If TRIS, AYTU or their Affiliates, shall be sued or threatened with suit during the Term or with respect to actions during the Term by a Third Party for infringement of any patent of a Third Party or for misappropriation of any Third Party know-how, trade secret, proprietary, technical or confidential or the development, manufacture and commercialization of a Product (which for purposes of this Section 7 includes an AG Product) in the Territory (other than infringement or misappropriation of any copyright or trademark arising out of the marketing and/or sale of a Product in the Territory during the Term) (each, an “Infringement Action”), such Party shall promptly notify the other Party in writing (whether such action was brought against AYTU or TRIS). During the Term and thereafter with respect to events arising during the Term, TRIS shall have the right, but not the obligation, to undertake control of and manage and defend such Infringement Action, including, without limitation, selection of counsel, and settling such Infringement Action subject to AYTU’s consent as set forth below. AYTU shall, promptly upon TRIS’s request, provide reasonable assistance in conducting the litigation. TRIS shall have the right to settle the Infringement Action only with the consent of AYTU, not to be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, AYTU shall not have the right to settle such action.

Infringement Actions by TRIS or AYTU. In the event that any Party becomes aware during the Term of any Person infringing or potentially infringing the Product Technology, whether by direct or indirect infringement, or by misappropriation of Product Technology, or that a Person has filed a certification under 21 USC 355(b)(2)(A)(iv) or [Section 355(j)(2)(A)(vii)(IV)] (or successor provisions) of the Hatch-Waxman Act relating to a Product (a “Hatch-Waxman Certification”), it shall promptly notify the other Party and in the case of a Hatch Waxman Notification shall provide a copy to the other Party within two Business Days of receipt thereof. TRIS in its sole discretion shall determine whether an action should be commenced relating to such infringement, potential infringement or certification, TRIS shall control and manage any such action (including without limitation, control over the settlement of such action, subject to AYTU’s consent for such settlement as provided below), and AYTU shall cooperate with TRIS and join the action as reasonably requested. Each Party shall be responsible for fifty percent (50%) of the ongoing costs and expenses (including attorney’s fees) and any damages, settlements, or judgements related to any such action. AYTU shall reimburse TRIS for AYTU’s share of such costs and expenses within thirty (30) days after the date of TRIS’ invoice for same. Any and all amounts recovered with respect to such an action shall be applied first to reimburse the Parties for their reasonable and documented out-of-pocket expenses (including reasonable attorney’s fees) in prosecuting such infringement or misappropriation and the remainder shall be shared equally. TRIS shall have the right to settle such action only with the consent of AYTU, not to be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, AYTU shall not have the right to settle such action.

In the event that a Party becomes aware of actual or threatened infringement of a Trademark used in connection with the Product, that Party shall promptly notify the other Party in writing. AYTU shall have the right but not the obligation to bring an action with respect to such infringement against any Third Party for infringement of an AYTU Mark. TRIS shall have the right, but not the obligation to bring an action with respect to such infringement against any Third Party for infringement of a TRIS Mark. AYTU, in the case of AYTU Marks and TRIS in the case of TRIS Marks, shall bear all reasonable and documented out-of-pocket costs and expenses of the action (including court costs, reasonable fees of attorneys, accountants and other experts and other expenses of litigation or proceedings) and shall be entitled to any recovery in such infringement action.

With respect to any and all claims instituted by Third Parties against TRIS or AYTU or any of their respective Affiliates for Trademark infringement involving the Marketing of the Product TRIS shall be solely responsible for, and indemnify AYTU against, any and all Losses arising out of or resulting from the use of the TRIS Marks and AYTU shall be solely responsible for, and indemnify TRIS and its Affiliates against, any and all Losses arising out of or resulting from the use of any other Trademark. If any claim is made against AYTU in connection with the use of the TRIS Marks, AYTU may cease using the TRIS Marks until such claim is favorably resolved.

by TRIS upon written notice to AYTU if AYTU or its Subsidiaries directly, or indirectly by controlling, providing assistance or direction to a Third Party, # file an action seeking to invalidate or challenge the validity or enforceability of, # oppose any extension of, or # commence any interference or opposition proceeding with respect to, any Patent included in TRIS Intellectual Property Rights (“TRIS Patent Rights“) and listed in the FDA Orange Book with respect to the Products (each such action, a “AYTU Patent Challenge”). AYTU will include provisions in any agreement entered into with a Sublicensee providing that if the Sublicensee or its Affiliates undertake or threaten an AYTU Patent Challenge with respect to any TRIS Patent Rights under which the Sublicensee is granted the right to Market a Product, AYTU will be permitted to terminate such sub-licensed rights. If such a Sublicensee of AYTU (or an Affiliate of such Sublicensee) undertakes an AYTU Patent Challenge of any such TRIS Patent Right relating to a Product, then AYTU upon receipt of notice from TRIS of such AYTU Patent Challenge will terminate the applicable sublicense agreement. In connection with such sublicense termination, AYTU shall cooperate with TRIS’ reasonable requests to cause such a terminated Sublicensee to discontinue activities with respect to such Product;