Common use of Third Party Defense or Counterclaim Clause in Contracts

Third Party Defense or Counterclaim. (i) If a Third Party asserts, as a defense or as a counterclaim in any infringement action under Section 7.3 (Enforcement of Patents) or claim or counterclaim asserted under Section 7.4 (Infringement Claims by Third Parties), or in a declaratory judgment action or similar action or claim filed by such Third Party, that any Licensed Patent is invalid or unenforceable, then the Party pursuing such infringement action, or the Party first obtaining knowledge of such declaratory judgment action, as the case may be, shall promptly give written notice to the other Party. (ii) Licensee shall have the first right, but not the obligation, through counsel of its choosing, at its sole cost and expense, to defend against such action. If Licensee fails to exercise its first right to control of the defense of such action (as it considers such Licensed Patent to no longer be of strategic value to it, its Affiliates or Sublicensees) within [***] after receiving notice thereof from, or giving notice thereof to, then Sanofi shall have the right to defend such action, through counsel of its choosing, at its sole cost and expense, to defend against such action, and in such event under such Licensed Patents granted in Section 2.1 (Grants to Licensee) shall terminate unless Licensee pays Sanofi [***] of the external costs incurred by Sanofi in defending such action.