracts

Defense of Claims Brought by Third Parties. If any Third Party brings a claim or otherwise asserts that a Product or Licensed Agent infringes such Third Party’s Patent or misappropriates such Third Party’s Know-How (each, a “Third-Party Infringement Claim”), the Party first having notice of the claim or assertion will promptly notify the other Party in writing. Subject to Section 9.1, [***] will have the sole right to undertake and control the defense or settlement of any Third-Party Infringement Claim using counsel of its choice, at its expense. Subject to Section 9.1, if [***] is named as a defendant in any such Third Party Infringement Claim, [***] will have the right to participate in such defense and settlement with its own counsel, at its expense. Subject to Section 9.1, [***] will not enter into any settlement of any Third-Party Infringement Claim that is instituted or threatened to be instituted against [***] without [***]’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided that such consent will not be required if [***]. As requested by [***], [***] will provide reasonable cooperation and assistance to [***] in connection with [***]’s control of the defense or settlement of a Third-Party Infringement Claim. Such cooperation and assistance will include executing all necessary and proper documents and taking such actions as will be appropriate to allow [***] to control the defense and settlement of such Third-Party Infringement Claim. Subject to Section 9.1, [***] will reimburse [***] for the reasonable FTE Costs and Out-of-Pocket Costs incurred by [***] in providing such assistance and cooperation; provided that [***] will have no obligation to reimburse [***] for any such FTE Costs and Out-of-Pocket Costs incurred if Company exercises its right to participate in the defense and settlement of a Third-Party Infringement Claim with its own counsel. [***]will keep [***] reasonably informed of the progress of any Third Party Infringement Claim. To the extent reasonable, both Parties will cooperate in good faith to [***].

Defense of Claims Brought by Third Parties. If any Third Party brings a claim or otherwise asserts that a Product or Licensed Agent infringes such Third Party’s Patent or misappropriates such Third Party’s Know-How (each, a “Third-Party Infringement Claim”), the Party first having notice of the claim or assertion will promptly notify the other Party in writing. Subject to Section 9.18.1, [***] will have the sole right to undertake and control the defense or settlement of any Third-Party Infringement Claim using counsel of its choice, at its expense. Subject to Section 9.18.1, if [***] is named as a defendant in any such Third Party Infringement Claim, [***] will have the right to participate in such defense and settlement with its own counsel, at its expense. Subject to Section 9.18.1, [***] will not enter into any settlement of any Third-Party Infringement Claim that is instituted or threatened to be instituted against [***] without [***]’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided that such consent will not be required if [***]. As requested by [***], [***] will provide reasonable cooperation and assistance to [***] in connection with [***]’s control of the defense or settlement of a Third-Party Infringement Claim. Such cooperation and assistance will include executing all necessary and proper documents and taking such actions as will be appropriate to allow [***] to control the defense and settlement of such Third-Party Infringement Claim. Subject to Section 9.18.1, [***] will reimburse [***] for the reasonable FTE Costs and Out-of-Pocket Costs incurred by [***] in providing such assistance and cooperation; provided that [***] will have no obligation to reimburse [***] for any such FTE Costs and Out-of-Pocket Costs incurred if Company exercises its right to participate in the defense and settlement of a Third-Party Infringement Claim with its own counsel. [***]] will keep [***] reasonably informed of the progress of any Third Party Infringement Claim. To the extent reasonable, both Parties will cooperate in good faith to [***].

