Common use of Third Party Litigation Clause in Contracts

Third Party Litigation. In the event that a Third Party institutes a Patent, Trademark or other infringement suit (including any suit alleging the invalidity or unenforceability of the Patents of a Party or its Affiliates, or claiming confusion, deception or dilution of a Trademark) against either Party or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of the Licensed Technology, Licensed Trademarks or any other activities hereunder, infringes one or more Patent, Trademark or other intellectual property rights held by such Third Party (an "Infringement Suit"), the Parties shall cooperate with one another in defending such suit. If NovaDel is named as a party to the litigation, and NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent ([***]) of its own costs and expenses associated with any such Infringement Suit to the extent that it relates to the Exploitation of any Licensed Product, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel shall have the right, but not the responsibility, to do so at its own expense. In such case, Licensee shall bear [***] percent ([***]) of its own costs of cooperation and participation.

Third Party Litigation. In the event that a Third Party institutes a Patentof any actual or threatened suit against ***, Trademark or other infringement suit (including any suit alleging the invalidity or unenforceability of the Patents of a Party AstraZeneca or its Affiliates, Sublicensees, Distributors or claiming confusioncustomers alleging that the Exploitation of Agreement Compounds or Licensed Products, deception or dilution of a Trademark) against either Party or its respective Affiliates, licensees or Sublicensees during that the Term, alleging use Exploitation of the Licensed TechnologyPatents or the Collaboration Patents, Licensed Trademarks AstraZeneca Patent or any other activities hereunderAstraZeneca Background Technologies by or on behalf of AstraZeneca under this Agreement, infringes one or more Patent, Trademark the Patent or other intellectual property rights held by such Third Party of any Person (an "“Infringement Suit"”), the Parties Party first becoming aware of such Infringement Suit shall cooperate with one another promptly give written notice to the other Party. *** shall have the first right, but not the obligation, through counsel of its choosing and at its cost and expense subject to the credit provisions of Section 17.5, to assume direction and control of the defence of claims arising therefrom (including, subject to what is stated below in defending this Section 17.4, the right to settle such suitclaims at its sole discretion). If NovaDel is named *** shall, if reasonably requested by ***, allow *** to join in such legal action as a party to at its own expense. *** shall remain in full control handling such legal action. Notwithstanding the litigationforegoing, and NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel *** shall have the right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to consult with Licensee in the presentation of the defense. Licensee to, and shall bear [***] percent ([, enter into any settlement or consent to any claim to the effect that any claim under, or the patent protection otherwise offered under, ***]) , without the prior written consent of its own costs and expenses associated with any such Infringement Suit to the extent that it relates to the Exploitation of any Licensed Product, and NovaDel shall bear [***] percent ([, such consent not to be unreasonably withheld. If *** notifies *** in writing that it does not wish to assume such direction and control, ***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel shall have the right, but not the responsibilityobligation to, at its sole cost and expense, defend against such claims; provided, however, that *** may contribute to do so or join such legal action voluntarily, at its own cost and expense. In such case, Licensee and shall bear [have the right to be heard and *** shall, and shall procure *** to, give due regard to ***] percent , ([i) shall not have the right to, and shall not permit any of its other licensees and shall procure such licensees not to, enter into any settlement or consent to any claim to the effect that any claim under, or the patent protection otherwise offered under, any part of the Licensed Patents within the Licensed Field would be materially negatively affected, without the prior written consent of ***], such consent not to be unreasonably withheld; and (ii) shall obtain the written consent of its own costs of cooperation and participation*** prior to ceasing to defend, settling or otherwise.

