WITHIN FIVE (5) DAYS OF THE EARLIER OF (A) RECEIPT OF
SERVICE OF PROCESS IN SUCH ACTION, SUIT OR PROCEEDING, OR (B) THE DATE SUCH
PARTY BECOMES AWARE THAT SUCH ACTION, SUIT OR PROCEEDING HAS BEEN INSTITUTED,
AND THE JSC SHALL MEET AS SOON AS POSSIBLE TO DISCUSS THE OVERALL STRATEGY FOR
DEFENSE OF SUCH MATTER.
EXCEPT AS AGREED BY THE JSC (SUBJECT TO DISPUTE
RESOLUTION AS A UNANIMOUS DECISION), (A) DS SHALL HAVE THE OBLIGATION TO DEFEND
SUCH ACTION, SUIT OR PROCEEDING IN THE TERRITORY; (B) ARQULE AND/OR ANY OF ITS
AFFILIATES OR SUBLICENSEES SHALL HAVE THE RIGHT TO SEPARATE COUNSEL AT ITS OWN
EXPENSE IN ANY SUCH ACTION, SUIT OR PROCEEDING; AND (C) THE PARTIES SHALL
COOPERATE WITH EACH OTHER IN ALL REASONABLE RESPECTS IN ANY SUCH ACTION, SUIT OR
PROCEEDING.
ALL EXPENSES OF SUCH ACTION, SUIT OR PROCEEDING SHALL BE BORNE BY
DS.
EACH PARTY SHALL PROMPTLY FURNISH THE OTHER PARTY WITH A COPY OF EACH
COMMUNICATION RELATING TO THE ALLEGED INFRINGEMENT THAT IS RECEIVED BY SUCH
PARTY INCLUDING ALL DOCUMENTS FILED IN ANY LITIGATION.
IN NO EVENT SHALL EITHER
PARTY SETTLE OR OTHERWISE RESOLVE ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT
AGAINST THE OTHER PARTY OR ANY OF ITS AFFILIATES OR SUBLICENSEES WITHOUT THE
OTHER PARTY'S PRIOR WRITTEN CONSENT.
8.2.3
TRADEMARK PROSECUTION AND REGISTRATION.
DS SHALL BE RESPONSIBLE
FOR THE FILING, PROSECUTION, MAINTENANCE, DEFENSE AND ENFORCEMENT OF ALL PRODUCT
TRADEMARKS CREATED DURING THE DEVELOPMENT AND/OR COMMERCIALIZATION AT DS'S
EXPENSE.
DS GRANTS ARQULE THE NON-EXCLUSIVE, ROYALTY-FREE, NON-ASSIGNABLE
(EXCEPT IN CONNECTION WITH AN ASSIGNMENT OF THIS AGREEMENT PURSUANT TO
SECTION 12.10), NON-TRANSFERABLE (EXCEPT IN CONNECTION WITH AN ASSIGNMENT OF
THIS AGREEMENT PURSUANT TO SECTION 12.10) AND NON-SUBLICENSABLE LICENSE OF THE
PRODUCT TRADEMARK IN USA.
ALL GOODWILL DERIVING FROM THE USE OF THE PRODUCT
TRADEMARK WILL ACCRUE SOLELY AND EXCLUSIVELY TO DS.
ARQULE SHALL USE THE
PRODUCT TRADEMARK ONLY IN ACCORDANCE WITH REASONABLE STANDARDS.
IN ANY
CIRCUMSTANCES, ARQULE MAY NOT APPLY OR REGISTER THE SAME OR A CONFUSINGLY
SIMILAR TRADEMARK WITHOUT PRIOR WRITTEN CONSENT OF DS.
ARQULE AGREES NOT TO
ENGAGE IN ANY FORM OF CONDUCT, OR MAKE ANY STATEMENTS OR REPRESENTATIONS, THAT
DISPARAGE OR OTHERWISE HARM THE REPUTATION, GOODWILL OR COMMERCIAL INTEREST
RELATED TO THE PRODUCT TRADEMARK.
IN ALL LICENSED PRODUCT PRIMARY AND SECONDARY
PACKAGES AND LABELS AND ALL MARKETING AND PROMOTIONAL LITERATURE, ARQULE SHALL
BE PRESENTED AND DESCRIBED AS THE PARTY WHO DEVELOPED THE LICENSED PRODUCT, AND
THE ARQULE NAME AND LOGO SHALL APPEAR IN THE SAME IN SIZE AND PROMINENCE AS THE
DS NAME AND LOGO ON ALL LICENSED PRODUCT PRIMARY AND SECONDARY PACKAGES AND
LABELS AND ALL MARKETING AND PROMOTIONAL LITERATURE USED IN THE
85
TERRITORY, UNLESS PROHIBITED BY APPLICABLE LAWS; PROVIDED, HOWEVER, THAT IF IT
IS COMMERCIALLY IMPRACTICABLE TO DO SO, THE PARTIES WILL DISCUSS IN GOOD FAITH
AN ALTERNATE PRESENTATION OF THEIR NAMES AND LOGOS.
8.2.4
TRADEMARK INFRINGEMENT IN USA AND KYOWA'S TERRITORY.
IF, DURING
THE TERM, ANY THIRD PARTY USES, INFRINGES, THREATENS TO INFRINGE OR OTHERWISE
DAMAGES THE PRODUCT TRADEMARK IN