Defense of Claims Brought by Third Parties. If any Third Party brings a claim or otherwise asserts that a Licensed Product or Licensed Agent Collaboration Compound infringes such Third Party’s Patent or misappropriates such Third Party’s Know-How (each, a “Third-Party Infringement Claim”), the Party first having notice of the claim or assertion will promptly notify the other Party in writing. Subject Prior to Section 9.1the Sanofi Participation Election Effective Date (if any) with respect to the applicable Collaboration Target, [***] will have the sole right to undertake and control the defense or settlement of any Third-Party Infringement Claim using counsel of its choice, at its expense. Subject cost and expense and, following the Sanofi Participation Election Effective Date (if any) with respect to Section 9.1the applicable Collaboration Target, if [***] will have the sole right to undertake and control the defense or settlement of any Third-Party Infringement Claim using counsel of its choice, at its cost and expense (such Party having the right to control such defense, the “Defending Party”). If the Party not having the right to control such defense in accordance with the preceding sentence (the “Non-Defending Party”) is named as a defendant in any such Third suit, the Non-Defending Party Infringement Claim, [***] will have the right to participate in such defense and settlement with its own counsel, at its expensecost. Subject to Section 9.1, [***] The Defending Party will not enter into any settlement of any Third-Party Infringement Claim that is instituted or threatened to be instituted against [***] the Non-Defending Party without [***]the Non-Defending Party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided that except that, such consent will not be required if [***]such settlement includes a release of all liability in favor of the Non-Defending Party or an assumption of any unreleased liability by the Defending Party. As requested by [***]the Defending Party, [***] the Non-Defending Party will provide reasonable cooperation and assistance to [***] the Defending Party in connection with [***]the Defending Party’s control of the defense or settlement of a Third-Party Infringement Claim. Such cooperation and assistance will include executing all necessary and proper documents and taking such actions as will be appropriate to allow [***] the Defending Party to control the defense and settlement of such Third-Party Infringement Claim. Subject to Section 9.1, [***] The Defending Party will reimburse [***] the Non-Defending Party for the reasonable FTE Costs and Out-of-Pocket Costs incurred by [***] the Non-Defending Party in providing such assistance and cooperation; provided except that [***] the Defending Party will have no obligation to reimburse [***] the Non-Defending Party for any such FTE Costs and Out-of-Pocket Costs costs or expenses incurred if Company the Non-Defending Party exercises its right to participate in the defense and settlement of a Third-Party Infringement Claim with its own counsel. [***]The Defending Party will keep [***] the Non-Defending Party reasonably informed of the progress of any Third Third-Party Infringement Claim. To the extent reasonable, both Parties will cooperate in good faith to [***].

Defense of Claims Brought by Third Parties. If any Third Each Party brings a claim or otherwise asserts that a Product or Licensed Agent infringes such Third Party’s Patent or misappropriates such Third Party’s Know-How (each, a “Third-Party Infringement Claim”), the Party first having notice of the claim or assertion will shall promptly notify the other Party if it becomes aware of any claim that Protiva’s use or practice of the Joint Project Intellectual Property or Monsanto Improvements in writingconnection with its exercise of the licenses granted under Section 4.2 infringes, misappropriates, or otherwise violates the intellectual property rights of any Third Party. Subject to Section 9.1In any such instance, [***] will the Parties shall cooperate and shall mutually agree upon an appropriate course of action; provided, however, that in the absence of any such agreement, (i) Monsanto shall have the sole right to undertake determine what action, if any, should be taken in respect of Monsanto Improvements; (ii) Monsanto shall have sole right to determine what action, if any, should be taken in respect of infringement of Joint Project Intellectual Property occurring primarily in the Agricultural Field; and control (iii) such matter shall be referred to the defense or settlement JRC, to be resolved in the manner set forth in the Option Agreement, in respect of any Third-infringement of Joint Project Intellectual Property occurring primarily outside of the Agricultural Field (such matter a “JRC Joint IP Infringement Matter”). Each Party Infringement Claim using counsel shall provide to the other Party copies of its choiceany notices it receives from Third Parties regarding any patent nullity actions regarding the Joint Project Intellectual Property or Monsanto Improvements, at its expense. Subject to Section 9.1, if [***] is named as a defendant in any such declaratory judgment actions and any alleged infringement or misappropriation of Third Party Infringement Claim, [***] will have intellectual property rights arising out of Protiva’s use or practice of the right to participate in such defense and settlement with its own counsel, at its expense. Subject to Section 9.1, [***] will not enter into any settlement of any Third-Party Infringement Claim that is instituted Joint Project Intellectual Property or threatened to be instituted against [***] without [***]’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided that such consent will not be required if [***]. As requested by [***], [***] will provide reasonable cooperation and assistance to [***] Monsanto Improvements in connection with [***]its exercise of its license under Section 4.2. Monsanto shall provide to Protiva copies of any notices it receives from Third Parties regarding any declaratory judgment actions and any alleged commercially relevant infringement or misappropriation of Third Party intellectual property rights arising out of Monsanto’s control use or practice of the defense Joint Project Intellectual Property or settlement of Monsanto Improvements. Each Party shall be responsible for its own costs incurred pursuant to this Section 4.9 and nothing in this Section 4.9 shall be deemed to limit or eliminate a Third-Party Infringement Claim. Such cooperation and assistance will include executing all necessary and proper documents and taking such actions as will be appropriate to allow [***] to control the defense and settlement of such Third-Party Infringement Claim. Subject to Section 9.1, [***] will reimburse [***] for the reasonable FTE Costs and Out-of-Pocket Costs incurred by [***] in providing such assistance and cooperation; provided that [***] will have no obligation to reimburse [***] for any such FTE Costs and Out-of-Pocket Costs incurred if Company exercises its Party’s right to participate in the defense and settlement of defend actions initiated by a Third-Party Infringement Claim with its own counsel. [***]will keep [***] reasonably informed of the progress of any Third Party Infringement Claim. To against such Party, except to the extent reasonable, both Parties will cooperate in good faith such rights may be limited under any indemnification provisions applicable to [***]such actions.

