Common use of Infringement of Third Party Patents Clause in Contracts

Infringement of Third Party Patents. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either Party pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Without limiting the generality of the foregoing, in the event either Party receives any written communication from any Third Party alleging that the manufacture, use, sale, offer for sale or import of a Supplied Item in the Territory infringes or may infringe a Patent of a Third Party, such Party shall deliver a copy of such communication to the other Party within [...***...] of receipt. SteadyMed shall have the sole right and responsibility to respond to such communication and to determine the course of action, including whether or not to seek a license under such Third Party’s Patent or contest and defend against such allegation (subject to Section 13.2 hereof), in such manner as SteadyMed, in its sole judgment, deems appropriate, and at SteadyMed’s sole expense. In no event shall Cardiome or any of its Affiliates, directly or indirectly, make or cause to be made any admission or acknowledgment, whether orally, in writing or otherwise, that the manufacture, use, sale, offer for sale or import of any Supplied Item in the Territory infringes or may infringe, or otherwise is or may be within the scope of, such Third Party’s Patent. If SteadyMed or its Affiliate obtains a license under such Third Party’s Patent to make, have made, use, sell, have sold, offer for sale or import Product or Infusion Set in the Field in the Territory (whether in connection with the settlement of any infringement action or proceeding by such Third Party or otherwise), such Patent shall be included in the SteadyMed Patents licensed to Cardiome under Section 2.1, and SteadyMed shall be solely responsible for the payment to such Third Party of all royalties and milestone payments that become due to such Third Party under the license agreement with such Third Party as a result of the Commercialization by or on behalf of Cardiome, its Affiliates, Sublicensees or Subdistributors of Product or Infusion Set in the Field in the Territory in accordance with this Agreement, provided that Cardiome shall provide to SteadyMed on a timely basis all such information regarding Cardiome’s and its Affiliates’, Sublicensees’ and Subdistributors’ activities as is necessary for SteadyMed to ascertain and comply with its royalty and milestone payment obligations to such Third Party. Neither Party shall have the right to settle any patent infringement litigation under this Section 11.5 in a manner that diminishes the rights or interests of the other Party without the written consent of such other Party (which consent shall not be unreasonably conditioned, withheld or delayed).

Infringement of Third Party Patents. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either Party pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Without limiting the generality of the foregoing, in the event either Party receives any written communication from any Third Party alleging that the manufacture, use, sale, offer for sale or import of a Supplied Item in the Territory infringes or may infringe a Patent of a Third Party, such Party shall deliver a copy of such communication to the other Party within [...***...] of receipt. SteadyMed shall have the sole right and responsibility to respond to such communication and to determine the course of action, including whether or not to seek a license under such Third Party’s Patent or contest and defend against such allegation (subject to Section 13.2 hereof), in such manner as SteadyMed, in its sole judgment, deems appropriate, and at SteadyMed’s sole expense. In no event shall Cardiome or any of its Affiliates, directly or indirectly, make or cause to be made any admission or acknowledgment, whether orally, in writing or otherwise, that the manufacture, use, sale, offer for sale or import of any Supplied Item in the Territory infringes or may infringe, or otherwise is or may be within the scope of, such Third Party’s Patent. If SteadyMed or its Affiliate obtains a license under such Third Party’s Patent to make, have made, use, sell, have sold, offer for sale or import Product or Infusion Set in the Field in the Territory (whether in connection with the settlement of any infringement action or proceeding by such Third Party or otherwise), such Patent shall be included in the SteadyMed Patents licensed to Cardiome under Section 2.1, and SteadyMed shall be solely [*] = 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. responsible for the payment to such Third Party of all royalties and milestone payments that become due to such Third Party under the license agreement with such Third Party as a result of the Commercialization by or on behalf of Cardiome, its Affiliates, Sublicensees or Subdistributors of Product or Infusion Set in the Field in the Territory in accordance with this Agreement, provided that Cardiome shall provide to SteadyMed on a timely basis all such information regarding Cardiome’s and its Affiliates’, Sublicensees’ and Subdistributors’ activities as is necessary for SteadyMed to ascertain and comply with its royalty and milestone payment obligations to such Third Party. Neither Party shall have the right to settle any patent infringement litigation under this Section 11.5 in a manner that diminishes the rights or interests of the other Party without the written consent of such other Party (which consent shall not be unreasonably conditioned, withheld or delayed).

