Common use of Infringement Claimed by Third Parties Clause in Contracts

Infringement Claimed by Third Parties. In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, or import of the Licensed Product in the Territory (the “Third Party Claim”), or threatens to commence such a Third Party Claim, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other Party. Meda shall, using counsel reasonably acceptable to BDSI, at Meda’s own cost and expense, defend any and all such Third Party Claims or proceedings, and BDSI shall, at Meda’s cost and expense, provide such assistance and cooperation to Meda as may be necessary to successfully defend any such Third Party Claims. The above notwithstanding, without BDSI’s prior written consent, Meda may only settle any such claim with BDSI’s prior written consent, such consent not to be unreasonably withheld. The above notwithstanding, if Meda elects not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI or a Third Party under an agreement between BDSI and such Third Party, or the grant of rights from BDSI to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability ***CONFIDENTIAL TREATMENT REQUESTED*** Note: The portions hereof for which confidential treatment are being requested are denoted with “***”. provisions of Section 13.05(e), the License may be terminated or rendered nonexclusive by BDSI to the extent Arius’ License (as defined in Section 3.01 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreement, upon notice to Meda within *** of Meda’s election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control the defense of such claims at BDSI’s cost and expense using counsel of its own choice.

Infringement Claimed by Third Parties. In the event a Third Party commences claims, or the Parties hereto determine, that Watsxx xx or may be infringing the intellectual property rights of a Third Party based on Watsxx'x xxxrcise of its license grant from Genelabs [**], Genelabs shall obtain, at its expense, such rights as are necessary for Watsxx xx exploit the licenses granted hereunder free of any potential claim of such Third Party. In the event a Third Party commences, or threatens to commence, a judicial or administrative proceeding against a Party to this Agreement and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to Genelabs Technology or the manufacture, use, sale, marketing, or import of the Licensed Product in the Territory (the “Third Party Claim”), or threatens to commence such a Third Party ClaimGenelabs Marks, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other Party. Meda Genelabs shall, using counsel reasonably acceptable to BDSI, at Meda’s own cost and its sole expense, defend any such claims or proceedings and all such Third Party Claims or proceedings, and BDSI shall, at Meda’s cost and expense, Watsxx xxxll provide such assistance and cooperation to Meda Genelabs as may be necessary to successfully defend any such Third Party Claimsclaim or proceeding at Genelabs' expense and may deduct the expenses thereof from any amounts payable to Genelabs under this Agreement. The above notwithstanding, without BDSI’s prior written consent, Meda Genelabs may only not settle any such claim with BDSI’s prior written consent, such consent not to be unreasonably withheldwithout Watsxx'x xxxor approval. The above notwithstandingHowever, if Meda elects not such claim or proceeding relates to defend a Third Party Claim that is not based upon, or does not result fromarises from the actions, activities or omissions of BDSI or a Third Party under an agreement between BDSI and such Third Party, Watsxx xxxer than the use by Watsxx xx the Genelabs Technology or the grant of rights from BDSI Genelabs Marks, Watsxx xxxll defend such claims or proceedings, at its sole expense, and Watsxx xxxll indemnify Genelabs for any liabilities, costs and expenses, including, without limitation, reasonable attorneys' fees, incurred with respect to such Third Party, and involves a material adverse risk to either Party claim or Net Sales notwithstanding the survivability ***CONFIDENTIAL TREATMENT REQUESTED*** Note: The portions hereof for which confidential treatment are being requested are denoted with “***”. provisions of Section 13.05(e), the License may be terminated or rendered nonexclusive by BDSI to the extent Arius’ License (as defined in Section 3.01 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreement, upon notice to Meda within *** of Meda’s election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control the defense of such claims at BDSI’s cost and expense using counsel of its own choiceproceeding.