Defense of Claims Brought by Third Parties. If any Third Party brings a claim or otherwise asserts that a Licensed Product or Licensed Agent Collaboration Compound infringes such Third Party’s Patent or misappropriates such Third Party’s Know-How (each, a “Third-Party Infringement Claim”), the Party first having notice of the claim or assertion will promptly notify the other Party in writing. Subject Prior to Section 9.1the License Effective Date with respect to the applicable Collaboration Target, [***] Company will have the sole right to undertake and control the defense or settlement of any Third-Party Infringement Claim using counsel of its choice, at its expensecost and expense and, following the License Effective Date with respect to the applicable Collaboration Target, Vertex will have the sole right to undertake and control the defense or settlement of any Third-Party Infringement Claim using counsel of its choice, at its cost and expense (such Party having the right to control such defense, the “Defending Party”). Subject If the Party not having the right to Section 9.1, if [***] control such defense in accordance with the preceding sentence (the “Non-Defending Party”) is named as a defendant in any such Third suit, the Non-Defending Party Infringement Claim, [***] will have the right to participate in such defense and settlement with its own counsel, at its expensecost. Subject to Section 9.1, [***] The Defending Party will not enter into any settlement of any Third-Party Infringement Claim that is instituted or threatened to be instituted against [***] the Non-Defending Party without [***]the Non-Defending Party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided that except that, such consent will not be required if [***]such settlement includes a release of all liability in favor of the Non-Defending Party or an assumption of any unreleased liability by the Defending Party. As requested by [***]the Defending Party, [***] the Non-Defending Party will provide reasonable cooperation and assistance to [***] the Defending Party in connection with [***]the Defending Party’s control of the defense or settlement of a Third-Party Infringement Claim. Such cooperation and assistance will include executing all necessary and proper documents and taking such actions as will be appropriate to allow [***] the Defending Party to control the defense and settlement of such Third-Party Infringement Claim. Subject to Section 9.1, [***] The Defending Party will reimburse [***] the Non-Defending Party for the reasonable FTE Costs and Out-of-Pocket Costs incurred by [***] the Non-Defending Party in providing such assistance and cooperation; provided except that [***] the Defending Party will have no obligation to reimburse [***] the Non-Defending Party for any such FTE Costs and Out-of-Pocket Costs costs or expenses incurred if Company the Non-Defending Party exercises its right to participate in the defense and settlement of a Third-Party Infringement Claim with its own counsel. [***]The Defending Party will keep [***] the Non-Defending Party reasonably informed of the progress of any Third Third-Party Infringement Claim. To the extent reasonable, both Parties will cooperate in good faith to [***].