Infringement of Third Party Patents. Each If MIOL receives notice from a Third Party claiming that the importation of Active Pharmaceutical Ingredient into the Territory or the Exploitation of the Finished Product in the Territory by MIOL or its Affiliates or Sub-Distributors infringes or misappropriates any Patent Rights of such Third Party in any country in the Territory, MIOL shall promptly notify Oscient and the other Parties shall consult in writing good faith to determine the appropriate action to be taken in relation to such alleged infringement or misappropriation. MIOL shall have the first right, but not the obligation, through counsel of any allegation by its choosing, to negotiate and obtain a licence from such Third Party that as necessary for MIOL and its Affiliates to import Active Pharmaceutical Ingredient into the activity of either relevant country and/or MIOL and its Affiliates, Sub-Distributors and Third-Party pursuant Manufacturers to this Agreement infringes or may infringe Exploit the intellectual property rights of such Third Party. Without limiting the generality of the foregoing, in the event either Party receives any written communication from any Third Party alleging that the manufacture, use, sale, offer for sale or import of a Supplied Item Finished Products in the Territory infringes or may infringe the relevant country (a Patent of a “Third Party, such Party shall deliver a copy of such communication to the other Party within [...***...] of receiptLicense”). SteadyMed Oscient shall have the sole right and responsibility right, but not [*] = Portions of this exhibit have been omitted pursuant to respond a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. obligation, at its own expense, to participate in any such communication negotiations and to determine the course be independently represented by counsel of action, including whether or not to seek a license under such Third PartyOscient’s Patent or contest and defend against such allegation (subject to Section 13.2 hereof), in such manner as SteadyMed, in its sole judgment, deems appropriate, and at SteadyMed’s sole expenseown choice. In no event MIOL shall Cardiome or conduct any of its Affiliates, directly or indirectly, make or cause to be made any admission or acknowledgment, whether orally, in writing or otherwise, that the manufacture, use, sale, offer for sale or import of any Supplied Item in the Territory infringes or may infringe, or otherwise is or may be within the scope of, such Third Party’s Patent. If SteadyMed or its Affiliate obtains a license under such Third Party’s Patent to make, have made, use, sell, have sold, offer for sale or import Product or Infusion Set in the Field in the Territory (whether in connection with the settlement of any infringement action or proceeding by such Third Party or otherwise), such Patent shall be included in the SteadyMed Patents licensed to Cardiome under Section 2.1, and SteadyMed shall be solely responsible for the payment to such Third Party of all royalties and milestone payments that become due to such Third Party under the license agreement negotiations with such Third Party as a result of the Commercialization by or on behalf of Cardiomein co-operation with Oscient, its Affiliates, Sublicensees or Subdistributors of Product or Infusion Set in the Field in the Territory in accordance with this Agreement, provided that Cardiome and shall provide to SteadyMed on a timely basis all such information regarding Cardiome’s and its Affiliates’, Sublicensees’ and Subdistributors’ activities as is necessary for SteadyMed to ascertain and comply with its royalty and milestone payment obligations to such not conclude any Third Party. Neither Party shall have the right to settle any patent infringement litigation under this Section 11.5 in a manner that diminishes the rights or interests of the other Party License without the prior written consent of Oscient, such other Party (which consent shall not to be unreasonably conditioned, withheld or delayed. In the event that MIOL is required to pay a royalty based on Net Sales of the Finished Product pursuant to a Third Party License (a “Third Party Royalty”)., Oscient shall during the Mandatory Supply Term, reimburse MIOL (or, if the Parties agree, pay to the Third Party directly), Quarterly in arrears an amount equal to [*] percent ([*]%) of the Third Party Royalty payable by MIOL with respect to the preceding Quarter; provided that the amount to be paid by Oscient with respect to any Quarter shall not exceed the lower of:

Infringement of Third Party Patents. Each Party shall promptly notify In the other in writing event that any Product manufactured, used or sold under this Agreement, becomes the subject of any allegation by a Third Party that the activity of either Party pursuant to this Agreement infringes claim or may infringe the intellectual property rights of such Third Party. Without limiting the generality of the foregoingpotential claim for patent infringement, anywhere in the event either Party receives any written communication from any Third Party alleging that world, and irrespective of whether USGN or Kidde is charged with said infringement, the manufacture, use, sale, offer for sale or import of a Supplied Item in parties shall promptly meet to consider the Territory infringes or may infringe a Patent of a Third Party, such Party shall deliver a copy of such communication to claim and the other Party within [...***...] of receipt. SteadyMed shall have the sole right and responsibility to respond to such communication and to determine the appropriate course of action; provided, including whether or not to seek a license under such Third Party’s Patent or contest and defend against such allegation (subject to Section 13.2 hereof), in such manner as SteadyMed, in its sole judgment, deems appropriate, and at SteadyMed’s sole expense. In no event shall Cardiome or any of its Affiliates, directly or indirectly, make or cause to be made any admission or acknowledgment, whether orally, in writing or otherwisehowever, that the manufacture, use, sale, offer for sale or import of any Supplied Item in the Territory infringes or may infringe, or otherwise is or may be within the scope of, such Third Party’s Patent. If SteadyMed or its Affiliate obtains a license under such Third Party’s Patent to make, have made, use, sell, have sold, offer for sale or import Product or Infusion Set in the Field in the Territory (whether in connection with the settlement of any infringement action or proceeding by such Third Party or otherwise), such Patent shall be included in the SteadyMed Patents licensed to Cardiome under Section 2.1, and SteadyMed USGN shall be solely responsible for the payment to such any Third Party infringement claims relating to any products manufactured, used or sold by USGN pursuant to Sections 3.2 and/or 3.6 of all royalties this Agreement. Unless the parties otherwise agree, in the event of an actual claim the parties shall appoint an independent counsel, selected by mutual consent and milestone payments that become due to paid equally by Kidde and USGN, and split the expense of such Third Party under defense. The parties shall reasonably cooperate with the license agreement with such Third Party as a result independent counsel in the defense of the Commercialization by claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that materially alters, derogates or on behalf of Cardiome, its Affiliates, Sublicensees or Subdistributors of Product or Infusion Set in diminishes the Field in the Territory in accordance with other party's rights under this Agreement, provided that Cardiome shall provide to SteadyMed on a timely basis all such information regarding Cardiome’s and its Affiliates’, Sublicensees’ and Subdistributors’ activities as is necessary for SteadyMed to ascertain and comply with its royalty and milestone payment obligations to such Third Party. Neither Party shall have the right to settle any patent infringement litigation under this Section 11.5 in a manner that diminishes the rights or interests of the other Party without the written consent of such other Party (party's written consent, which consent shall not be unreasonably conditioned, withheld or delayed). If in the opinion of Kidde's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Kidde from making, using, selling, offering for sale or importing Product, then Kidde shall notify USGN of such conclusion and the basis for it and give USGN a reasonable opportunity to discuss Kidde's opinion. If USGN concurs in Kidde's opinion, Kidde shall have the right to negotiate directly with such Third Party for a license, and Kidde shall be entitled to offset fifty percent (50%) of the Royalties accruing, in the country where the claim exists, during each Kidde Fiscal Quarter (as defined in Section 6.4) during the term of such Third Party license, as a credit against the Royalties due under Section 6.3. If USGN does not concur with Kidde's opinion, the matter shall be submitted to an independent counsel, selected by mutual consent and paid equally by Kidde and USGN, to determine whether there is a substantial risk of infringement of such Third Party rights. If such independent counsel determines that a substantial risk exists, then Kidde may negotiate directly with such Third Party and receive a Royalty credit as set forth above. If such independent counsel determines that a substantial risk does not exist, then Kidde may still negotiate for a license from such Third Party if it elects to do so, but Kidde shall not have the right of Royalty reduction provided for in this Section 8.4.

