Common use of Infringement Claims by Third Parties Clause in Contracts

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory, or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed 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”). If Abmuno is named in such legal action but not Arcus, then Arcus shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section that admits to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior 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 cost and the Defending Party shall reimburse the other Party’s reasonable out-of-pocket costs associated therewith.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation use of such Licensed an Optioned Biologic or Optioned Product in the Field in the TerritoryTerritory pursuant to this Agreement results in, or may result in, any claim, suit, or proceeding by a Third Party alleging patent infringement by a Party (ii) if a declaratory judgment action is brought naming either or its Affiliates or Sublicensees), such Party as a defendant and alleging invalidity of any of the Licensed 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 actionParty thereof in writing. Unless the Parties otherwise agree in writing, each Party shall have the right to defend itself against a suit any such claim, suit, or proceeding that names it such Party as a defendant (defendant; provided that the “Defending Party”)other Party may participate in any such claim, suit, or proceeding with counsel of its choice. If Abmuno is named Without limitation of the foregoing, if a Party finds it necessary or desirable to join the other Party as a party to any such action, such other Party shall execute all papers and perform such acts as shall be reasonably required. 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 legal action but not Arcus, then Arcus shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section that admits to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of allow the other Party or requires an admission of liability, wrongdoing or fault on reasonable opportunity to participate in the part defense of the other claims. The Party without who is subject to an infringement action agrees not to settle such other Party’s prior written consentaction, or make any material admissions or assert any position in such action, in a manner that [***]. In any eventExcept as otherwise agreed by the Parties, the other Party shall reasonably assist the Defending Party and cooperate in any such litigation at the Defending Party’s cost and the Defending Party shall reimburse the other Party’s reasonable outOut-of-pocket Pocket Costs incurred by a Party in performing activities pursuant to this Section 9.4 shall be included in Allowable Expenses, or if Denali has exercised the Denali Worldwide Royalty Option with respect to the relevant Collaboration Program, borne by Takeda subject to Takeda’s right to offset [***] of such costs associated therewithagainst its royalty obligations to Denali.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory, or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed PatentsPatents in the Territory, 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”). If Abmuno WuXi is named in such legal action *** CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. CONFIDENTIAL TREATMENT REQUESTED but not Arcus, then Arcus shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section in the Territory that admits to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior 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 cost and the Defending Party shall reimburse the other Party’s reasonable reasonable, documented, out-of-pocket costs associated therewith.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developeddeveloped, made, Commercialized commercialized or otherwise exploited by or under authority of Arcus Licensee becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory, or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed PatentsPatents in the Territory, 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”). If Abmuno WuXi Biologics is named in such legal action but not ArcusLicensee, then Arcus Licensee shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section in the Territory that admits to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior 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 cost and the Defending Party shall reimburse the other Party’s reasonable reasonable, documented, out-of-pocket costs associated therewith.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject Exploitation of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the TerritoryTerritory pursuant to this Agreement results in, or (ii) if is reasonably expected to result in, any claim, suit or proceeding by a declaratory judgment action is brought naming either Third Party as a defendant and alleging invalidity of infringement by Sanofi or any of the Licensed Patentsits Affiliates or its or their Sublicensees, Distributors or customers (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an Infringement action initiated pursuant to Section 8.5 the Party first having notice Confidential materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. becoming aware of the claim or assertion such alleged infringement 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 Party thereof in writing. As between the Parties, each Party Sanofi shall have the right first right, but not the obligation, to defend itself against a and control the defense of any such claim, suit that names it as a defendant (the “Defending Party”)or proceeding at its sole cost and expense, using counsel of its own choice. Lexicon may participate in any such claim, suit or proceeding with counsel of its choice at its sole cost and expense. If Abmuno is named Sanofi or its designee elects (in such legal action but a written communication submitted to Lexicon within a reasonable amount of time after notice of the alleged patent infringement) not Arcusto defend or control the defense of, then Arcus shall have or otherwise fails to initiate and maintain the right to join, at its own expensedefense of, any such legal action claim, suit or proceeding, within such time period so that Lexicon is not prejudiced by any delays, Lexicon may conduct and to be represented in such action by its own counsel. None of control the Parties shall enter into any settlement defense of any claim described in this Section that admits to the invaliditysuch claim, narrowing of scope suit or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other proceeding at its sole cost and expense. Where a Party or requires controls such an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior written consent. In any eventaction, the other Party shall, and shall reasonably cause its Affiliates to, assist the Defending Party and cooperate with the controlling Party, as such controlling Party may reasonably request from time to time, in any connection with its activities set forth in this Section 8.7, including where necessary, furnishing a power of attorney solely for such litigation purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the Defending Party’s cost and the Defending controlling Party shall reimburse the such other Party’s Party for its reasonable and verifiable out-of-pocket costs associated and expenses incurred in connection therewith. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit or proceeding.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation use of such a Licensed Antibody or Licensed Product in the Field in the TerritoryTerritory pursuant to this Agreement results in, or may result in, any claim, suit, or proceeding by a Third Party alleging patent infringement by AbbVie (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed Patentsor its Affiliates or Sublicensees), the Party first having notice of the claim or assertion AbbVie 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 Licensor thereof in writing, each Party . AbbVie shall have the right first right, but not the obligation, to defend itself against a suit that names it and control the defense of any such claim, suit, or proceeding at its own expense (but subject to deduction as a defendant provided below) (and except to the “Defending Party”extent any such expense constitutes an Allowable Expense), using counsel of its own choice. If Abmuno is named Licensor may participate in any such legal action but not Arcusclaim, then Arcus shall have the right to joinsuit, or proceeding with counsel of its choice at its own expense. Without limitation of the foregoing, if AbbVie finds it necessary or desirable to join Licensor as a party to any such action, Licensor shall execute all papers and perform such acts as shall be reasonably required at AbbVie’s expense. If AbbVie elects (in a written communication submitted to Licensor within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate and maintain the defense of, any such legal claim, suit, or proceeding, within such time periods so that Licensor is not prejudiced by any delays, Licensor may conduct and control the defense of any such claim, suit, or proceeding 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 be represented in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section that admits to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of allow the other Party or requires an admission of liability, wrongdoing or fault on reasonable opportunity to participate in the part defense of the other Party without claims. If Licensor has exercised a Licensor Opt Out for a Collaboration Program and such other Party’s prior written consentcosts are not included as an Allowable Expense, [***]. In Any recoveries by AbbVie of any event, the other Party sanctions awarded to AbbVie and against a party asserting a claim being defended under this Section 7.4 shall reasonably assist the Defending Party and cooperate in any such litigation at the Defending Party’s cost and the Defending Party shall reimburse the other Party’s reasonable out-of-pocket costs associated therewithbe applied as follows: [***].

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject Exploitation of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the TerritoryTerritory pursuant to this Agreement results in, or (ii) if is reasonably expected to result in, any claim, suit or proceeding by a declaratory judgment action is brought naming either Third Party as a defendant and alleging invalidity of infringement by Xxxxx or any of the Licensed Patentsits Affiliates or its or their Sublicensees, distributors or customers (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an Infringement action initiated pursuant to Section ‎8.3, the Party first having notice becoming aware of the claim or assertion such alleged infringement 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 Party thereof in writing. As between the Parties, each Party Xxxxx shall have the right first right, but not the obligation, to defend itself against a and control the defense of any such claim, suit that names it as a defendant (the “Defending Party”)or proceeding at its sole cost and expense, using counsel of its own choice. ACI may participate in any such claim, suit or proceeding with counsel of its choice at its sole cost and expense. If Abmuno is named Lilly or its designee elects (in such legal action but a written communication submitted to ACI within a reasonable amount of time after notice of the alleged patent infringement) not Arcusto defend or control the defense of, then Arcus shall have or otherwise fails to initiate and maintain the right to join, at its own expensedefense of, any such legal action claim, suit or proceeding, within such time periods so that ACI is not prejudiced by any delays, ACI may conduct and to be represented in such action by its own counsel. None of control the Parties shall enter into any settlement defense of any claim described in this Section that admits to the invaliditysuch claim, narrowing of scope suit or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other proceeding at its sole cost and expense. Where a Party or requires controls such an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior written consent. In any eventaction, the other Party shall, and shall reasonably cause its Affiliates to, assist the Defending Party and cooperate with the controlling Party, as such controlling Party may reasonably request from time to time, in connection with its activities set forth in this Section, including where necessary, being named as a necessary party to such action, providing reasonable access to relevant documents and other evidence and making its employees available at reasonable business hours. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such litigation at the Defending Party’s cost and the Defending claim, suit or proceeding. Each Party shall reimburse agrees to provide the other Party’s Party with copies of all material pleadings filed in such action and to allow the other Party reasonable out-of-pocket costs associated therewithopportunity to participate in the defense of the claims. Any recoveries awarded to a Party in connection with any Third Party Infringement Claim defended under this Section ‎8.4 shall be [*****].

