Audit. 5.1. Upon at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis. 5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer. 5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Third Party Administration Addendum (Delaware Life Variable Account F), Third Party Administration Addendum (Delaware Life Variable Account F)
Audit. 5.1Until the expiration of all royalty payment obligations hereunder and for a period of [***] thereafter, Baxalta shall keep complete and accurate records pertaining to the sale or other disposition of Licensed Products by Baxalta, its Affiliates and Sublicensees in sufficient detail to permit Precision to confirm the accuracy of the royalties and Sales Milestone payments due hereunder. Upon at least ten (10) calendar days’ Precision shall have the right to cause an independent internationally recognized accounting firm reasonably acceptable to Baxalta to audit such records for the sole purpose of confirming Net Sales and royalties for a period covering not more than the preceding [***]. Baxalta may require such accounting firm to execute a reasonable confidentiality agreement with Baxalta prior to commencing the audit. Such audits may be conducted during normal business hours upon reasonable prior written notice to ZinniaBaxalta, Customer but no more frequently than [***]. No accounting period of Baxalta shall be subject to audit more than one time by Precision, unless after an accounting period has been audited by Precision, Baxalta restates its financial results for such accounting period, in which event Precision may conduct a second audit of such accounting period [***] Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission. in accordance with this Section 8.4.7. Adjustments (including remittances of underpayments or its designee may audit and verify overpayments disclosed by such audit) shall be made by the matters relating Parties to reflect the TPA Services during normal business hours. If Customer engages the assistance results of a third party to perform the such audit, the third party must which adjustments shall be paid (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those plus interest as set forth in this TPA Addendum; (bSection 8.6) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined promptly following receipt of an invoice therefor. Precision shall bear the full cost and expense of such audit unless such audit discloses an underpayment by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, Baxalta of [***] or representative who is a competitor or Affiliate more of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of royalties due under this Agreement for the overcharge and the basis for its conclusion, and, if Zinniaaudited period, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one which case Baxalta shall bear and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer Precision for the reasonable full cost and documented costs Customer incurred directly and solely as a result expense of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Development and Commercial License Agreement (Precision Biosciences Inc), Development and Commercial License Agreement (Precision Biosciences Inc)
Audit. 5.1. Upon at least ten The University may, upon five (105) calendar days’ business days advance written notice specifying any time of day during Licensee's business hours (or if Licensee has no set business hours then during the hours of 8AM to Zinnia4PM), Customer either itself or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of using a third party agent, audit Licensee's books and records at Licensee's place of business for the purpose of verifying Licensee's reports and compliance by Licensee in all other respects with this Agreement. In no event shall such audits be conducted hereunder more frequently than once every twelve (12) months and in no case shall University be permitted to repeat an audit of books for a period previously audited unless Licensee has undergone a restatement of its records for that period. Notwithstanding the foregoing, Licensee will grant University, or its auditor, access to all of Licensee’s records for all prior periods to the extent necessary to perform the a proper audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results identifies an underpayment by Licensee, Licensee will promptly pay the underpayment to University including interest as provided for in a final determination that Zinnia was materially at faultSection 4.03. If any audit identifies an overpayment by Licensee, ▇▇▇▇▇▇ will reimburse Customer for Licensee may deduct such overpayment from the reasonable and documented costs Customer incurred directly and solely as a result next scheduled payments due University until such overpayment has been recovered by Licensee. If any audit leads to the discovery of an underpayment in respect of any Calendar Quarter of more than five percent (5%) between amounts due in respect of such material fault, quarter and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements amounts reported to be made due by Zinnia to Customer Licensee in its quarterly report for such quarter or otherwise reveals a previously undisclosed material breach of this Agreement, Licensee will, within thirty (30) days after written notice from the University, reimburse the University for all of receipt its costs related to the audit. Otherwise, any audit will be at the University’s expense. Licensee will, in any event and without regard to the size of the discrepancy, immediately pay to the University the amount of any previous underpayment, including interest from the time such amount was due until paid in full in accordance with Section 4.03. Any audit conducted pursuant to this Section 5.05 will be conducted, at University’s option, by the University itself or by an itemized invoice from Customer.
5.3auditor selected by University and reasonably acceptable to the Licensee. At least annuallyFor the avoidance of any doubt, and at no additional charge University’s right to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia books under this section are Zinnia Confidential InformationSection 5.05 applies to all Affiliates that sell Licensed Products or practice Licensed Processes and to all Permitted Sublicensees to the same extent that it applies to Licensee. Zinnia may redact from Failure by Licensee, an Affiliate or a Permitted Sublicensee to permit University to conduct an audit as set forth in this Section 5.05 will immediately give University the right to suspend the non-compliant party’s rights under the Patent Rights and/or Copyright [DELETE IF NO COPYRIGHT] until such reports those portions containing confidential information time as said party becomes compliant with this Section 5.05. University’s right to audit Licensee’s books in accordance with this Section 5.05 will extend for three (3) years after the expiration or termination of third partiesthis Agreement for any reason. In With respect to any University’s rights under a continuing Sublicense under Section 2.03(A) and 2.03(E), University’s right to audit the event such reports include Sublicensee’s books will extend for three (3) years after the expiration or termination of said Sublicense for any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soreason.
