Common use of Infringement Claims by Third Parties Clause in Contracts

Infringement Claims by Third Parties. If the manufacture, sale or use of a Licensed Compound or Licensed Product in the Territory pursuant to this Agreement results in, or may result in, any claim, suit or proceeding by a Third Party alleging patent infringement by a Party (or its Affiliates), such Party shall promptly notify the other Party thereof in writing. Such Party shall have the first right, but not the obligation, to defend and control the defense of any such claim, suit or proceeding at its own expense (but subject to deduction as provided below), using counsel of its own choice. The other Party may participate in any such claim, suit or proceeding with counsel of its choice at its own expense. Without limitation of the foregoing, if such Party finds it necessary or desirable to join the other Party as a party to any such action, the other Party shall execute all papers and perform such acts as shall be reasonably required at such Party’s expense. If such Party elects (in a written communication submitted to the other Party within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate or maintain the defense of, any such claim, suit or proceeding, within such time periods so that the other Party is not prejudiced by any delays, the other Party may conduct and control the defense of any such claim, suit or proceeding at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit or proceeding. AbbVie shall be [†]. Any recoveries by a Party of any sanctions awarded to such Party and against a party asserting a claim being defended under this Section 7.4 (Infringement Claims by Third Parties) shall be applied as follows: such recovery shall be applied first to (a) reimburse such Party for its reasonable out-of-pocket costs of defending such claim, suit or proceeding [†], and (b) [†]. The balance of any such recoveries shall be retained or provided to AbbVie and included in calculation of Net Sales for the relevant Licensed Product.

Infringement Claims by Third Parties. If the manufacture, sale sale, or use of a Licensed Compound or Licensed Product in the Territory pursuant to this Agreement results in, or may result in, any claim, suit suit, or proceeding by a Third Party alleging patent infringement by a Party VYNE (or its AffiliatesAffiliates or Sublicensees), such Party VYNE shall promptly notify the other Party Tay thereof in writing. Such Party shall have VYNE has the first right, but not the obligation, to defend and control the defense of any such claim, suit suit, or proceeding at its own expense (but subject to deduction as provided below)expense, using counsel of its own choice. The other Party Tay may participate in any such claim, suit suit, or proceeding with counsel of its choice at its own expense. Without limitation of the foregoing, if such Party VYNE finds it necessary or desirable to join the other Party Tay as a party to any such action, the other Party shall Tay shall, at VYNE’s expense, execute all papers and perform such acts as shall be reasonably required at such Party’s expenserequired. If such Party VYNE elects (in a written communication submitted to the other Party Tay within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate or and maintain the defense of, any such claim, suit suit, or proceeding, within such time periods so that the other Party Tay is not prejudiced by any delays, the other Party Tay may conduct and control the defense of any such claim, suit suit, or proceeding at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit suit, or proceeding. AbbVie shall be [†]. Any recoveries by a Party VYNE of any sanctions awarded to such Party VYNE and against a party asserting a claim being defended under this Section 7.4 (Infringement Claims by Third Parties) shall be applied as follows: such recovery 9.4 shall be applied first to (a) reimburse such each Party for its reasonable out-of-pocket costs of defending or participating in such claim, suit suit, or proceeding [†]proceedings, and (b) [†]on a pro rata basis. The balance of any such recoveries shall be retained by, or provided to AbbVie to, VYNE and included in the calculation of Net Sales for the relevant Licensed ProductProduct for the purposes of calculating amounts payable to Tay under Section 8.3.

