Common use of Infringement Actions by Third Parties Clause in Contracts

Infringement Actions by Third Parties. 6.8.1 Each Party shall notify the other Party promptly in writing of any claim of, or action for, infringement of any Patents owned or licensed by Third Parties which is threatened, made or brought against either Party by reason of either Party's performance of its obligations under this Agreement or development, manufacture, use or sale of any Assays or the New Analyzer that detect Collaboration Markers in the PRC or Other Marketing Territories. 6.8.2 Each Party will be responsible for any infringement of any Third Party IPRs during the performance of its obligations under this Agreement for activities provided by such party or parties. For clarity, such activities provided by JBT include the New Analyzer, components thereof, and [***][10]; activities provided by Response include Raw Materials, Assays, [***]. In the event that such an action for infringement is commenced by a Third Party solely against a Party or both Parties jointly and/or any of their respective Affiliates, as the case may be, with respect to material(s) or product(s) provided or developed by such Party or Parties (Providing Party or Providing Parties), the Providing Party shall defend such action at its own expense, and the other Party (in the case of one Providing Party) hereby agrees to assist and cooperate with such Providing Party to the extent necessary in the defense of such suit. The Providing Party shall have the right to settle any such action or consent to an adverse judgment thereto, and the other Party's consent is not required if such settlement or consent does not render an adverse effect or otherwise impair the rights of the other Party. In the event that such an action for infringement is commenced against both Parties for activities provided by both, JBT and Response will jointly defend such action and share the cost equally. 6.8.3 In addition, each Party shall indemnify, defend, hold the other Party harmless from and against claims or suits arising during the Term of this Agreement from infringement of Third Party IPRs as a result of the permitted use of the Third Party IPR licensed to such other Party by or on behalf of the providing Party, where such use is within the scope of the rights granted in accordance with the terms of this Agreement and the infringement would not have arisen but for such use. 6.8.4 The total amount payable by JBT under this Agreement and the Technology Development Agreement contains all fees (a) which result from infringement of any third party rights within China and Other Marketing Territories and is Response’s responsibility; and (b) for any Third Party IPR which should be used for purposes of the Technology Development Agreement and this Agreement within China and Other Marketing Territories and is Response’s responsibility, and JBT will not pay extra fees. Response will not be responsible for any infringement outside of China and such Other Marketing Territories. 10 [***]Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Infringement Actions by Third Parties. 6.8.1 9.3.1 Each Party shall notify the other Party promptly in writing of any claim of, or action for, infringement of any Patents owned or licensed by Third Parties which is threatened, made or brought against either Party by reason of either Party's performance of its obligations under this Agreement or the development, manufacture, use or sale of any Assays or the New Analyzer that detect Collaboration Markers in the PRC or Other Marketing TerritoriesTerritories if agreed by the Parties pursuant to Section 7.4. 6.8.2 9.3.2 Each Party will be responsible for any infringement of any Third Party IPRs during the performance of its obligations under this Agreement for activities provided by such party or parties. For clarity, such activities provided by JBT include the New Analyzer, components thereof, and [***][10]software running the Assays; activities provided by Response include Raw Materials, Assays, [***]9. In the event that such an action for infringement is commenced by a Third Party solely against a Party or both Parties jointly and/or any of their respective Affiliates, as the case may be, with respect to material(s) or product(s) provided or developed by such Party or Parties (Providing Party or Providing Parties), the Providing Party shall defend such action at its own expense, and the other Party (in the case of one Providing Party) hereby agrees to assist and cooperate with such Providing Party to the extent necessary in the defense of such suit. The Providing Party shall have the right to settle any such action or consent to an adverse judgment thereto, and the other Party's consent is not required if such settlement or consent does not render an adverse effect or otherwise impair the rights of the other Party. In the event that such an action for infringement is commenced against both Parties for activities provided by both, JBT and Response will jointly defend such action and share the cost equally. 9 [***]Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. 6.8.3 9.3.3 In addition, each Party shall indemnify, defend, hold the other Party harmless from and against claims or suits arising during the Term of this Agreement from infringement of Third Party IPRs as a result of the permitted use of the Third Party IPR licensed to such other Party by or on behalf of the providing Party, where such use is within the scope of the rights granted in accordance with the terms of this Agreement and the infringement would not have arisen but for such use. 6.8.4 The total amount payable by JBT under this Agreement and the Technology Development Agreement contains all fees (a) which result from infringement of any third party rights within China and Other Marketing Territories and is Response’s responsibility; and (b) for any Third Party IPR which should be used for purposes of the Technology Development Agreement and this Agreement within China and Other Marketing Territories and is Response’s responsibility, and JBT will not pay extra fees. Response will not be responsible for any infringement outside of China and such Other Marketing Territories. 