Infringement Claimed by Third Parties. In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, or import of the Licensed Product in the Territory (the “Third Party Claim”), or threatens to commence any suit or action against a Party, alleging infringement of such Third Party’s intellectual property rights by the development, manufacture, having manufactured, use, marketing, promotion, distribution, commercialization, sale, offer to sell, having sold, export or import of Drug Products by REPLIDYNE, its Affiliates or its sublicensees or DSP or DSP’s Affiliates in the event such DSP’s Affiliate enters into a Third Party ClaimCo-Promotion agreement in accordance with Section 8.2, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other PartyParty (hereinafter referred to as “Infringement Notice”). Meda shallREPLIDYNE shall have the right, using counsel reasonably acceptable but not the obligation, to BDSI, at Meda’s own cost control the defense and expense, defend any and all such Third Party Claims or proceedings, and BDSI shall, at Meda’s cost and expense, provide such assistance and cooperation to Meda as may be necessary to successfully defend settlement of any such Third suit or action, provided that REPLIDYNE notifies DSP that it intends to exercise such right at the time REPLIDYNE gives DSP the Infringement Notice, or if REPLIDYNE is not the Party Claimsgiving the Infringement Notice, then within thirty (30) days after receipt of the Infringement Notice from DSP. The above notwithstandingIf REPLIDYNE fails to notify DSP of its intent to exercise such right within such thirty (30) day time period or if REPLIDYNE notifies DSP within such thirty (30) days that it does not intend to exercise such right, without BDSI’s prior written consent, Meda may only settle DSP shall then control the settlement and defense of any such claim with BDSI’s prior written consentsuit or action solely on its own behalf, such consent but not to be unreasonably withheldon behalf of REPLIDYNE, its Affiliates or sublicensees. The above notwithstanding, if Meda elects Either Party shall not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI or a Third Party under an agreement between BDSI and such Third Party, or the grant of rights from BDSI to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability ***CONFIDENTIAL TREATMENT REQUESTED*** Note: The portions hereof for which confidential treatment are being requested are denoted with “***”. provisions of Section 13.05(e), the License may be terminated or rendered nonexclusive by BDSI to the extent Arius’ License (as defined in Section 3.01 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreement, upon notice to Meda within *** of Meda’s election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control settle any such suit or action in any manner that includes the defense grant of a license in the Territory or that could have any adverse effect on the other Party without the prior written consent of such claims at BDSI’s cost other Party which consent shall not be unreasonably withheld or delayed. REPLIDYNE shall bear all costs, expenses, fees, charges, monies, license fees and expense using counsel or royalties in connection with any such suit or action by a [ *** ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of its own choicethe Securities Exchange Act of 1933, as amended. Third Party to the extent such are related solely to methods or processes used by REPLIDYNE in the production of the Drug Product (but excluding the Drug Substance), and both Parties shall share equally on all costs, expenses, fees, charges, monies, license fees and/or royalties in connection with any such suit or action by a Third Party to the extent such are not related solely to methods or processes used by REPLIDYNE in the production of the Drug Product.

Infringement Claimed by Third Parties. In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, BEMA Patent Rights or import of the Licensed Product Marks in the Territory (the “Third Party Claim”), or threatens to commence such a Third Party Claim, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other Party. Meda shallArius may, using its choice of counsel reasonably acceptable to BDSI, and at Meda’s its own cost and expense, defend any and all such Third Party Claims or proceedings, and BDSI Arius Two shall, at Meda’s Arius’ cost and expense, provide such assistance and cooperation to Meda Arius as may be necessary to successfully defend any such Third Party Claims. The above notwithstanding, without BDSIArius Two’s prior written consent, Meda Arius may only settle any such claim with BDSIso long as the terms of such settlement do not (a) impair Arius Two’s prior written consentrights hereunder, such consent not to be unreasonably withheld(b) impair Arius Two’s rights in the BEMA Patent Rights and the Marks, or (c) impose any additional costs directly on Arius Two. The above notwithstanding, if Meda Arius elects not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI Arius Two or a Third Party under an agreement between BDSI Arius Two and such Third Party, or the grant of rights from BDSI Arius Two to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability ***CONFIDENTIAL TREATMENT REQUESTED*** Note: The portions hereof for which confidential treatment are being requested are denoted with “***”. provisions of Section 13.05(e14.05(d), the License may be terminated or rendered nonexclusive by BDSI to the extent Arius’ License (as defined Arius Two, in Section 3.01 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreementits sole discretion, upon *** notice to Meda Arius within *** of Meda’s Arius’ election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control the defense of such claims at BDSIArius Two’s cost and expense using counsel of its own choice.

Infringement Claimed by Third Parties. In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, or import of the Licensed Product in the Territory (the “Third Party Claim”), or threatens to commence any suit or action against a Party, alleging infringement of such Third Party’s intellectual property rights by the development, manufacture, having manufactured, use, marketing, promotion, distribution, commercialization, sale, offer to sell, having sold, export or import of Drug Products by REPLIDYNE, its Affiliates or its sublicensees or DSP or DSP’s Affiliates in the event such DSP’s Affiliate enters into a Third Party ClaimCo-Promotion agreement in accordance with Section 8.2, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other PartyParty (hereinafter referred to as “Infringement Notice”). Meda shallREPLIDYNE shall have the right, using counsel reasonably acceptable but not the obligation, to BDSI, at Meda’s own cost control the defense and expense, defend any and all such Third Party Claims or proceedings, and BDSI shall, at Meda’s cost and expense, provide such assistance and cooperation to Meda as may be necessary to successfully defend settlement of any such Third suit or action, provided that REPLIDYNE notifies DSP that it intends to exercise such right at the time REPLIDYNE gives DSP the Infringement Notice, or if REPLIDYNE is not the Party Claimsgiving the Infringement Notice, then within thirty (30) days after receipt of the Infringement Notice from DSP. The above notwithstandingIf REPLIDYNE fails to notify DSP of its intent to exercise such right within such thirty (30) day time period or if REPLIDYNE notifies DSP within such thirty (30) days that it does not intend to exercise such right, without BDSI’s prior written consent, Meda may only settle DSP shall then control the settlement and defense of any such claim with BDSI’s prior written consentsuit or action solely on its own behalf, such consent but not to be unreasonably withheldon behalf of REPLIDYNE, its Affiliates or sublicensees. The above notwithstanding, if Meda elects Either Party shall not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI or a Third Party under an agreement between BDSI and such Third Party, or the grant of rights from BDSI to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability ***CONFIDENTIAL TREATMENT REQUESTED*** Note: The portions hereof for which confidential treatment are being requested are denoted with “***”. provisions of Section 13.05(e), the License may be terminated or rendered nonexclusive by BDSI to the extent Arius’ License (as defined in Section 3.01 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreement, upon notice to Meda within *** of Meda’s election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control settle any such suit or action in any manner that includes the defense grant of a license in the Territory or that could have any adverse effect on the other Party without the prior written consent of such claims at BDSI’s cost and expense using counsel of its own choiceother Party which consent shall not be unreasonably withheld or delayed. [ *** ].

