Common use of Obligation to Defend Clause in Contracts

Obligation to Defend. (a) Each Party shall promptly notify the other in writing of any alleged or threatened infringement of any Vion Licensed Patent in the Territory of which such Party becomes aware. VION shall have the right to defend the Vion Licensed Patents against infringement or interference by other parties in the Territory, including by bringing any legal action for infringement or defending any counterclaim of invalidity or action of a third party for declaratory judgment of non-infringement or interference; provided, however, that ▇▇▇▇▇ shall be entitled in each instance to participate through counsel of its selection and at its own expense. In the event VION determines not to initiate and pursue or participate in such legal action, ▇▇▇▇▇ may initiate legal action to uphold the Vion Licensed Patents against third parties in the Territory. The parties will cooperate in good faith with respect to any such action. Any settlement of any such action shall require VION's prior written approval which may be granted or withheld in VION's sole discretion. The Parties shall be entitled to deduct their respective costs and expenses incurred in connection with prosecuting or participating in such lawsuit from any damages that are awarded. Any remaining damage award in litigation prosecuted by ▇▇▇▇▇ shall be considered Net Sales and shall be subject to the royalty obligation under this Agreement and any remaining damage award in litigation prosecuted by VION shall be retained by VION. (b) Each Party shall promptly notify the other in writing in the event that a third party shall bring a claim or action of infringement against ▇▇▇▇▇ or VION in the Territory. VION shall have the right to defend, at its own expense, any such third party claim or action and to settle or compromise the same in such manner as it shall see fit, provided, that VION shall consult with ▇▇▇▇▇ as to any such settlement or compromise. ▇▇▇▇▇ may participate in such litigation or claim on its behalf at its own expense. If VION elects not to defend against such claim and not to obtain a license to permit ▇▇▇▇▇ to exercise its license or sublicense free of such claim, then ▇▇▇▇▇ may, in its own name and at its sole expense, defend such claim and may compromise, settle or otherwise pursue such defense in such a manner and on such terms as ▇▇▇▇▇ shall see fit.

Obligation to Defend. (a) Each Party shall promptly notify the other in writing If any claim, action or proceeding is made or brought against any Indemnitee by reason of any alleged event as to which the Tenant is required to indemnify any Indemnitee pursuant to this Article 19, then, upon demand by such Indemnitee, the Tenant, at its sole cost and expense, shall resist or threatened infringement of any Vion Licensed Patent defend such claim, action or proceeding in such Indemnitee’s name, if necessary, by the attorneys for the Tenant’s insurance carrier (if such claim, action or proceeding is covered by insurance), and otherwise by such attorneys as the Landlord shall approve, which approval shall not be unreasonably withheld, conditioned or delayed. The Landlord agrees that in the Territory event the Landlord is named as a party to the action, the Landlord will reasonably cooperate with the Tenant in the conduct of which such Party becomes awarethe proceedings. VION Any one or more Indemnitee shall have the right to defend the Vion Licensed Patents against infringement or interference by other parties employ separate counsel in any such action and to participate in the Territorydefense thereof, including by bringing any legal action for infringement or defending any counterclaim but the fees and expenses of invalidity or action of a third party for declaratory judgment of non-infringement or interference; provided, however, that ▇▇▇▇▇ such counsel shall be entitled at the expense of such Indemnitee unless (i) the employment of such counsel has been specifically authorized in each instance to participate through counsel of its selection and at its own expense. In writing by the event VION determines not to initiate and pursue or participate in such legal actionIndemnitor, ▇▇▇▇▇ may initiate legal action to uphold (ii) the Vion Licensed Patents against third named parties in the Territory. The parties will cooperate in good faith with respect to any such actionaction (including any impleaded parties) include the Indemnitor and such Indemnitee and representation of the Indemnitor and Indemnitee by the same counsel would be inappropriate due to actual or potential differing interests between them, or (iii) the Indemnitor or Indemnitee have been advised by counsel reasonably acceptable to the Indemnitor that one or more legal defenses may be available to any or all of them which may not be available to the Indemnitor in which case the Indemnitor shall not be entitled to assume the defense of such