10 [***]Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Infringement Actions by Third Parties. 6.8.1 (a) Each Party shall notify the other Party promptly in writing of any claim of, or action for, infringement of any Patents owned or licensed by patents belonging to Third Parties which is threatened, made or brought against either Party by reason of either Party's ’s performance of its obligations under this Agreement the Research Program or development, manufacture, use or sale of any Assays or the New Analyzer that detect Collaboration Markers Products in the PRC or Other Marketing TerritoriesTerritory. 6.8.2 Each Party will be responsible for any infringement of any Third Party IPRs during the performance of its obligations under this Agreement for activities provided by such party or parties. For clarity, such activities provided by JBT include the New Analyzer, components thereof, and [***][10]; activities provided by Response include Raw Materials, Assays, [***]. (b) In the event that such an action for infringement is commenced by a Third Party solely against a Party Party, its Affiliates or both Parties jointly and/or any its Sublicensees and such action is not covered by a right of their respective Affiliatesindemnification under clause (iii) of Section 12.1 or Section 12.2(a)(iii), as the case may beapplicable, with respect to material(s) or product(s) provided or developed by such Party or Parties (Providing Party or Providing Parties), the Providing Party shall defend such action at its own expense, and the other Party (in the case of one Providing Party) hereby agrees to assist and cooperate with such Providing Party Party, at its own expense, to the extent necessary in the defense of such suit. In the event that such action involves an Excluded area compound and such Party does not defend such action, Lilly shall have the right to defend such action pursuant to Section 8.1 of the Lilly Agreement. The Providing defending Party shall have the right to settle any such action the suit or consent to an adverse judgment thereto, subject to the rights of Lilly under Section 8.1 of the Lilly Agreement, if any, and the consent of the other Party's consent is Party shall not be required if unless such settlement or consent does not render an adverse effect or otherwise impair the rights of the consent: (A) imposes any obligation on such other Party. In , or (B) materially impairs such other Party’s rights in or to any Patent, or any process, compound or composition of matter, that has utility outside the field of [**] inhibition, or (C) in the event that such action involves an Excluded area compound or a Product consisting of an Excluded area compound or containing an Excluded area compound as an active ingredient, provides for the payment of any damages, settlement payments or awards to the defending Party (i.e., as a result of a counterclaim), in which event such other Party’s consent shall not be unreasonably withheld. During the pendency of such action, all royalties due hereunder shall continue to be paid by the defending Party. The defending Party shall assume full responsibility for the payment of any award for damages, or any amount due pursuant to any settlement entered into by such Party with such Third Party, subject to the provisions of Section 8.4 with respect to future royalties. Any and all damages, settlement payments and awards (including the fair market value of non-monetary consideration) received by the defending Party as a result thereof (i.e., as a result of a counterclaim) shall be applied as follows: (i) first, for reimbursement of the Parties, on a pro rata basis, for all expenses incurred by each in connection with such action, and (ii) second, any remaining balance shall be allocated [**]% to BMS and [**]% to ICAgen, except that with respect to Grant-Back Compounds and Grant-Back Products, any remaining balance shall be allocated [**]% to BMS and [**]% to ICAgen; provided, however, in the event that such action for infringement involves an Excluded area compound or a Product consisting of an Excluded area compound or containing an Excluded area compound as an active ingredient, then any remaining balance shall be allocated [**]% to BMS and [**]% to ICAgen, and with respect to Grant-Back Compounds and Grant-Back Products, any remaining balance shall be allocated [**]% to BMS and [**]% to ICAgen. (c) If such action is commenced against both Parties for activities provided by both, JBT or their Affiliates or Sublicensees jointly and Response will jointly defend such action is not covered by a right of indemnification under clause (iii) of Section 12.1 or Section 12.2(a)(iii), the Parties shall enter into a joint defense strategy agreement which will set forth how the Parties intend to proceed, who will be selected as counsel and share what the cost equally. 6.8.3 In additionallocation of costs and damages will be between the Parties, each Party subject to any rights of Lilly under the Lilly Agreement that are applicable thereto. If the Parties cannot agree on such a joint defense strategy, the matter shall indemnify, defend, hold the other Party harmless from and against claims or suits arising during the Term of this Agreement from infringement of Third Party IPRs as a result of the permitted use of the Third Party IPR licensed to such other Party by or on behalf of the providing Party, where such use is within the scope of the rights granted in accordance with the terms of this Agreement and the infringement would not have arisen but for such use. 6.8.4 The total amount payable by JBT under this Agreement and the Technology Development Agreement contains all fees (a) which result from infringement of any third party rights within China and Other Marketing Territories and is Response’s responsibility; and (b) for any Third Party IPR which should be used for purposes of the Technology Development Agreement and this Agreement within China and Other Marketing Territories and is Response’s responsibility, and JBT will not pay extra fees. Response will not be responsible for any infringement outside of China and such Other Marketing Territories. 10 [***]Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect resolved pursuant to the omitted portionsarbitration provision set forth in Section 16.14.