Third Party Litigation. In the event that a Third Party institutes a PatentOWNER shall defend, Trademark or other infringement suit at its expense (including any suit alleging the invalidity or unenforceability of the Patents ---------------------- COUNTY's reasonable attorneys' fees and attorneys' fees awarded by final judgment of a Party court of competent jurisdiction to a prevailing party), indemnify, and hold harmless COUNTY, its agents, officers and employees from any claim, action or proceeding against COUNTY, its Affiliatesagents, officers, or claiming confusionemployees to attack, deception set aside, void, or dilution annul the approval of a Trademarkthis Agreement, the approval of any permit granted pursuant to this Agreement, any challenge to Comprehensive General Plan Amendment ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ Case No. 6249, Environmental Impact Report ▇▇. ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇ to Reclamation Plan No. 107 and/or any other Existing Development Approval, Subsequent Development Approval, Site Specific Plot Plan (Section 3.5 above), Plot Plan (Section 3.6 above) against either Party or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of the Licensed Technology, Licensed Trademarks or any other activities hereunderaction by COUNTY in connection with the Project, infringes one to the extent that such claim, action or more Patentproceeding does not arise from COUNTY's default under this Agreement or COUNTY's violation of applicable law. COUNTY shall promptly notify OWNER of any such claim, Trademark action or other intellectual property rights held by such Third Party (an "Infringement Suit")proceeding, and COUNTY shall assist in the Parties shall cooperate with one another in defending such suit. If NovaDel defense of any actions where COUNTY is named as a party and in which OWNER is obligated hereunder to the litigationdefend COUNTY, and NovaDel determines that issues raised including appeals therefrom. If COUNTY fails to promptly notify OWNER of any such claim, action or proceeding, or if COUNTY fails to assist in the litigation adversely impact NovaDel Patents defense, OWNER shall not thereafter be responsible to defend, indemnify, or Joint Patents, NovaDel shall have hold harmless COUNTY. Should OWNER fail to perform or commence performing any of the right, not he obligations or to take any action set forth above in this Section 9.2 within sixty (60) days after OWNER becomes aware of such obligation, then COUNTY may retain any legal counsel, consultant, contractor or other third party as may be reasonably necessary to control that aspect perform such obligation of OWNER. OWNER shall reimburse COUNTY for the reasonable costs of such third party within thirty (30) days of the litigationdate such costs are submitted by COUNTY to OWNER for payment. Licensee Should COUNTY suffer any cost, damage or expense by reason of OWNER's failure to take action as required above in this Section 9.2, OWNER shall cooperate with NovaDel in reimburse COUNTY for the defense of that aspect amounts within thirty (30) days of the litigation. If NovaDel is not named as a party date that such costs, damages or expenses are submitted by COUNTY to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent ([***]) of its own costs and expenses associated with any such Infringement Suit to the extent that it relates to the Exploitation of any Licensed Product, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel shall have the right, but not the responsibility, to do so at its own expense. In such case, Licensee shall bear [***] percent ([***]) of its own costs of cooperation and participationOWNER for payment.

Third Party Litigation. In the event that If a Third Party institutes a Patent, Trademark or other an infringement suit (including or action against Acorda and/or its Affiliate and/or sublicensee alleging that the manufacture, use or sale of any suit alleging the invalidity or unenforceability of the Patents of Licensed Product by Acorda and/or an Affiliate and/or sublicensee, in a Party or its Affiliates, or claiming confusion, deception or dilution of a Trademark) against either Party or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of country in the Licensed Technology, Licensed Trademarks or any other activities hereunder, Territory infringes one or more Patent, Trademark patent or other intellectual property rights right held by such Third Party (an "“Infringement Suit"”), the Parties shall cooperate with one another in defending Acorda (or such suit. If NovaDel is named as a party to the litigation, and NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents Affiliate or Joint Patents, NovaDel shall have the right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel sublicensee) shall have the right to consult defend and settle such Infringement Suit at its sole expense. In such event, the Parties shall meet (which meeting may at any Party’s request be by telephone conference or videoconference) and discuss in good faith the best defenses to such Infringement Suit, and Institutions shall, subject to being indemnified against any liability and having the right to be separately represented by their own counsel at their own expense, provide Acorda with Licensee reasonable assistance and cooperation in defending such Infringement Suit at Acorda’s sole expense. Acorda shall have the presentation of right to credit against royalties owed to the defense. Licensee shall bear [***] Institutions under Sections 3.2 and 3.3 fifty percent ([***]50%) of its own any costs and expenses associated with of such defense and settlement, but solely to the extent such costs and expenses relate directly to the defense and settlement (if any) of any claims or allegations relating directly to infringement by the Licensed Product. If, however, such Third Party makes a payment to reimburse Acorda (and/or its Affiliate and/or sublicensee) for such costs and expenses of defending such infringement suit or action, then Acorda will pay to Institutions, out of such Third Party payment, a pro rata amount (i.e., the ratio of the amount of the Third Party payment compared to the total defense costs and expenses), but not to exceed the total amount that Acorda credited against royalties owed under the previous sentence. Notwithstanding the foregoing, Acorda (or such Affiliate or sublicensee) shall not settle any such Infringement Suit in a manner that materially adversely impacts the Licensed Patents without Institutions’ prior written consent, such consent not to be unreasonably withheld or delayed. For clarity, any costs and expenses of enforcing Licensed Patents, including those costs relating to the extent that it relates to the Exploitation assertion of any a counterclaim alleging infringement of Licensed Product, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Patents by a Third Party Litigationin response to an Infringement Suit, shall not be included in the calculation and NovaDel is named as a party to the litigation, NovaDel shall have the rightallocation of costs and expenses under this Section 7.5, but not instead shall be included in the responsibilitycalculation and allocation of costs and expenses under Section 7.1, to do so at its own expense. In such case7.2 or 7.3, Licensee shall bear [***] percent ([***]) of its own costs of cooperation and participationas applicable.

