Common use of Joint Action Clause in Contracts

Joint Action. Notwithstanding anything to the contrary herein, the Parties may mutually agree to institute and prosecute actions jointly with respect to infringement of the Licensed RFSP Patents or Licensed RFSP Technology and subject to the terms of University License Agreement, with respect to the Licensed University Patents. In the event that the Parties agree to institute and prosecute actions jointly, the Parties shall cooperate in good faith in the litigation of such action or proceeding using such counsel as they may mutually agree, shall share the expense of such action or proceeding in accordance with such proportionate share as the Parties may mutually agree, and otherwise conduct the litigation of such action or proceeding in accordance with such other arrangements as the parties may mutually agree. Neither Party shall enter into any settlement, consent, judgment or other voluntary final disposition of any such an action or proceeding which adversely affects the other Party’s rights in the Licensed Patents or Licensed Technology Rights without the consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Any recovery obtained as a result of any such action or proceeding, by settlement or otherwise, shall be applied in the following order of priority: (A) first, to reimburse each Party for all costs and expenses in connection with such action or proceeding paid by that Party and not otherwise recovered (on a pro rata basis based on each Party’s respective litigation costs, to the extent the recovery was less than all such litigation costs); and (B) the remainder of the recovery shall be shared based on each Party’s respective contribution to the litigation costs.