Common use of Infringement Claimed by Third Parties Clause in Contracts

Infringement Claimed by Third Parties. 10.1.1 If the Licensee shall be sued for infringement by reason of the Licensee's activities under the license granted in this Agreement, the Licensee shall immediately notify the Licensor and the Licensor shall defend, indemnify, and hold the Licensee harmless against any such claims, which, if proven, would constitute a breach of any of the Licensor s representations or warranties of Article 7.1 above. Provided, however, that the Licensor shall not have a duty to defend if the claim of infringement is based upon acts of the Licensee which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license and unlicensed activity shall be the subject matter of the infringement action. Without admitting the foregoing, the Licensor shall have the control of any such defense and the right to enter into any settlement and compromise of any such claim or action provided, however, that the Licensee shall assume no further royalty or other obligation, whether to the Licensor or to any third party, by reason of such settlement. The Licensee shall, if requested by Licensor, make such reasonable modifications in the practice of the license granted under this Agreement such as would enable the parties to avoid or mitigate any third-party claims of infringement or misappropriation. 10.1.2 If the Licensor shall be sued for infringement by reason of the Licensor's activities under the license granted in this Agreement, the Licensor shall immediately notify the Licensee and the Licensee shall defend, indemnify, and hold the Licensor harmless against any such claims, which, if proven, would constitute a breach of any of the Licensee's representations or warranties of Article 7.2 above. Provided, however, that the Licensee shall not have a duty to defend if the claim of infringement is based upon acts of the Licensor which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license and unlicensed activity shall be the subject matter of the infringement action. Without admitting the foregoing, the Licensee shall have the control of any such defense and the right to enter into any settlement and compromise of any such claim or action provided, however, that the Licensor shall assume no further royalty or other obligation, whether to the Licensee or to any third party, by reason of such settlement. The Licensor shall, if requested by Licensee, make such reasonable modifications in the practice of the license granted under this Agreement such as would enable the parties to avoid or mitigate any third-party claims of infringement or misappropriation.

Infringement Claimed by Third Parties. 10.1.1 If In the Licensee event a Third Party commences or threatens to commence any suit or action against a Party, alleging infringement of such Third Party’s intellectual property rights by the development, manufacture, having manufactured, use, marketing, promotion, distribution, commercialization, sale, offer to sell, having sold, export or import of Drug Products by REPLIDYNE, its Affiliates or its sublicensees or DSP or DSP’s Affiliates in the event such DSP’s Affiliate enters into a Co-Promotion agreement in accordance with Section 8.2, the Party against whom such proceeding is threatened or commenced shall be sued for infringement by reason give prompt notice to the other Party (hereinafter referred to as “Infringement Notice”). REPLIDYNE shall have the right, but not the obligation, to control the defense and settlement of any such suit or action, provided that REPLIDYNE notifies DSP that it intends to exercise such right at the time REPLIDYNE gives DSP the Infringement Notice, or if REPLIDYNE is not the Party giving the Infringement Notice, then within thirty (30) days after receipt of the Licensee's activities under Infringement Notice from DSP. If REPLIDYNE fails to notify DSP of its intent to exercise such right within such thirty (30) day time period or if REPLIDYNE notifies DSP within such thirty (30) days that it does not intend to exercise such right, DSP shall then control the license granted in this Agreement, the Licensee shall immediately notify the Licensor settlement and the Licensor shall defend, indemnify, and hold the Licensee harmless against defense of any such claimssuit or action solely on its own behalf, whichbut not on behalf of REPLIDYNE, if proven, would constitute a breach of any of the Licensor s representations its Affiliates or warranties of Article 7.1 abovesublicensees. Provided, however, that the Licensor Either Party shall not have a duty to defend if the claim of infringement is based upon acts of the Licensee which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license and unlicensed activity shall be the subject matter of the infringement action. Without admitting the foregoing, the Licensor shall have the control of any such defense and the right to enter into any settlement and compromise of settle any such claim suit or action providedin any manner that includes the grant of a license in the Territory or that could have any adverse effect on the other Party without the prior written consent of such other Party which consent shall not be unreasonably withheld or delayed. REPLIDYNE shall bear all costs, howeverexpenses, that the Licensee shall assume no further royalty fees, charges, monies, license fees and or other obligation, whether royalties in connection with any such suit or action by a Third Party to the Licensor extent such are related solely to methods or to any third party, processes used by reason of such settlement. The Licensee shall, if requested by Licensor, make such reasonable modifications REPLIDYNE in the practice production of the Drug Product (but excluding the Drug Substance), and both Parties shall share equally on all costs, expenses, fees, charges, monies, license granted under this Agreement fees and/or royalties in connection with any such as would enable suit or action by a Third Party to the parties extent such are not related solely to avoid methods or mitigate any third-party claims of infringement or misappropriation. 10.1.2 If processes used by REPLIDYNE in the Licensor shall be sued for infringement by reason production of the Licensor's activities under the license granted in this Agreement, the Licensor shall immediately notify the Licensee and the Licensee shall defend, indemnify, and hold the Licensor harmless against any such claims, which, if proven, would constitute a breach of any of the Licensee's representations or warranties of Article 7.2 above. Provided, however, that the Licensee shall not have a duty to defend if the claim of infringement is based upon acts of the Licensor which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license and unlicensed activity shall be the subject matter of the infringement action. Without admitting the foregoing, the Licensee shall have the control of any such defense and the right to enter into any settlement and compromise of any such claim or action provided, however, that the Licensor shall assume no further royalty or other obligation, whether to the Licensee or to any third party, by reason of such settlement. The Licensor shall, if requested by Licensee, make such reasonable modifications in the practice of the license granted under this Agreement such as would enable the parties to avoid or mitigate any third-party claims of infringement or misappropriationDrug Product.

