Basis of Defense; Attorneys’ Fees. This Section 5.14 may be pleaded by the Buyer Released Parties as a full and complete defense and may be used as the basis for an injunction against any action at law or equity instituted or maintained against them in violation of this Section 5.14. In the event any Potential Claim is brought or maintained by Seller or any Seller Releasing Parties against the Buyer Released Parties in violation of this Section 5.14, Seller shall be responsible for all costs and expenses, including reasonable attorneys’ fees, incurred by the Buyer Released Parties in defending same.

Right to Participate in Defense. Except with respect to any Third Party Claim that is a Third Party Infringement Claim, the process for the defense of which shall be governed by Section 7.5, any Indemnified Party shall be entitled to participate in, but not control, the defense of a Third Party Claim and to employ counsel of its choice for such purpose; ​ = 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 406 of the Securities Act of 1933, as amended.

As between the Parties, SGI has the first right, but not the obligation, to seek to abate any actual or suspected Competitive Infringement of any SGI Background Patent or Patent within the SGI Program IP by a Third Party, or to file suit against any such Third Party under any SGI Background Patent or Patent within the SGI Program IP for such Competitive Infringement. If SGI does not take steps to abate the any such Competitive Infringement, or file suit to enforce the SGI Background Patent or Patent within the SGI Program IP against such Third Party with respect to such Competitive Infringement, within a commercially reasonable time, Unum has the right (but not the obligation) to take action as follows: first, to enforce Patent within the SGI Program IP against such Third Party for such Competitive Infringement, and second, if there are no such Patents within the SGI Program IP the Competitive Infringement is continuing, then to enforce any SGI Background Patent against such Third Party for such Competitive Infringement. The controlling Party will pay all its Patent Costs incurred for such enforcement.

FAILURE TO ACT NOT A DEFENSE. The failure of the Company (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of the payment of Indemnifiable Amounts or the advancement of Indemnifiable Expenses under this Agreement shall not be a defense in any action brought under Clause 13(a) above.

Right of Setoff or Any Defense. Borrowers are hereby prohibited from exercising against Lender, any right or remedy which it might otherwise be entitled to exercise against Lender, including, without limitation, any right of setoff or any defense. Any other claim that Borrowers may have, arising from or related to the transaction evidenced by this Note and the Agreement shall be asserted only against the Lender.

Defense to Indemnification and Burden of Proof. It shall be a defense to any action brought by the Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Losses incurred in defending against a Claim related to an Indemnifiable Event in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify the Indemnitee for the amount claimed. In connection with any such action or any related Standard of Conduct Determination, the burden of proving such a defense or that the the Indemnitee did not satisfy the applicable standard of conduct shall be on the Company.

Defense of Third-Party Intellectual Property Claims. Each Party shall promptly notify the other Party upon becoming aware of any actual or threatened claim that the Commercialization of any Product infringes or misappropriates the Intellectual Property Rights of a Third Party (each, a “Third Party IP Claim”). Each Party may defend itself from any such Third Party IP Claim brought against such Party or its Affiliates or licensees (or in the case of Commercializing Party, sublicensees) at its own expense and with counsel of its choosing. Each Party shall keep the other Party reasonably informed of all material developments in connection with any Third Party IP Claim, and the other Party shall consult with and offer reasonable assistance to the Party defending against such Third Party IP Claim, at the defending Party’s cost and expense.

In addition to covering damages and defense costs, we also provide other related coverages. These coverages are in addition to the amount of coverage for damages and defense costs unless stated otherwise.

With respect to the ​, ​ shall respond to such defense and use Commercially Reasonable Efforts to defend against such counterclaim (as applicable) and, if ​ is pursuing the applicable infringement action under [Section 8.7], ​ shall allow ​ to control such response or defense (as applicable). Any costs and expenses with respect to such response or defense against such counterclaim shall be borne by ​.

If a Third Party Claim is made against an indemnitee, the indemnitee shall permit the indemnitor to participate in the defense thereof (it being understood that the indemnitee shall control such defense unless the indemnitor assumes such defense as provided herein) and, if the indemnitor so chooses and acknowledges its obligation to indemnify the indemnitee therefor, to assume the defense thereof with counsel selected by the indemnitor provided that such counsel is reasonably satisfactory to the indemnitee. Should the indemnitor so elect to assume the defense of such Third Party Claim, the indemnitor shall not be liable to the indemnitee for legal expenses subsequently incurred by the indemnitee in connection with the defense thereof provided the indemnitor does not seek to assert any limitation on its indemnification responsibility to the indemnitee. If the indemnitor assumes such defense, the indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnitor, it being understood, however, that the indemnitor shall control such defense subject to the agreement of the indemnitor and the indemnitee to cooperate in the defense of such Third Party Claim as provided below. The indemnitor shall be liable for the fees and expenses of counsel employed by the indemnitee for any period during which the indemnitor has not assumed the defense thereof or assumes the defense but asserts any limitation on its obligation to indemnify or defend which reduces its indemnification actions. If the indemnitor chooses to defend any Third Party Claim, the Parties shall reasonably cooperate in the defense or prosecution of such Third Party Claim. Such cooperation shall include the retention and (upon the indemnitor’s request) the provision to the indemnitor of records and information which are reasonably relevant to such Third Party Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the indemnitor shall have assumed the defense of a Third Party Claim, the indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, or consent to the entry of any judgment with respect to such Third Party Claim without the indemnitor’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).