Common use of Infringement of Patents Clause in Contracts

Infringement of Patents. 12.1 In the event a a PARTY acquires information that a third party is infringing one or more LICENSOR PATENTS, the PARTY acquiring such information shall immediately notify the other PARTY to this AGREEMENT in writing of such infringement. 12.2 In the event of an infringement of LICENSOR PATENTS, the LICENSOR shall have the first opportunity, but not the obligation, to bring suit against the infringer. If LICENSOR elects not to bring suit against the infringer, then LICENSEE shall have the option but not the obligation to bring suit against the infringer, and to join LICENSOR as a party plaintiff in such suit. In the event LICENSEE exercises its right to ▇▇▇, it shall have the right to first reimburse itself out of any sums recovered in such suit or in settlement thereof for all costs and expenses of every kind and character, including reasonable attorneys' fees, necessarily involved in the prosecution of any such suit, and if after such reimbursement, any funds shall remain from said recovery, the PARTIES shall divide the remaining funds equally between the LICENSOR and LICENSEE. 12.3 If either PARTY is not fully reimbursed for the costs and expenses of litigation from said recovery, it shall not have the right to recover the unreimbursed costs and expenses from the other PARTY. 12.4 Each PARTY shall always have the right to be represented by counsel of its own selection in any suit for infringement of the LICENSOR PATENTS. 12.5 Each PARTY agrees to cooperate fully with the other, including, by giving testimony and producing documents lawfully requested in the course of an infringement suit, provided that the PARTY bringing such infringement suit shall pay all reasonable expenses (including attorneys' fees) incurred by the other PARTY in connection with such cooperation. 12.6 LICENSEE acknowledges that the LICENSOR has no adequate remedy under this AGREEMENT or at law in the event that the LICENSEE were to use the LICENSOR PATENTS in a manner not authorized by this AGREEMENT and that the LICENSOR would, in such circumstances, be entitled to injunctive or other equitable relief, including interlocutory and preliminary injunctive relief. The LICENSEE also acknowledges that LICENSOR's rights and remedies under this AGREEMENT and under the law are intended to be cumulative, and not mutually exclusive.

Infringement of Patents. 12.1 In the event a a PARTY acquires information that a third party is infringing one or more LICENSOR PATENTS, the PARTY acquiring such information shall immediately notify the other PARTY to this AGREEMENT in writing of such infringement. 12.2 In the event of any claim, action, proceeding or suit by a third party against Buyer alleging an infringement of LICENSOR PATENTSany patent, copyright or trademark, or because of the LICENSOR use, in accordance with Seller's specifications registered in the United States and the European Community, of any Product furnished by Seller to Buyer under this Supplemental Agreement, Seller, at his expense, will defend Buyer, subject to the conditions and exceptions stated below. Seller will reimburse Buyer for any cost, expense or attorney's fees incurred at Seller's written request or authorization, and will indemnify Buyer against any liability assessed against it by final judgment on account of such infringement or violation arising out of such use or resale. Seller will, at his expense and at his option, either (i) replace the Existing Netr▇ ▇▇▇ducts furnished pursuant to these Rules with a suitable substitute free of any infringement; (2) modify it so that it will be free of the infringement; or (3) procure for Buyer a license or other right to use it. If none of the foregoing options are practical, Seller will remove the enjoined Product and refund to Buyer any amounts paid to Seller therefor, minus a reasonable charge for any actual period of use by Buyer. Buyer shall give Seller prompt written notice of all such claims, actions, proceedings, or suits alleging infringement or violation and Seller shall have full and complete authority to assume the first opportunitysole defense thereof, but not the obligation, to bring suit against the infringer. If LICENSOR elects not to bring suit against the infringer, then LICENSEE shall have the option but not the obligation to bring suit against the infringerincluding appeals, and to join LICENSOR as settle the same. Buyer shall, upon Seller's request and at Seller's expense, furnish all information and assistance available to Buyer and cooperate in every