Defense of Claims Brought by Third Parties. If any Third Each Party brings a claim or otherwise asserts that a Product or Licensed Agent infringes such Third Party’s Patent or misappropriates such Third Party’s Know-How (each, a “Third-Party Infringement Claim”), the Party first having notice of the claim or assertion will shall promptly notify the other Party in writing. Subject to Section 9.1, [***] will have the sole right to undertake and control the defense or settlement if it becomes aware of any Third-Party Infringement Claim claim that Licensee’s actual use or practice of Compounds or Formulations within the Protiva Intellectual Property, or Licensee’s methods of creating or using counsel of its choicesuch Formulations or Compounds, at its expense. Subject to Section 9.1, if [***] is named as a defendant in any such Third Party Infringement Claim, [***] will have the right to participate in such defense and settlement with its own counsel, at its expense. Subject to Section 9.1, [***] will not enter into any settlement of any Third-Party Infringement Claim that is instituted or threatened to be instituted against [***] without [***]’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided that such consent will not be required if [***]. As requested by [***], [***] will provide reasonable cooperation and assistance to [***] in connection with [***]’s control its exercise of its license under Section 2.1 infringes, misappropriates, or otherwise violates the defense or settlement of a Third-Party Infringement Claim. Such cooperation and assistance will include executing all necessary and proper documents and taking such actions as will be appropriate to allow [***] to control the defense and settlement of such Third-Party Infringement Claim. Subject to Section 9.1, [***] will reimburse [***] for the reasonable FTE Costs and Out-of-Pocket Costs incurred by [***] in providing such assistance and cooperation; provided that [***] will have no obligation to reimburse [***] for any such FTE Costs and Out-of-Pocket Costs incurred if Company exercises its right to participate in the defense and settlement of a Third-Party Infringement Claim with its own counsel. [***]will keep [***] reasonably informed of the progress intellectual property rights of any Third Party in the Agricultural Field. In any such instance, the Parties shall cooperate and shall mutually agree upon an appropriate course of action; provided, however, that in the absence of any such agreement, (i) any such matter relating to Protiva Project Patents (such matter a “JRC Protiva Project Infringement ClaimMatter”) shall be referred to the JRC to be addressed in the manner set forth in the Option Agreement, and (ii) Protiva shall have sole right to determine what action, if any, should be taken in respect of Protiva Background Patents. To Each Party shall provide to the other Party copies of any notices it receives from Third Parties regarding any patent nullity actions regarding the Protiva Background Patents or the Protiva Project Patents, any declaratory judgment actions and any alleged infringement or misappropriation of Third Party intellectual property rights arising out of Licensee’s use or practice of the Protiva Intellectual Property in connection with its exercise of 19 its license under Section 2.1. Each Party shall be responsible for its own costs incurred pursuant to this Section 5.5; provided, however, that nothing in this Section 5.5 or elsewhere in this Agreement shall be deemed to eliminate, reduce, or otherwise modify any liability or obligation of Protiva in respect of the Protiva Intellectual Property or Licensee’s (or its Sublicensees’) use or practice of the Protiva Intellectual Property in connection with its exercise of its license under Section 2.1, including but not limited to any such liability or obligation that may arise out of any representation, warranty, or covenant made by Protiva under the Option Agreement or any other Transaction Agreement; and provided further, however, that nothing in this Section 5.5 shall be deemed to limit or eliminate a Party’s right to defend actions initiated by a Third Party against such Party, except to the extent reasonable, both Parties will cooperate in good faith such rights may be limited under any indemnification provisions applicable to [***].such actions. 5.6

Defense of Claims Brought by Third Parties. If any Third Party brings a claim or otherwise asserts that a Licensed Product or Licensed Agent System infringes such Third Party’s Patent Rights or misappropriates such Third Party’s Know-How (each, a “Third-Third Party Infringement Claim”), then the Party first having notice of the claim or assertion will promptly notify the other Party in writing. Subject to Section 9.1[***], [***] will have the sole right right, but not the obligation, to undertake and control the defense or settlement of any Third-Third Party Infringement Claim using counsel of its choice, at its cost and expense. Subject to Section 9.1, if If [***] is named as a defendant in any such Third Party Infringement Claimsuit, [***] will have the right to participate in such defense and settlement with its own counsel, at its expensecost. Subject to Section 9.1, [***] will not enter into any settlement of any Third-Third Party Infringement Claim that is instituted or threatened to be instituted against [***] without [***]’s ] prior written consent, which will not be unreasonably withheld, conditioned conditioned, or delayed; provided except that such consent will not be required if such settlement includes a release of all liability in favor of [***] or an assumption of any unreleased liability by [***]. As requested by [***], [***] will provide reasonable cooperation and assistance to [***] in connection with [***]’s ] control of the defense or settlement of a Third-Third Party Infringement Claim. Such cooperation and assistance will include executing all necessary and proper documents and taking such actions as will be appropriate to allow [***] to control the defense and settlement of such Third-Third Party Infringement Claim. Subject to Section 9.1, [***] will reimburse [***] for the reasonable FTE Costs and Out-of-Pocket Costs incurred by [***] in providing such assistance and cooperation]; provided except that [***] will have no obligation to reimburse [***] for any such FTE Costs and Out-of-Pocket Costs incurred if Company exercises its right to participate in the defense and settlement of a Third-Party Infringement Claim with its own counsel. [***]will keep [***] reasonably informed of the progress of any Third Party Infringement Claim. To the extent reasonable, both Parties will cooperate in good faith to (a) ensure that [***] and (b) [***].