Infringement Claims by Third Parties. If the manufacture, sale or use Exploitation of a Licensed Compound or Licensed Product in the Territory pursuant to this Agreement results in, or may is reasonably expected to result in, any claim, suit or proceeding by a Third Party alleging patent infringement by a Party (Lilly or any of its Affiliates or its Affiliatesor their Sublicensees, distributors or customers (a “Third Party Infringement Claim”), including any defense or counterclaim in connection with an Infringement action initiated pursuant to Section ‎8.3, the Party first becoming aware of such Party alleged infringement shall promptly notify the other Party thereof in writing. Such Party As between the Parties, Lilly shall have the first right, but not the obligation, to defend and control the defense of any such claim, suit or proceeding at its own expense (but subject to deduction as provided below)sole cost and expense, using counsel of its own choice. The other Party ACI may participate in any such claim, suit or proceeding with counsel of its choice at its own expense. Without limitation of the foregoing, if such Party finds it necessary or desirable to join the other Party as a party to any such action, the other Party shall execute all papers sole cost and perform such acts as shall be reasonably required at such Party’s expense. If such Party Lilly or its designee elects (in a written communication submitted to the other Party ACI within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate or and maintain the defense of, any such claim, suit or proceeding, within such time periods so that the other Party ACI is not prejudiced by any delays, the other Party ACI may conduct and control the defense of any such claim, suit or proceeding at its own sole cost and expense. Where a Party controls such an action, the other Party shall, and shall cause its Affiliates to, assist and cooperate with the controlling Party, as such controlling Party may reasonably request from time to time, in connection with its activities set forth in this Section, including where necessary, being named as a necessary party to such action, providing reasonable access to relevant documents and other evidence and making its employees available at reasonable business hours. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit or proceeding. AbbVie shall be [†]Each Party agrees to provide the other Party with copies of all material pleadings filed in such action and to allow the other Party reasonable opportunity to participate in the defense of the claims. Any recoveries by awarded to a Party of in connection with any sanctions awarded to such Third Party and against a party asserting a claim being Infringement Claim defended under this Section 7.4 (Infringement Claims by Third Parties) ‎8.4 shall be applied as follows: such recovery shall be applied first to (a) reimburse such Party for its reasonable out-of-pocket costs of defending such claim, suit or proceeding [†*****], and (b) [†]. The balance of any such recoveries shall be retained or provided to AbbVie and included in calculation of Net Sales for the relevant Licensed Product.

Infringement Claims by Third Parties. If the manufacture, sale sale, or use of a Licensed Compound or Licensed Product in the Territory pursuant to this Agreement results in, or may result in, any claim, suit suit, or proceeding by a Third Party alleging patent infringement by a Party VYNE (or its AffiliatesAffiliates or Sublicensees), such Party VYNE shall promptly notify the other Party In4Derm thereof in writing. Such Party shall have VYNE has the first right, but not the obligation, to defend and control the defense of any such claim, suit suit, or proceeding at its own expense (but subject to deduction as provided below)expense, using counsel of its own choice. The other Party In4Derm may participate in any such claim, suit suit, or proceeding with counsel of its choice at its own expense. Without limitation of the foregoing, if such Party VYNE finds it necessary or desirable to join the other Party In4Derm as a party to any such action, the other Party shall In4Derm shall, at VYNE’s expense, execute all papers and perform such acts as shall be reasonably required at such Party’s expenserequired. If such Party VYNE elects (in a written communication submitted to the other Party In4Derm within a reasonable amount of time after notice of the alleged patent infringement) not to defend or control the defense of, or otherwise fails to initiate or and maintain the defense of, any such claim, suit suit, or proceeding, within such time periods so that the other Party In4Derm is not prejudiced by any delays, the other Party In4Derm may conduct and control the defense of any such claim, suit suit, or proceeding at its own expense. Each Party shall keep the other Party reasonably informed of all material developments in connection with any such claim, suit suit, or proceeding. AbbVie shall be [†]. Any recoveries by a Party VYNE of any sanctions awarded to such Party VYNE and against a party asserting a claim being defended under this Section 7.4 (Infringement Claims by Third Parties) shall be applied as follows: such recovery 9.4 shall be applied first to (a) reimburse such each Party for its reasonable out-of-pocket costs of defending or participating in such claim, suit suit, or proceeding [†]proceedings, and (b) [†]on a pro rata basis. The balance of any such recoveries shall be retained by, or provided to AbbVie to, VYNE and included in the calculation of Net Sales for the relevant Licensed ProductProduct for the purposes of calculating amounts payable to In4Derm under Section 8.3.