reasonable way to facilitate the defense and/or settlement of any such claim, action, proceeding or suit. No undertaking of Seller under this clause shall extend to any such alleged infringement or violation to the extent that it: (1) arises from adherence to design modifications, specifications, drawings, or written instructions which Seller is directed by Buyer to follow, but only if such alleged infringement or violation does not reside in commercial Product of Seller's design or selection; or (2) arises from adherence to instructions to apply Buyer's trademark, trade name, or other company identification; or (3) resides in a party plaintiff in such suitProduct which is not of Seller's origin and which is furnished by Buyer to Seller for use under this Supplemental Agreement. In the event LICENSEE exercises its right foregoing cases number (1) through (3), Buyer will defend and save Seller harmless subject to ▇▇▇, it shall have the right same terms and conditions and exceptions stated above with respect to first reimburse itself out of any sums recovered in such suit or in settlement thereof for all costs and expenses of every kind and character, including reasonable attorneys' fees, necessarily involved in the prosecution of any such suit, and if after such reimbursement, any funds shall remain from said recovery, the PARTIES shall divide the remaining funds equally between the LICENSOR and LICENSEE. 12.3 If either PARTY is not fully reimbursed for the costs and expenses of litigation from said recovery, it shall not have the right to recover the unreimbursed costs and expenses from the other PARTY. 12.4 Each PARTY shall always have the right to be represented by counsel of its own selection in any suit for infringement of the LICENSOR PATENTS. 12.5 Each PARTY agrees to cooperate fully with the other, including, by giving testimony and producing documents lawfully requested in the course of an infringement suit, provided that the PARTY bringing such infringement suit shall pay all reasonable expenses (including attorneys' fees) incurred by the other PARTY in connection with such cooperation. 12.6 LICENSEE acknowledges that the LICENSOR has no adequate remedy under this AGREEMENT or at law in the event that the LICENSEE were to use the LICENSOR PATENTS in a manner not authorized by this AGREEMENT and that the LICENSOR would, in such circumstances, be entitled to injunctive or other equitable relief, including interlocutory and preliminary injunctive relief. The LICENSEE also acknowledges that LICENSORSeller's rights and remedies obligations under this AGREEMENT clause. The liability of Seller, or Buyer, in the cases of (1) through (3) above, with respect to any and under all claims, actions, proceedings, or suits by third parties alleging infringement of patents, trademarks, or copyrights or violation of trade secrets or proprietary rights because of, or in connection with, any Products furnished pursuant to this Supplemental Agreement, shall be limited to the law are intended to be cumulative, and not mutually exclusivespecific undertakings contained in this clause.

Infringement of Patents. 12.1 (a) In the event a a PARTY party to this Agreement acquires information that a third party is infringing one or more LICENSOR PATENTS, of the PARTY Licensed Patent Rights the party acquiring such information shall immediately promptly notify the other PARTY party to this AGREEMENT the Agreement in writing of such infringement. 12.2 (b) In the event of an infringement of LICENSOR PATENTSthe Licensed Patent Rights, LICENSEE (1) may bring suit in its own name, at its own expense, and on its own behalf for such infringement; (2) in any such suit, enjoin infringement and collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement; and (3) settle any claim or suit for infringement of the LICENSOR shall have Licensed Patent Rights, subject in each case to the first opportunityrights of CURE, but not PHS and appropriate Government authorities under provisions of the obligation, PHS Agreement. Should LICENSEE elect to bring suit against the infringer. If LICENSOR elects not to bring suit against the infringer, then LICENSEE shall have the option but not the obligation to bring suit against the infringer, an infringer and to join LICENSOR CURE is joined as a party plaintiff in any such suit, CURE shall have the right to approve the counsel selected by LICENSEE to represent LICENSEE and CURE. LICENSEE shall not compromise or settle such litigation without the prior written consent of CURE, which consent shall not be unreasonably withheld. (c) Fifty