Infringement of Third Party Patents. Each Party of the Parties shall promptly promptly, but in any event no later than ten (10) days after receipt of notice thereof, notify the other Party in writing in the event of any allegation claims by a Third Party that the activity of either Party pursuant to this Agreement infringes alleged patent infringement by Licensee or may infringe the intellectual property rights Lilly or any of such Third Party. Without limiting the generality of the foregoingtheir respective Affiliates or, in the event either Party receives any written communication from any Third Party alleging that case of Licensee, its Related Parties with respect to the manufactureresearch, Development, Manufacture, use, sale, offer for sale or import importation of a Supplied Item the Compound or Product (each, an “Infringement Claim”). With respect to any Infringement Claim in the Territory infringes or may infringe Licensed Field, the Parties shall attempt to negotiate in good faith a Patent resolution with respect thereto. If the Parties cannot settle such Infringement Claim with the appropriate Third Parties within thirty (30) days after the receipt of a Third Partythe notice pursuant to this Section 8.4.1, such Party then Licensee shall deliver a copy assume control of the defense of such communication Infringement Claim. Lilly, upon request of Licensee, agrees to the other Party within [...***...] of receipt. SteadyMed shall have the sole right join in any such litigation, and responsibility in any event to respond to such communication and to determine the course of action, including whether or not to seek a license under such Third Party’s Patent or contest and defend against such allegation (subject to Section 13.2 hereof)reasonably cooperate with Licensee, in such manner as SteadyMedeach case, in its sole judgment, deems appropriate, and at SteadyMedLicensee’s sole reasonable expense. In no event shall Cardiome or any of its Affiliates, directly or indirectly, make or cause to be made any admission or acknowledgment, whether orally, in writing or otherwise, that the manufacture, use, sale, offer for sale or import of any Supplied Item in the Territory infringes or may infringe, or otherwise is or may be within the scope of, such Third Party’s Patent. If SteadyMed or its Affiliate obtains a license under such Third Party’s Patent to make, have made, use, sell, have sold, offer for sale or import Product or Infusion Set in the Field in the Territory (whether in connection with the settlement of any infringement action or proceeding by such Third Party or otherwise), such Patent shall be included in the SteadyMed Patents licensed to Cardiome under Section 2.1, and SteadyMed shall be solely responsible for the payment to such Third Party of all royalties and milestone payments that become due to such Third Party under the license agreement with such Third Party as a result of the Commercialization by or on behalf of Cardiome, its Affiliates, Sublicensees or Subdistributors of Product or Infusion Set in the Field in the Territory in accordance with this Agreement, provided that Cardiome shall provide to SteadyMed on a timely basis all such information regarding Cardiome’s and its Affiliates’, Sublicensees’ and Subdistributors’ activities as is necessary for SteadyMed to ascertain and comply with its royalty and milestone payment obligations to such Third Party. Neither Party shall Lilly will have the right to consult with Licensee concerning such Infringement Claim and to participate in and be represented by independent counsel in any litigation in which Lilly is a party at its own expense. Licensee shall have the exclusive right to settle any patent infringement litigation under this Section 11.5 in a manner that diminishes the rights or interests of the other Party Infringement Claim without the written consent of Lilly, unless such settlement would have a material adverse impact on Lilly (in which case the consent of such other Party Lilly shall be required). For purposes of this Section 8.4.1, any settlement that would involve the waiver of rights (which including the rights to receive payments) of Lilly shall be deemed a material adverse impact and shall require the consent shall of Lilly, such consent not to be unreasonably conditionedwithheld, withheld conditioned or delayed).

Infringement of Third Party Patents. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either Party pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Without limiting the generality of the foregoing, in the event either Party receives any written communication from any Third Party alleging that the manufacture, use, sale, offer for sale or import of a Supplied Item in the Territory infringes or may infringe a Patent of a Third Party, such Party shall deliver a copy of such communication to the other Party within [...***...redacted in accordance with Section 12.2(3) of National Instrument 51-102] of receipt. SteadyMed shall have the sole right and responsibility to respond to such communication and to determine the course of action, including whether or not to seek a license under such Third Party’s Patent or contest and defend against such allegation (subject to Section 13.2 hereof), in such manner as SteadyMed, in its sole judgment, deems appropriate, and at SteadyMed’s sole expense. In no event shall Cardiome or any of its Affiliates, directly or indirectly, make or cause to be made any admission or acknowledgment, whether orally, in writing or otherwise, that the manufacture, use, sale, offer for sale or import of any Supplied Item in the Territory infringes or may infringe, or otherwise is or may be within the scope of, such Third Party’s Patent. If SteadyMed or its Affiliate obtains a license under such Third Party’s Patent to make, have made, use, sell, have sold, offer for sale or import Product or Infusion Set in the Field in the Territory (whether in connection with the settlement of any infringement action or proceeding by such Third Party or otherwise), such Patent shall be included in the SteadyMed Patents licensed to Cardiome under Section 2.1, and SteadyMed shall be solely responsible for the payment to such Third Party of all royalties and milestone payments that become due to such Third Party under the license agreement with such Third Party as a result of the Commercialization by or on behalf of Cardiome, its Affiliates, Sublicensees or Subdistributors of Product or Infusion Set in the Field in the Territory in accordance with this Agreement, provided that Cardiome shall provide to SteadyMed on a timely basis all such information regarding Cardiome’s and its Affiliates’, Sublicensees’ and Subdistributors’ activities as is necessary for SteadyMed to ascertain and comply with its royalty and milestone payment obligations to such Third Party. Neither Party shall have the right to settle any patent infringement litigation under this Section 11.5 in a manner that diminishes the rights or interests of the other Party without the written consent of such other Party (which consent shall not be unreasonably conditioned, withheld or delayed).