Third Party Litigation. In the event that a Third Party institutes a Patent, Trademark or other infringement suit (including any suit alleging the invalidity or unenforceability of the Patents of a Party or its Affiliates, or claiming confusion, deception or dilution of a Trademark) against either Party or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of the Licensed Technology, Licensed Trademarks or any other activities hereunder, infringes one or more Patent, Trademark or other intellectual property rights held by such Third Party (an "Infringement Suit"), the Parties shall cooperate with one another in defending such suit. If NovaDel is named as a party to the litigation, and NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent ([***]) of its own costs and expenses associated with any such Infringement Suit to the extent that it relates to the Exploitation of any Licensed Product, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel shall have the right, but not the responsibility, to do so at its own expense. In such case, Licensee shall bear [***] percent ([***]) of its own costs of cooperation and participation. INFORMATION MARKED BY [***] HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAS BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

Third Party Litigation. In the event that a Third Party institutes a Patent, Trademark or other infringement suit (including any suit alleging the invalidity or unenforceability of the Patents of a Party or its Affiliates, or claiming confusion, deception or dilution of a Trademark) against either Party or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of the Licensed Technology, Licensed Trademarks or any other activities hereunder, infringes one or more Patent, Trademark or other intellectual property rights held by such Third Party (an "Infringement Suit"), the Parties shall cooperate with one another in defending such suit. If NovaDel is named as a party to the litigation, and NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent ([***]) of its own costs and expenses associated with any such Infringement Suit to the extent that it relates to INFORMATION MARKED BY [***] HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAS BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. the Exploitation of any Licensed Product, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel shall have the right, but not the responsibility, to do so at its own expense. In such case, Licensee shall bear [***] percent ([***]) of its own costs of cooperation and participation.