suit. Any The Indemnitees shall not be bound by any compromise or settlement of any such claim, action shall require VION's or proceeding without the prior written approval which may be granted or withheld in VION's sole discretion. The Parties shall be entitled to deduct their respective costs and expenses incurred in connection with prosecuting or participating in such lawsuit from any damages that are awarded. Any remaining damage award in litigation prosecuted by ▇▇▇▇▇ shall be considered Net Sales and shall be subject to the royalty obligation under this Agreement and any remaining damage award in litigation prosecuted by VION shall be retained by VION. (b) Each Party shall promptly notify the other in writing in the event that a third party shall bring a claim or action of infringement against ▇▇▇▇▇ or VION in the Territory. VION shall have the right to defend, at its own expense, any such third party claim or action and to settle or compromise the same in such manner as it shall see fit, provided, that VION shall consult with ▇▇▇▇▇ as to any such settlement or compromise. ▇▇▇▇▇ may participate in such litigation or claim on its behalf at its own expense. If VION elects not to defend against such claim and not to obtain a license to permit ▇▇▇▇▇ to exercise its license or sublicense free consent of such claimIndemnitees, then ▇▇▇▇▇ maywhich consent shall not be unreasonably withheld, in its own name and at its sole expense, defend such claim and may compromise, settle conditioned or otherwise pursue such defense in such a manner and on such terms as ▇▇▇▇▇ shall see fitdelayed.

Obligation to Defend. (a) Each Party Notice; Co-operation - Whenever a Claim shall arise for indemnification under Section 10.4, the relevant Indemnitee, as appropriate, shall promptly notify the other in writing Indemnifying Party and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any alleged or threatened infringement of any Vion Licensed Patent in liability that the Territory of which Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party's ability to defend such Claim. The Indemnifying Party becomes aware. VION shall have the right to defend against such liability or assertion in which event the Vion Licensed Patents against infringement Indemnifying Party shall give written notice to the Indemnitee of acceptance of the defense of such Claim and the identity of counsel selected by the Indemnifying Party. Except as set forth below, such notice to the relevant Indemnitee shall give the Indemnifying Party full authority to defend, adjust, compromise or interference by other parties in the Territory, including by bringing any legal action for infringement or defending any counterclaim of invalidity or action of a third party for declaratory judgment of non-infringement or interference; provided, however, that ▇▇▇▇▇ shall be entitled in each instance to participate through counsel of its selection and at its own expense. In the event VION determines not to initiate and pursue or participate in settle such legal action, ▇▇▇▇▇ may initiate legal action to uphold the Vion Licensed Patents against third parties in the Territory. The parties will cooperate in good faith Claim with respect to which such notice shall have been given, except to the extent that any such actioncompromise or settlement shall prejudice the Intellectual Property Rights of the relevant Indemnitees. Any The Indemnifying Party shall consult with the relevant Indemnitee prior to any compromise or settlement that would affect the Intellectual Property Rights or other rights of any such action shall require VION's prior written approval which may be granted or withheld in VION's sole discretion. The Parties shall be entitled to deduct their respective costs Indemnitee, and expenses incurred in connection with prosecuting or participating in such lawsuit from any damages that are awarded. Any remaining damage award in litigation prosecuted by ▇▇▇▇▇ shall be considered Net Sales and shall be subject to the royalty obligation under this Agreement and any remaining damage award in litigation prosecuted by VION shall be retained by VION. (b) Each Party shall promptly notify the other in writing in the event that a third party shall bring a claim or action of infringement against ▇▇▇▇▇ or VION in the Territory. VION relevant Indemnitee shall have the right to defendrefuse such compromise or settlement and, at its own expensethe refusing Party's or refusing Parties' cost, to take over such defense, provided that in such event the Indemnifying Party shall not be responsible for, nor shall it be obligated to indemnify the relevant Indemnitee against, any cost or liability in excess of such third party claim refused compromise or action and to settle or compromise the same in such manner as it shall see fit, provided, that VION shall consult with ▇▇▇▇▇ as settlement. With respect to any such settlement or compromise. ▇▇▇▇▇ may defense accepted by the Indemnifying Party, the relevant Indemnitee shall be entitled to participate in such litigation or claim on its behalf at its own expense. If VION elects not to defend against such claim and not to obtain a license to permit ▇▇▇▇▇ to exercise its license or sublicense free of such claim, then ▇▇▇▇▇ may, in its own name and at its sole expense, defend such claim and may compromise, settle or otherwise pursue such defense in such a manner and on such terms as ▇▇▇▇▇ shall see fit.with

