Third Party Infringement. If either Party has a reasonable basis to believe that a Third Party is or may be engaging in commercially significant infringement of any Licensed Trademark in the Territory, such Party shall notify the other Party in writing and provide it with any evidence of such infringement that is reasonably available. Licensee shall have the right and option to respond to any infringement or potential infringement with respect to any Licensed Trademark that Licensee is using in the Territory by appropriate steps, including filing an infringement suit or taking other similar action, and shall notify Axsome of, and consult with Axsome from time to time regarding, any such suit or other action. Axsome shall provide reasonable assistance to Licensee, including providing access to relevant documents and other evidence, making its employees available at reasonable business hours, and joining the action to the extent necessary to allow Licensee to maintain the action. Any amounts recovered by Licensee pursuant to this [Section 5.3.2], whether by settlement or judgment, shall first be used to reimburse Licensee for the costs of such enforcement action and the remainder, if any, shall be retained by Licensee for its own account, provided that # such recoveries treated as Net Sales in the Calendar Quarter in which they are received for all purposes under this Agreement.

Third Party Infringement. Except as otherwise provided in this Section 5.5, Licensee will have the first right, but not the obligation, to institute litigation or take other steps to remedy Third Party Infringement, and any such litigation or steps will be at Licensee’s expense. Licensee will not, without the prior written consent of Axsome (such consent not to be unreasonably withheld, delayed or conditioned), enter into any compromise or settlement relating to such litigation that # admits the invalidity or unenforceability of any Licensed Patent Right, # requires that any Licensed Patent Right be abandoned or # otherwise adversely affects the rights or interest of Axsome or, if applicable with respect to such Licensed Patent Right, the Upstream Licensor of such Licensed Patent Right. In order to establish standing, Axsome, upon request of Licensee, agrees to timely commence or to join in any such litigation or to request that the applicable Upstream Licensor join in such litigation, in each case at Licensee’s expense, and in any event to cooperate with Licensee in such litigation or steps at Licensee’s expense. Axsome and any applicable Upstream Licensor will have the right to consult with Licensee about such litigation and to participate in and be represented by independent counsel in such litigation at Axsome’s expense. Any recoveries obtained by Licensee in connection with any such litigation or steps taken in relation to such infringement shall first be used to reimburse Licensee for the reasonable out-of-pocket costs incurred by Licensee in litigating such Third Party Infringement and the remainder, if any, shall be retained by Licensee for its own account, provided that # such recoveries treated as Net Sales in the Calendar Quarter in which they are received for all purposes under this Agreement.