Infringement of Third Party Patents. Each Party shall promptly notify In the other in writing event that any Product manufactured, used or sold under this Agreement, becomes the subject of any allegation by a Third Party that the activity of either Party pursuant to this Agreement infringes claim or may infringe the intellectual property rights of such Third Party. Without limiting the generality of the foregoingpotential claim for patent infringement, anywhere in the event either Party receives any written communication from any Third Party alleging that world, and irrespective of whether USGN or Kidde is charged with said infringement, the manufacture, use, sale, offer for sale or import of a Supplied Item in parties shall promptly meet to consider the Territory infringes or may infringe a Patent of a Third Party, such Party shall deliver a copy of such communication to claim and the other Party within [...***...] of receipt. SteadyMed shall have the sole right and responsibility to respond to such communication and to determine the appropriate course of action; provided, including whether or not to seek a license under such Third Party’s Patent or contest and defend against such allegation (subject to Section 13.2 hereof), in such manner as SteadyMed, in its sole judgment, deems appropriate, and at SteadyMed’s sole expense. In no event shall Cardiome or any of its Affiliates, directly or indirectly, make or cause to be made any admission or acknowledgment, whether orally, in writing or otherwisehowever, that the manufacture, use, sale, offer for sale or import of any Supplied Item in the Territory infringes or may infringe, or otherwise is or may be within the scope of, such Third Party’s Patent. If SteadyMed or its Affiliate obtains a license under such Third Party’s Patent to make, have made, use, sell, have sold, offer for sale or import Product or Infusion Set in the Field in the Territory (whether in connection with the settlement of any infringement action or proceeding by such Third Party or otherwise), such Patent shall be included in the SteadyMed Patents licensed to Cardiome under Section 2.1, and SteadyMed USGN shall be solely responsible for the payment to such any Third Party infringement claims relating to any products manufactured, used or sold by USGN pursuant to Sections 3.2 and/or 3.6 of all royalties this Agreement. Unless the parties otherwise agree, in the event of an actual claim the parties shall appoint an independent counsel, selected by mutual consent and milestone payments that become due to paid equally by Kidde and USGN, and split the expense of such Third Party under defense. The parties shall reasonably cooperate with the license agreement with such Third Party as a result independent counsel in the defense of the Commercialization by claim, including if required to conduct such defense, furnishing a power of attorney. Neither party shall enter into any settlement that materially alters, derogates or on behalf of Cardiome, its Affiliates, Sublicensees or Subdistributors of Product or Infusion Set in diminishes the Field in the Territory in accordance with other party's rights under this Agreement, provided that Cardiome shall provide to SteadyMed on a timely basis all such information regarding Cardiome’s and its Affiliates’, Sublicensees’ and Subdistributors’ activities as is necessary for SteadyMed to ascertain and comply with its royalty and milestone payment obligations to such Third Party. Neither Party shall have the right to settle any patent infringement litigation under this Section 11.5 in a manner that diminishes the rights or interests of the other Party without the written consent of such other Party (party's written consent, which consent shall not be unreasonably conditioned, withheld or delayed). If in the opinion of Kidde's counsel, a license with respect to such Third Party patents is necessary to avoid substantial risks which could prevent Kidde from making, using, selling, offering for sale or importing Product, then Kidde shall notify USGN of such conclusion and the basis for it and give USGN a reasonable opportunity to discuss Kidde's opinion. If USGN concurs in Kidde's opinion, Kidde shall have the right to negotiate directly with such Third Party for a license, and Kidde shall be entitled to offset fifty percent (50%) of the Royalties accruing, in the country where the claim exists, during each Kidde Fiscal Quarter (as defined in Section 6.4) during the term of such Third Party license, as a credit against the Royalties due under Section 6.3. If USGN does not concur with Kidde's opinion, the matter shall be submitted to an independ ent counsel, selected by mutual consent and paid equally by Kidde and USGN, to determine whether there is a substantial risk of infringement of such Third Party rights. If such independent counsel determines that a substantial risk exists, then Kidde may negotiate directly with such Third Party and receive a Royalty credit as set forth above. If such independent counsel determines that a substantial risk does not exist, then Kidde may still negotiate for a license from such Third Party if it elects to do so, but Kidde shall not have the right of Royalty reduction provided for in this Section 8.4.