Third Party Litigation. In the event that a Third Party institutes a Patentof any actual or threatened suit against Dynavax, Trademark or other infringement suit (including any suit alleging the invalidity or unenforceability of the Patents of a Party AstraZeneca or its Affiliates, Sublicensees, Distributors or claiming confusioncustomers alleging that the Development and/or Commercialization of CDs, deception Product or dilution Combination Product, or that the Development and/or Commercialization of a Trademark) against either Party Collaboration Patent or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of the Licensed Technology, Licensed Trademarks Background Technologies or any other activities hereunderpart thereof by or on behalf of AstraZeneca under this Agreement, infringes one or more Patent, Trademark the Patent or other intellectual property rights held by such Third Party of any Person (an "“Infringement Suit"”), the Parties Party first becoming aware of such Infringement Suit shall cooperate with one another in defending such suit. If NovaDel is named as a party promptly give written notice to the litigation, and NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel other Party. AstraZeneca shall have the first right, but not he the obligation, through counsel of its choosing, to assume direction and control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense defence of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have claims arising therefrom (including the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent ([***]) of settle such claims at its own costs and expenses associated with any such Infringement Suit sole discretion, subject to the extent provisions of this Section 14.5). If AstraZeneca notifies Dynavax in writing that it relates does not wish to the Exploitation of any Licensed Productassume such direction and control, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel Dynavax shall have the right, but not the responsibilityobligation to, at its sole cost and expense, defend against such claims; provided, however, that Dynavax shall obtain the written consent of AstraZeneca prior to do ceasing to defend, settling or otherwise disposing of such claims. Dynavax shall be entitled to be joined in any proceedings that may be brought against AstraZeneca in relation to Dynavax’s Background Technology. If Dynavax does so elect to be joined, it shall pay its own costs and expenses in relation to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent of Dynavax, which shall not be unreasonably withheld or delayed. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Notwithstanding anything in the foregoing, each Party shall have the right to defend itself, using the counsel of its choice and at its own expense. In , any claims or law suits brought against it by any Third Party, and each Party shall have the right to settle any such case, Licensee shall bear [***] percent ([***]) of claims or law suits on its own costs behalf, so long as such settlement does not provide for the payment of cooperation and participationmoney by the other Party or performance obligations, or restrictions imposed upon, the other Party.

Third Party Litigation. In the event of any actual or threatened suit against MAP, AstraZeneca or its Affiliates, Sublicensees, Distributors or customers alleging that the Exploitation of any Formulation or any Licensed Product or that the Exploitation of a Third Party institutes a Licensed Patent or the Licensed Know-How or any part thereof by or on behalf of AstraZeneca under this Agreement infringes the Patent, Trademark Intellectual Property Rights, or any other infringement suit proprietary rights, of any Person (an “Infringement Suit”), the Party first becoming aware of such Infringement Suit shall promptly give written notice to the other Party. AstraZeneca shall have the first right, but not the obligation, through counsel of AstraZeneca’s choosing, at AstraZeneca’s expense, to assume direction and control of the defense of claims arising therefrom, including any suit alleging the right, notwithstanding Section 15.4, to settle such claims in its sole discretion, provided that such settlement does not admit the invalidity or unenforceability of any Licensed Patent without the Patents prior written consent of a Party MAP, such consent not to be unreasonably withheld, conditioned or its Affiliates, or claiming confusion, deception or dilution of a Trademark) against either Party or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of the Licensed Technology, Licensed Trademarks or any other activities hereunder, infringes one or more Patent, Trademark or other intellectual property rights held by such Third Party (an "Infringement Suit"), the Parties shall cooperate with one another in defending such suitdelayed. If NovaDel AstraZeneca notifies MAP in writing that it does not wish to assume such direction and control, which notice AstraZeneca shall provide by the later of (a) the date that is named as a party to the litigation, and NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent days after AstraZeneca becomes aware of such claim, and (b) the date that AstraZeneca or its Affiliates are no longer in active, bona fide settlement negotiations with respect thereto, then if the action or threatened suit occurs in [***]) of its own costs and expenses associated with any such Infringement Suit to the extent that it relates to the Exploitation of any Licensed Product, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel MAP shall have the right, but not the responsibilityobligation, CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. through counsel of MAP’s choosing, at MAP’s expense, to do so defend against such claims at its own sole cost and expense. In such case, Licensee shall bear [***] percent (and if the action or threatened suit occurs in [***]) , MAP shall have the right, but not the obligation, through counsel of MAP’s choosing, at MAP’s expense, to defend against such claims at its own costs sole cost and expense subject to AstraZeneca’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, which rights of cooperation and participationMAP shall include, in each case, the right, subject to Section 15.4, to settle or otherwise compromise such action or claim.

