Common use of During the Term Clause in Contracts

During the Term. (a) LICENSEE shall have the first right and obligation to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY against infringement or interference claims in the LICENSED TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALS. This right and obligation includes bringing any legal action for infringement and defending any counter claim of invalidity or action of a third party for declaratory judgment for non-infringement or non-interference. If, in the reasonable opinion of both LICENSEE’s and YALE’s respective counsel, YALE is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE as a party; provided, however, that (i) YALE shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE as a party; and (iii) LICENSEE shall keep YALE reasonably apprised of all developments in any such action. LICENSEE may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered without YALE’s prior written consent. LICENSEE shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and expense of LICENSEE, YALE shall have no obligation regarding the legal actions described in this Section unless required to participate by law. However, YALE shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-pocket expenses and second shall be applied to YALE’s out-of-pocket expenses, including legal fees. Thereafter, any remaining amount of such recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses as aforesaid and (ii) the amount of such compensatory damages as aforesaid. LICENSEE shall make such payment to YALE within thirty (30) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALE.

During the Term. (a) LICENSEE shall have the first right and obligation to (i) defend its or its SUBLICENSEE’s use of the ENPP TECHNOLOGY against infringement or interference claims in the LICENSED TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALS. This right and obligation includes bringing any legal action for infringement and defending any counter claim of invalidity or action of a third party THIRD PARTY for declaratory judgment for non-infringement noninfringement or non-interference. If, in the reasonable opinion of both LICENSEE’s and YALE’s respective counsel, YALE is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE as a party; provided, however, that (i) YALE shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE as a party; and (iii) LICENSEE shall keep YALE reasonably apprised of all developments in any such action. LICENSEE may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered without YALE’s prior written consent. LICENSEE shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and expense of LICENSEE, YALE shall have no obligation regarding the legal actions described in this Section unless required to participate by law. However, YALE shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-pocket expenses and second shall be applied to YALE’s out-of-pocket expenses, including legal fees. Thereafter, any remaining amount of such recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] percent Percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses as aforesaid and (ii) the amount of such compensatory damages as aforesaid. LICENSEE shall make such payment to YALE within thirty (30) days [**] after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALE.

During the Term. (a) LICENSEE shall have the first right and obligation right, but shall not be obligated, to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY LICENSED PATENTS against infringement or interference claims in the FIELD and in the LICENSED TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALSparties. This right and obligation includes bringing any legal action for infringement and defending any counter claim counterclaim of invalidity or action of a third party for declaratory judgment for non-infringement or non-interference. If, in the reasonable opinion of both LICENSEE’s and YALE’s respective counselcounsels, YALE is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE as a party; provided, however, that (i) YALE shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE as a party; and (iii) LICENSEE shall keep YALE reasonably apprised of all material developments in any such action. LICENSEE may settle such suits suits, whether by agreement, consent, judgment, voluntary dismissal or otherwise, solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no any such settlement that imposes any restrictions or obligations on YALE shall be entered without into only with YALE’s prior written consent. LICENSEE shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and reasonable expense of LICENSEE, YALE shall have no obligation regarding the legal actions described in this Section Article 11.2 unless required to participate by law. However, YALE shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-out of pocket expenses and second shall be applied to YALE’s out-of-out of pocket expenses, in each case including legal fees. Thereafter, If there is any remaining amount excess recovery following payment of such recovery by LICENSEE up to the expenses: (A) any amount of compensatory damages recovered by LICENSEE specifically for lost profits or sales shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, treated as NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during in the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE EARNED ROYALTIES payable to YALE in respect of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE such NET SALES; (B) any amount recovered specifically as punitive or treble damages shall pay YALE [**] percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses be treated as aforesaid SUBLICENSE INCOME; and (iiC) if both clause (A) and clause (B) apply, the amount of such compensatory damages excess recovery shall apply to clause (A) and clause (B) in the same proportion as aforesaid. LICENSEE shall make such payment to YALE within thirty (301) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise recovered specifically for lost profits or sales bears to such payment to YALE(2) the amount recovered specifically as punitive or treble damages.

During the Term. (a) LICENSEE shall have the first right and obligation to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY LICENSED PATENTS against infringement or interference claims in the LICENSED FIELD and in the TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALSparties. This right and obligation includes bringing any legal action for infringement and defending any counter claim of invalidity or action of a third party for declaratory judgment for non-infringement or non-interferencenoninterference. If, in the reasonable opinion of both LICENSEE’s and YALE’s respective counsel, YALE is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE as a party; provided, however, that (i) YALE shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE as a party; and (iii) LICENSEE shall keep YALE reasonably apprised of all developments in any such action. LICENSEE may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered without YALE’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Without limiting the foregoing, YALE may withhold its consent to any settlement that would in any manner constitute or incorporate an admission by YALE or require YALE to take or refrain from taking any action. LICENSEE shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and expense of LICENSEE, YALE shall have no obligation regarding the legal actions described in this Section Article 11.2 unless required to participate by law. However, YALE shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-out of pocket expenses and second shall be applied to YALE’s out-of-out of pocket expenses, including legal fees. Thereafter, any remaining amount of such Any excess recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE over those expenses shall be treated as if it were SUBLICENSE INCOME with the applicable percentage under Article 7.3 payable to YALE and the balance retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses as aforesaid and (ii) the amount of such compensatory damages as aforesaid. LICENSEE shall make such payment to YALE within thirty (30) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALE.