Appears in 2 contracts
Sources: License Agreement, License Agreement
Audit. 5.1. Upon at least ten (10) calendar days’ The Borrower, the Portfolio Administrator and the Guarantor shall, and shall cause each of the Parent, each Seller, the Custodian and the Servicer to permit each Lender, the Administrative Agent or their duly authorized representatives, attorneys, accountants or auditors during ordinary business hours and upon written notice given one (1) Business Day in advance, to Zinniavisit the offices thereof and to inspect their accounts, Customer records and computer systems, software and programs used or its designee may audit and verify the matters relating maintained by them in relation to the TPA Services during normal business hours. If Customer engages the assistance Collateral or their performance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits duties under or in relation hereto and/or to any Order and shall, on the Transaction Documents to which they are party as such Lender or the Administrative Agent may reasonably request (a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge “Collateral Audit”) and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit Borrower shall enable the Insurance Consultant to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one seek and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated receive from the Overcharge Due Date until related Issuing Insurance Companies any verifications of coverage related to the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from Pledged Policies as often as the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for Administrative Agent may request the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible Insurance Consultant to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia The Borrower shall promptly correct such negative findings, on demand reimburse the Administrative Agent and Zinnia shall be solely responsible the Lenders for all costs and fees expenses incurred by or on behalf of the Administrative Agent and the Lenders in connection with any Collateral Audit and their ongoing review and the Insurance Consultant’s ongoing review of the documents related to the Pledged Policies, including, without limitation, the documents on the FTP Site; provided, however, if no Event of Default or Unmatured Event of Default has occurred and is continuing, the total expenses incurred by or on behalf of Borrower, the Portfolio Administrator, the Sellers, the Parent, the Guarantor, the Custodian and the Servicer related to Collateral Audits, the ongoing review of the documents related to the Pledged Policies by the Lenders, the Administrative Agent and the Insurance Consultant and delivering any verifications of coverage related to the Pledged Policies (including any reimbursements actually made by the Borrower, the Portfolio Administrator, the Sellers, the Parent, the Guarantor, the Custodian and the Servicer to the Lenders and the Administrative Agent in connection therewith) shall be limited to no more than $1,600 (as adjusted annually for inflation or such higher amount if such higher amount is the Insurance Consultant’s reasonably determined prevailing market cost in the industry for such Collateral Audits or ongoing reviews of the type in question as adjusted for changes in audit standards) for each Pledged Policy during any twelve (12) month period. Upon written instructions from the Administrative Agent, each of Borrower, the Portfolio Administrator and the Guarantor shall, and shall cause the Servicer (and the Administrative Agent may cause the Custodian) to release any document related to any Collateral to the Administrative Agent. The Administrative Agent may conduct a Collateral Audit no more than once per calendar year at the Borrower’s expense and no more frequently than once every two (2) calendar months at the Lenders’ expense; provided, however, if an Event of Default or Unmatured Event of Default has occurred and is continuing, the Administrative Agent, at the Borrower’s expense, shall have the right to conduct a Collateral Audit at any time and as often the Administrative Agent determines is necessary to do soor desirable. For the avoidance of doubt, any review and evaluation of Additional Policies conducted by the Administrative Agent or the Lenders in connection with a Borrowing Request shall not constitute a Collateral Audit.
Appears in 2 contracts
Sources: Loan and Security Agreement (Emergent Capital, Inc.), Loan and Security Agreement (Imperial Holdings, Inc.)
Audit. 5.1Purchaser shall keep, and will cause each Milestone Obligor to keep, complete, true and accurate books and records in sufficient detail for Seller to determine Annual Net Sales. Upon Purchaser shall keep such books and records for at least ten (10three years following the end of the calendar year to which they pertain. At the written request of Seller within [*] after its receipt of a Milestone Notice, or within [*] after Seller’s receipt of a Net Sales Report for a given calendar year or after Purchaser’s audited financial statements become publicly available, if a Net Sales Report is not required for a given calendar year, Purchaser shall permit an independent auditor designated by Seller and reasonably acceptable to Purchaser, at reasonable times and upon reasonable notice, to audit the books and records of Purchaser for the sole purpose of verifying Annual Net Sales for such calendar year and whether any Milestone Event was achieved during such Calendar Year. Such examinations may not be conducted more than once in any calendar year, and each calendar year may only be audited one time. Such auditor shall enter into a reasonable and customary confidentiality agreement with Purchaser and shall not disclose the findings and results of the audit or Purchaser’s confidential information, except to disclose the findings and results of the audit to Seller. If such audit concludes that a Milestone Event was achieved during such calendar year, then Purchaser shall pay to Seller the corresponding Milestone Payment pursuant to Section 2.8(a) calendar days’ written notice to Zinnia, Customer or its designee may within 15 Business Days of the delivery of the final results of such audit and verify the matters relating any applicable late fees pursuant to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (aSection 2.8(f) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days have accrued from the date of Customer’s notice the Milestone Payment was due and payable under Section 2.8(a) through the date the Milestone Payment is actually paid to Zinnia) disputed Seller, and Purchaser shall reimburse the reasonable out-of-pocket costs incurred by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer Seller for the reasonable and documented costs Customer incurred directly and solely as a result conduct of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Travere Therapeutics, Inc.), Asset Purchase Agreement (Mirum Pharmaceuticals, Inc.)
Audit. 5.1MITSUBISHI shall keep and shall cause to be kept accurate records in sufficient detail to enable the amounts due hereunder to be determined and to be verified by VERTEX. Upon the written request of VERTEX, at least ten (10) VERTEX’s expense and not more than once in any calendar days’ written notice year, MITSUBISHI shall permit an independent accountant of national prominence selected by VERTEX, and approved by MITSUBISHI, to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services have access during normal business hourshours to those records of MITSUBISHI as may be reasonably necessary to verify the accuracy of the sales reports furnished by MITSUBISHI pursuant to this Section 6.5, in respect of any calendar year ending not more [***] prior to the date of such notice. If Customer engages Such accountant shall not disclose any information except that which should properly be contained in a sales report required under this Agreement. MITSUBISHI shall include in each sublicense entered into by it pursuant to this Agreement a provision requiring the assistance sublicensee to keep and maintain adequate records of a third party sales made pursuant to perform such sublicense and to grant access to such records by the auditaforementioned independent accountant for the reasons specified in this Section 6.5. Upon the expiration of three (3) years following the end of any calendar year, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia calculation of amounts payable with respect to such calendar year, unless then in ▇▇▇▇▇▇’s third party administrator businessdispute, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionshall be binding and conclusive upon VERTEX, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with MITSUBISHI and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer and sublicensees shall be released from any liability or accountability with respect to payments for such year. The report prepared by such independent accountant, a copy of which shall be sent or otherwise provided to MITSUBISHI by such independent accountant at the same time it is sent or otherwise provided to VERTEX, shall contain the conclusions of such independent accountant regarding the audit and will pay all costs attributable specify that the amounts paid to such audits except as otherwise stated herein. IfVERTEX pursuant thereto were correct or, as a result of any such auditif incorrect, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay any underpayment or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)overpayment. If Zinnia does not repay such overcharge within ten (10) daysindependent accountant’s report shows any underpayment, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (MITSUBISHI shall remit or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment shall cause its Affiliates or sublicensees to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice remit to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer VERTEX within thirty (30) days of after MITSUBISHI’ receipt of an itemized invoice from Customer.