percent of expenses incurred by LICENSEE under this Section 11 (c) including costs, fees, attorney fees, and disbursements, may be credited against the royalties payable to CURE under this Agreement in the country in which the suit was filed. In the event that fifty percent (50%) of such expenses exceed the amount of royalties payable by LICENSEE exercises in any calendar year, the expenses in excess may be carried over as a credit on the same basis into succeeding calendar years. A credit against litigation expenses, however, may not reduce the royalties due in any calendar year to less than the minimum annual royalty. Any recovery made by LICENSEE, through court judgment or settlement, first shall be applied to reimburse CURE for royalties withheld as a credit against litigation expenses and then to reimburse LICENSEE for its litigation expense. Any remaining recoveries shall be shared equally by LICENSEE and CURE. (d) If LICENSEE does not bring suit against said infringer pursuant to Section 11(c) herein, or has not commenced negotiations with said infringer for discontinuance of said infringement, within ninety (90) days after LICENSEE becomes aware of such infringement, CURE or PHS shall have the right, but shall not be obligated, to bring suit for such infringement. Should CURE elect to bring suit against an infringer and LICENSEE is joined as a party plaintiff in any such suit, LICENSEE shall have the right to ▇▇▇approve the counsel selected by CURE to represent CURE and LICENSEE, it and CURE shall hold LICENSEE free, clear and harmless from and against any and all costs and expenses of such litigation, including attorneys' fees. If LICENSEE has commenced negotiations with an alleged infringer of the Licensed Patent Rights for discontinuance of such infringement within such 90-day period, LICENSEE shall have an additional ninety (90) days from the termination of such initial 90-day period to conclude its negotiations before CURE may bring suit for such infringement. In the event CURE brings suit for infringement of the Licensed Patent Rights, CURE shall have the right to first reimburse itself out of any sums recovered in such suit or in settlement thereof for all costs and expenses of every kind and character, including reasonable attorneys' fees, fees necessarily involved in the prosecution of any such suit, and if after such reimbursement, any funds shall remain from said recovery, CURE shall promptly pay to LICENSEE an amount equal to fifty percent (50%) of such remainder and CURE shall be entitled to receive and retain the PARTIES shall divide balance of the remaining funds equally between the LICENSOR and LICENSEEremainder of such recovery. 12.3 If either PARTY is not fully reimbursed for the costs and expenses of litigation from said recovery, it shall not have the right to recover the unreimbursed costs and expenses from the other PARTY. 12.4 (e) Each PARTY party shall always have the right to be represented by counsel of its own selection in any suit for infringement of the LICENSOR PATENTSLicensed Patent Rights instituted by the other party to this Agreement under the terms hereof. The expense of such counsel shall be borne by the party initiating such infringement suit. 12.5 Each PARTY (f) LICENSEE agrees to cooperate fully with CURE at the otherrequest of CURE, including, by giving testimony and producing documents lawfully requested in the course prosecution of an any suit by CURE for infringement suitof the CURE Licensed Patent Rights; provided, provided that the PARTY bringing such infringement suit CURE shall pay all reasonable expenses (including attorneys' fees) incurred by LICENSEE in connection with such cooperation. CURE shall cooperate with LICENSEE at the other PARTY request of LICENSEE, including by giving testimony and producing documents lawfully requested, in the prosecution of any suit by LICENSEE for infringement of the Licensed Patent Rights; provided that LICENSEE shall pay all reasonable expenses (including attorneys' fees) incurred by CURE in connection with such cooperation. 12.6 LICENSEE acknowledges that the LICENSOR has no adequate remedy under this AGREEMENT or at law in the event that the LICENSEE were to use the LICENSOR PATENTS in a manner not authorized by this AGREEMENT and that the LICENSOR would, in such circumstances, be entitled to injunctive or other equitable relief, including interlocutory and preliminary injunctive relief. The LICENSEE also acknowledges that LICENSOR's rights and remedies under this AGREEMENT and under the law are intended to be cumulative, and not mutually exclusive.