Obligation to Defend. Subject to the limits on each Indemnitor's obligation to indemnify with respect to matters as set forth herein, each Indemnitor agrees, unless it timely assumes the defense of any claim hereunder, to pay the Indemnified Party s costs of defending any claim, including attorneys' and paralegals' fees, accountants' fees, witness fees, and court costs, promptly after receipt of the Indemnified Party's demand therefor, from time to time, during the pendency of any claim. If the Indemnitor timely undertakes the defense (aat his or its sole cost and expense and under his or its direction) Each of any claim, then so long as the Indemnitor, in good faith, is continuously contesting or defending the claim: (1) the Indemnified Party shall promptly notify not admit any liability with respect thereto, or settle, compromise, pay or discharge the other in writing same without the prior written consent of any alleged or threatened infringement of any Vion Licensed Patent the Indemnitor; (2) the Indemnified Party shall cooperate with the Indemnitor in the Territory of which such contest or defense thereof; (3) the Indemnified Party becomes aware. VION shall have accept any settlement thereof if, but only if, indemnification in accordance with the right to defend the Vion Licensed Patents against infringement or interference by other parties in the Territory, including by bringing any legal action for infringement or defending any counterclaim of invalidity or action of a third party for declaratory judgment of non-infringement or interference; provided, however, that ▇▇▇▇▇ terms hereof with respect thereto shall be entitled effected; and (4) the Indemnitor shall provide the Indemnified party with all information regarding the contest or defense of the claim and shall allow counsel for the Indemnified Party to monitor, at the Indemnified Party's sole expense, all proceedings in each instance to participate through counsel of its selection and at its own expenseconnection with the claim. In Neither the event VION determines not to initiate and pursue or participate in such legal action, ▇▇▇▇▇ may initiate legal action to uphold Indemnitor nor the Vion Licensed Patents against third parties in the Territory. The parties will cooperate in good faith Indemnified Party shall admit any liability with respect to any claim or settle, compromise, pay or discharge any claim without the prior written consent of the other party if such actionsettlement, compromise, payment, or discharge could expose such other party to the payment of funds which are not subject to a claim of reimbursement or indemnification from the settling, compromising or paying party. Any settlement The Indemnified Party shall use reasonable efforts to preserve the status quo, not incur any penalties, and not prejudice the Indemnitor's defense of any claim prior to the Indemnitor undertaking the defense of such action shall require VIONclaim. It is understood that Indemnitor's prior written approval which may be granted or withheld in VION's sole discretion. The Parties shall be entitled obligation to deduct their respective defend and to pay defense costs and expenses incurred in connection with prosecuting or participating in such lawsuit from any damages that are awarded. Any remaining damage award in litigation prosecuted by ▇▇▇▇▇ shall be considered Net Sales and shall be is subject to the royalty obligation under this Agreement and any remaining damage award in litigation prosecuted by VION shall be retained by VIONsame limits as are applicable to the Indemnifiable Matters. (b) Each Party shall promptly notify the other in writing in the event that a third party shall bring a claim or action of infringement against ▇▇▇▇▇ or VION in the Territory. VION shall have the right to defend, at its own expense, any such third party claim or action and to settle or compromise the same in such manner as it shall see fit, provided, that VION shall consult with ▇▇▇▇▇ as to any such settlement or compromise. ▇▇▇▇▇ may participate in such litigation or claim on its behalf at its own expense. If VION elects not to defend against such claim and not to obtain a license to permit ▇▇▇▇▇ to exercise its license or sublicense free of such claim, then ▇▇▇▇▇ may, in its own name and at its sole expense, defend such claim and may compromise, settle or otherwise pursue such defense in such a manner and on such terms as ▇▇▇▇▇ shall see fit.