5.3such report, (i) the amount of such underpayment and (ii) if such underpayment exceeds five percent (5%) of the total amount owed for the calendar year then being audited, the reasonable and necessary fees and expenses of such independent accountant performing the audit, subject to reasonable substantiation thereof. At least annually, and at no additional charge Any overpayments shall be fully creditable against amounts payable in subsequent payment periods. VERTEX agrees that all information subject to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia review under this section are Zinnia Confidential Information. Zinnia may redact from Section 6.5 or under any sublicense agreement is confidential and that VERTEX shall retain and cause its accountant to retain all such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soconfidence.
Appears in 2 contracts
Sources: License, Development and Commercialization Agreement (Vertex Pharmaceuticals Inc / Ma), License, Development and Commercialization Agreement (Vertex Pharmaceuticals Inc / Ma)
Audit. 5.1. Upon at least ten (10) calendar days’ 14 days advance written notice by CyDex, Company shall permit, and shall cause its Affiliates and Sublicensees to Zinniapermit, Customer an independent certified public accounting firm of nationally recognized standing selected by CyDex (who has not been engaged by CyDex to provide services in any other capacity at any time during the three-year period before such selection and who executes a standard and customary confidentiality agreement prepared by Company), and reasonably acceptable to Company or its designee may audit such Affiliate or Sublicensee, to have access to and verify the matters relating to the TPA Services review, during normal business hours. If Customer engages the assistance of a third party to perform the audithours upon reasonable prior written notice, the third party must applicable records of Company and its Affiliates or Sublicensees to verify the accuracy of the royalty payments under this Section 5. Such review may only cover: (a) execute a confidentiality agreement that contains protections the records for Confidential Information comparable to those set forth sales made in this TPA Addendum; any calendar year ending not more than three years before the date of such request, and (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs periods that are attributable have not been subject to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the a prior audit. Except as described hereafter, all such reimbursements to audits shall be made by Zinnia to Customer within thirty (30) days conducted at the expense of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the ServicesCyDex. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesaudits shall be conducted not more than once in each calendar year and not more than once for each audited period. In the event such reports include accountant concludes that additional payments of any negative audit findings impacting kind as required by this Agreement were owed to CyDex during such period, the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia additional amounts shall be solely responsible paid within 30 days of the date CyDex delivers to Company such accountant’s written report so concluding unless Company disputes the results of such audit in accordance with Section 14.3. The fees charged by such accountant shall be paid by CyDex, unless the audit discloses that the amounts payable by Company for the audited period are more than 110% of the amounts actually paid for such period, in which case Company shall pay the reasonable fees and expenses charged by the accountant for such audit (pending the results of any dispute initiated by either party pursuant to Section 14.3 with respect to the same). In the event such accountant concludes that there was an overpayment by Company to CyDex during such period, at Company’s option, the overpayment shall be paid by CyDex to Company within 30 days of the date of the written report. The independent certified public accountant shall keep confidential any information obtained during such inspection in accordance with the provisions set forth in Section 8 hereof and shall report to CyDex and Company only the amounts of Net Sales and royalties/milestone payments due and payable. The parties agree that all costs information subject to review under this Section 5.3 or under any Sublicense agreement is the Confidential Information of Company and fees necessary that CyDex shall cause its accountant to do soretain all such information in confidence.
Appears in 2 contracts
Sources: License Agreement (Ligand Pharmaceuticals Inc), License Agreement (Ligand Pharmaceuticals Inc)
Audit. 5.1. Upon at least ten 11.1 You agree that we shall have the right (10where we reasonably suspect that the terms of clauses 5 and 6 have not been complied with or that you are otherwise in breach of this Agreement) calendar days’ written upon reasonable notice to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a have an independent third party auditor enter your premises to perform audit any OSE system or electronic media onto which the auditLicensed Software or any adaptation, modification or copy of the Licensed Software has been installed in order to verify compliance with this Agreement. Prior to exercising such right to audit we and/or the third party must (a) execute a auditor shall if required by you enter into an appropriate and reasonable confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2agreement. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer We will pay all the costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines examination or audit unless such audit shows that Zinnia overcharged it, Customer shall notify Zinnia additional fees are payable by you or that you are otherwise in writing breach of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinniathis Agreement, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will which case you shall pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit examination or audit.
11.2 Where we reasonably conclude that uncovered additional Licence Fees are due from you under this Agreement, we shall make a request in writing. You shall pay such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer additional Licence Fees within thirty (30) days of receipt the date of an itemized invoice from Customerthe request. Non payment of such fees shall, without prejudice to any other rights that we might have, give us the right to terminate this Agreement with immediate effect.
5.311.3 Where we reasonably conclude that you are otherwise in breach of this Agreement, we shall at our sole choice provide you with written notice of such breach and either (i) provide details of any remedial action required by you; or (ii) terminate this Agreement.
11.4 Where the SQL Comparison SDK is licensed to you, we shall also have the right to audit through independent certified public accountants all records and accounts of yours which contain information bearing upon the amount of Licensed Products licensed, sold or distributed by you. At We shall ensure that such independent accountants are bound by confidentiality undertakings at least annually, as onerous as those set out in clause 7. To the extent an examination and at no additional charge to Customer, Zinnia will provide to Customer audit reveals more than 10 copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility Licensed Products incorporating Licensed Materials having been made, distributed, sold or facilities from which it (includinglicensed without the applicable licence fees having been paid, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia an appropriate payment shall be solely responsible for all costs and fees necessary made promptly to do sous by you to reflect an amount of royalties agreed by the parties in relation to such Licensed Products, otherwise we may terminate this Agreement in accordance with clause 10.2.