Third Party Litigation. In the event that a Third Party institutes a Patentof any actual or threatened suit against Dynavax, Trademark or other infringement suit (including any suit alleging the invalidity or unenforceability of the Patents of a Party AstraZeneca or its Affiliates, Sublicensees, Distributors or claiming confusioncustomers alleging that the Development and/or Commercialization of CDs, deception Product or dilution Combination Product, or that the Development and/or Commercialization of a Trademark) against either Party Collaboration Patent or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of the Licensed Technology, Licensed Trademarks Background Technologies or any other activities hereunderpart thereof by or on behalf of AstraZeneca under this Agreement, infringes one or more Patent, Trademark the Patent or other intellectual property rights held by such Third Party of any Person (an "“Infringement Suit"”), the Parties Party first becoming aware of such Infringement Suit shall cooperate with one another in defending such suit. If NovaDel is named as a party promptly give written notice to the litigation, and NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel other Party. AstraZeneca shall have the first right, but not he the obligation, through counsel of its choosing, to assume direction and control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense defence of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have claims arising therefrom (including the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent ([***]) of settle such claims at its own costs and expenses associated with any such Infringement Suit sole discretion, subject to the extent provisions of this Section 14.5). If AstraZeneca notifies Dynavax in writing that it relates does not wish to the Exploitation of any Licensed Productassume such direction and control, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel Dynavax shall have the right, but not the responsibilityobligation to, at its sole cost and expense, defend against such claims; provided, however, that Dynavax shall obtain the written consent of AstraZeneca prior to do ceasing to defend, settling or otherwise disposing of such claims. Dynavax shall be entitled to be joined in any proceedings that may be brought against AstraZeneca in relation to Dynavax’s Background Technology. If Dynavax does so elect to be joined, it shall pay its own costs and expenses in relation to the proceedings. AstraZeneca shall not make any admission or settle or otherwise compromise any proceedings brought against it in relation to Dynavax’s Background Technology without first obtaining the written consent of Dynavax, which shall not be unreasonably withheld or delayed. Notwithstanding anything in the foregoing, each Party shall have the right to defend itself, using the counsel of its choice and at its own expense. In , any claims or law suits brought against it by any Third Party, and each Party shall have the right to settle any such case, Licensee shall bear [***] percent ([***]) of claims or law suits on its own costs behalf, so long as such settlement does not provide for the payment of cooperation and participationmoney by the other Party or performance obligations, or restrictions imposed upon, the other Party.

Third Party Litigation. In (a) If any Person institutes against PharmaZell any action that alleges that the event that a Third Party institutes a Patent, Trademark or other infringement suit (including any suit alleging Manufacture of Supplied Material hereunder in accordance with the invalidity or unenforceability of terms hereof infringes the Patents of a Party or its Affiliates, or claiming confusion, deception or dilution of a Trademark) against either Party or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of the Licensed Technology, Licensed Trademarks or any other activities hereunder, infringes one or more Patent, Trademark or other intellectual property rights held by such Third Party Person, then, as between PharmaZell and Intercept, Intercept shall have the first right, but not the obligation, to contest, and assume direction and control of the defense of, such action, including the right to settle such action; provided that, prior to any such settlement, PharmaZell provides its written consent (an "Infringement Suit"such consent not to be unreasonably withheld, conditioned or delayed), the Parties shall cooperate with one another in defending such suit. If NovaDel is named as a party Intercept determines not to defend against such action, then PharmaZell shall, at its sole cost and expense, have the right but not the obligation to control the defense of such action except to the litigationextent it relates to a Specified Invention Patent; provided that, and NovaDel determines that issues raised if an Other PharmaZell Invention Patent or Joint Invention Patent is at issue in the litigation adversely impact NovaDel Patents or Joint Patentsaction and is the only patent protecting a Product, NovaDel then PharmaZell shall in any event consult with Intercept with respect to any such action and shall obtain Intercept's written consent prior to taking any steps in respect of such action. Intercept shall have the right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent ([***]) of its own costs and expenses associated with any such Infringement Suit to the extent that it relates to the Exploitation of any Licensed Product, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel shall have the right, but not the responsibility, to do so at its own expense. In , to be represented in any such case, Licensee shall bear [***] percent ([***]) action by counsel of its own choice. (b) Any costs and expenses relating to any defense undertaken pursuant to this Section 5.4 shall be borne by the Party controlling the defense. Any damages or other amounts recovered shall be first allocated to reimburse the Parties for their costs and expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of cooperation such expenses). Any remainder after such reimbursement is made shall be retained by the Party that has exercised its right to control the defense of the action. (c) In the event that a Party entitled to defend an infringement action does so in accordance with this Section 5.4, the other Party shall cooperate fully, including providing access to relevant documents and participationother evidence and making its employees available at reasonable business hours. If a Party pursues the defense of such an infringement action, it shall consider in good faith any comments from the other Party and shall keep the other Party reasonably informed of any steps taken to remedy such infringement.