Obligation to Defend. (a) Each Party shall Notice; Cooperation 7.4.1 Whenever a Claim will arise for indemnification under this Section, the relevant Indemnitee, as appropriate, will promptly notify the other in writing Indemnifying Party and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party will not relieve the Indemnifying Party of any alleged or threatened infringement of any Vion Licensed Patent in liability that the Territory of which Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party's ability to defend such Claim. The Indemnifying Party becomes aware. VION shall will have the right to defend against such liability or assertion in which event the Vion Licensed Patents Indemnifying Party will give written notice to the Indemnitee of acceptance of the defense of such Claim and the identity of counsel selected by the Indemnifying Party. Except as set forth in this section, such notice to the relevant Indemnitee will give the Indemnifying Party full authority to defend, adjust, compromise, or settle such Claim with respect to which such notice will have been given, subject to consultation with the relevant Indemnitee The Indemnifying Party will consult with the relevant Indemnitee prior to any compromise or settlement that may affect the Intellectual Property Rights or other rights of any Indemnitee, and the relevant Indemnitee will have the right to refuse such compromise or settlement and, at the refusing Party's cost, to take over such defense, provided that in such event the Indemnifying Party will not be responsible for, nor will it be obligated to indemnify the relevant Indemnitee against infringement any cost or interference liability in excess of such refused compromise or settlement. With respect to any defense accepted by other parties in the TerritoryIndemnifying Party, including by bringing any legal action for infringement or defending any counterclaim of invalidity or action of a third party for declaratory judgment of non-infringement or interference; provided, however, that ▇▇▇▇▇ shall the relevant Indemnitee will be entitled in each instance to participate through with the Indemnifying Party in such defense if the Claim requests equitable relief or other relief that could affect the rights of the Indemnitee and also will be entitled to employ separate counsel of its selection and for such defense at its own such Indemnitee's expense. In the event VION determines the Indemnifying Party does not accept the defense of any indemnified Claim as provided above, the relevant Indemnitee will have the right to initiate employ counsel for such defense at the expense of the Indemnifying Party. In the event of a failure to assume the defense, the Indemnified Party may negotiate a settlement, which shall be presented to the Indemnifying Party. If the Indemnifying Party refuses to agree to the presented settlement and pursue or participate in refuses to take over the defense, the Indemnifying Party shall be liable for any reasonable cash settlement not involving any admission of liability by the Indemnifying Party, though such legal actionsettlement may have been made by the Indemnified Party without approval of the Indemnifying Party, ▇▇▇▇▇ may initiate legal action it being the Parties' intent that no settlement involving a non-monetary concession by the Indemnifying Party, including an admission of liability by such Party, shall take effect without the written approval of the Indemnifying Party. Each Party agrees to uphold cooperate and to cause its employees and agents to cooperate with the Vion Licensed Patents against third parties other Party in the Territory. The parties will cooperate in good faith defense of any such Claim and the relevant records of each Party shall be available to the other Party with respect to any such action. Any settlement of any such action shall require VION's prior written approval which may be granted or withheld in VION's sole discretion. The Parties shall be entitled to deduct their respective costs and expenses incurred in connection with prosecuting or participating in such lawsuit from any damages that are awarded. Any remaining damage award in litigation prosecuted by ▇▇▇▇▇ shall be considered Net Sales and shall be defense, subject to the royalty obligation under this Agreement restrictions and any remaining damage award limitations set forth in litigation prosecuted by VION shall be retained by VIONSection 7. (b) Each Party shall promptly notify the other in writing in the event that a third party shall bring a claim or action of infringement against ▇▇▇▇▇ or VION in the Territory. VION shall have the right to defend, at its own expense, any such third party claim or action and to settle or compromise the same in such manner as it shall see fit, provided, that VION shall consult with ▇▇▇▇▇ as to any such settlement or compromise. ▇▇▇▇▇ may participate in such litigation or claim on its behalf at its own expense. If VION elects not to defend against such claim and not to obtain a license to permit ▇▇▇▇▇ to exercise its license or sublicense free of such claim, then ▇▇▇▇▇ may, in its own name and at its sole expense, defend such claim and may compromise, settle or otherwise pursue such defense in such a manner and on such terms as ▇▇▇▇▇ shall see fit.