Appears in 2 contracts
Sources: End User License Agreement (Eula), End User License Agreement (Eula)
Audit. 5.1. Upon Not more than once per year, or at least ten any time a Party has a reasonable, good faith belief that the other Party has materially breached this Agreement, or (10to the extent with respect to this Agreement) calendar days’ the Umbrella Secrecy Agreement, and provides written notice to Zinniasuch other Party as well as detailed documentation or other evidence of such alleged breach, Customer or its designee upon thirty (30) days’ advance written notice, such first Party may audit and verify the matters relating cause an independent Third Party auditor that is reasonably acceptable to the TPA Services audited Party and subject to written confidentiality obligations that are reasonably acceptable to the audited Party to audit, during normal regular business hourshours and in a manner that complies with the reasonable building and security requirements of the audited Party and its Affiliates, the books, records and facilities of such audited Party and its Affiliates to the extent reasonably necessary to determine such audited Party’s and its Affiliates’ compliance with this Agreement or (to the extent with respect to this Agreement) the Umbrella Secrecy Agreement. If Customer engages Any audit conducted under this Section 2.11 shall not interfere unreasonably with the assistance operations of such audited Party or any of its Affiliates. The Party requesting the audit shall pay the costs of conducting such audit; provided that if such audit reveals a third party material breach of this Agreement or (to perform the extent with respect to this Agreement), the Umbrella Secrecy Agreement, the audited Party shall pay all such costs. Upon conclusion of the audit, the third party must (a) execute Third Party auditor shall furnish to both Parties a confidentiality agreement that contains protections for Confidential Information comparable report stating only its findings during such audit as to those set forth whether or not the audited Party is in compliance with this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionAgreement, and (c) not be compensated on if such audit has revealed a contingency basis.
5.2. Zinnia will breach, shall include no more information than is reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or necessary to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and provide the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faithfinding. All audits will information learned or obtained from such audit shall be performed deemed Confidential Information for purposes of this Agreement. Notwithstanding anything to the contrary in a manner intended this Section, the audited Party may require that the Third Party conducting the audit pursuant to minimize disruption to either partythis Section 2.11 be accompanied by the audited Party’s respective businesses (and in compliance with ▇▇▇▇▇▇the case of an audit of its Affiliates or Sublicensees, its Affiliate’s security and safety policiesor its Sublicensee’s, respectively) representatives at all times during such audit. If any audit results in a final determination that Zinnia was materially at faultFor clarity, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs Licensee shall cause its Affiliates that are attributable Sublicensees to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customercomply with this Section 2.11.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Intellectual Property Cross License Agreement (Corteva, Inc.), Intellectual Property Cross License Agreement (DuPont De Nemours, Inc.)
Audit. 5.1Comcast shall keep and maintain complete and accurate books of account and records at its principal place of business in connection with each of the Included Program assets and pertaining to Comcast’s compliance with the terms hereof, including, without limitation, copies of the statements referred to in this Section 21. Upon at least ten (10) calendar business days’ written notice notice, and no more than once per calendar year during the Term and once during the two (2) year period following the end of the Term, Studio shall have the right during business hours to Zinnia, Customer or its designee may audit and verify the matters relating check at Comcast’s principal place of business, Comcast’s books and records pertaining to the TPA Services during normal business hoursaccuracy of the Fees paid or payable hereunder in the then current calendar year and immediately preceding calendar year. If Customer engages the assistance of Any audit hereunder will be conducted only by a third party nationally recognized audit or accounting firm (provided that such firm shall agree to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable provisions substantially similar to those set forth in Section 28). No portion of the compensation for any such audit or accounting firm shall be contingent upon the results of such audit. Subject to the terms of this TPA Addendum; Section 21 and other than payments made in satisfaction of an audit, the exercise by Studio of any right to audit or the acceptance by Studio of any statement or payment shall not bar Studio from thereafter asserting a claim for any balance due, and Comcast shall remain fully liable for any balance due under the terms of this Agreement. Studio shall provide the results of such audit to Comcast within three (b3) not months of conducting the audit and any such information shall be a competitor to Zinnia deemed confidential information of Comcast in accordance with Section 28. Studio must make any claim against Comcast with respect to unpaid Fees that were the subject of an audit within six (6) months after Studio receives the final results from such audit (but in ▇▇▇▇▇▇no case later than eight (8) months after Studio’s third party administrator businessrepresentatives last leave Comcast’s offices). If such claim is not made within the time frame permitted by the immediately preceding sentence, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionthen the Fee payments that were the subject of such audit and all reports required hereunder shall be deemed final and incontestable, and Studio will be deemed to have forever and conclusively waived its right, whether known or unknown, to collect any shortfalls from Comcast for the period(s) audited. If a confirmed discrepancy in excess of ten percent (c10%) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who of the Fees due for the period covered by such audit is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of revealed by any such audit, Customer determines that Zinnia overcharged itComcast shall, Customer shall notify Zinnia in writing addition to making prompt payment of its determination, including the amount of the overcharge and the basis for its conclusionsuch discrepancy, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer Studio (i) the reasonable, documented out-of-pocket costs and expenses incurred by Studio for the reasonable such audit, and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible reasonable attorney’s fees actually incurred by Studio in enforcing the collection thereof. Any overpayment identified by such audit shall, at Comcast’s election, either (a) be taken as a credit by Comcast against future Fees payable hereunder; or (b) be paid by Studio to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer Comcast within thirty (30) days of after Studio’s receipt of an itemized invoice from Customerthe audit report.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Digital Home Entertainment License Agreement, Digital Home Entertainment License Agreement