Defense of Claims Brought by Third Parties. If any Third Party brings a claim or otherwise asserts that a Licensed Product or Licensed Agent System infringes such Third Party’s Patent Rights or misappropriates such Third Party’s Know-How (each, a “Third-Third Party Infringement Claim”), then the Party first having notice of the claim or assertion will promptly notify the other Party in writing. Subject to Section 9.1[***], [***] will have the sole right right, but not the obligation, to undertake and control the defense or settlement of any Third-Third Party Infringement Claim using counsel of its choice, at its cost and expense. Subject to Section 9.1, if If [***] is named as a defendant in any such Third Party Infringement Claimsuit, [***] will have the right to participate in such defense and settlement with its own counsel, at its expensecost. Subject to Section 9.1, [***] will not enter into any settlement of any Third-Third Party Infringement Claim that is instituted or threatened to be instituted against [***] without [***]’s ] prior written consent, which will not be unreasonably withheld, conditioned conditioned, or delayed; provided except that such consent will not be required if such settlement includes a release of all liability in favor of [***] or an assumption of any unreleased liability by [***]. As requested by [***], [***] will provide reasonable cooperation and assistance to [***] in connection with [***]’s ] control of the defense or settlement of a Third-Third Party Infringement Claim. Such cooperation and assistance will include executing all necessary and proper documents and taking such actions as will be appropriate to allow [***] to control the defense and settlement of such Third-Third Party Infringement Claim. Subject to Section 9.1, [***] will reimburse [***] for the reasonable FTE Costs and Out-of-Pocket Costs incurred by [***] in providing such assistance and cooperation]; provided except that [***] will have no obligation to reimburse [***]. [***] for any such FTE Costs and Out-of-Pocket Costs incurred if Company exercises its right to participate in the defense and settlement of a Third-Party Infringement Claim with its own counsel. [***]will keep [***] reasonably informed of the progress of any Third Party Infringement Claim. To the extent reasonable, both Parties will cooperate in good faith to (a) ensure that [***] and (b) [***].

Defense of Claims Brought by Third Parties. If any Third Party brings a claim or otherwise asserts that a Licensed Product or Licensed Agent Collaboration Compound infringes such Third Party’s Patent or misappropriates such Third Party’s Know-How (each, a “Third-Party 107 Infringement Claim”), the Party first having notice of the claim or assertion will promptly notify the other Party in writing. Subject Prior to Section 9.1the Sanofi Participation Election Effective Date (if any) with respect to the applicable Collaboration Target, [***] will have the sole right to undertake and control the defense or settlement of any Third-Party Infringement Claim using counsel of its choice, at its expense. Subject cost and expense and, following the Sanofi Participation Election Effective Date (if any) with respect to Section 9.1the applicable Collaboration Target, if [***] will have the sole right to undertake and control the defense or settlement of any Third-Party Infringement Claim using counsel of its choice, at its cost and expense (such Party having the right to control such defense, the “Defending Party”). If the Party not having the right to control such defense in accordance with the preceding sentence (the “Non-Defending Party”) is named as a defendant in any such Third suit, the Non-Defending Party Infringement Claim, [***] will have the right to participate in such defense and settlement with its own counsel, at its expensecost. Subject to Section 9.1, [***] The Defending Party will not enter into any settlement of any Third-Party Infringement Claim that is instituted or threatened to be instituted against [***] the Non-Defending Party without [***]the Non-Defending Party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided that except that, such consent will not be required if [***]such settlement includes a release of all liability in favor of the Non-Defending Party or an assumption of any unreleased liability by the Defending Party. As requested by [***]the Defending Party, [***] the Non-Defending Party will provide reasonable cooperation and assistance to [***] the Defending Party in connection with [***]the Defending Party’s control of the defense or settlement of a Third-Party Infringement Claim. Such cooperation and assistance will include executing all necessary and proper documents and taking such actions as will be appropriate to allow [***] the Defending Party to control the defense and settlement of such Third-Party Infringement Claim. Subject to Section 9.1, [***] The Defending Party will reimburse [***] the Non-Defending Party for the reasonable FTE Costs and Out-of-Pocket Costs incurred by [***] the Non-Defending Party in providing such assistance and cooperation; provided except that [***] the Defending Party will have no obligation to reimburse [***] the Non-Defending Party for any such FTE Costs and Out-of-Pocket Costs costs or expenses incurred if Company the Non-Defending Party exercises its right to participate in the defense and settlement of a Third-Party Infringement Claim with its own counsel. [***]The Defending Party will keep [***] the Non-Defending Party reasonably informed of the progress of any Third Third-Party Infringement Claim. To the extent reasonable, both Parties will cooperate in good faith to [***].