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject Exploitation of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the TerritoryTerritory pursuant to this Agreement results in, or is reasonably expected to result in, any claim, suit or proceeding by a Third Party alleging infringement of such Third Party’s patent or other intellectual property rights (ii) if a declaratory judgment “Third Party Infringement Claim”), including any defense or counterclaim in connection with an infringement action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed Patentsinitiated pursuant to Section 7.4, the Party first having notice becoming aware of the claim or assertion such alleged Third Party Infringement Claim 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 Party thereof in writing. As between the Parties, each Party Allergan shall have the right first right, but not the obligation, to defend itself against a suit that names it as a defendant and control the defense of any such Third Party Infringement Claim at its sole cost and expense (the “Defending Party”subject to Section 10.1.2), using counsel of its own choice. UroGen may participate in any such Third Party Infringement Claim with counsel of its choice at its sole cost and expense. If Abmuno is named Allergan or its designee elects (in such legal action but a written communication submitted to UroGen within a reasonable amount of time after notice of the alleged Third Party Infringement Claim) not Arcusto defend or control the defense of, then Arcus shall have or otherwise fails to timely initiate and maintain the right to join, at its own expensedefense of, any such legal action Third Party Infringement Claim, UroGen may conduct and to be represented in such action by its own counsel. None of control the Parties shall enter into any settlement defense of any claim described in this Section that admits such claim, suit or proceeding at its sole cost and expense, unless Allergan elected not to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other defend such Third Party or requires an admission of liability, wrongdoing or fault on the part of the other Infringement Claim due to Allergan’s good faith strategic decision. Where a Party without controls such other Party’s prior written consent. In any eventa Third Party Infringement Claim, the other Party shall, and shall reasonably cause its Affiliates to, assist the Defending Party and cooperate with the controlling Party, as such controlling Party may reasonably request from time to time, in any connection with its activities set forth in this Section 7.5, including where necessary, furnishing a power of attorney solely for such litigation purpose or joining in, or being named as a necessary party to, such a Third Party Infringement Claim, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the Defending Party’s cost and the Defending controlling Party shall reimburse the such other Party’s Party for its reasonable and verifiable out-of-pocket costs associated and expenses incurred in connection therewith. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such Third Party Infringement Claim. Each Party agrees to provide the other Party with copies of all material pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of any Third Party Infringement Claim. Any recoveries awarded to a Party in connection with any Third Party Infringement Claim defended under this Section 7.5 shall be retained by such Party. [*] = 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 the Securities Act of 1933, as amended.