Infringement Claimed by Third Parties. (a) In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, or import of the a Licensed Product in the Territory (the “Third Party Claim”), or threatens to commence such a Third Party Claim, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other Party. Meda shall, using counsel reasonably acceptable to BDSI, at Meda’s own cost and expense, defend any and all such Third Party Claims or proceedings, and BDSI shall, at Meda’s cost and expense, provide such assistance and cooperation to Meda as may be necessary to successfully defend any such Third Party Claims. The above notwithstanding, without BDSI’s prior written consent, Meda may only settle or enter into any form of voluntary disposition of any such claim with BDSI’s prior written consent, such consent not to be unreasonably withheld, provided that any such settlement or voluntary disposition which (i) admits fault or wrongdoing, or incurs liability, on the part of BDSI or (ii) adversely affects any of the Licensed Patent Rights, Licensed Know-How, or Marks shall require BDSI’s prior written consent, which BDSI may withhold in its sole discretion. The above notwithstanding, if Meda elects not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI or a Third Party under an agreement between BDSI and such Third Party, or the grant of rights from BDSI to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability ***CONFIDENTIAL TREATMENT REQUESTED*** Note: The portions hereof for which confidential treatment are being requested are denoted with “***”. provisions of Section 13.05(e13.06(e), the License may be terminated or rendered nonexclusive by BDSI to the extent Arius’ License (as defined in Section 3.01 3.02 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreement, upon notice to Meda within *** of Meda’s election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control the defense of such claims at BDSI’s cost and expense using counsel of its own choice.

Infringement Claimed by Third Parties. In the event a Third Party commences a judicial or administrative proceeding against a Party and such proceeding, other than a proceeding to which Section 7.01 applies, pertains to the manufacture, use, sale, marketing, BEMA Patent Rights or import of the Licensed Product Marks used in the Territory (the “Third Party Claim”“), or threatens to commence such a Third Party Claim, the Party against whom such proceeding is threatened or commenced shall give prompt notice to the other Party. Meda shallArius may, using its choice of counsel reasonably acceptable to BDSI, and at Meda’s its own cost and expense, defend any and all such Third Party Claims or proceedings, and BDSI Arius Two shall, at Meda’s Arius’ cost and expense, provide such assistance and cooperation to Meda Arius as may be necessary to successfully defend any such Third Party Claims. The above notwithstanding, without BDSIArius Two’s prior written consent, Meda Arius may only settle any such claim with BDSIso long as the terms of such settlement do not (a) impair Arius Two’s prior written consentrights hereunder, such consent not to be unreasonably withheld(b) impair Arius Two’s rights in the BEMA Patent Rights and the Marks, or (c) impose any additional costs directly on Arius Two. The above notwithstanding, if Meda Arius elects not to defend a Third Party Claim that is not based upon, or does not result from, activities of BDSI Arius Two or a Third Party under an agreement between BDSI Arius Two and such Third Party, or the grant of rights from BDSI Arius Two to such Third Party, and involves a material adverse risk to either Party or Net Sales notwithstanding the survivability ***CONFIDENTIAL TREATMENT REQUESTED*** Note: The portions hereof for which confidential treatment are being requested are denoted with “***”. provisions of Section 13.05(e13.05(d), the License may be terminated or rendered nonexclusive by BDSI Arius Two, in its sole discretion, upon 30 days’ notice to the extent Arius within 30 days of Arius’ License (as defined in Section 3.01 of the Arius Two Agreement) is terminated or rendered nonexclusive by Arius Two pursuant to Section 7.04 of the Arius Two Agreement, upon notice to Meda within *** of Meda’s election not to defend such Third Party Claim, and, in any event and independent of (i) any action or lack thereof by Arius Two under the Arius Two Agreement and (ii) any termination or rendering nonexclusive of the License by BDSI pursuant to the foregoing, BDSI shall have the right to control the defense of such claims at BDSIArius Two’s cost and expense using counsel of its own choice.