Common use of Infringement Claims by Third Parties Clause in Contracts

Infringement Claims by Third Parties. With respect to any ------------------------------------ and all Claims instituted by Third Parties against Adolor or GSK or any of their respective Affiliates for trademark infringement involving the use, sale, license or marketing of a Collaboration Product in the United States during the United States Term (each, a "Trademark Infringement Claim"), each of Adolor and ---------------------------- GSK shall be responsible for Losses arising out of or resulting from such Trademark Infringement Claims of the Adolor Product Marketing Contribution or the GI Product Marketing Contribution (prior to any adjustment under Section 6.3.4), as applicable, and Adolor and GSK will assist one another and cooperate in the defense and settlement of such Trademark Infringement Claims at the other Party's request; provided, however, that in all cases referred to in this Section 2.4.8, neither Party shall be liable for any proportion of its share of the Losses in relation to the Trademark Infringement Claim to the extent that such Losses were caused by the negligence or willful misconduct or wrongdoing of the other Party or any breach by the other Party of its representations, warranties or covenants or agreements hereunder. Further, to the extent Adolor has elected to receive royalties in relation to any Collaboration Product being sold in the United States and GSK has elected to use an Adolor Product Trademark on such GI Product under Section 2.4.2, GSK shall be liable for Losses with respect to any Trademark Infringement Claim raised against GSK except those Losses in relation to the Trademark Infringement Claim to the extent such Losses were caused by the negligence or willful misconduct or wrongdoing of Adolor or any breach by Adolor of its representations, warranties, covenants or agreements hereunder. Adolor shall not be responsible for any Losses arising out of or resulting from Trademark Infringement Claims in relation to Collaboration Product for which it does not receive a percentage of the Adolor Product Marketing Contribution or a percentage of the GI Product Marketing Contribution unless such Loss is related to a Claim under Section 14.2(a) or 14.2(b).

Infringement Claims by Third Parties. With respect If the Exploitation of a Licensed Product in the Territory pursuant to this Agreement results in, or is reasonably expected to result in, any ------------------------------------ and all Claims instituted claim, suit or proceeding by a Third Parties against Adolor or GSK Party alleging infringement by AstraZeneca or any of its Affiliates or its or their respective Affiliates for trademark infringement involving the useSublicensees, sale, license Distributors or marketing of customers (a Collaboration Product in the United States during the United States Term (each, a "Trademark “Third Party Infringement Claim"”), each including any defense or counterclaim in connection with an Infringement action initiated pursuant to Section 6.4, the Party first becoming aware of Adolor such alleged infringement shall promptly notify the other Party thereof in writing. As between the Parties, AstraZeneca shall have the first right, but not the obligation, to defend and ---------------------------- GSK control the defense of any such claim, suit or proceeding at its sole cost and expense (but subject to deduction as provided below), using counsel of its own choice. Licensor may participate in any such claim, suit or proceeding with counsel of its choice at its sole cost and expense; provided that AstraZeneca shall retain control of the defense of such claim, suit or proceeding. AstraZeneca shall be responsible for Losses arising out of or resulting from such Trademark Infringement Claims entitled to offset [***] percent ([***]%) of the Adolor Product Marketing Contribution reasonable out-of-pocket costs of defending or the GI Product Marketing Contribution (prior to any adjustment settling such claim, suit or proceeding under Section 6.3.4), as applicable, and Adolor and GSK will assist one another and cooperate in the defense and settlement of such Trademark Infringement Claims at the other Party's request; provided, however, that in all cases referred to in this Section 2.4.86.5, neither Party shall be liable for any proportion of its share of the Losses in relation to the Trademark Infringement Claim to the extent that such Losses were caused the Third Party Infringement Claim arises from the exercise of a Licensed Patent, that are borne by the negligence AstraZeneca or willful misconduct or wrongdoing of the other Party or any breach by the other Party of its representationsAffiliates and, warranties or covenants or agreements hereunder. Further, to the extent Adolor has elected to receive royalties in relation to any Collaboration Product being sold in the United States and GSK has elected to use an Adolor Product Trademark on such GI Product under Section 2.4.2, GSK shall be liable for Losses with respect to any Trademark calculation pursuant to Section 5.4(i), its or their Sublicensees, in a given Calendar Quarter (including royalties, milestones and other consideration paid and any damages or other awards assessed in connection therewith) against any amounts owed to Licensor under this Agreement for such Calendar Quarter, with any balance then remaining to be carried over to amounts due with respect to subsequent Calendar Quarters, up to a maximum amount for each Calendar Quarter of [***] percent ([***]%) of the amounts owed with respect to such subsequent Calendar Quarter. Any recoveries awarded to a Party in connection with any Third Party Infringement Claim raised against GSK except those Losses in relation defended under this Section 6.5 shall be applied first to reimburse such Party for its reasonable out-of-pocket costs of defending such claim, suit or proceedings and then to reimburse the other Party for amounts deducted pursuant to the Trademark Infringement Claim previous sentence, with the balance of any such recoveries being retained by or provided to the extent such Losses were caused first Party and where retained by the negligence or willful misconduct provided to AstraZeneca or wrongdoing of Adolor or any breach by Adolor of its representations, warranties, covenants or agreements hereunder. Adolor Affiliates shall not be responsible for any Losses arising out of or resulting from Trademark Infringement Claims in relation regarded as being Net Sales against which royalties are due to Collaboration Product for which it does not receive a percentage of the Adolor Product Marketing Contribution or a percentage of the GI Product Marketing Contribution unless such Loss is related to a Claim under Section 14.2(a) or 14.2(b)Licensor.

