Common use of Rights and Procedures Clause in Contracts

Rights and Procedures. If either Party determines that any HPA Patent is being infringed by a Third Party’s activities and that such infringement could affect the exercise by Emergent of its rights and obligations under this Agreement, it shall notify the other Party in writing and provide it with any evidence of such infringement that is reasonably available. Emergent shall have the first right, but not the obligation, to attempt to remove such infringement by commercially appropriate steps, including filing an infringement suit or taking other similar action, at its own expense. If required by law in order for Emergent to prosecute such suit, HPA shall join such suit as a Party, at Emergent’s expense. HPA shall use its best efforts to obtain any consents required by Third Parties owning Licensed HPA Patents in order to authorize Emergent to take legal action to remove such infringement. In the event Emergent fails within one hundred and twenty (120) days following notice of such infringement, or earlier notifies HPA in writing of its intent not to take commercially appropriate steps to remove any infringement of any such HPA Patent, HPA may do so at its own expense; provided, however, that if HPA fails to bring such suit or otherwise terminate such infringement within one hundred and twenty (120) days of its first having the right to do so, Emergent shall be permanently relieved of its royalty obligations under this Agreement until the earlier of (a) the date such suit is commenced, provided that Emergent shall be relieved of such obligations during any period that HPA is not diligently prosecuting such suit, and (b) the date that such infringement is otherwise terminated. The Party not enforcing the applicable HPA Patent shall provide reasonable assistance to the other Party, including providing access to relevant documents and other evidence, making its employees available at reasonable business hours, and joining the action to the extent necessary to allow the enforcing Party to maintain the action.

Rights and Procedures. If In the event that either Party determines reasonably believes that any HPA Patent is being infringed by a Third Party’s activities and that Party may be infringing any of the GPC Biotech Patents, the Licensee Patents, the Joint Patents or the Product Trademarks, such infringement could affect the exercise by Emergent of its rights and obligations under this Agreement, it Party shall promptly notify the other Party in writing writing, identifying the alleged infringer and provide the alleged infringement complained of and furnishing the information upon which such determination is based. With respect to the GPC Biotech Patents, the Joint Patents and the Product Trademarks, GPC Biotech shall, subject to the Spectrum Agreement, have the first right, but not the obligation, through counsel of its choosing, to take any measures it deems appropriate to stop such infringing activities by such Third Party in any part of the Territory or, to the extent not in conflict with any evidence the terms of this Agreement, to grant the infringing Third Party adequate rights and licenses necessary for continuing such infringement that is reasonably availableactivities. Emergent With respect to the Licensee Patents, Licensee shall have the first right, but not the obligation, through counsel of its choosing, to attempt take any measures it deems appropriate to remove stop such infringement infringing activities by commercially appropriate stepssuch Third Party in any part of the Territory or, to the extent not in conflict with the terms of this Agreement, to grant the infringing Third Party adequate rights and licenses necessary for continuing such activities. Upon reasonable request by the enforcing Party, the other Party shall give the enforcing Party all reasonable information and assistance, including filing an infringement suit or taking allowing the enforcing Party access to the other similar Party’s files and documents and to the other Party’s personnel who may have possession of relevant information and, if necessary for the enforcing Party to prosecute any legal action, joining in the legal action as a party at its own expense. If required by law in order for Emergent to prosecute such suit, HPA shall join such suit as a Party, at Emergent’s expense. HPA shall use its best efforts to obtain any consents required by Third Parties owning Licensed HPA Patents in order to authorize Emergent to take legal action to remove such infringement. In the event Emergent the enforcing Party fails within one hundred and twenty ninety (12090) days following notice of such infringement, as provided in the first sentence of this Section 8.3.1, or earlier notifies HPA the other Party in writing of its intent not to take commercially appropriate steps to remove stop any infringement of any such HPA (a) GPC Biotech Patent, HPA may Joint Patent or Product Trademark in the Licensee Territory, in the case of GPC Biotech, or (b) Licensee Patent in the Territory, in the case of Licensee, that is likely or could reasonably be expected to have a material adverse effect on the sale of the Licensed Product in the Territory and the enforcing Party has not granted the infringing Third Party rights and licenses to continue its otherwise infringing activities, then, unless the enforcing Party provides the other Party with a commercially reasonable basis in writing for not taking such steps, the other Party shall have the right, but not the obligation, to do so at its own the other Party’s sole cost and expense; provided, however, that if HPA fails to bring such suit or otherwise terminate the enforcing Party has commenced negotiations with an alleged infringer for discontinuance of such infringement within one hundred and twenty such ninety (12090) day period, the enforcing Party shall have an additional ninety (90) days of to conclude its first having negotiations before the right to do so, Emergent shall be permanently relieved of its royalty obligations under this Agreement until the earlier of (a) the date other Party may bring suit for such suit is commenced, provided that Emergent shall be relieved of such obligations during any period that HPA is not diligently prosecuting such suit, and (b) the date that such infringement is otherwise terminatedinfringement. The Party not enforcing the applicable HPA Patent shall provide Upon reasonable assistance to request by the other Party, including providing access to relevant documents and other evidence, making its employees available at reasonable business hours, and joining the action to the extent necessary to allow the enforcing Party to maintain shall give the actionother Party all reasonable information and assistance in connection with such suit for infringement.