Audit. 5.1. Upon Subject to the other terms of this Section 5.5(b), at the request of Lilly, upon at least ten [***] Business Days’ prior written notice, but no more often than [***] and not [***] with respect to records covering any specific period of time, and at its sole expense (10) calendar days’ written notice except as otherwise provided herein), ImmunoGen shall permit an internationally recognized independent accounting firm reasonably selected by Lilly and reasonably acceptable to Zinnia, Customer or its designee may audit and verify the matters relating ImmunoGen to the TPA Services inspect (during normal regular business hours) at such place or places where such records are customarily kept the relevant records required to be maintained by ImmunoGen under Section 5.5(a) hereof. If Customer engages the assistance of a third party to perform the auditAt Lilly’s request, the third party must (a) execute independent accounting firm shall be entitled to audit the [***] years of ImmunoGen’s records solely for purposes of verifying ImmunoGen’s calculation of FTE Cost for ImmunoGen Activities performed during the period subject to review. Before beginning the audit the independent accounting firm shall enter into a confidentiality agreement that contains protections with both Parties substantially similar to the provisions of Section 6 hereof limiting the disclosure and use of such information by such independent accounting firm to authorized representatives of the Parties and the purposes germane to this Section 5.5. The independent accounting firm shall provide its audit report and basis for Confidential Information comparable any determination to those set forth ImmunoGen at the time such report is provided to Lilly. ImmunoGen and Lilly shall each have the right to request a further determination by such independent accounting firm as to matters which such Party disputes within [***] days following receipt of such report. The Party initiating a dispute will provide the other Party and the independent accounting firm with a reasonably detailed statement of the grounds upon which it disputes any findings in this TPA Addendum; (b) not the audit report and the independent accounting firm shall undertake to complete such further determination within [***] days after the dispute notice is provided, which determination shall be a competitor limited to Zinnia with respect the disputed matters and provided to in ▇▇▇▇▇▇’s third party administrator businessboth Parties. The Parties shall use reasonable efforts, as determined by ▇▇▇▇▇▇ in its solethrough the participation of finance representatives of both Parties, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and to resolve any Regulatory Authority, in connection with audits dispute arising in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated hereinthe audit by good faith discussion. If, as a result The results of any such audit, Customer determines that Zinnia overcharged itreflecting the independent accounting firm’s determination of any disputed matters, Customer shall notify Zinnia in writing be binding on both Parties. Lilly agrees to treat the results of its determination, including the amount any such independent accounting firm’s review of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇ImmunoGen’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia records under this section are Zinnia Section 5.5(b) as Confidential Information. Zinnia may redact from such reports those portions containing confidential information Information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.ImmunoGen
Appears in 2 contracts
Sources: Multi Target Agreement (Immunogen Inc), Multi Target Agreement (Immunogen Inc)
Audit. 5.1Contractor will maintain complete and accurate financial and other records on this Order for at least three (3) calendar years after the year during which the Goods were delivered and/or Services performed, or for such longer period as may be required by applicable Law, and for so long thereafter as a dispute may exist between the Parties. Upon Company’s written request, and, except as herein otherwise provided, at least ten (10) calendar days’ written notice Company’s expense, Company will be entitled to Zinniainspect, Customer or its designee may copy and audit Contractor’s records, during regular business hours at Contractor’s office, for the purpose of verifying Contractor’s compliance with the terms and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those conditions set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in Order, including the accuracy of all ▇▇▇▇▇▇▇▇ made by Contractor to Company. Contractor shall cooperate fully with Company and/or its representatives’ reasonable requests for documentation pursuant to any such audit, except for requests for documentation regarding the calculation of Contractor’s third party administrator businessprofit margin and overhead rates. Company shall be entitled to copies (free of charge) of all such documentation. If adjustments are necessary, Contractor will promptly issue an amended final invoice or credit, as determined by ▇▇▇▇▇▇ in the case may be. In addition, if Company’s audit reveals an overbilling of 5% or more, Contractor shall reimburse Company for its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated hereinaudit costs. If, as a result of any such audit, Customer Company determines that Zinnia overcharged itany amount previously paid to Contractor was not due and payable, Customer Company shall have the right to recover such amount from Contractor, notwithstanding any prior full or partial payment by Company to Contractor of such invoiced amounts. Company may immediately withhold an amount necessary to offset any audit claims from current invoices of Contractor. In the event that Company withholds payment to offset audit claims, Company will promptly notify Zinnia in writing Contractor of its determination, including the amount of the overcharge such offset and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but any undisputed invoiced amounts in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion excess of the audit that uncovered such material fault, if it is commercially feasible claim amounts. If amounts currently due from Company to identify only those audit costs that Contractor are attributable not sufficient to such material fault or (ii) if not commercially feasible cover amounts due to do so, ▇▇▇▇▇▇ will reimburse Customer for Company as the total cost result of the an audit, all Company shall invoice Contractor for such reimbursements to be made by Zinnia to Customer amounts and Contractor shall pay such invoices within thirty forty-five (3045) days of receipt of an itemized invoice from Customerthe invoice.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Audit. 5.1. Upon At its option, Lessor may at least ten any time, upon not less than thirty (1030) calendar days’ , prior written notice to ZinniaLessee, Customer or its designee may arrange for an auditor selected by Lessor to conduct a complete audit (including a physical inventory) of the entire records and verify operations of Lessee included in Gross Revenues from the matters relating Premises during the period covered by any statement issued by Lessee. Lessee shall make available to the TPA Services during normal business hours. If Customer engages Lessor’s auditor at the assistance of a third party to perform Premises or Lessee’s main accounting office on the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those day set forth in this TPA Addendum; Lessor’s notice, requiring such audit, all of the financial records, source documents, variance reports, general ledgers, management reports, arrearage reports, check registers, and any other materials which such auditor deems necessary or desirable for the purpose of performing such audit. Lessee shall promptly pay to Lessor the amount of any deficiency in Percentage Rent payments disclosed by any such audit. If such audit shall disclose that Lessee’s statement of Gross Revenues is at variance to the extent of five percent (b5%) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businessor more, as determined by ▇▇Lessor may ▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate Lessee the cost of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer which Lessee shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of after Lessee’s receipt of Lessor’s invoice. If such audit shall disclose an itemized invoice from Customer.