Infringement Claims by Third Parties. If either (i) any the Development or Commercialization of the Licensed Compound or a Licensed Product Developedin the Field in the Territory pursuant to this Agreement results in, madeor may result in, Commercialized any claim, suit, or otherwise exploited proceeding by a Third Party alleging Patent infringement by Licensee (or under authority its Affiliates), Licensee shall promptly notify Licensor thereof in writing. Subject to the remainder of Arcus becomes this Section 9.4 and Section 12.2, Licensee (or its Affiliates) shall have the subject right to defend any action which names Licensee (or its Affiliates) or claims the infringement, after the Effective Date, of a any Third Party’s claim Patent through the Development or assertion Commercialization of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory. If necessary and at Licensee’s expense. Licensor will reasonably assist and cooperate with Licensee in any such defense. Licensee shall keep Licensor reasonably informed of all material developments in connection with any such claim, suit, or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity proceeding, including by providing Licensor with copies of any of the Licensed 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 all pleadings filed in such action. Unless the Parties otherwise agree in writing, each Party Licensor shall have the right to defend itself against a suit that names it as a defendant (a) assume the “Defending Party”). If Abmuno is named in such legal action but not Arcus, then Arcus shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement defense of any claim described in this Section claims that admits to the invalidity, narrowing of scope name Licensor or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior written consent. In any event, the other Party its Affiliates (and Licensee shall reasonably assist the Defending Party and cooperate in any such litigation at defense) or (b) participate in the Defending Party’s cost and defense of the Defending claims in actions defended by Licensee. Neither Party shall reimburse may enter into any settlement that affects the other Party’s reasonable out-of-pocket rights or interests without such Party’s written consent, which consent will not be unreasonably withheld, conditioned, or delayed. Licensee will bear all costs associated therewithand expenses (including attorneys’ fees) and pay all damages and settlement amounts arising out of or in connection with any action described in this Section 9.4.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject Exploitation of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the TerritoryTerritory pursuant to this Agreement results in, or (ii) if is reasonably expected to result in, any claim, suit or proceeding by a declaratory judgment action is brought naming either Third Party as a defendant and alleging invalidity of infringement by Licensee or any of the Licensed Patentsits Affiliates or its or their Sublicensees (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an Infringement action initiated pursuant to Section 6.3, the Party first having notice becoming aware of the claim or assertion such alleged infringement 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 Party thereof in writing. As between the Parties, each Party Licensee shall have the right first right, but not the obligation, to defend itself against a and control the defense of any such claim, suit that names it as a defendant (the “Defending Party”)or proceeding at its sole cost and expense, using counsel of Licensee’s own choice. RVL may participate in any such claim, suit or proceeding with counsel of its choice at its sole cost and expense. If Abmuno is named Licensee or its designee elects (in such legal action but a written communication submitted to RVL within a reasonable amount of time after notice of the alleged patent infringement) not Arcusto defend or control the defense of, then Arcus shall have or otherwise fails to initiate and maintain the right to join, at its own expensedefense of, any such legal action claim, suit or proceeding, within such time periods so that RVL is not prejudiced by any delays, RVL may conduct and to be represented in such action by its own counsel. None of control the Parties shall enter into any settlement defense of any claim described in this Section that admits to the invaliditysuch claim, narrowing of scope suit or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other proceeding at its sole cost and expense. Where a Party or requires controls such an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior written consent. In any eventaction, the other Party shall, and shall reasonably cause its Affiliates to, assist the Defending Party and cooperate with the controlling Party, as such controlling Party may reasonably request from time to time, in any connection with its activities set forth in this Section 6.4, including where necessary, furnishing a power of attorney solely for such litigation purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the Defending Party’s cost and the Defending controlling Party shall reimburse such other Party for its reasonable and verifiable out-of-pocket costs and expenses incurred in connection therewith. Each Party shall keep the other Party’s 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 material pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims. Any recoveries awarded to a Party in connection with any Third Party Infringement Claim defended under this Section 6.4 shall be applied first to reimburse such Party for its reasonable out-of-pocket costs associated therewithof defending such claim, suit or proceeding, with the balance of any such recoveries being retained or provided to such Party and, in the case of Licensee, included in the calculation of Net Sales for the relevant Licensed Product.