Obligation to Defend. (a) Each Party shall promptly notify the other in writing If any claim, action or proceeding is made or brought against any Indemnitee by reason of any alleged event as to which the Tenant is required to indemnify any Indemnitee pursuant to this Article 19, then, upon demand by such Indemnitee, the Tenant, at its sole cost and expense, shall resist or threatened infringement of any Vion Licensed Patent defend such claim, action or proceeding in such Indemnitee’s name, if necessary, by the attorneys for the Tenant’s insurance carrier (if such claim, action or proceeding is covered by insurance), and otherwise by such attorneys as the Landlord shall approve, which approval shall not be unreasonably withheld, conditioned or delayed. The Landlord agrees that in the Territory event the Landlord is named as a party to the action, the Landlord will reasonably cooperate with the Tenant in the conduct of which such Party becomes awarethe proceedings. VION Any one or more Indemnitee shall have the right to defend the Vion Licensed Patents against infringement or interference by other parties employ separate counsel in any such action and to participate in the Territorydefense thereof, including by bringing any legal action for infringement or defending any counterclaim but the fees and expenses of invalidity or action of a third party for declaratory judgment of non-infringement or interference; provided, however, that ▇▇▇▇▇ such counsel shall be entitled at the expense of such Indemnitee unless (i) the employment of such counsel has been specifically authorized in each instance to participate through counsel of its selection and at its own expense. In writing by the event VION determines not to initiate and pursue or participate in such legal actionIndemnitor, ▇▇▇▇▇ may initiate legal action to uphold (ii) the Vion Licensed Patents against third named parties in the Territory. The parties will cooperate in good faith with respect to any such actionaction (including any impleaded parties) include the Indemnitor and such Indemnitee and representation of the Indemnitor and Indemnitee by the same counsel would be inappropriate due to actual or potential differing interests between them, or (iii) the Indemnitor or Indemnitee have been advised by counsel reasonably acceptable to the Indemnitor that one or more legal defenses may be available to any or all of them which may not be available to the Indemnitor in which case the Indemnitor shall not be entitled to assume the defense of such suit. Any The Indemnitees shall not be bound by any compromise or settlement of any such claim, action shall require VION's or proceeding without the prior written approval which may be granted or withheld in VION's sole discretion. The Parties shall be entitled to deduct their respective costs and expenses incurred in connection with prosecuting or participating in such lawsuit from any damages that are awarded. Any remaining damage award in litigation prosecuted by ▇▇▇▇▇ shall be considered Net Sales and shall be subject to the royalty obligation under this Agreement and any remaining damage award in litigation prosecuted by VION shall be retained by VION. (b) Each Party shall promptly notify the other in writing in the event that a third party shall bring a claim or action of infringement against ▇▇▇▇▇ or VION in the Territory. VION shall have the right to defend, at its own expense, any such third party claim or action and to settle or compromise the same in such manner as it shall see fit, provided, that VION shall consult with ▇▇▇▇▇ as to any such settlement or compromise. ▇▇▇▇▇ may participate in such litigation or claim on its behalf at its own expense. If VION elects not to defend against such claim and not to obtain a license to permit ▇▇▇▇▇ to exercise its license or sublicense free consent of such claimIndemnitees, then ▇▇▇▇▇ maywhich consent shall not be unreasonably withheld, in its own name and at its sole expense, defend such claim and may compromise, settle conditioned or otherwise pursue such defense in such a manner and on such terms as ▇▇▇▇▇ shall see fit.delayed.‌