Infringement of Patents. 12.1 In the event a a PARTY SUBLICENSEE acquires information that a third party is infringing one or more LICENSOR VDL PATENTS, the PARTY acquiring such information SUBLICENSEE shall immediately notify the other PARTY to this AGREEMENT LICENSOR in writing of such infringement. 12.2 In SUBLICENSEE acknowledges that in the event of an infringement of LICENSOR VDL PATENTS, the LICENSOR shall have VDL has the first opportunity, but not the obligation, to bring suit against the infringer. If LICENSOR VDL elects not to bring suit against the infringer, then LICENSEE LICENSOR shall have the option but not the obligation to bring suit against the infringer, and to join LICENSOR VDL as a party plaintiff in such suit. In the event LICENSEE exercises its SUBLICENSEE further acknowledges that it has no right under this AGREEMENT to ▇▇▇bring suit against any infringer. SUBLICENSEE explicity agrees, it shall have the right however, to first reimburse itself out of any sums recovered in such suit or in settlement thereof for all costs willingly and expenses of every kind and character, including reasonable attorneys' fees, necessarily involved in the prosecution of without reservation join any such suit, and if after such reimbursement, any funds shall remain from said recovery, the PARTIES shall divide the remaining funds equally between the LICENSOR and LICENSEEinfringement suit as required by a competent court of law. 12.3 If either PARTY is not fully reimbursed for the costs and expenses of litigation from said recovery, it shall not have the right to recover the unreimbursed costs and expenses from the other PARTY. 12.4 Each PARTY shall always have the right to be represented by counsel of its own selection in any suit for infringement of the LICENSOR VDL PATENTS. 12.5 12.4 Each PARTY agrees to cooperate fully with the other, including, by giving testimony and producing documents lawfully requested in the course of an infringement suit, provided that the PARTY bringing such infringement suit shall pay all reasonable expenses (including attorneys' fees) incurred by the other PARTY in connection with such cooperation. 12.6 LICENSEE 12.5 SUBLICENSEE acknowledges that the LICENSOR has and/or VDL have no adequate remedy under this AGREEMENT or at law in the event that the LICENSEE SUBLICENSEE were to use the LICENSOR VDL PATENTS in a manner not authorized by this AGREEMENT and that the LICENSOR and/or VDL would, in such circumstances, be entitled to injunctive or other equitable relief, including interlocutory and preliminary injunctive relief. The LICENSEE SUBLICENSEE also acknowledges that LICENSORLICENSOR and/or VDL's rights and remedies under this AGREEMENT and under the law are intended to be cumulative, and not mutually exclusive.

Infringement of Patents. 12.1 (a) In the event that Chelsea or DSP becomes aware of actual or threatened infringement of a a PARTY acquires information Licensed Patent, within the Licensed Field in the Territory during the Term, that a third party is infringing one or more LICENSOR PATENTS, the PARTY acquiring such information Party shall immediately promptly notify the other PARTY to this AGREEMENT Party in writing of writing, which notice shall include any known material details concerning such infringement. 12.2 In the event of an infringement of LICENSOR PATENTS, the LICENSOR . Chelsea shall have the first opportunityright, but not the obligation, to bring suit an infringement action against the infringerany Third Party in respect of such Licensed Patent. If LICENSOR Chelsea elects not to bring suit against the infringerpursue such infringement action, then LICENSEE Chelsea shall have the option but not the obligation to bring suit against the infringer, and to join LICENSOR as a party plaintiff in such suit. In the event LICENSEE exercises its right to ▇▇▇, it shall have the right to first reimburse itself out of any sums recovered in such suit or in settlement thereof for all costs and expenses of every kind and character, including reasonable attorneys' fees, necessarily involved in the prosecution of any such suit, and if after such reimbursement, any funds shall remain from said recovery, the PARTIES shall divide the remaining funds equally between the LICENSOR and LICENSEE. 