SUCH AMOUNTS WERE
ACCRUED UNTIL THE DATE SUCH AMOUNTS ARE PAID.
IN THE EVENT THE AUDIT SHOWS THAT
NK HAS OVERPAID ANY ROYALTIES DUE TO NEOPHARM HEREUNDER, NK SHALL BE ALLOWED TO
DEDUCT THE AMOUNT OF SUCH OVERPAYMENT FROM THE NEXT ROYALTY PAYMENT DUE TO
NEOPHARM.
SUCH ACCOUNTANT OR AUDITOR MUST AGREE TO HOLD IN STRICT CONFIDENCE
ALL INFORMATION CONCERNING ROYALTY PAYMENTS AND REPORTS, AND ALL INFORMATION
LEARNED IN THE COURSE OF ANY AUDIT OR INSPECTION, EXCEPT TO THE EXTENT NECESSARY
FOR SUCH ENTITY TO REVEAL SUCH INFORMATION IN ORDER TO ALLOW NEOPHARM TO ENFORCE
ITS RIGHTS UNDER THIS AGREEMENT, PERFORM ITS OBLIGATIONS TO ANY LICENSOR(S), OR
DISCLOSURE IS REQUIRED BY LAW.
THE FAILURE OF NEOPHARM TO REQUEST VERIFICATION
OF ANY REPORT, STATEMENT OR PAYMENT DURING THE FIVE (5) YEAR PERIOD SHALL BE
CONSIDERED ACCEPTANCE OF THE ACCURACY OF SUCH REPORT, AND NK SHALL HAVE NO
OBLIGATION TO MAINTAIN RECORDS PERTAINING TO SUCH REPORT, STATEMENT OR PAYMENT
BEYOND THE FIVE (5) YEAR PERIOD.
THE RESULTS OF THE INSPECTION SHALL BE BINDING
ON BOTH PARTIES.
ARTICLE 8
INTELLECTUAL PROPERTY
8.1 TRADEMARKS.
EACH PARTY SHALL MARKET PRODUCTS UNDER ITS OWN TRADEMARKS AND
THE OTHER PARTY SHALL HAVE NO RIGHT OR INTEREST IN ANY SUCH TRADEMARKS.
8.2 PATENT PROSECUTION OF THE LICENSED PATENT RIGHTS.
PURSUANT TO THE LICENSING
AGREEMENTS BETWEEN NEOPHARM AND ITS LICENSORS, EITHER NEOPHARM OR ITS LICENSORS
HAVE RESPONSIBILITY FOR THE PREPARATION, FILING, PROSECUTION AND MAINTENANCE OF
ANY AND ALL PATENT APPLICATIONS OR PATENTS INCLUDED IN THE LICENSED PATENT
RIGHTS.
8.3 PATENT ENFORCEMENT OF THE LICENSED PATENT RIGHTS.
(A)
EACH PARTY SHALL PROMPTLY NOTIFY THE OTHER PARTY UPON BECOMING
AWARE OF ANY THIRD PARTY INFRINGEMENT OF THE LICENSED PATENT RIGHTS.
(B)
NEOPHARM OR ITS APPLICABLE LICENSORS MAY, BUT SHALL NOT BE
OBLIGATED TO, ELECT TO ENFORCE THE LICENSED PATENT RIGHTS AGAINST THIRD PARTIES
AND TO DEFEND THE LICENSED PATENT RIGHTS AGAINST ANY CHALLENGES WORLDWIDE,
INCLUDING CHALLENGES IN THE TERRITORY, AND NK SHALL ASSIST AND COOPERATE WITH
NEOPHARM OR ITS APPLICABLE LICENSORS IN ANY SUCH ENFORCEMENT OR DEFENSE WITHIN
THE TERRITORY.
NEOPHARM OR ITS APPLICABLE LICENSORS SHALL BEAR ALL ASSOCIATED
COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) AND RETAIN ANY DAMAGES OR
RECOVERIES WITH RESPECT TO ANY SUCH ACTIONS OUTSIDE THE TERRITORY.
NK SHALL
REIMBURSE NEOPHARM OR ITS APPLICABLE LICENSORS
19
FOR ALL COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) INCURRED BY NEOPHARM OR
ITS APPLICABLE LICENSORS AFTER THE EXECUTION OF THIS AGREEMENT IN THE
ENFORCEMENT AND/OR DEFENSE OF SUCH ACTION WITH RESPECT TO THE TERRITORY, AND
SHALL RETAIN ANY DAMAGES OR RECOVERIES WITH RESPECT TO THE TERRITORY SUBJECT TO
THE PAYMENT TO NEOPHARM OR ITS APPLICABLE LICENSORS OF 40% IN TOTAL OF ANY SUCH
DAMAGES OR RECOVERIES AFTER DEDUCTING AN AMOUNT EQUAL TO THE ABOVE REIMBURSEMENT
MADE BY NK TO NEOPHARM OR ITS APPLICABLE LICENSORS.
(C)
DECLARATORY JUDGMENTS RELATING TO LICENSED PATENT RIGHTS.
IF A
DECLARATORY JUDGMENT ACTION ALLEGING INVALIDITY OR NONINFRINGEMENT OF ANY OF THE
LICENSED PATENT RIGHTS SHALL BE BROUGHT AGAINST NK OR RAISED BY WAY OF
COUNTERCLAIM OR AFFIRMATIVE