Third Party Litigation. In ​ (a) If any Person institutes against PharmaZell any action that alleges that the event that a Third Party institutes a Patent, Trademark or other infringement suit (including any suit alleging Manufacture of Supplied Material hereunder in accordance with the invalidity or unenforceability of terms hereof infringes the Patents of a Party or its Affiliates, or claiming confusion, deception or dilution of a Trademark) against either Party or its respective Affiliates, licensees or Sublicensees during the Term, alleging use of the Licensed Technology, Licensed Trademarks or any other activities hereunder, infringes one or more Patent, Trademark or other intellectual property rights held by such Third Party Person, then, as between PharmaZell and Intercept, Intercept shall have the first right, but not the obligation, to contest, and assume direction and control of the defense of, such action, including the right to settle such action; provided that, prior to any such settlement, PharmaZell provides its written consent (an "Infringement Suit"such consent not to be unreasonably withheld, conditioned or delayed), the Parties shall cooperate with one another in defending such suit. If NovaDel is named as a party Intercept determines not to defend against such action, then PharmaZell shall, at its sole cost and expense, have the right but not the obligation to control the defense of such action except to the litigationextent it relates to a Specified Invention Patent; provided that, and NovaDel determines that issues raised if an Other PharmaZell Invention Patent or Joint Invention Patent is at issue in the litigation adversely impact NovaDel Patents or Joint Patentsaction and is the only patent protecting a Product, NovaDel then PharmaZell shall in any event consult with Intercept with respect to any such action and shall obtain Intercept's written consent prior to taking any steps in respect of such action. Intercept shall have the right, not he obligation, to control that aspect of the litigation. Licensee shall cooperate with NovaDel in the defense of that aspect of the litigation. If NovaDel is not named as a party to the litigation and is not added as a party to the litigation, however, NovaDel determines that issues raised in the litigation adversely impact NovaDel Patents or Joint Patents, NovaDel shall have the right to consult with Licensee in the presentation of the defense. Licensee shall bear [***] percent ([***]) of its own costs and expenses associated with any such Infringement Suit to the extent that it relates to the Exploitation of any Licensed Product, and NovaDel shall bear [***] percent ([***]) of its own costs of cooperation and participation. If Licensee elects not to defend the Third Party Litigation, and NovaDel is named as a party to the litigation, NovaDel shall have the right, but not the responsibility, to do so at its own expense. In , to be represented in any such case, Licensee shall bear [***] percent ([***]) action by counsel of its own choice. (b) Any costs and expenses relating to any defense undertaken pursuant to this Section 5.4 shall be borne by the Party controlling the defense. Any damages or other amounts recovered shall be first allocated to reimburse the Parties for their costs and expenses in making such recovery (which amounts shall be allocated pro rata if insufficient to cover the totality of cooperation such expenses). Any remainder after such reimbursement is made shall be retained by the Party that has exercised its right to control the defense of the action. ​ (c) In the event that a Party entitled to defend an infringement action does so in accordance with this Section 5.4, the other Party shall cooperate fully, including providing access to relevant documents and participation.other evidence and making its employees available at reasonable business hours. If a Party pursues the defense of such an infringement action, it shall consider in good faith any comments from the other Party and shall keep the other Party reasonably informed of any steps taken to remedy such infringement. ​