Infringement Actions by Third Parties. 6.8.1 Each If the Exploitation of any Licensed Product in the Licensed Territory pursuant to this Agreement results in, or is reasonably expected to result in, any action by a Third Party alleging infringement or violation of any intellectual property right by Disc, its Affiliates or its Sublicensees, including any defense or counterclaim in connection with an Enforcement or Defense Action initiated pursuant to Section 7.3(b) (a “Third Party Infringement Action”), the Party first becoming aware of such alleged infringement or violation shall promptly notify the other Party promptly thereof in writing of any claim ofwriting. As between the Parties, or action for, infringement of any Patents owned or licensed by Third Parties which is threatened, made or brought against either Party by reason of either Party's performance of its obligations under this Agreement or development, manufacture, use or sale of any Assays or the New Analyzer that detect Collaboration Markers in the PRC or Other Marketing Territories. 6.8.2 Each Party will Disc shall be responsible for defending any infringement of any Third Party IPRs during the performance of its obligations under this Agreement for activities provided by such party or parties. For clarity, such activities provided by JBT include the New Analyzer, components thereof, and [***][10]; activities provided by Response include Raw Materials, Assays, [***]. In the event that such an action for infringement is commenced by a Third Party solely against a Party or both Parties jointly and/or any of their respective Affiliates, as the case may be, with respect to material(s) or product(s) provided or developed by such Party or Parties (Providing Party or Providing Parties), the Providing Party shall defend such action at its own sole cost and expense, using counsel of Disc’s choice. Mabwell may participate in any such action at its sole election with counsel of its choice at its sole cost and expense; provided that Disc shall retain the other Party (in the case of one Providing Party) hereby agrees right to control such action. Mabwell shall, and shall cause its Affiliates to, assist and cooperate with Disc, as Disc may reasonably request from time to time, in connection with its activities set forth in this Section 7.4 at Disc’s cost and expense, including, where necessary, furnishing a power of attorney solely for such Providing Party purpose, joining in or being named as a necessary party to such action, providing access to relevant documents and other evidence, and making its employees available at reasonable business hours. Without the extent necessary in the defense of such suit. The Providing other Party’s prior written consent, neither Party shall have the right to settle any such action Third Party Infringement Action under this Section 7.4 in a manner that has a material adverse effect on the rights or consent to an adverse judgment thereto, and interest of the other Party or in a manner that imposes any costs or liability on or involves any admission by the other Party's consent is not required if such settlement or consent does not render an adverse effect or otherwise impair the rights of the other Party. In the event that such an action for infringement is commenced against both Parties for activities provided by both, JBT and Response will jointly defend such action and share the cost equally. 6.8.3 In addition, each Party shall indemnify, defend, hold the other Party harmless from and against claims or suits arising during the Term of this Agreement from infringement of Third Party IPRs as a result of the permitted use of the Third Party IPR licensed to such other Party by or on behalf of the providing Party, where such use is within the scope of the rights granted in accordance with the terms of this Agreement and the infringement would not have arisen but for such use. 6.8.4 The total amount payable by JBT under this Agreement and the Technology Development Agreement contains all fees (a) which result from infringement of any third party rights within China and Other Marketing Territories and is Response’s responsibility; and (b) for any Third Party IPR which should be used for purposes of the Technology Development Agreement and this Agreement within China and Other Marketing Territories and is Response’s responsibility, and JBT will not pay extra fees. Response will not be responsible for any infringement outside of China and such Other Marketing Territories. 10 [***]Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Infringement Actions by Third Parties. 6.8.1 Each Party shall notify the other Party promptly in writing of any claim of, or action for, infringement of any Patents owned or licensed by Third Parties which is threatened, made or brought against either Party by reason of either Party's performance of its obligations under this Agreement or development, manufacture, use or sale of any Assays or the New Analyzer that detect Collaboration Markers in the PRC or Other Marketing Territories. 