Infringement Claims by Third Parties. With respect to any ------------------------------------ and all Claims instituted by Third Parties against Adolor or GSK or any of their respective Affiliates for trademark infringement involving the use, sale, license or marketing of a Collaboration Product in the United States during the United States Term (each, a "Trademark Infringement Claim"), each of Adolor and ---------------------------- GSK shall be responsible for Losses arising out of or resulting from such Trademark Infringement Claims ** of the Adolor Product Marketing Contribution ** or the GI Product Marketing Contribution ---------------------------- ** (prior to any adjustment under Section 6.3.4**), as applicable, and Adolor and GSK will assist one another and cooperate in the defense and settlement of such Trademark Infringement Claims at the other Party's request; provided, however, that in all cases referred to in this Section 2.4.8, neither Party shall be liable for any proportion of its share of the Losses in relation to the Trademark Infringement Claim to the extent that such Losses were caused by the negligence ** or willful misconduct ** or wrongdoing ** of the other Party or any breach by the other Party of its representations, warranties or covenants or agreements hereunder. Further, to the extent Adolor has elected to receive royalties in relation to any Collaboration Product being sold in the United States and GSK has elected to use an Adolor Product Trademark on such GI Product under Section 2.4.2, GSK ** shall be liable for Losses with respect to any Trademark Infringement Claim raised against GSK ** except those Losses in relation to the Trademark Infringement Claim to the extent such Losses were caused by the negligence ** or willful misconduct ** or wrongdoing ** of Adolor ** or any breach by Adolor of its representations, warranties, covenants or agreements ** hereunder. Adolor ** shall not be responsible for any Losses arising out of or resulting from Trademark Infringement Claims in relation to Collaboration Product for which it does not receive a percentage of the Adolor Product Marketing Contribution ** or a percentage of the GI Product Marketing Contribution ** unless such Loss is related to a Claim under Section 14.2(a) ** or 14.2(b)**.