5.3overpayment, Lessor shall credit such overpayment toward the next payment of Rent due. At least annuallyIn addition to the foregoing, and at no additional charge in addition to Customerall other remedies available to Lessor, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In in the event such reports include any negative Lessee’s auditor and Lessor’s auditor shall schedule a date for an audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findingsof Lessee’s records, and Zinnia Lessee shall fail to be solely responsible available or shall otherwise fail to comply with the requirements for such audit, Lessee shall pay all costs and expenses associated with the canceled audit. Lessor and Lessee agree to attempt to resolve any audit dispute not resolved in sixty (60) days following delivery of the final audit by submitting the results of the disputed audit to a mutually acceptable third-party accounting firm for its opinion, the fees necessary of which shall be paid by Lessee. In addition to do so.Lessor’s available remedies, in the event an audit or other reliable information reveals that Lessee’s records are unavailable due to Lessee’s failure to reasonably maintain such records, Lessor shall be entitled to collect as Additional Rent from Lessee an amount equal to the lesser of (i) fifty percent (50%) of the Percentage Rent (the "Audit Unavailability Penalty") paid by Lessee in the preceding Lease Year prorated for the period in question (i.e., if the period in question is equal to six (6) months, then the Additional Rent provided for herein will be equal to 50% (1/2 of the year) of the Audit Unavailability Penalty) or
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Audit. 5.1. Upon at least ten (10) calendar days’ written notice to ZinniaAt the Royalty Receiving Party's expense, Customer Royalty Receiving Party or its designee may audit and verify authorized independent public accountant has the matters relating right to engage Royalty Paying Party's independent public accountant, or an independent public accountant agreed to mutually by the TPA Services during normal business hours. If Customer engages Parties, where the assistance of public accountant is a third party reputable national U.S. [ * ] Confidential treatment requested accounting firm to perform the an audit, conducted in accordance with generally accepted auditing standards in the third party must (a) execute a confidentiality agreement United States of America, of such books and records of Royalty Paying Party that contains protections are deemed necessary by Royalty Paying Party's independent public accountants to report on Net Sales of the Ribozyme Product for Confidential Information comparable to those set forth in this TPA Addendum; (b) the period or periods requested by Royalty Receiving Party. Such audit shall not be a competitor to Zinnia performed more frequently than once per calendar year nor more frequently than once with respect to in ▇▇▇▇▇▇’s third party administrator businessrecords covering any specific period of time, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount upon at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within least thirty (30) days working days' prior written notice, and shall be conducted during regular business hours in such a manner as to not unnecessarily interfere with Royalty Paying Party's normal business activities. All information, data documents and abstracts herein referred to shall be used only for the purpose of receipt verifying royalty statements or compliance with this Agreement, shall be treated as the Royalty Paying Party's Confidential Information subject to the obligations of this Agreement and need not be retained more than one (1) year after completion of an itemized invoice audit hereof, if an audit has been requested; nor more than three (3) years from Customer.
5.3the end of the calendar year to which each shall pertain; nor more than one (1) year after the date of termination of this Agreement. At least annually, and at no additional charge The failure of the Royalty Receiving Party to Customer, Zinnia will provide to Customer copies request verification of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports any royalty calculation during the period when records must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia retained shall be solely responsible for all costs and fees necessary to do sodeemed acceptance of the accuracy of such reporting.
Appears in 2 contracts
Sources: Research Collaboration and License Agreement (Ribozyme Pharmaceuticals Inc), Research Collaboration and License Agreement (Ribozyme Pharmaceuticals Inc)
Audit. 5.1. Upon at least ten (10) calendar days’ written notice In the event of any Production Cost Price Adjustment or other price increase or credit pursuant to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia Section 6.2 with respect to any Supplied Product or Intermediate Supplied Product, Purchaser may perform an audit of Producer’s records directly associated with such Production Cost Price Adjustment or other increase or credit, if notice of such audit is provided within three months after the Production Cost Price Adjustment or other increase has become effective (or, in ▇▇▇▇▇▇’s third party administrator businessthe case of quarterly payments or credit based on variance from Unit Production Cost, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2within three months after notice of such increase or credit is delivered to Purchaser). Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective Purchaser may use independent auditors, inspectorswho may participate fully in such audit. If an audit is proposed with respect to information which Producer wishes not to disclose to Purchaser (“Restricted Information”), consultantsthen on the written demand of Producer, the individuals conducting the audit with respect to Restricted Information will be limited to the independent auditors of Purchaser. Such independent auditors shall enter into an agreement with the parties under which such independent auditors shall agree to maintain the confidentiality of the information obtained during the course of such audit (including an agreement to not share such information with Purchaser) and establishing what information such auditors will be permitted to disclose to report the results of any audit of Restricted Information to the party requesting the audit. Any such audit shall be conducted during regular business hours and in a manner that does not interfere unreasonably with Producer’s operations. Each audit shall begin upon the date specified in a Notice given by Purchaser to Producer a minimum of 30 days prior to the commencement of the audit; provided that, if the date so specified shall conflict with a regulatory inspection or audit, plant shutdown or other representativessimilar event, the parties shall cooperate to establish a mutually agreeable commencement date. Such audit shall be performed diligently and any Regulatory Authorityin good faith and shall be completed within 30 days of the commencement thereof; provided that, to the extent that Purchaser’s compliance with such timeframe for completion is not feasible due to Producer’s failure to provide timely access to documentation reasonably requested by Purchaser in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer such 30 day period shall notify Zinnia in writing be extended as reasonably necessary. Any undisputed overpayment or underpayment of its determination, including amounts due under this Agreement determined by this Section 6.6 shall be due and payable to the other party by the party owing such amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days after notice of receipt such audit finding. Purchaser shall bear the full cost of such audit unless in the event that any audit performed hereunder results in a decrease of five percent (5%) or more in any amount due Producer hereunder, then Producer shall be obligated to pay the out-of-pocket audit costs paid to any Third Party auditor engaged to conduct such audit up to a maximum amount of $250,000; provided that any such Third Party auditor’s fees shall have been on an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by hourly or flat fee basis without a nationally recognized firm for Zinnia’s facility contingency or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesother performance or bonus fee. In the event Producer bears any audit costs hereunder, such reports include any negative audit findings impacting costs shall not be incorporated into the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible calculations for all costs and fees necessary to do sothe Production Cost.
