Third Party Infringement Claims. If the production, sale or use of any Compound or Product in the Territory pursuant to this Agreement results in a claim, suit or proceeding alleging patent infringement against XenoPort or Astellas (or their respective Affiliates or Subdistributors) (collectively, “Infringement Actions”), such Party shall promptly notify the other Party hereto in writing. The Party subject to such Infringement Action shall have the right to direct and control the defense thereof (including the conclusion of a potential settlement, but limited to the rights granted pursuant to this Agreement) using counsel reasonably acceptable to the other Party, and the Infringement Action shall be at the expense of the Party subject to such Infringement Action; provided, however, that the other Party may participate in the defense and/or settlement thereof at its own expense with counsel of its choice. In any event, the Party that is subject to the Infringement Action agrees to keep the other Party hereto reasonably informed of all material developments in connection with any such Infringement Action. Astellas agrees not to settle any Infringement Action, or make any admissions or assert any position in such Infringement Action, in a manner that would adversely affect the Product or the manufacture, use or sale thereof in or outside the Territory, without the prior written consent of XenoPort. XenoPort agrees not to settle any Infringement Action in a manner that would adversely affect the Product or the manufacture, use or sale thereof in the Territory, without the prior written consent of Astellas. Astellas may treat its Damages from such Infringement Action as Third Party Royalties under Section 7.3.1 above, and XenoPort may treat its Damages from such Infringement Action as payments for Third Party IP under Section 2.5 above. As used herein, “Damages” shall mean out-of-pocket costs incurred by a Party, including reasonable attorney’s fees, damages and other liabilities that are part of any final judgment awarded against such Party, and any amounts paid by such Party in a settlement of the action that is approved by the other Party, such approval not to be unreasonably withheld or delayed.
Third Party Infringement Claims. Each party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the parties pursuant to this Agreement infringes or may infringe or misappropriate the intellectual property rights of such Third Party. NSC shall have the sole and exclusive right to control, direct or defend in its own name any defense, action, appeal of any such claim, action, proceeding at its own expense and by counsel of its own choice. If NSC fails to defend any such claim against NSC, and the failure to so defend would have an adverse effect on any Patent within the Licensed Patents, then LICENSOR shall have the right to assume the defense against such claim at its own expense and by counsel of its own choice. Neither party shall have the right to settle any patent infringement or misappropriation litigation under this Section 4.4 relating to the Patents in a manner that diminishes the rights or interests of the other party without the consent of such other party (which shall not be unreasonably withheld). During the pendency of any such proceeding or any appeal thereof, any payment hereunder to LICENSOR shall be paid by NSC into an interest-bearing escrow account pending the outcome of such proceeding. Upon a favourable final .resolution of such proceeding or any appeal thereof retaining the full rights, NSC shall resume paying NSC the full royalties, and all funds in such escrow account shall be paid to LICENSOR Upon an unfavourable final resolution of such proceeding or any appeal thereof, the funds in such escrow account shall be applied toward the damage award in such action, if any, and the balance, if any, paid to LICENSOR.
Third Party Infringement Claims. 11.1 Except for licenses to third party components which have been integrated into the Service, EFI does not provide the Customer with any licenses or right of use to third party software, copyrights, patents or other intellectual property rights held by a third party. The Customer must, at the Customer's own expense, license and maintain any such licences from third parties which are required by the Customer for usage of the Service including, but not limited to, licenses to Microsoft services.
Third Party Infringement Claims. In the event that a Third Party shall make any claim, give notice, or bring any suit or other inter parties proceeding against ADCT or MedImmune, or any of their respective Affiliates or sublicensees or customers, for infringement or misappropriation of any intellectual property rights with respect to making, using, selling, offering for sale, or importing any Licensed Product (“Third Party Infringement Claim”), in each case, the Party receiving notice of a Third Party Infringement Claim shall promptly notify the other Party and provide all evidence in its possession pertaining to the claim or suit that it can disclose without breach of a pre-existing obligation to a Third Party or waiver of a privilege.