12.3 If either PARTY is not fully reimbursed be solely responsible for the costs and expenses associated with such action and all recoveries (including settlements) shall be applied as follows: (i) first to reimburse Chelsea for any reasonable, documented expenses incurred in respect of litigation from said recoverysuch action; (ii) second, it to reimburse DSP for any reasonable, documented expenses incurred in respect of such action; and (iii) any remaining amounts shall be allocated as follows: (a) any amounts attributable to lost profits shall be treated as Net Sales, and Chelsea shall pay to DSP royalties due on such amounts in accordance with Section 4 of this Agreement; and (b) any amounts not have attributable to lost profits shall be allocated on the right basis of [*] percent ([*]%) to recover the unreimbursed costs DSP and expenses from the other PARTY[*] percent ([*]%) to Chelsea. 12.4 Each PARTY shall always have (b) During the right to be represented by counsel of its own selection in any suit for infringement of the LICENSOR PATENTS. 12.5 Each PARTY agrees to cooperate fully with the otherTerm, including, by giving testimony and producing documents lawfully requested in the course of an infringement suit, provided that the PARTY bringing such infringement suit shall pay all reasonable expenses (including attorneys' fees) incurred by the other PARTY in connection with such cooperation. 12.6 LICENSEE acknowledges that the LICENSOR has no adequate remedy under this AGREEMENT or at law in the event that the LICENSEE were Chelsea does not undertake an infringement action under Section 6.2.2(a), upon Chelsea’s written consent, which shall not be unreasonably withheld, refused, conditioned or delayed, DSP shall be permitted to use the LICENSOR PATENTS in a manner not authorized by this AGREEMENT and that the LICENSOR wouldundertake an infringement action, at DSP’s sole expense, and, if required, in the relevant Party’s name or the relevant Party’s Affiliate’s name and on the relevant Party’s or the relevant Party’s Affiliate’s behalf. If a particular Party is attempting to undertake an infringement action pursuant to this Section 6.2.2, but such circumstances, be entitled to injunctive Party is not recognized by the applicable court or other equitable reliefrelevant body as having the requisite standing to pursue such action, then such Party may join the other Party as a party-plaintiff. If DSP elects to pursue such infringement action, DSP may be represented in such action by attorneys of its own choice and at its own expense, with DSP taking the lead in such action. In the event that DSP brings any such action after Chelsea has elected not to pursue such action, DSP shall be solely responsible for the costs and expenses associated with such action and all recoveries (including interlocutory settlements) shall be applied as follows: (i) first to reimburse DSP for any expenses incurred in respect of such action; (ii) second, to reimburse Chelsea for any expenses incurred in respect of such action; and preliminary injunctive relief. The LICENSEE also acknowledges that LICENSOR's rights and remedies under this AGREEMENT and under the law are intended (iii) (a) any amounts attributable to lost profits shall be cumulativetreated as Net Sales, and Chelsea shall pay to DSP royalties due on such amounts in accordance with Section 4 of this Agreement; and (b) any amounts not mutually exclusiveattributable to lost profits shall be allocated on the basis of [*] percent ([*]%) to DSP and [*] percent ([*]%) to Chelsea.

Infringement of Patents. 12.1 In the event a a PARTY acquires information that ZENECA or SHIONOGI supposes that a third party is THIRD PARTY may be infringing one any of the PATENTS by the manufacture, use, distribution, marketing or more LICENSOR PATENTSsale of the COMPOUNDS and/or LICENSED PRODUCTS, the PARTY acquiring such information ZENECA or SHIONOGI shall immediately promptly notify the other PARTY in writing, identifying the infringer and the infringement complained of and furnishing the information upon which such determination is based. ZENECA shall be entitled, in its sole discretion but after notifying SHIONOGI, to this AGREEMENT take any measures deemed appropriate to stop such infringing activities by such THIRD PARTY in writing the TERRITORY or to grant to the infringing THIRD PARTY adequate rights and licenses necessary for continuing such activities in the TERRITORY so long as ZENECA remains in compliance with Article 4. Upon reasonable request by ZENECA and at ZENECA’s cost, SHIONOGI shall give ZENECA all reasonable information and assistance including allowing ZENECA access to SHIONOGI’s files and documents and access to SHIONOGI’s personnel who may have possession of such infringementrelevant information, and if necessary to prosecute any legal action, joining in the legal action as a party. 