Appears in 2 contracts
Sources: Manufacturing and Supply Agreement (Baxalta Inc), Manufacturing Agreement (Baxalta Inc)
Audit. 5.1Comcast shall keep and maintain complete and accurate books of account and records at its principal place of business in connection with each of the Included Program assets and pertaining to Comcast’s compliance with the terms hereof, including, without limitation, copies of the statements referred to in this Section 21. Upon at least ten (10) calendar business days’ written notice notice, and no more than once per calendar year during the Term and once during the two (2) year period following the end of the Term, Studio shall have the right during business hours to Zinnia, Customer or its designee may audit and verify the matters relating check at Comcast’s principal place of business, Comcast’s books and records pertaining to the TPA Services during normal business hoursaccuracy of the license fees paid or payable hereunder in the then current calendar year and immediately preceding calendar year. If Customer engages the assistance of and Comcast’s compliance with this Agreement. Any audit hereunder will be conducted only by a third party nationally recognized audit or accounting firm (provided that such firm shall agree to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable provisions substantially similar to those set forth in Section 28). No portion of the compensation for any such audit or accounting firm shall be contingent upon the results of such audit. Subject to the terms of this TPA Addendum; (b) Section 21 and other than payments made in satisfaction of an audit, the exercise by Studio of any right to audit or the acceptance by Studio of any statement or payment, whether or not be the subject of an audit, shall not bar Studio from thereafter asserting a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionclaim for any balance due, and Comcast shall remain fully liable for any balance due under the terms of this Agreement. Studio shall provide the results of such audit to Comcast within three (c3) months of conducting the audit and any such information shall be deemed confidential information of Comcast in accordance with Section 28. Studio must make any claim against Comcast within the earlier of three (3) months after Studio or Studio's representative leaves Comcast's offices or twenty-four (24) months after the close of the earliest month that is the subject of such claim. If a claim is not made within any limitation set forth herein, then the Fee payments and all reports required hereunder shall be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with deemed final and assist Customer, Customer designeesincontestable, and their respective auditorsStudio will be deemed to have forever and conclusively waived its right, inspectorswhether known or unknown, consultants, and other representatives, and to collect any Regulatory Authority, shortfalls from Comcast for the period(s) audited. If a confirmed discrepancy in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who excess of ten percent (10%) of the license fees due for the period covered by such audit is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of revealed by any such audit, Customer determines that Zinnia overcharged itComcast shall, Customer shall notify Zinnia in writing addition to making prompt payment of its determination, including the amount of the overcharge and the basis for its conclusionsuch discrepancy, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer Studio (i) the reasonable, documented out-of-pocket costs and expenses incurred by Studio for the reasonable such audit, and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible reasonable attorney’s fees actually incurred by Studio in enforcing the collection thereof. Any overpayment identified by such audit shall, at Comcast’s election, either (a) be taken as a credit by Comcast against future license fees payable hereunder; or (b) be paid by Studio to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer Comcast within thirty (30) days of after Studio’s receipt of an itemized invoice from Customer.
5.3the audit report. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the ServicesNon-Disparagement. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services Studio shall not in any wayway include programming, Zinnia information (e.g., a “crawl”, pop-up or “placard”) in the Included Programs that is intended to disparage any member(s) of the Comcast Group, any System, or the Licensed Service(s) or otherwise negatively portray any member(s) of the Comcast Group, any Systems or the Licensed Service(s); provided, however, that this provision shall promptly correct not prohibit Studio from engaging in advertising or promotion for the Included Programs or responding to viewer inquiries, provided that any such negative findingscommunications, advertisements and Zinnia shall be solely responsible for all costs and fees necessary to do sopromotions are in accordance with the provisions set forth in this Agreement.
Appears in 2 contracts
Sources: Digital Home Entertainment License Agreement, Digital Home Entertainment License Agreement
Audit. 5.1. Upon at least ten As soon as is reasonably practical after each Operating Year, Landlord shall provide Tenant with a statement (10a “Statement”) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify setting forth the matters relating to actual ultimate Additional Rent for the TPA Services during normal business hourssubject Operating Year. If Customer engages Tenant disputes the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those amount set forth in this TPA Addendum; (b) not be a competitor given Statement, Tenant shall have the right, at Tenant's sole expense, to Zinnia cause Landlord's books and records with respect to in ▇▇▇▇▇▇’s third party administrator businessthe particular Operating Year that is the subject of that particular Statement to be audited (the “Audit”) by a certified public accountant mutually acceptable to Landlord and Tenant (the “Accountant”), as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, provided Tenant (i) has not defaulted under this Lease and failed to cure such default on a timely basis and (cii) not be compensated delivers written notice (an “Audit Notice”) to Landlord on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or or prior to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, the date that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten thirty (1030) days after Landlord delivers the Statement in question to Tenant (such 30-day period, the “Overcharge Due DateResponse Period”). If Zinnia does not repay Tenant fails to timely deliver an Audit Notice with respect to a given Statement, then Tenant's right to undertake an Audit with respect to that Statement and the Operating Year to which that particular Statement relates shall automatically and irrevocably be waived and such overcharge Statement shall be final and binding upon Tenant and shall, as between the parties, be conclusively deemed correct. If Tenant timely delivers an Audit Notice, Tenant must commence such Audit within ten thirty (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (1030) days from after the date of Customer’s notice Audit Notice is delivered to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material faultLandlord, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to Audit must be made by Zinnia to Customer completed within thirty (30) days of receipt the date on which it is begun. If Tenant fails, for any reason other than Landlord’s lack of cooperation, to commence and complete the Audit within such periods, the Statement that Tenant elected to Audit shall be deemed final and binding upon Tenant and shall, as between the parties, be conclusively deemed correct. The Audit shall take place at the offices of Landlord where its books and records are located, at a mutually convenient time during Landlord's regular business hours. Before conducting the Audit, Tenant must pay the full amount of the Additional Rent billed under the Statement then in question. Tenant hereby covenants and agrees that the Accountant engaged by Tenant to conduct the Audit shall be compensated on an itemized invoice from Customer.