Infringement of Third Party Patents. Each Party of the Parties shall promptly promptly, but in any event no later than ten (10) days after receipt of notice thereof, notify the other Party in writing in the event of any allegation claims by a Third Party that the activity of either Party pursuant to this Agreement infringes alleged patent infringement by Licensee or may infringe the intellectual property rights VBL or any of such Third Party. Without limiting the generality of the foregoing, their respective Affiliates or sublicensees (in the event either Party receives any written communication from any Third Party alleging that case of VBL) or Sublicensees (in the case of Licensee) with respect to the research, development, manufacture, use, sale, offer for sale or import importation of a Supplied Item in Product (each, an “Infringement Claim”). With respect to any Infringement Claim, VBL shall assume control of the Territory infringes or may infringe a Patent of a Third Party, such Party shall deliver a copy defense of such communication Infringement Claim at its sole cost and expense and shall keep Licensee informed of the status thereof. Licensee, upon reasonable request of VBL, agrees to the other Party within [...***...] of receipt. SteadyMed shall have the sole right and responsibility use Commercially Reasonable Efforts to respond cooperate with VBL in any such proceedings at VBL’s expense (including, if legally required, joining as a party to such communication and to determine the course of action, including whether or not to seek a license under such Third Partyproceedings at VBL’s Patent or contest and defend against such allegation (subject to Section 13.2 hereofexpense), in such manner as SteadyMed, in its sole judgment, deems appropriate, and at SteadyMed’s sole expense. In no event shall Cardiome or any of its Affiliates, directly or indirectly, make or cause to be made any admission or acknowledgment, whether orally, in writing or otherwise, that the manufacture, use, sale, offer for sale or import of any Supplied Item in the Territory infringes or may infringe, or otherwise is or may be within the scope of, such Third Party’s Patent. If SteadyMed or its Affiliate obtains a license under such Third Party’s Patent to make, have made, use, sell, have sold, offer for sale or import Product or Infusion Set in the Field in the Territory (whether in connection with the settlement of any infringement action or proceeding by such Third Party or otherwise), such Patent shall be included in the SteadyMed Patents licensed to Cardiome under Section 2.1, and SteadyMed shall be solely responsible for the payment to such Third Party of all royalties and milestone payments that become due to such Third Party under the license agreement with such Third Party as a result of the Commercialization by or on behalf of Cardiome, its Affiliates, Sublicensees or Subdistributors of Product or Infusion Set in the Field in the Territory in accordance with this Agreement, provided that Cardiome shall provide to SteadyMed on a timely basis all such information regarding Cardiome’s and its Affiliates’, Sublicensees’ and Subdistributors’ activities as is necessary for SteadyMed to ascertain and comply with its royalty and milestone payment obligations to such Third Party. Neither Party shall Licensee will have the right to consult with VBL concerning such Infringement Claim and to participate in and be represented by independent counsel of its choice in any litigation in which Licensee is a party at its own expense. VBL shall have the exclusive right to settle any patent infringement litigation under Infringement Claim without the consent of Licensee, as long as such settlement does not have a material adverse impact on Licensee (in which case the consent of Licensee shall be required). For purposes of this Section 11.5 in a manner 9.3.1, any settlement that diminishes would involve the waiver or loss of rights (including the rights or interests to receive payments) of Licensee hereunder shall be deemed a material adverse impact and shall require the other Party without the written consent of such other Party (Licensee, which consent shall not be unreasonably conditionedwithheld. For the avoidance of doubt, withheld any consent from Licensee for such settlement shall not limit Licensee’s right to indemnification under ARTICLE 11 or delayed)any other remedies that Licensee may have at law or in equity.