Obligation to Defend. (a) Each Upon receipt of a Claims Notice relating to a claim brought by a third party against an Indemnified Party but excluding any claims brought against an Indemnified Party for taxes, the Indemnifying Party shall, at his or its own expense, assume the defense of any such claim or proceeding. The Indemnified Party shall promptly notify cooperate with all reasonable requests made by the Indemnifying Party relating to the compromise of, or defense against, such claim or proceeding and shall make available to the Indemnifying Party any books, records, other documents or personnel within its control that are necessary or appropriate for such defense. (b) The Indemnifying Party shall conduct such assumed defense or settlement in writing of a reasonable manner. No compromise or settlement shall be agreed or made without the Indemnified Party's written consent, which shall not be unreasonably withheld. In any alleged or threatened infringement of any Vion Licensed Patent in case, the Territory of which such Indemnified Party becomes aware. VION shall have the right to defend employ his or its own counsel and such counsel may participate in (but not control) such action, but the Vion Licensed Patents against infringement or interference by other parties fees and expenses of such counsel shall be at the expense of the Indemnified Party unless the Indemnified Party has reasonably concluded that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the Territoryconduct of the defense of such action. (c) If the Indemnifying Party fails to assume the defense or settlement in a reasonable manner, including the Indemnified Party may engage independent counsel selected by bringing any legal action for infringement the Indemnified Party to assume the defense and may contest, pay, settle or defending any counterclaim of invalidity or action of a third party for declaratory judgment of non-infringement or interference; provided, however, that ▇▇▇▇▇ shall be entitled in each instance to participate through counsel of its selection and at its own expense. In the event VION determines not to initiate and pursue or participate in such legal action, ▇▇▇▇▇ may initiate legal action to uphold the Vion Licensed Patents against third parties in the Territory. The parties will cooperate in good faith with respect to compromise any such action. Any settlement of any claim on such action shall require VION's prior written approval which terms and conditions as the Indemnified Party may be granted or withheld in VION's sole discretion. The Parties shall be entitled to deduct their respective costs and expenses incurred in connection with prosecuting or participating in such lawsuit from any damages that are awarded. Any remaining damage award in litigation prosecuted by ▇▇▇▇▇ shall be considered Net Sales and shall be determine subject to the royalty obligation under this Agreement written consent of the Indemnifying Party, which shall not be unreasonably withheld. The reasonable fees and any remaining damage award in litigation prosecuted by VION disbursements of such counsel shall constitute Losses for which indemnification shall be retained by VIONmade hereunder. (b) Each Party shall promptly notify the other in writing in the event that a third party shall bring a claim or action of infringement against ▇▇▇▇▇ or VION in the Territory. VION shall have the right to defend, at its own expense, any such third party claim or action and to settle or compromise the same in such manner as it shall see fit, provided, that VION shall consult with ▇▇▇▇▇ as to any such settlement or compromise. ▇▇▇▇▇ may participate in such litigation or claim on its behalf at its own expense. If VION elects not to defend against such claim and not to obtain a license to permit ▇▇▇▇▇ to exercise its license or sublicense free of such claim, then ▇▇▇▇▇ may, in its own name and at its sole expense, defend such claim and may compromise, settle or otherwise pursue such defense in such a manner and on such terms as ▇▇▇▇▇ shall see fit.