During the Term. (a) LICENSEE shall have the first right right, but not the obligation, to assert and obligation to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY against LICENSED PATENTS respecting infringement or interference claims other violation of INTELLECTUAL PROPERTY RIGHTS relating to the ROYALTY-BEARING PRODUCTS by THIRD PARTIES in the LICENSED TERRITORY by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOW, LICENSED METHODS or LICENSED MATERIALSusing counsel of its own selection. This right and obligation includes bringing any legal action for infringement and defending any counter claim of invalidity a THIRD PARTY respecting the LICENSED PATENTS such as a counter claim or action of a third party for declaratory judgment for invalidity, non-infringement infringement, or non-interferenceunenforceability. If, in the reasonable opinion of both LICENSEE’s and YALE’s MXXXXXX’x respective counsel, YALE MOFFITT is required to be a named party to any such suit for standing purposes, LICENSEE may join YALE MOFFITT as a partyparty and MOFFITT shall consensually appear in such action; provided, however, that (i) YALE MOFFITT shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE and that LICENSEE has joined YALE MOFFITT as a party; and (iii) LICENSEE shall keep YALE MOFFITT reasonably apprised of all developments in any such action. No settlement, consent judgment, or other voluntary final disposition of any action by LICENSEE that admits the invalidity, unenforceability, or scope of the LICENSED PATENTS may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered into without YALE’s the prior written consentconsent of MOFFITT, such consent not to be unreasonably withheld, delayed or conditioned. LICENSEE MOFFITT shall bear the expense of their own legal expenses with respect to any such legal actionslitigation. Except for providing reasonable assistance, at the request and expense of LICENSEE, YALE MOFFITT shall have no obligation regarding the legal actions described in this Section 10.2 unless required to participate by law. However, YALE MOFFITT shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-pocket expenses OUT OF POCKET COSTS and second shall be applied to YALE’s out-of-pocket expensesMXXXXXX’x OUT OF POCKET COSTS, including legal fees. Thereafter, any remaining amount of such recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE MOFFITT shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] recover twenty percent ([**]20%) of the amount, if any, of any such excess recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses as aforesaid and (ii) the amount of such compensatory damages as aforesaid. LICENSEE shall make such payment to YALE within thirty (30) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALEover those expenses.

During the Term. (a) LICENSEE Licensee shall have the first right and obligation to (i) defend its or its SUBLICENSEE’s use of the TECHNOLOGY Licensed Patents against infringement or interference claims challenges in the LICENSED TERRITORY Field and in the Licensed Territory by third parties and (ii) take action (including legal action) against third parties who may infringe the LICENSED PATENTS or otherwise misappropriate the LICENSED KNOW-HOWparties, LICENSED METHODS or LICENSED MATERIALS. This right and obligation which includes bringing any legal action for infringement and defending any counter claim of invalidity or action of a third party for declaratory judgment for non-infringement or non-interferencechallenge. If, in the reasonable opinion of both LICENSEE’s Licensee's and YALE’s Dartmouth's respective counsel, YALE Dartmouth is required to be a named party to any such suit for standing purposes, LICENSEE Licensee may join YALE Dartmouth as a party; provided, however, that (i) YALE Dartmouth shall not be the first named party in any such action, (ii) the pleadings and any public statements about the action shall state that the action is being pursued by LICENSEE Licensee and that LICENSEE Licensee has joined YALE Dartmouth as a party; , and (iii) LICENSEE Licensee shall keep YALE Dartmouth reasonably apprised of all developments in any such action. LICENSEE Licensee may settle such suits solely in its own name and solely at its own expense and through counsel of its own selection; provided, however, that no settlement shall be entered without YALE’s Dartmouth's prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. LICENSEE Without limiting the foregoing, Dartmouth may withhold its consent to any settlement that would in any manner constitute or incorporate an admission of liability by Dartmouth or require Dartmouth to take or refrain from taking any action. Licensee shall bear the expense of such legal actions. Except for providing reasonable assistance, at the request and expense of LICENSEELicensee, YALE Dartmouth shall have no obligation regarding the legal actions described in this Section 11.2 unless required to participate by law. However, YALE Dartmouth shall have the right to participate in any such action through its own counsel and at its own expense. Any recovery shall first be applied to LICENSEE’s out-of-Licensee's out of pocket expenses and second shall be applied to YALE’s out-of-Dartmouth's out of pocket expenses, including legal fees. Thereafter, With respect to any remaining amount excess recovery received by Licensee after the payment of such recovery by LICENSEE up to the amount of compensatory damages recovered by LICENSEE shall be retained by LICENSEE, but if related to a PRODUCT IN CLASS or LICENSED METHOD shall be deemed, to the extent so related, NET SALES of a PRODUCT IN CLASS or LICENSED METHOD, as the case may be, during the calendar quarter in which such recovery is actually paid to LICENSEE, and shall be subject to payment by LICENSEE of an EARNED ROYALTY thereon pursuant to Section 6.1. LICENSEE shall pay YALE [**] percent ([**]%) of the amount, if any, of any such recovery by LICENSEE related to a PRODUCT IN CLASS or LICENSED METHOD which amount is in excess of (i) LICENSEE’s and YALE’s out-of-pocket expenses that constitute damages for lost sales of Licensed Products, such recovery shall be treated as aforesaid and (ii) Net Sales for which Dartmouth shall be paid Earned Royalties. Any excess recovery received by Licensee after the amount payment of such compensatory out-of-pocket expenses that does not constitute damages for lost sales of Licensed Products (including treble or punitive damages) shall be treated as aforesaidSublicense Income. LICENSEE shall make such payment to YALE within thirty (30) days after the end of the calendar quarter in which LICENSEE actually receives the amount giving rise to such payment to YALE.DARTMOUTH CONFIDENTIAL