Infringement Claimed by Third Parties. 10.1.1 If the Licensee shall be sued for infringement by reason of the Licensee's activities under the license granted in this Agreement, the Licensee shall immediately notify the Licensor and the Licensor shall defend, indemnify, and hold the Licensee harmless against any such claims, which, if proven, would constitute a breach of any of the Licensor s Licensor's representations or warranties of Article 7.1 above. Provided, however, that the Licensor shall not have a duty to defend if the claim of infringement is based upon acts of the Licensee which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license licensed and unlicensed activity shall be the subject matter of the infringement action. Without admitting limiting the foregoing, the Licensor shall have the control of any such defense and the right to enter into any settlement and compromise of any such claim or action provided, however, that the Licensee shall assume no further royalty or other obligation, whether to the Licensor or to any third party, by reason of such settlement. The Licensee shall, if requested by Licensor, make such reasonable modifications in the practice of the license granted under this Agreement such as would enable the parties to avoid or mitigate any third-party claims of infringement or misappropriation. 10.1.2 If the Licensor shall be sued for infringement by reason of the Licensor's activities under the any cross-license granted in anticipated by this Agreement, the Licensor shall immediately notify the Licensee and the Licensee shall defend, indemnify, and hold the Licensor harmless against any such claims, which, if proven, would constitute a breach of any of the Licensee's representations or warranties of Article 7.2 above. Provided, however, that the Licensee shall not have a duty to defend if the claim of infringement is based upon acts of the Licensor which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license licensed and unlicensed activity shall be the subject matter of the infringement action. Without admitting limiting the foregoing, the Licensee shall have the control of any such defense and the right to enter into any settlement and compromise of any such claim or action provided, however, that the Licensor shall assume no further royalty or other obligation, whether to the Licensee or to any third third-party, by reason of such settlement. The Licensor shall, if requested by Licensee, make such reasonable modifications in the practice of the license granted under this Agreement such as would enable the parties to avoid or mitigate any third-party claims of infringement or misappropriation.