Infringement of Third Party Patents. Each Party shall promptly notify send the other in writing Party a copy of any allegation by notice or communication from a Third Party that the activity third party alleging any infringement or other violation of either Party pursuant to this Agreement infringes or may infringe the such third party's intellectual property rights of such Third Party("Notice"). Without limiting the generality of the foregoing, in the event either Party receives any written communication from any Third Party alleging that the manufacture, use, sale, offer for sale or import of a Supplied Item in the Territory infringes or may infringe a Patent of a Third Party, such Party shall deliver a copy of such communication to the other Party within [...***...] of receipt. SteadyMed Licensor shall have the sole right and responsibility first right, but shall not be obligated, to respond to the Notice, and shall take such communication further action as is required under the SSP License. If Licensor does not elect to respond, Licensor shall promptly inform B&L and permit it to determine respond to the course of actionNotice, including whether or not to seek a license under such Third Party’s Patent or contest and defend against such allegation (subject to Section 13.2 hereof), in such manner as SteadyMed, in its sole judgment, deems appropriate, and at SteadyMed’s sole expense. In no event shall Cardiome or any of its Affiliates, directly or indirectly, make or cause to be made any admission or acknowledgment, whether orally, in writing or otherwise, that the manufacture, use, sale, offer for sale or import of any Supplied Item in the Territory infringes or may infringe, or otherwise is or may be within the scope of, such Third Party’s Patent. If SteadyMed or its Affiliate obtains a license under such Third Party’s Patent to make, have made, use, sell, have sold, offer for sale or import Product or Infusion Set in the Field in the Territory (whether in connection compliance with the settlement of SSP License. B&L shall have the right, but shall not be obligated, to take any infringement legal action or proceeding by such Third Party or otherwise), such Patent shall be included at its own expense in response to the SteadyMed Patents licensed to Cardiome under Section 2.1, and SteadyMed shall be solely responsible for the payment to such Third Party of all royalties and milestone payments that become due to such Third Party under the license agreement with such Third Party as a result of the Commercialization by or on behalf of Cardiome, its Affiliates, Sublicensees or Subdistributors of Product or Infusion Set in the Field in the Territory in accordance with this Agreement, provided that Cardiome shall provide to SteadyMed on a timely basis all such information regarding Cardiome’s and its Affiliates’, Sublicensees’ and Subdistributors’ activities as is necessary for SteadyMed to ascertain and comply with its royalty and milestone payment obligations to such Third PartyNotice. Neither Party B&L shall have the right to name Licensor as a party in connection with any action in response to the Notice. Each Party shall cooperate fully with the other Party in any action resulting from or in connection with the Notice. Unless the Parties are separately defending themselves, the Party defending any such proceedings shall have sole control of such proceedings and shall bear the reasonable expenses (excluding all legal fees) incurred by the other Party in providing such assistance and cooperation as is requested pursuant to this paragraph. The Party defending such proceedings shall consult with and keep the other Party informed of the progress of such proceedings, including, without limitation, furnishing copies of communications, pleadings and other documents and keeping the other Party informed of settlement efforts and developments, and such other Party shall be entitled to participate with counsel in such proceedings but at its own expense. If B&L defends such proceedings, it may offset its reasonable expenses, including reasonable legal expenses, incurred in regard thereto against the Base Royalty owed to Licensor under Article 6 of this Agreement. B&L shall continue to perform its reporting obligations under this Agreement and otherwise continue to perform its obligations hereunder. Neither Party shall settle any patent infringement litigation under infringement, misappropriation, or other claim subject to this Section 11.5 in a manner that diminishes Article 17 without the rights or interests consent of the other Party without the written consent of such other Party (Party, which consent shall not be unreasonably conditionedwithheld, withheld if it would adversely affect B&L's rights hereunder. If any Invention claimed in a Patent Right or delayedany Know-how is covered by an issued patent or other intellectual property right held by one or more third parties and it becomes necessary for B&L to obtain a license from such third party or parties under such patent, and/or other intellectual property right and accordingly to pay royalties, upfront payments or damages to such third party(ies), then B&L may reduce the Base Royalty or other payments otherwise due Licensor, other than the Extra Royalty, by the amount of royalty payment, upfront payments or damages due to such third party.