12.2 ZENECA shall bear the cost of any action or measures taken in accordance with Article 12.1 and shall be entitled to receive any damages or remuneration received as a result of such action or measures. 12.3 In the event ZENECA decides, within sixty (60) days of becoming aware of an infringement, in its sole discretion, not to take any action against a THIRD PARTY deemed to infringe the PATENTS, ZENECA shall inform SHIONOGI in writing and SHIONOGI thereafter shall be entitled to pursue an action to stop such infringement in its own name and for its own account. Upon reasonable request by SHIONOGI and at SHIONOGI’s cost, ZENECA shall give SHIONOGI all reasonable information and assistance. Any damages or remuneration received as a result of such action shall be received by SHIONOGI. 12.4 In the event of an infringement of LICENSOR PATENTS, the LICENSOR shall have the first opportunity, but not the obligation, to bring any actual or threatened suit against ZENECA or its AFFILIATES, SUBLICENSEES or customers alleging that the infringer. If LICENSOR elects not to bring suit against the infringer, then LICENSEE shall have the option but not the obligation to bring suit against the infringer, and to join LICENSOR as a party plaintiff in such suit. In the event LICENSEE exercises its right to ▇▇▇, it shall have the right to first reimburse itself out of any sums recovered in such suit exploitation or in settlement thereof for all costs and expenses of every kind and character, including reasonable attorneys' fees, necessarily involved in the prosecution of any such suit, and if after such reimbursement, any funds shall remain from said recovery, the PARTIES shall divide the remaining funds equally between the LICENSOR and LICENSEE. 12.3 If either PARTY is not fully reimbursed for the costs and expenses of litigation from said recovery, it shall not have the right to recover the unreimbursed costs and expenses from the other PARTY. 12.4 Each PARTY shall always have the right to be represented by counsel of its own selection in any suit for infringement use of the LICENSOR PATENTS. 12.5 Each PARTY agrees to cooperate fully with PATENTS and/or KNOW-HOW hereunder infringes the other, including, by giving testimony and producing documents lawfully requested in the course of an infringement suit, provided that the PARTY bringing such infringement suit shall pay all reasonable expenses (including attorneys' fees) incurred by the other PARTY in connection with such cooperation. 12.6 LICENSEE acknowledges that the LICENSOR has no adequate remedy under this AGREEMENT or at law in the event that the LICENSEE were to use the LICENSOR PATENTS in a manner not authorized by this AGREEMENT and that the LICENSOR would, in such circumstances, be entitled to injunctive patent or other equitable relief, including interlocutory and preliminary injunctive relief. The LICENSEE also acknowledges that LICENSOR's intellectual property rights and remedies under this AGREEMENT and under the law are intended to be cumulative, and not mutually exclusive.of a THIRD

Infringement of Patents. 12.1 In the event a a PARTY acquires information that a third party is infringing one DARA or more LICENSOR PATENTSNuada becomes aware of actual or threatened infringement of any Licensed Patent during the Term, the PARTY acquiring such information shall immediately that Party will promptly notify the other PARTY Party in writing, which notice shall include any known material details concerning such infringement or misappropriation. With respect to this AGREEMENT in writing of such infringement. 12.2 In the event of an any alleged actual or threatened infringement of LICENSOR PATENTSthe Licensed Patents, the LICENSOR DARA shall have the first opportunityand primary right, but not the obligation, to, in its sole discretion, to initiate, prosecute, and control any action or legal proceedings, and/or enter into a settlement, including any declaratory judgment action, on its behalf or in Nuada’s name, if necessary, with respect to such alleged infringement or misappropriation. If, within twelve (12) months of the notice above, DARA (i) shall have been unsuccessful in persuading the alleged infringer or misappropriator to desist, (ii) shall not have brought and shall not be diligently prosecuting an infringement or misappropriation action, or (iii) has not entered into settlement discussions with respect