Infringement Claimed by Third Parties. 10.1.1 If the Licensee shall be sued for infringement by reason of the Licensee's activities under the license granted in this Agreement, the Licensee shall immediately notify the Licensor and the Licensor shall defend, indemnify, and hold the Licensee harmless against any such claims, which, if proven, would constitute a breach of any of the Licensor s Licensor's representations or warranties of Article 7.1 above. Provided, however, that the Licensor shall not have a duty to defend if the claim of infringement is based upon acts of the Licensee which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license licensed and unlicensed activity shall be the subject matter of the infringement action. Without admitting limiting the foregoing, the Licensor shall have the control of any such defense and the right to enter into any settlement and compromise of any such claim or action provided, however, that the Licensee shall assume no further royalty or other obligation, whether to the Licensor or to any third party, by reason of such settlement. The Licensee shall, if requested by Licensor, make such reasonable modifications in the practice of the license granted under this Agreement such as would enable the parties to avoid or mitigate any third-party claims of infringement or misappropriation. 10.1.2 If the Licensor shall be sued for infringement by reason of the Licensor's activities under the any cross-license granted in anticipated by this Agreement, the Licensor shall immediately notify the Licensee and the Licensee shall defend, indemnify, and hold the Licensor harmless against any such claims, which, if proven, would constitute a breach of any of the Licensee's representations or warranties of Article 7.2 above. Provided, however, that the Licensee shall not have a duty to defend if the claim of infringement is based upon acts of the Licensor which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license licensed and unlicensed activity shall be the subject matter of the infringement action. Without admitting limiting the foregoing, the Licensee shall have the control of any such defense and the right to enter into any settlement and compromise of any such claim or action provided, however, that the Licensor shall assume no further royalty or other obligation, whether to the Licensee or to any third party, by reason of such settlement. The Licensor shall, if requested by Licensee, make such reasonable modifications in the practice of the license granted under this Agreement such as would enable the parties to avoid or mitigate any third-party claims of infringement or misappropriation.

Infringement Claimed by Third Parties. 10.1.1 If the Licensee shall be sued for infringement by reason of the Licensee's activities under the license granted in this Agreement, the Licensee shall immediately notify the Licensor and the Licensor shall defend, indemnify, and hold the Licensee harmless against any such claims, which, if proven, would constitute a breach of any of the Licensor s Licensor's representations or warranties of Article 7.1 above. Provided, however, that the Licensor shall not have a duty to defend if the claim of infringement is based upon acts of the Licensee which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license and unlicensed activity shall be the subject matter of the infringement action. Without admitting the foregoing, the Licensor shall have the control of any such defense and the right to enter into any settlement and compromise of any such claim or action provided, however, that the Licensee shall assume no further royalty or other obligation, whether to the Licensor or to any third party, by reason of such settlement. The Licensee shall, if requested by Licensor, make such reasonable modifications in the practice of the license granted under this Agreement such as would enable the parties to avoid or mitigate any third-party claims of infringement or misappropriation. 10.1.2 If the Licensor shall be sued for infringement by reason of the Licensor's activities under the license granted in this Agreement, the Licensor shall immediately notify the Licensee and the Licensee shall defend, indemnify, and hold the Licensor harmless against any such claims, which, if proven, would constitute a breach of any of the Licensee's representations or warranties of Article 7.2 above. Provided, however, that the Licensee shall not have a duty to defend if the claim of infringement is based upon acts of the Licensor which go beyond the scope of the Licenses granted, such as by reason of combination of practice under the license and authorized practices, with additional activity, which combined license and unlicensed activity shall be the subject matter of the infringement action. Without admitting the foregoing, the Licensee shall have the control of any such defense and the right to enter into any settlement and compromise of any such claim or action provided, however, that the Licensor shall assume no further royalty or other obligation, whether to the Licensee or to any third party, by reason of such settlement. The Licensor shall, if requested by Licensee, make such reasonable modifications in the practice of the license granted under this Agreement such as would enable the parties to avoid or mitigate any third-party claims of infringement or misappropriation.