Infringement Claims by Third Parties. With respect If the Exploitation of the Licensed Viruses or the Licensed Products in the Field in the Territory results in, or is reasonably expected to result in, any ------------------------------------ and all Claims instituted claim, suit or proceeding by a Third Parties against Adolor Party alleging Infringement of a Third Party Patent Right that Covers the Licensed Virus or GSK the Licensed Product (not including any modification or improvement made by Newsoara to the Licensed Virus or the Licensed Product provided by Genelux) by Newsoara or any of its Affiliates or its or their respective Sublicensees, distributors or customers, including any defense or counterclaim in connection with an Infringement action initiated pursuant to Section 6.3.2 (Enforcement of Patents) (a “Third Party Infringement Claim”), the Party first becoming aware of such alleged Infringement shall promptly notify the other Party thereof in writing. As between the Parties, Newsoara shall have the first right to defend against any such Third Party Infringement Claim, using counsel of Newsoara’s choice, and the Parties shall share [***] all reasonable costs and expenses (including any damages, awards, royalties, settlement amounts and other liabilities) incurred by Newsoara or any of its Affiliates or its or their Sublicensees, distributors or customers in connection with such Third Party Infringement Claim. Genelux may participate in any such claim, suit or proceeding with counsel of its choice, and all reasonable costs and expenses incurred by Genelux or its Affiliates in connection therewith shall be shared [***]; provided that Newsoara shall retain the right to control such claim, suit or proceeding. Genelux shall, and shall cause its Affiliates to, assist and cooperate with Newsoara, as Newsoara may reasonably request from time to time, in connection with its activities set forth in this Section 6.4 (Infringement Claims by Third Parties), including, where necessary, furnishing a power of attorney solely for trademark such purpose or 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, and the reasonable costs and expenses incurred by Genelux or its Affiliate in connection with such assistance and cooperation shall be shared [***]. Newsoara shall keep Genelux reasonably informed of all material developments in connection with any such claim, suit or proceeding. Newsoara agrees to provide Genelux with copies of all material pleadings filed in such action and to consider in good faith and not unreasonably refuse to incorporate into its pleadings any timely and reasonable comments from Genelux with respect thereto. If Newsoara or its designee does not take commercially reasonable steps to defend against such claim, suit or proceeding within [***] ([***]) days following the first notice provided above with respect to such Third Party Infringement Claim or, provided such date occurs after the first such notice of such Third Party Infringement Claim is provided, [***] ([***]) Business Days before the time limit, if any, set forth in Applicable Law for filing of such actions, whichever comes first, then (a) Newsoara shall so notify Genelux and (b) Genelux may defend at its discretion against such Third Party Infringement Claim at its sole cost and expense, in which case Newsoara shall cooperate with and provide all reasonable assistance to Genelux in connection with such defense action. For clarity, Third Party Infringement Claim does not include claims for Infringement of Third Party Patent Rights due to (a) any modification or improvement made by Newsoara to the Licensed Virus or Licensed Product provided by Genelux; or (b) any Derived Product, and in each case of (a) and (b), Newsoara shall be solely responsible for the defense of such claims at its own cost and expense. If either Party becomes aware that the Exploitation of the Licensed Viruses or the Licensed Products or Derived Molecules or Derived Product by such Party results in, or is reasonably expected to result in, any claim, suit or proceeding by a Third Party alleging infringement involving the use, sale, license or marketing of a Collaboration Product in Third Party Patent Right that is reasonably expected to materially and adversely affect the United States during the United States Term (each, a "Trademark Infringement Claim"), each of Adolor and ---------------------------- GSK shall be responsible for Losses arising out of or resulting from such Trademark Infringement Claims Exploitation of the Adolor Product Marketing Contribution Licensed Virus or the GI Licensed Product Marketing Contribution (prior to any adjustment under Section 6.3.4), as applicable, and Adolor and GSK will assist one another and cooperate in the defense and settlement of such Trademark Infringement Claims at or Derived Molecules or Derived Product by the other Party's request; provided, however, that in all cases referred to in this Section 2.4.8, neither such Party shall be liable for any proportion of its share of the Losses in relation to the Trademark Infringement Claim to the extent that such Losses were caused by the negligence or willful misconduct or wrongdoing of promptly notify the other Party or any breach by the other Party of its representations, warranties or covenants or agreements hereunder. Further, to the extent Adolor has elected to receive royalties in relation to any Collaboration Product being sold in the United States and GSK has elected to use an Adolor Product Trademark on such GI Product under Section 2.4.2, GSK shall be liable for Losses with respect to any Trademark Infringement Claim raised against GSK except those Losses in relation to the Trademark Infringement Claim to the extent such Losses were caused by the negligence or willful misconduct or wrongdoing of Adolor or any breach by Adolor of its representations, warranties, covenants or agreements hereunder. Adolor shall not be responsible for any Losses arising out of or resulting from Trademark Infringement Claims in relation to Collaboration Product for which it does not receive a percentage of the Adolor Product Marketing Contribution or a percentage of the GI Product Marketing Contribution unless such Loss is related to a Claim under Section 14.2(a) or 14.2(b)thereof.

