Common use of Infringement Claims by Third Parties Clause in Contracts

Infringement Claims by Third Parties. If the Exploitation of a Product in the Territory pursuant to this Agreement results in, or is reasonably expected to result in, any claim, suit or proceeding by a Third Party alleging infringement by Mereo or any of its 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 this Section 9.4, the Party first becoming aware of such alleged infringement shall promptly notify the other Party thereof in writing. As between the Parties, Mereo shall be responsible for defending any such claim, suit or proceeding [***], using counsel of Mereo’s choice. Prior to the Option Exercise Date, AstraZeneca may participate in any such claim, suit or proceeding with counsel of its choice [***]; provided that Mereo shall retain the right to control such claim, suit or proceeding. If Mereo exercises the Option, AstraZeneca shall have no right participate in any such claim, suit or proceeding relating to the Option Patents from and including the Option Exercise Date. AstraZeneca shall, and shall cause its Affiliates to, assist and cooperate with Mereo, as Mereo may reasonably request from time to time, in connection with its activities set forth in this Section 9.4, 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 Mereo shall reimburse AstraZeneca for [***] costs and expenses incurred in connection therewith. Mereo shall keep AstraZeneca reasonably informed of all material developments in connection with any such claim, suit or proceeding. Mereo agrees to provide AstraZeneca with copies of all material pleadings filed in such action and to allow AstraZeneca reasonable opportunity to participate in the defense of the claims. Any [***] 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. damages, or awards, including royalties incurred or awarded in connection with any Third Party Infringement Claim defended under this Section 9.4 shall be [***]. For clarity, if Mereo is required to make any payment to a Third Party to settle such Third Party Infringement Claim, such Third Party Payment shall be a Third Party Payment for the purposes of Section 8.5.3(c).

Infringement Claims by Third Parties. If the Exploitation of a Licensed Product in the Territory pursuant to this Agreement results in, or is reasonably expected to result in, any claim, suit or proceeding by a Third Party alleging infringement by Mereo Licensee or any of its 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 this Section 9.46.3.2, the Party first becoming aware of such alleged infringement shall promptly notify the other Party thereof in writing. As between the Parties, Mereo Licensee shall be responsible for defending any such claim, suit or proceeding, at its sole cost and expense using counsel of Licensee’s choice, in relation to technology licensed under any Exclusive Licensed Technology, and MedImmune shall be responsible for defending any such claim, suit or proceeding [***]at proceeding at its sole cost and expense, using counsel of MereoMedImmune’s choicechoice in relation to technology licensed under any Non-Exclusive Licensed Technology. Prior to the Option Exercise Date, AstraZeneca may participate in any such claim, suit or proceeding with counsel of its choice [***]; provided that Mereo shall retain the right to control such claim, suit or proceeding. If Mereo exercises the Option, AstraZeneca shall have no right participate in any such claim, suit or proceeding relating to the Option Patents from and including the Option Exercise Date. AstraZeneca MedImmune shall, and shall cause its Affiliates to, assist and cooperate with MereoLicensee, as Mereo Licensee may reasonably request from time to time, in connection with its activities set forth out in this Section 9.46.4, including where necessary, furnishing a power of attorney solely for such Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission. Confidential Treatment Requested by Kiniksa Pharmaceuticals, Ltd. 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 Mereo Licensee shall reimburse AstraZeneca MedImmune for [***] its reasonable and verifiable out-of-pocket costs and expenses incurred in connection therewith. Mereo Licensee shall keep AstraZeneca MedImmune reasonably informed of all material developments in connection with any such claim, suit or proceeding. Mereo Licensee agrees to provide AstraZeneca MedImmune with copies of all material pleadings filed in such action and to allow AstraZeneca MedImmune reasonable opportunity to participate in the defense of the claims. Any [***] 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. damages, or awards, including royalties incurred or awarded in connection with any Third Party Infringement Claim defended under this Section 9.4 6.4 shall be [***]. For clarity, if Mereo is required to make any payment to a Third Party to settle such Third Party Infringement Claim, such Third Party Payment shall be a Third Party Payment for the purposes of Section 8.5.3(c).

Infringement Claims by Third Parties. If the Exploitation or Manufacture of a Licensed Product in the Territory pursuant to this Agreement results in, or is reasonably expected to result in, in any claim, suit or proceeding by a Third Party alleging infringement by Mereo against Licensee or any of its Affiliates or its or their Sublicensees, Sublicensees alleging infringement (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an Infringement action initiated by Licensee or any of its Affiliates pursuant to this Section 9.45.3.2, the Party first becoming aware of such alleged infringement Licensee shall promptly notify the other Party MedImmune thereof in writing. As Except as provided in Section 8.3.2, as between the Parties, Mereo Licensee shall be responsible for defending have the first right to defend against any such claim, suit or proceeding at its sole cost and expense, using reputable, outside counsel mutually agreed to by the Parties, such agreement not to be unreasonably withheld, conditioned or delayed, and, with respect to any AstraZeneca Product References in connection with the defense of any such claim, suit or proceeding with respect to a Licensed Patent or PhaseBio Patent, using only factual statements contained in the approved label for the AstraZeneca Product or otherwise approved by MedImmune in writing; provided that MedImmune shall respond to any request to use an AstraZeneca Product Reference in connection with any such defense within [***], using counsel ] of Mereo’s choicereceipt of such request. Prior to the Option Exercise Date, AstraZeneca MedImmune may participate in any such claim, suit or proceeding with counsel of its choice [***]at its sole cost and expense; provided that Mereo Licensee shall retain the right to control such claim, suit or proceeding. If Mereo exercises the Option, AstraZeneca shall have no right participate in any such claim, suit or proceeding relating to the Option Patents from and including the Option Exercise Date. AstraZeneca MedImmune shall, and as necessary shall cause its Affiliates to, assist and cooperate with MereoLicensee, as Mereo Licensee may reasonably request from time to time, in connection with its activities set forth in this Section 9.45.4, including 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 evidence, and making its employees available at reasonable business hours; provided that Mereo Licensee shall reimburse AstraZeneca MedImmune for [***] its reasonable and verifiable out-of-pocket costs and expenses incurred in connection therewith. Mereo Licensee shall keep AstraZeneca MedImmune reasonably informed of all material developments in connection with any such claim, suit or proceeding. Mereo Licensee agrees to provide AstraZeneca MedImmune with copies of all material pleadings filed in such action and to allow AstraZeneca MedImmune reasonable opportunity to participate in the defense of the claims. Any [***] 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. damages, or awards, including royalties incurred or awarded in connection with any Third Party Infringement Claim defended by Licensee under this Section 9.4 5.4 shall be borne by Licensee. If Licensee or its designee does not take commercially reasonable steps to defend against such claim, suit or proceeding within [***] following the date upon which Licensee first receives notice or otherwise learns of such Third Party Infringement *** CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. For clarityClaim or, if Mereo is required to make any payment to a Third Party to settle provided such date occurs after Licensee receives notice or otherwise learns of such Third Party Infringement Claim, [***] before the time limit, if any, set forth in Applicable Law for filing of such actions, whichever comes first, then (a) Licensee shall so notify MedImmune and (b) MedImmune may defend against such Third Party Payment Infringement Claim at its sole cost and expense. For clarity, except as provided in Section 8.3.2, as between the Parties, MedImmune and its Affiliates shall be a Third Party Payment for have and retain the purposes right to defend against any claim, suit or proceeding brought against MedImmune or any of Section 8.5.3(c)its Affiliates.