6.8.2 Each Party will be responsible for any infringement of any Third Party IPRs during the performance of its obligations under this Agreement for activities provided by such party or parties. For clarity, such activities provided by JBT include the New Analyzer, components thereof, and [***][10]; activities provided by Response include Raw Materials, Assays, [***]. In the event that such an action for infringement is commenced by a Third Party solely against a Party or both Parties jointly and/or any of their respective Affiliates, as the case may be, with respect to material(s) or product(s) provided or developed by such Party or Parties (Providing Party or Providing Parties), the Providing Party shall defend such action at its own expense, and the other Party (in the case of one Providing Party) hereby agrees to assist and cooperate with such Providing Party to the extent necessary in the defense of such suit. The Providing Party shall have the right to settle any such action or consent to an adverse judgment thereto, and the other Party's consent is not required if such settlement or consent does not render an adverse effect or otherwise impair the rights of the other Party. In the event that such an action for infringement is commenced against both Parties for activities provided by both, JBT and Response will jointly defend such action and share the cost equally. 6.8.3 In addition, each Party shall indemnify, defend, hold the other Party harmless from and against claims or suits arising during the Term of this Agreement from infringement of Third Party IPRs as a result of the permitted use of the Third Party IPR licensed to such other Party by or on behalf of the providing Party, where such use is within the scope of the rights granted in accordance with the terms of this Agreement and the infringement would not have arisen but for such use. 6.8.4 The total amount payable by JBT under this Agreement and the Technology Development Agreement contains all fees (a) which result from infringement of any third party rights within China and Other Marketing Territories and is Response’s responsibility; and (b) for any Third Party IPR which should be used for purposes of the Technology Development Agreement and this Agreement within China and Other Marketing Territories and is Response’s responsibility, and JBT will not pay extra fees. Response will not be responsible for any infringement outside of China and such Other Marketing Territories. 10 [***]Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

Infringement Actions by Third Parties. 6.8.1 9.3.1 Each Party shall notify the other Party promptly in writing of any claim of, or action for, infringement of any Patents owned or licensed by Third Parties which is threatened, made or brought against either Party by reason of either Party's performance of its obligations under this Agreement or the development, manufacture, use or sale of any Assays or the New Analyzer that detect Collaboration Markers in the PRC or Other Marketing TerritoriesTerritories if agreed by the Parties pursuant to Section 7.4. 6.8.2 9.3.2 Each Party will be responsible for any infringement of any Third Party IPRs during the performance of its obligations under this Agreement for activities provided by such party or parties. For clarity, such activities provided by JBT include the New Analyzer, components thereof, and [***][10]software running the Assays; activities provided by Response include Raw Materials, Assays, [***]. In the event that such an action for infringement is commenced by a Third Party solely against a Party or both Parties jointly and/or any of their respective Affiliates, as the case may be, with respect to material(s) or product(s) provided or developed by such Party or Parties (Providing Party or Providing Parties), the Providing Party shall defend such action at its own expense, and the other Party (in the case of one Providing Party) hereby agrees to assist and cooperate with such Providing Party to the extent necessary in the defense of such suit. The Providing Party shall have the right to settle any such action or consent to an adverse judgment thereto, and the other Party's consent is not required if such settlement or consent does not render an adverse effect or otherwise impair the rights of the other Party. In the event that such an action for infringement is commenced against both Parties for activities provided by both, JBT and Response will jointly defend such action and share the cost equally. 6.8.3 9.3.3 In addition, each Party shall indemnify, defend, hold the other Party harmless from and against claims or suits arising during the Term of this Agreement from infringement of Third Party IPRs as a result of the permitted use of the Third Party IPR licensed to such other Party by or on behalf of the providing Party, where such use is within the scope of the rights granted in accordance with the terms of this Agreement and the infringement would not have arisen but for such use. 6.8.4 The total amount payable by JBT under this Agreement and the Technology Development Agreement contains all fees (a) which result from infringement of any third party rights within China and Other Marketing Territories and is Response’s responsibility; and (b) for any Third Party IPR which should be used for purposes of the Technology Development Agreement and this Agreement within China and Other Marketing Territories and is Response’s responsibility, and JBT will not pay extra fees. Response will not be responsible for any infringement outside of China and such Other Marketing Territories. 10 [***]Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.