Infringement Claims by Third Parties. With 23.1 During and after the Term of this agreement, subject always to clause 23.2 and the IP Waiver Letter, KBI shall indemnify and keep indemnified the PMI Indemnitees from and against any and all damages, losses, liabilities, costs and expenses (including reasonable legal and professional fees and costs, and costs and expenses of any Recall and mitigating action) suffered or reasonably incurred by the PMI Indemnitees arising out of or in connection with any Claim that any Product or KBI Packaging made in accordance with this agreement and/or the exercise of the Licensed Rights in accordance with the terms of this agreement infringes, misuses or misappropriates any third party’s IPR, save to the extent such Claim results from use of any PMI Background IP or results from a Manufacturing Defect (“IP Claim”). 23.2 KBI shall not be liable under this agreement for infringement, misuse or misappropriation of: (a) [***]; or (b) certain specific third party IPR in a particular Market where: (i) [***]; and (ii) [***] [***]. 23.3 For the avoidance of doubt, KBI’s liability for infringement, misuse or misappropriation of third party IPR shall only be excluded by virtue of clause 23.2 with respect to the specific third party IPR and Market identified by KBI under clauses 23.2(b)(i)(A) and (if applicable) 23.2(b)(i)(B) and not any ------------------------------------ other third party IPR or Market. 23.4 Each party shall notify the other as soon as reasonably practicable of any IP Claim brought by a Third Party against it and/or any of its Affiliates, any opposition to any of the Licensed IPR, any claim that any of the Licensed IPR is invalid, and all Claims instituted by Third Parties any other form of attack, charge or claim to which the Licensed IPR may be subject (together, an “Infringement Claim”). 23.5 In respect of any Infringement Claim brought against Adolor a PMI Indemnitee, Bidi or GSK or KBI and/or any of their respective Affiliates for trademark infringement involving Affiliates: (a) PMI shall have the useexclusive right, saleexercisable at its sole discretion, license or marketing to control the conduct of a Collaboration Product in the United States during the United States Term (each, a "Trademark such Infringement Claim", including any counterclaim to, and defence and settlement of, save that, to the extent the Infringement Claim relates to the Licensed IPR: (i) KBI shall have a right to actively consult on such Infringement Claim and PMI shall take KBI’s reasonable views into account, provided that PMI shall have the final decision-making authority in relation to such Infringement Claim, and where KBI requests in writing information relating to the Infringement Claim for such purpose (including reasonably regular updates and material draft pleadings relating to the defence in advance), PMI shall not unreasonably withhold or condition the provision of such information, provided such information is not legally privileged and/or its provision would not breach any duty of confidence owed by the PMI Indemnitees; (ii) KBI shall have the right to appoint its own counsel at its own cost to advise KBI in relation to and to participate in (but not control) the Infringement Claim proceedings initiated and conducted by PMI and shall ensure that its counsel cooperates closely with PMI’s counsel in relation to such Infringement Claim, provided that PMI shall have the final decision-making authority in relation to such Infringement Claim; and (iii) PMI shall not, without the prior consent of KBI (such consent not to be unreasonably withheld or delayed): (i) make any admission that the Product or Licensed IPR in issue infringes the IPR asserted by the third party; (ii) conclude a settlement where the terms of such settlement require a payment to the third party that would be met by KBI under the indemnity in clause 23; or (iii) take any decision to appeal or not to appeal a relevant judgment against KBI or its Affiliates, or the Products; (b) each of Adolor PMI and ---------------------------- GSK KBI shall be responsible for Losses arising out of or resulting from such Trademark Infringement Claims of the Adolor Product Marketing Contribution or the GI Product Marketing Contribution (prior to any adjustment under Section 6.3.4), as applicable, and Adolor and GSK will assist act in good faith with one another in defending and cooperate in the defense and settlement settling such Infringement Claim; (c) KBI shall not make any admission of such Trademark Infringement Claims at the other Party's request; providedliability, however, that in all cases referred to in this Section 2.4.8, neither Party shall be liable for any proportion of its share of the Losses agreement or compromise in relation to the Trademark Infringement Claim without the prior written consent of PMI other than to the extent that PMI; and (d) KBI shall, at its own cost, provide technical and such Losses were caused by the negligence other forms of assistance (including access to its premises and its officers, directors, employees, agents, representatives or willful misconduct or wrongdoing of the other Party or any breach by the other Party of its representationsadvisers, warranties or covenants or agreements hereunder. Further, to the extent Adolor has elected to receive royalties in relation and to any Collaboration Product being sold relevant assets, accounts, documents and records within the power or control of KBI and/or its Affiliates and becoming a named party in the United States and GSK has elected proceedings) as are necessary to use an Adolor Product Trademark on such GI Product under Section 2.4.2, GSK shall be liable for Losses with respect to any Trademark Infringement Claim raised against GSK except those Losses assist PMI in relation to the Trademark Infringement Claim to the extent such Losses were caused by the negligence or willful misconduct or wrongdoing of Adolor or any breach by Adolor of and shall ensure that its representations, warranties, covenants or agreements hereunder. Adolor shall not be responsible for any Losses arising out of or resulting from Trademark Infringement Claims counsel cooperates closely with PMI’s counsel in relation to Collaboration Product such Infringement Claim, provided that PMI shall have the final decision-making authority in relation to such Infringement Claim. 23.6 Each party acknowledges and agrees that damages alone would not be an adequate remedy for which it does not receive a percentage any breach of the Adolor Product Marketing Contribution or a percentage of the GI Product Marketing Contribution unless such Loss is related to a Claim under Section 14.2(a) or 14.2(b)this clause 23.