to such infringement or misappropriation, or if DARA notifies Nuada that it has decided not to undertake any of the foregoing against any such alleged infringer or misappropriator, then Nuada shall then have the right, but not the obligation, to bring suit against to enforce the infringer. If LICENSOR elects not Licensed Patents, or to bring suit against the infringerseek relief with respect to such misappropriation, then LICENSEE shall have the option but not the obligation to bring suit against the infringer, and to join LICENSOR as a party plaintiff in such suitat its own expense. In the event LICENSEE exercises its right to ▇▇▇any such litigation brought by DARA, it DARA shall have the right to first reimburse itself out of any sums recovered to, if and as reasonably necessary or useful in such suit action, use and ▇▇▇ in Nuada’s name, and Nuada shall cooperate reasonably, as requested by DARA and at DARA’s expense (which expense shall be reasonable and documented). The Party pursuing or in settlement thereof for all costs and expenses of every kind and charactercontrolling any action against an alleged infringer or misappropriator pursuant to the foregoing (the “Controlling Party”) shall be free to enter into a settlement, including reasonable attorneys' feesconsent judgment, necessarily involved in the prosecution or other voluntary disposition of any such suitaction, provided, however, that (i) the Controlling Party shall consult with the other Party (the “Secondary Party”) prior to entering into any settlement thereof and (ii) any settlement, consent judgment or other voluntary disposition of such actions which (1) materially limits the scope, validity, or enforceability of any Licensed Patent (if Nuada is the Secondary Party), (2) subjects the Secondary Party to any non-indemnified liability or obligation, or (3) admits fault or wrongdoing on the part of Secondary Party, must be approved in writing by Secondary Party, such approval not to be unreasonably withheld. Secondary Party shall provide the Controlling Party notice of its approval or denial of such approval within ten (10) business days of any request for such approval by the Controlling Party, provided that (i) in the event Secondary Party wishes to deny such approval, such notice shall include a written description of Secondary Party’s reasonable objections to the proposed settlement, consent judgment, or other voluntary disposition and (ii) Secondary Party shall be deemed to have approved such proposed settlement, consent judgment, or other voluntary disposition in the event it fails to provide such notice within such ten (10) business day period. Any recovery or damages received by the Controlling Party with respect to the infringement or misappropriation of DARA’s rights under the Licensed Patents shall be used first to reimburse the Parties for unreimbursed reasonable, documented expenses incurred in connection with such action, and if after such reimbursement, any funds the remainder shall remain from said recoverybe deemed Net Sales and subject to the payment of royalties to Nuada under Section 4.3 above. Notwithstanding the foregoing, the PARTIES Secondary Party, at its expense, shall divide the remaining funds equally between the LICENSOR and LICENSEE. 12.3 If either PARTY is not fully reimbursed for the costs and expenses of litigation from said recovery, it shall not have the right to recover the unreimbursed costs and expenses from the other PARTY. 12.4 Each PARTY shall always have the right to be represented by counsel of its own selection choice in any suit for infringement of the LICENSOR PATENTSsuch proceeding. 12.5 Each PARTY agrees to cooperate fully with the other, including, by giving testimony and producing documents lawfully requested in the course of an infringement suit, provided that the PARTY bringing such infringement suit shall pay all reasonable expenses (including attorneys' fees) incurred by the other PARTY in connection with such cooperation. 12.6 LICENSEE acknowledges that the LICENSOR has no adequate remedy under this AGREEMENT or at law in the event that the LICENSEE were to use the LICENSOR PATENTS in a manner not authorized by this AGREEMENT and that the LICENSOR would, in such circumstances, be entitled to injunctive or other equitable relief, including interlocutory and preliminary injunctive relief. The LICENSEE also acknowledges that LICENSOR's rights and remedies under this AGREEMENT and under the law are intended to be cumulative, and not mutually exclusive.