Infringement Claims by Third Parties. If either (i) any the Development or Commercialization of the Licensed Compound or a Licensed Product Developedin the Field in the Territory pursuant to this Agreement results in, madeor may result in, Commercialized any claim, suit, or otherwise exploited proceeding by a Third Party alleging Patent infringement by Licensee (or under authority its Affiliates), Licensee shall promptly notify Licensor thereof in writing. Subject to the remainder of Arcus becomes this Section 9.4 and Section 12.2, Licensee (or its Affiliates) shall have the subject right to defend any action which names Licensee (or its Affiliates) or claims the infringement, after the Effective Date, of a any Third Party’s claim Patent through the Development or assertion Commercialization of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the Territory. If necessary and at Licensee’s expense, Licensor will reasonably assist and cooperate with Licensee in any such defense. Licensee shall keep Licensor reasonably informed of all material developments in connection with any such claim, suit, or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity proceeding, including by providing Licensor with copies of any of the Licensed 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 all pleadings filed in such action. Unless the Parties otherwise agree in writing, each Party Licensor shall have the right to defend itself against a suit that names it as a defendant (a) assume the “Defending Party”). If Abmuno is named in such legal action but not Arcus, then Arcus shall have the right to join, at its own expense, any such legal action and to be represented in such action by its own counsel. None of the Parties shall enter into any settlement defense of any claim described in this Section claims that admits to the invalidity, narrowing of scope name Licensor or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior written consent. In any event, the other Party its Affiliates (and Licensee shall reasonably assist the Defending Party ​ ​ and cooperate in any such litigation at defense) or (b) participate in the Defending Party’s cost and defense of the Defending claims in actions defended by Licensee. Neither Party shall reimburse may enter into any settlement that affects the other Party’s reasonable out-of-pocket rights or interests without such Party’s written consent, which consent will not be unreasonably withheld, conditioned, or delayed. Licensee will bear all costs associated therewithand expenses (including attorneys’ fees) and pay all damages and settlement amounts arising out of or in connection with any action described in this Section 9.4.

Infringement Claims by Third Parties. For purposes of this Section 4.3, the Party defending any Third Party Infringement Claim shall be the “Defending Party”. If either (i) any the Exploitation of a Licensed Product Developedby Sublicensor, madeSublicensee or any of their Affiliates or sublicensees, Commercialized results in, or otherwise exploited is reasonably expected to result in, any claim, suit or proceeding by or under authority of Arcus becomes the subject of a Third Party’s claim Party alleging infringement by Sublicensee or assertion any of infringement of its Affiliates or its or their sublicensees (a patent relating “Third Party Infringement Claim”), excluding any defense or counterclaim in connection with an Infringement action initiated pursuant to Section 4.2, the manufacture, use, sale, offer for sale or importation Party first becoming aware of such Licensed Product alleged infringement shall promptly notify the other Party thereof in writing. As between the Field in Parties, (a) Sublicensor shall have the Territoryright, but not the obligation, to defend any such claim, suit or (ii) if a declaratory judgment action is brought naming either Party as a defendant and alleging invalidity of any of proceeding with respect to the Licensed Patents, the Party first having notice of the claim Roivant Patents and any Patents contained in, or assertion shall promptly notify the other Partyotherwise relating to, any Sublicensor New IP or Joint New IP, 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 (b) Sublicensee shall have the right right, but not the obligation, to defend itself against a any such claim, suit that names it as a defendant (the “Defending Party”). If Abmuno is named in such legal action but not Arcusor proceeding with respect to any Patents contained in, then Arcus shall have the right to join, at its own expenseor otherwise relating to, any such legal action Sublicensee New IP, in each case, in both the Retained Field and to be represented the Sublicensed Field, in such action by its own counsel. None of the Parties shall enter into any settlement of any claim described in this Section that admits to the invalidityTerritory, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other Party or requires an admission of liability, wrongdoing or fault on the part of the other Party without such other Party’s prior 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 cost sole cost, using counsel of the Defending Party’s choice. The non-Defending Party shall, and shall cause its Affiliates to, assist and cooperate with the Defending Party, as the Defending Party may reasonably request from time to time, in connection with its activities set forth in this Section, including where necessary, furnishing a power of attorney solely for such purpose or joining in, or being named as a necessary party to, such action, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the Defending Party shall reimburse the other non-Defending Party for its reasonable and verifiable costs and expenses incurred in connection therewith. The Defending Party shall keep the non-Defending Party reasonably informed of all material developments in connection with any such claim, suit or proceeding. The Defending Party agrees to provide the non-Defending Party with copies of all material pleadings filed in such action and to allow the non-Defending Party reasonable opportunity to participate in the defense of the claims. Any damages, or awards, including royalties incurred or awarded in connection with any Third Party Infringement Claim defended under this Section 4.3 shall be borne by the Defending Party’s reasonable out. In the event that the Defending Party elects not to defend against such Third Party Infringement Claims within sixty (60) days of learning of same, the non-of-pocket costs associated therewithDefending Party shall have the right, but not the obligation, to defend against such an action, subject in all cases to the assistance and cooperation provisions of this Section 4.3.

