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

Defense of Claims Brought by Third Parties. If a Party becomes aware of any claim, suit, or proceeding alleging that the Development, Manufacture or Commercialization of a Licensed Compound or Licensed Product infringes the intellectual property rights of any Third Party, such Party shall promptly notify the other Party. Subject to Article 11, each Party shall have the first right, but not the obligation, to defend and control the defense of any such claim, suit, or proceeding brought against such Party at its own expense (but subject to deduction as provided below), using counsel of its own choice. The other Party may participate in any such claim, suit, or proceeding with counsel of its choice at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Each Party agrees to provide the other Party with copies of all pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims. Each Party shall be entitled to credit [**] percent ([**]%) of the reasonable out-of-pocket costs of defending such claim, suit, or proceeding against royalties due to the other Party pursuant to Section 6.4. Any recoveries by a Party of any sanctions awarded to such Party and against a Third Party asserting a claim being defended under this Section 8.4 shall be applied as follows: such recovery shall be applied first to (i) reimburse such Party for its reasonable out-of-pocket costs of defending such claim, suit or proceeding to the extent not credited against royalties pursuant to the previous sentence, and (ii) reimburse the other Party for royalty credits pursuant to the previous sentence, and to the extent the amount of recovery is not sufficient to reimburse the Parties for the total amount described under subsections (i) and (ii) above, the recovery shall be shared by the Parties equally. The balance of any such recoveries shall be retained by the Party defending such claim, suit or proceeding and included in such Party’s Net Sales for the relevant Licensed Product.

Defense of Claims Brought by Third Parties. If a Party becomes aware of any claim, suit, or proceeding alleging that the Development, Manufacture or Commercialization of a Licensed Compound or Licensed Product infringes the intellectual property rights of any Third Party, such Party shall promptly notify the other Party. Subject to Article 1112, each Party shall have the first right, but not the obligation, to defend and control the defense of any such claim, suit, or proceeding brought against such Party at its own expense (but but, in the case of EISAI, subject to deduction as provided below), using counsel of its own choice. The other Party may participate in any such claim, suit, or proceeding with counsel of its choice at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit, or proceeding. Each Party agrees to provide the other Party with copies of all pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims. Each Party EISAI shall be entitled to credit [**] percent ([**]%) of the reasonable out-of-pocket costs of defending such claim, suit, or proceeding against royalties due to the other Party EPIZYME pursuant to Section 6.47.5.1 of this Agreement. Any recoveries by a Party EISAI of any sanctions awarded to such Party EISAI and against a Third Party party asserting a claim being defended under this Section 8.4 9.4 shall be applied as follows: such recovery shall be applied first to (i) reimburse such Party EISAI for its reasonable out-of-pocket costs of defending such claim, suit or proceeding to the extent not credited against royalties pursuant to the previous sentence, and (ii) reimburse the other Party EPIZYME for royalty credits pursuant to the previous sentence, and to the extent the amount of recovery is not sufficient to reimburse the Parties for the total amount described under subsections (i) and (ii) above, the recovery shall be shared by the Parties equally. The balance of any such recoveries shall be retained by the Party defending such claim, suit or proceeding and included in such Party’s Net Sales for the relevant Licensed Product.