Infringement of Patents. 12.1 In the event a a PARTY acquires information that ZENECA or SHIONOGI supposes that a third party is THIRD PARTY may be infringing one any of the PATENTS by the manufacture, use, distribution, marketing or more LICENSOR PATENTSsale of the COMPOUNDS and/or LICENSED PRODUCTS, the PARTY acquiring such information ZENECA or SHIONOGI shall immediately promptly notify the other PARTY in writing, identifying the infringer and the infringement complained of and furnishing the information upon which such determination is based. ZENECA shall be entitled, in its sole discretion but after notifying SHIONOGI, to this AGREEMENT take any measures deemed appropriate to stop such infringing activities by such THIRD PARTY in writing the TERRITORY or to grant to the infringing THIRD PARTY adequate rights and licenses necessary for continuing such activities in the TERRITORY so long as ZENECA remains in compliance with Article 4. Upon reasonable request by ZENECA and at ZENECA’s cost, SHIONOGI shall give ZENECA all reasonable information and assistance including allowing ZENECA access to SHIONOGI’s files and documents and access to SHIONOGI’s personnel who may have possession of such infringementrelevant information, and if necessary to prosecute any legal action, joining in the legal action as a party. 12.2 ZENECA shall bear the cost of any action or measures taken in accordance with Article 12.1 and shall be entitled to receive any damages or remuneration received as a result of such action or measures. 12.3 In the event ZENECA decides, within sixty (60) days of becoming aware of an infringement, in its sole discretion, not to take any action against a THIRD PARTY deemed to infringe the PATENTS, ZENECA shall inform SHIONOGI in writing and SHIONOGI thereafter shall be entitled to pursue an action to stop such infringement in its own name and for its own account. Upon reasonable request by SHIONOGI and at SHIONOGI’s cost, ZENECA shall give SHIONOGI all reasonable information and assistance. Any damages or remuneration received as a result of such action shall be received by SHIONOGI. 12.4 In the event of an infringement of LICENSOR PATENTS, the LICENSOR shall have the first opportunity, but not the obligation, to bring any actual or threatened suit against ZENECA or its AFFILIATES, SUBLICENSEES or customers alleging that the infringerexploitation or use of the PATENTS and/or KNOW-HOW hereunder infringes the patent or other intellectual property rights of a THIRD PARTY, ZENECA shall promptly give written notice to SHIONOGI. If LICENSOR elects not SHIONOGI will provide to bring ZENECA all reasonable assistance requested by ZENECA to defend or settle such suit against the infringerand in particular SHIONOGI will promptly make available to ZENECA, then LICENSEE shall have the option but not the obligation to bring suit against the infringerfree of charge, and to join LICENSOR as a party plaintiff all information in its possession or control which will assist ZENECA in defending or otherwise dealing with such suit. In the event LICENSEE exercises its right to ▇▇▇, it ZENECA shall have the right to first reimburse itself out of any sums recovered defend in its sole discretion such suit or in settlement thereof for all costs and expenses of every kind and character, including reasonable attorneys' fees, necessarily involved in the prosecution of any but shall consult with SHIONOGI before settling such suit, and if after such reimbursement, any funds shall remain from said recovery, the PARTIES shall divide the remaining funds equally between the LICENSOR and LICENSEE. 12.3 If either PARTY is not fully reimbursed for the costs and expenses of litigation from said recovery, it . ZENECA shall not have settle the suit without obtaining prior written consent of SHIONOGI which consent shall not be unreasonably withheld. If damages or costs are awarded against ZENECA for such infringement, or if the outcome of the suit is that ZENECA is ordered to or agrees to make payments or pay royalties to a THIRD PARTY in order to secure the right to recover continue the unreimbursed costs and expenses from exploitation or use of the other PARTY. 12.4 Each PARTY PATENTS and/or KNOW-HOW hereunder, then the following percentages of such damages, payments, or royalties shall always have be offset against royalties payable by ZENECA under Article 4: [***]. Notwithstanding the right to be represented by counsel of its own selection foregoing, in any suit for infringement of the LICENSOR PATENTS. 12.5 Each PARTY agrees to cooperate fully with the otherevent described above, including, by giving testimony and producing documents lawfully requested in the course of an infringement suit, provided that the PARTY bringing such infringement suit SHIONOGI shall pay all reasonable expenses (including attorneys' fees) incurred by the other PARTY in connection with such cooperation. 12.6 LICENSEE acknowledges that the LICENSOR has no adequate remedy under this AGREEMENT or at law in the event that the LICENSEE were to use the LICENSOR PATENTS in a manner not authorized by this AGREEMENT and that the LICENSOR would, in such circumstances, be entitled to injunctive or other equitable relief, including interlocutory and preliminary injunctive relief. The LICENSEE also acknowledges that LICENSOR's rights and remedies receive at least [***] percent ([***]%) of the royalties due under this AGREEMENT and under the law are intended to be cumulative, and not mutually exclusiveArticle 4 hereof from ZENECA in any one calendar year.