Infringement Claims by Third Parties. With respect to any ------------------------------------ and all Claims instituted by Third Parties against Adolor If the Manufacture, use or GSK or any of their respective Affiliates for trademark infringement involving the use, sale, license or marketing Commercialization of a Collaboration Licensed Compound or Licensed Product in the United States during the United States Term Territory pursuant to this Agreement results in, or may result in, any Deductible IP Litigation by a Third Party alleging patent infringement by AbbVie (each, a "Trademark Infringement Claim"or its Affiliates or Sublicensees), each AbbVie shall promptly notify Ablynx thereof in writing. AbbVie shall have the first right, but not the obligation, to defend and control the defense of Adolor any such Deductible IP Litigation at its own expense (but subject to deduction as provided below), using counsel of its own choice. Ablynx may participate in any such Deductible IP Litigation with counsel of its choice at its own expense. Without limitation of the foregoing, where it is reasonably necessary for Ablynx to join as a party to any such action, Ablynx shall execute all papers and ---------------------------- GSK perform such acts as shall be responsible for Losses arising out reasonably required at AbbVie’s expense. If AbbVie elects (in a written communication submitted to Ablynx within a reasonable amount of or resulting from such Trademark Infringement Claims time after notice of the Adolor Product Marketing Contribution alleged patent infringement) not to defend or the GI Product Marketing Contribution (prior to any adjustment under Section 6.3.4), as applicable, and Adolor and GSK will assist one another and cooperate in control the defense of, or otherwise fails to initiate and settlement maintain the defense of, any such Deductible IP Litigation, within such time periods so that Ablynx is not prejudiced by any delays, Ablynx may conduct and control the defense of any such Trademark Infringement Claims Deductible IP Litigation at the other Party's request; provided, however, that in all cases referred to in this Section 2.4.8, neither its own expense. Each Party shall be liable for any proportion of its share of the Losses in relation to the Trademark Infringement Claim to the extent that such Losses were caused by the negligence or willful misconduct or wrongdoing of keep the other Party or reasonably informed of all material developments in connection with any breach by such Deductible IP Litigation. Each Party agrees to provide the other Party with copies of its representationsall pleadings filed in such Deductible IP Litigation and to CONFIDENTIAL TREATMENT REQUESTED. INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND MARKED WITH “[...***...]”. AN UNREDACTED VERSION OF THE DOCUMENT HAS ALSO BEEN FURNISHED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION AS REQUIRED BY RULE 406 UNDER THE SECURITIES ACT OF 1933, warranties or covenants or agreements hereunderAS AMENDED. Further, allow the other Party reasonable opportunity to the extent Adolor has elected to receive royalties in relation to any Collaboration Product being sold participate in the United States defense. […***…]. Notwithstanding the foregoing, […***…]. Any recoveries by AbbVie of any sanctions awarded to AbbVie and GSK has elected to use an Adolor Product Trademark on such GI Product against a Third Party asserting a claim being defended under this Section 2.4.2, GSK 7.4 shall be liable for Losses with respect applied as follows: […***…]. For purposes of clarity, Third Party Claims pursuant to any Trademark Infringement Claim raised against GSK except those Losses in relation to the Trademark Infringement Claim to the extent such Losses were caused by the negligence or willful misconduct or wrongdoing of Adolor or any breach by Adolor of its representations, warranties, covenants or agreements hereunder. Adolor Section 11.2(vii) shall not be responsible for any Losses arising out subject to the provisions of or resulting from Trademark Infringement Claims in relation to Collaboration Product for which it does not receive a percentage of the Adolor Product Marketing Contribution or a percentage of the GI Product Marketing Contribution unless such Loss is related to a Claim under this Section 14.2(a) or 14.2(b)7.4.