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 Suit. In the event that a Third Party sues Licensee alleging that Licensee’s, its Affiliates” or its sublicensees” making, having made, importing, exporting, using, manufacturing, having manufactured Licensed Compound or distributing, marketing, promoting, offering for sale or selling Licensed Product infringes or will infringe a claim of a patent that specifically covers the Licensed Compound or its manufacture, then Licensee may elect to defend such suit and, during the period in which such suit is pending, notwithstanding Licensee’s obligation to indemnify Merck under Section 11.01 herein, ​.

No Infringement of Third Party IP Rights. (A) Neither the Seller nor any Seller Affiliate is infringing, misappropriating or otherwise violating or making unlawful use of any Intellectual Property of any other Person in connection with the manufacture, use, commercialization, sale or import of any Product or the Product IP or the Transferred Technology, # no Product infringes or violates any Intellectual Property of or contains any Intellectual Property misappropriated from, any other Person, and # to the Knowledge of the Seller, there is no basis for a claim alleging any of the foregoing.

If either Party becomes aware of any known or suspected infringement or misappropriation of the Licensed Protocol, the Kaufmann Name and the Kauffman Intellectual Property, including any Improvements, or any pending or threatened declaratory judgment, opposition, or similar action or proceeding alleging the invalidity, unenforceability, or non-infringement of the Licensed Protocol, the Kaufmann Name and the Kauffman Intellectual Property, including any Improvements, such Party shall promptly notify the other Party and provide the other Party with all information available to it regarding such activity or allegation.

Infringement of Third Party Patent Rights. If a Party’s conduct or exercise of its rights under this Agreement becomes the basis of a claim of infringement of any patent or other proprietary right of any Third Party, such Party shall promptly give notice to the other Party and the Parties shall confer to consider the claim and an appropriate course of action. If and when a Party to this Agreement has the right to defend an infringement claim, each Party shall have the right to conduct the defense against any such claim or infringement action brought against it, and shall have the right and authority to settle any such claim or action after consultation with the other Party, subject to Section 8.5. The other Party shall cooperate with the defending Party, as reasonably requested by it, in connection with the defense against such claim or action, at the defending Party’s expense. Costs and fees of any such defense (including but not limited to damages and reasonable, documented attorneys’ fees and expenses, but excluding any royalties or similar amounts due as consideration under any settlement agreement with respect thereto for any post-settlement activities) may be deducted, prior to the calculation of any payments due under Section 8.5.

No Third-Party Beneficiaries. Unless otherwise expressly provided for in writing, nothing in this Agreement is intended or will be construed to give any person or entity, other than each Party hereto, and their successors or assigns, any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provisions contained herein.

No Third Party Rights. Except as contemplated by Section 7.08 hereof, nothing in this Agreement, whether express or implied, shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect of this Agreement, which is intended for the sole and exclusive benefit of the parties hereto.

No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person other than the Released ​ Parties and the Released Company Parties.

No Third Party Beneficiary. This Agreement is made for the sole benefit of the Company and the ​, and no other Person shall be deemed to have any privity of contract hereunder nor any right to rely hereon to any extent or for any purpose whatsoever, nor shall any other Person have any right of action of any kind hereon or be deemed to be a third party beneficiary hereunder; provided, that the Placement Agents may rely on the representations and warranties contained herein to the same extent as if it were a party to this Agreement.

NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of the parties hereto and is not for the benefit of, nor may any provision hereof be enforced by, any other person, except that the Company acknowledges that the rights of the Investor may be enforced by its general partner.