Infringement Claims by Third Parties. If either (i) any Licensed Product Developed, made, Commercialized or otherwise exploited by or under authority of Arcus becomes the subject Exploitation of a Third Party’s claim or assertion of infringement of a patent relating to the manufacture, use, sale, offer for sale or importation of such Licensed Product in the Field in the TerritoryTerritory pursuant to this Agreement results in, or is reasonably expected to result in, any claim, suit or proceeding by a Third Party alleging infringement of such Third Party’s patent or other intellectual property rights (ii) if a declaratory judgment “Third Party Infringement Claim”), including any defense or counterclaim in connection with an infringement action is brought naming either Party as a defendant and alleging invalidity of any of the Licensed Patentsinitiated pursuant to Section 7.4, the Party first having notice becoming aware of the claim or assertion such alleged Third Party Infringement Claim 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 Party thereof in writing. As between the Parties, each Party Allergan shall have the right first right, but not the obligation, to defend itself against a suit that names it as a defendant and control the defense of any such Third Party Infringement Claim at its sole cost and expense (the “Defending Party”subject to Section 10.1.2), using counsel of its own choice. UroGen may participate in any such Third Party Infringement Claim with counsel of its choice at its sole cost and expense. If Abmuno is named Allergan or its designee elects (in such legal action but a written communication submitted to UroGen within a reasonable amount of time after notice of the alleged Third Party Infringement Claim) not Arcusto defend or control the defense of, then Arcus shall have or otherwise fails to timely initiate and maintain the right to join, at its own expensedefense of, any such legal action Third Party Infringement Claim, UroGen may conduct and to be represented in such action by its own counsel. None of control the Parties shall enter into any settlement defense of any claim described in this Section that admits such claim, suit or proceeding at its sole cost and expense, unless Allergan elected not to the invalidity, narrowing of scope or unenforceability of the Licensed Patents or this Agreement, incurs any financial liability on the part of the other defend such Third Party or requires an admission of liability, wrongdoing or fault on the part of the other Infringement Claim due to Allergan’s good faith strategic decision. Where a Party without controls such other Party’s prior written consent. In any eventa Third Party Infringement Claim, the other Party shall, and shall reasonably cause its Affiliates to, assist the Defending Party and cooperate with the controlling Party, as such controlling Party may reasonably request from time to time, in any connection with its activities set forth in this Section 7.5, including where necessary, furnishing a power of attorney solely for such litigation purpose or joining in, or being named as a necessary party to, such a Third Party Infringement Claim, providing access to relevant documents and other evidence and making its employees available at reasonable business hours; provided that the Defending Party’s cost and the Defending controlling Party shall reimburse the such other Party’s Party for its reasonable and verifiable out-of-pocket costs associated and expenses incurred in connection therewith. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such Third Party Infringement Claim. Each Party agrees to provide the other Party with copies of all material pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of any Third Party Infringement Claim. Any recoveries awarded to a Party in connection with any Third Party Infringement Claim defended under this Section 7.5 shall be retained by such Party.