Obligation to Defend. (a) Each Party shall Notice; Cooperation 7.4.1 Whenever a Claim will arise for indemnification under this Section, the relevant Indemnitee, as appropriate, will promptly notify the other in writing Indemnifying Party and request the Indemnifying Party to defend the same. Failure to so notify the Indemnifying Party will not relieve the Indemnifying Party of any alleged or threatened infringement of any Vion Licensed Patent in liability that the Territory of which Indemnifying Party might have, except to the extent that such failure prejudices the Indemnifying Party's ability to defend such Claim. The Indemnifying Party becomes aware. VION shall will have the right to defend against such liability or assertion in which event the Vion Licensed Patents Indemnifying Party will give written notice to the Indemnitee of acceptance of the defense of such Claim and the identity of counsel selected by the Indemnifying Party. Except as set forth in this section, such notice to the relevant Indemnitee will give the Indemnifying Party full authority to defend, adjust, compromise, or settle such Claim with respect to which such notice will have been given, subject to consultation with the relevant Indemnitee The Indemnifying Party will consult with the relevant Indemnitee prior to any compromise or settlement that may affect the Intellectual Property Rights or other rights of any Indemnitee, and the relevant Indemnitee will have the right to refuse such compromise or settlement and, at the refusing Party's cost, to take over such defense, provided that in such event the Indemnifying Party will not be responsible for, nor will it be obligated to indemnify the relevant Indemnitee against infringement any cost or interference liability in excess of such refused compromise or settlement. With respect to any defense accepted by other parties in the TerritoryIndemnifying Party, including by bringing any legal action for infringement or defending any counterclaim of invalidity or action of a third party for declaratory judgment of non-infringement or interference; provided, however, that ▇▇▇▇▇ shall the relevant Indemnitee will be entitled in each instance to participate through with the Indemnifying Party in such defense if the Claim requests equitable relief or other relief that could affect the rights of the Indemnitee and also will be entitled to employ separate counsel of its selection and for such defense at its own such Indemnitee's expense. In the event VION determines the Indemnifying Party does not accept the defense of any indemnified Claim as provided above, the relevant Indemnitee will have the right to initiate employ counsel for such defense at the expense of the Indemnifying Party. In the event of a failure to assume the defense, the Indemnified Party may negotiate a settlement, which shall be presented to the Indemnifying Party. If the Indemnifying Party refuses to agree to the presented settlement and pursue or participate in refuses to take over the defense, the Indemnifying Party shall be liable for any reasonable cash settlement not involving any admission of liability by the Indemnifying Party, though such legal actionsettlement may have been made by the Indemnified Party without approval of the Indemnifying Party, ▇▇▇▇▇ may initiate legal action it being the Parties' intent that no settlement involving a non-monetary concession by the Indemnifying Party, including an admission of liability by such Party, shall take effect without the written approval of the Indemnifying Party. Each Party agrees to uphold cooperate and to cause its employees and agents to cooperate with the Vion Licensed Patents against third parties other Party in the Territory. The parties will cooperate in good faith defense of any such Claim and the relevant records of each Party shall be available to the other Party with respect to any such action. Any settlement of any such action shall require VION's prior written approval which may be granted or withheld in VION's sole discretion. The Parties shall be entitled to deduct their respective costs and expenses incurred in connection with prosecuting or participating in such lawsuit from any damages that are awarded. Any remaining damage award in litigation prosecuted by ▇▇▇▇▇ shall be considered Net Sales and shall be defense, subject to the royalty obligation under this Agreement restrictions and any remaining damage award limitations set forth in litigation prosecuted by VION shall be retained by VION. (b) Each Party shall promptly notify the other in writing in the event that a third party shall bring a claim or action of infringement against ▇▇▇▇▇ or VION in the Territory. VION shall have the right to defend, at its own expense, any such third party claim or action and to settle or compromise the same in such manner as it shall see fit, provided, that VION shall consult with ▇▇▇▇▇ as to any such settlement or compromise. ▇▇▇▇▇ may participate in such litigation or claim on its behalf at its own expense. If VION elects not to defend against such claim and not to obtain a license to permit ▇▇▇▇▇ to exercise its license or sublicense free of such claim, then ▇▇▇▇▇ may, in its own name and at its sole expense, defend such claim and may compromise, settle or otherwise pursue such defense in such a manner and on such terms as ▇▇▇▇▇ shall see fit.Section