Third Party Infringement Claims. Each party shall promptly notify the other in writing of any allegation by a Third Party that the practice of the Inventions infringes or may infringe the intellectual property rights of such Third Party. A party shall have the sole right to control any defense of any such claim involving alleged infringement of Third Party rights by such party’s activities at its own expense and by counsel of its own choice. Neither party shall have the right to settle any patent infringement litigation under this Section 4.4 relating to the Joint Patents in a manner that diminishes the rights or interests of the other party without the consent of such other party (which shall not be unreasonably withheld).
Third Party Infringement Claims a) [***].
Third Party Infringement Claims. In the event any claim or action for infringement of any patent, trademark, or other intellectual property right shall be made or brought by a third party against Seller, Purchaser or any of their respective Affiliates because of, or in anticipation of, the manufacture and supply of Product by Seller to Purchaser hereunder, or the marketing, sale or distribution of such Product to Purchaser Customers in the Territory by Purchaser hereunder (a “Third Party Infringement Claim”), the party first receiving such notice of the Third Party Infringement Claim shall promptly notify the other party. With respect to the Third Party Infringement Claim, Seller and Purchaser each hereby agrees that all Damages arising from or related to the Third Party Infringement Claim (including any legal fees and associated costs incurred in defending the Third Party Infringement Claim and any fees, royalties or other amounts paid in settlement or upon judgment) shall be shared as follows:
Third Party Infringement Claims. Each Party shall promptly notify the other in writing of any allegation by a Third Party that the activity of either of the Parties pursuant to this Agreement infringes or may infringe the intellectual property rights of such Third Party. Each Party shall have the sole right to control defense of any such claim involving alleged infringement of Third Party rights by such Party’s activities at its own expense and by counsel of its own choice. Neither Party shall have the right to settle any patent infringement litigation under this Section 4.5 relating to the Licensed Patents in a manner that admits liability on the part of, or diminishes the rights or interests of, the other Party without the consent of such other Party (which shall not be unreasonably withheld, conditioned, or delayed).
Third Party Infringement Claims. If a Party becomes aware of any claim that the Development, Manufacture or Commercialization of the Licensed Product in the Field infringes the Patent Rights of any Third Party in the Licensed Territory, such Party shall promptly notify the other Party. In any such instance, the Parties shall cooperate and shall mutually agree upon an appropriate course of action which may include settlement of such claim. Each Party shall have an equal right to participate in any settlement discussions that are held with such Third Parties.
Third Party Infringement Claims. If a Third Party Infringement Claim occurs in the Territory with respect to one or more elements of the RLS Licensed Technical Information or RLS Licensed Software, or in Teletrac's opinion is likely to occur, Teletrac will use reasonable commercial efforts, at its option and expense, either to challenge such Third Party Infringement Claim or otherwise procure for Licensee the right to continue to use, maintain and provide support for the Radio Location System, or to replace or modify the alleged infringing element so that such element becomes non-infringing, provided that such replacement or modification does not materially affect performance of the Radio Location System. If Teletrac has spent, or anticipates that it will be required to spend, more than U.S. $100,000 for such efforts, then Teletrac may give Licensee a ninety (90) day option to pursue such efforts on its own and at its own expense. If Licensee elects to pursue such efforts on its own, then Licensee may deduct from the Annual Royalty Payments due to Teletrac in the future, the reasonable expenses Licensee has incurred in obtaining non-infringing elements, up to a maximum amount of U.S.$250,000. If Licensee has not elected to pursue such efforts on its own within such ninety (90) day option period, then Licensee must notify Teletrac in writing either (i) that this License Agreement shall continue in full force and effect without regard to such Third Party Infringement Claim and without any reduction in the Annual Royalty Payment, or (ii) that Licensee elects to terminate this License Agreement due to such Third Party Infringement Claim, which shall be deemed to be a termination under Section 7.1. If the use of any RLS Licensed Software or RLS Licensed Technical Information is enjoined and the foregoing remedies cannot reasonably be accomplished, or if Licensee elects to continue this License Agreement but fails to procure the right to use the infringing element or to replace or modify the infringing element so that it becomes non-infringing, then Teletrac may require the return of the infringing RLS Licensed Software or RLS Licensed Technical Information, and Licensee's right to use such RLS Licensed Software or RLS Licensed Technical Information shall thereupon terminate. In no event shall Teletrac have any obligation to repay or refund any amounts previously paid to it by Licensee.