5.3hourly basis and shall not be compensated based upon a percentage of overcharges it discovers. At least annuallyIf an Audit is conducted in a timely manner, such Audit shall be deemed final and binding upon Landlord and Tenant and shall, as between the parties, be conclusively deemed correct. If the results of the Audit reveal that the actual ultimate Additional Rent does not equal the aggregate amount of the estimated Additional Rent actually paid by Tenant to Landlord during the Operating Year that is the subject of the Audit, the appropriate adjustment shall be made between Landlord and Tenant, and at no additional charge any payment required to Customer, Zinnia will provide be made by Landlord or Tenant to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must the other shall be prepared by a nationally recognized firm for Zinniamade within thirty (30) days after the Accountant’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesdetermination. In no event shall this Lease be terminable nor shall Landlord be liable for damages based upon any disagreement regarding an adjustment of the event such reports include Additional Rent. Tenant agrees that the results of any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia Audit shall be solely responsible for all costs kept strictly confidential by Tenant and fees necessary shall not be disclosed to do soany other person or entity.
Appears in 2 contracts
Sources: Industrial Building Lease (United Natural Foods Inc), Industrial Building Lease (United Natural Foods Inc)
Audit. 5.1. Upon (i) Subject to any other agreement entered into with respect to Bank’s right to audit, or cause an audit of, Platform Agent, on an annual basis, Bank shall be permitted to cause an audit (except to the extent a Platform Technical Auditor has audited the Program) by an independent third party firm selected by Platform Agent and acceptable to Bank and at least ten (10) calendar days’ written notice Platform Agent’s sole cost and expense, [***], to Zinnia, Customer or its designee may audit and verify the matters be conducted of Platform Agent’s controls relating to the TPA Services during normal business hours. If Customer engages control, monitoring and supervision of the assistance operation of the Program and of Platform Agent’s and its Third-Party Service Provider’s compliance with this Agreement, including ensuring that all Loans comply with the Program Guidelines and all Applicable Laws; provided, however, that if such audit has been conducted within the twelve (12) months prior to the Effective Date, then Platform Agent shall have met its Platform Audit obligations for the initial year under this Agreement; provided further that Bank shall (i) own the results of such audit, (ii) share such results with Platform Agent and (iii) keep such audit confidential except as required by Applicable Laws; provided further that Bank hereby consents to Platform Agent sharing the results of such audit with a third party party, as Platform Agent deems reasonably necessary (subject to perform the audit, the third party must (a) execute Platform Agent entering into a non-disclosure or other confidentiality agreement with any such third party). Platform Agent shall provide Bank with notice of such sharing of any audit that contains protections was paid for Confidential Information comparable by both Parties. In addition to those the foregoing, Platform Agent shall comply with all auditing obligations set forth in Schedule 3.2(f), and to cause the auditing reports to be delivered to Bank on the dates specified in such Schedule 3.2(f), each in form and substance satisfactory to Bank. [***].
(ii) Notwithstanding anything in this TPA Addendum; (b) not be a competitor Agreement to Zinnia the contrary, Bank shall have the following obligations to Platform Agent with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, the annual audit performed pursuant to Section 3.2(f)(i):
a. Bank shall prepare and (c) not be compensated send an annual audit plan to Platform Agent on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount before January 31st of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of calendar year the audit that uncovered such material faultis scheduled to take place, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for which sets forth the total cost proposed scope and schedule of the audit; and
b. After an engagement letter has been negotiated and executed among the parties and the auditor, all such reimbursements to be made by Zinnia to Customer within thirty but before the audit has officially commenced, Bank shall, at a minimum, host and participate in a kick-off call (30or multiple calls, if necessary) days among Bank, Platform Agent and the auditor, which shall include a thorough discussion and consensus agreement about the exact scope and timeline of receipt of an itemized invoice from Customerthe audit.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Loan Program Agreement (Affirm Holdings, Inc.), Loan Program Agreement (Affirm Holdings, Inc.)
Audit. 5.1. Upon the written request of OSI, at least ten OSI's expense and not more than once in any Calendar Year, Serono shall permit an independent accountant of national prominence selected by OSI, and approved by Serono (10) calendar days’ written notice which approval shall not be unreasonably withheld), to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services have access during normal business hourshours to those records of Serono or its Affiliates as may be reasonably necessary to verify the accuracy of the reports furnished by Serono pursuant to Section 6.4, in respect of any Calendar Quarter ending not more than two (2) years prior to the date of such notice. If Customer engages Such accountant shall not disclose any information except that which should properly be contained in a report required under Section 6.4 of this Agreement. Upon the assistance expiration of a third party to perform two (2) years following the auditend of any Calendar Quarter, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia calculation of amounts payable with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionsuch Calendar Quarter shall be binding and conclusive upon OSI, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with Serono and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer shall be released from any liability or accountability with respect to payments for such Calendar Quarter. The report prepared by such independent accountant, a copy of which shall be sent or otherwise provided to Serono by such independent accountant at the same time it is sent or otherwise provided to OSI, shall contain the conclusions of such independent accountant regarding the audit and will pay all costs attributable specify that the amounts paid to such audits except as otherwise stated herein. IfOSI for the period under audit were correct or, as a result of any such auditif incorrect, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay any underpayment or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)overpayment. If Zinnia does not repay such overcharge within ten (10) daysindependent accountant's report shows any underpayment, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (Serono shall remit or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment shall cause its Affiliates to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice remit to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer OSI within thirty (30) days of after Serono's receipt of an itemized invoice from Customer.
5.3. At least annuallysuch report, (i) the amount of such underpayment with interest as set forth in Section 6.8, and (ii) if such underpayment exceeds ** of the total amount owed for the period then being audited, the reasonable and necessary fees and expenses of such independent accountant performing the audit, subject to reasonable substantiation thereof. Any overpayments shall be fully creditable against amounts payable in subsequent payment periods or remitted to Serono, at no additional charge Serono's request. OSI agrees that all information subject to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia review under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia Section 7.2 shall be solely responsible for deemed Confidential Information of Serono and that OSI shall retain and cause its accountant to retain all costs and fees necessary to do sosuch information in confidence in accordance with Article IX hereof.
Appears in 2 contracts
Sources: Co Promotion Agreement (Osi Pharmaceuticals Inc), Co Promotion Agreement (Osi Pharmaceuticals Inc)
Audit. 5.1Landlord shall keep books and records regarding Total Operating Costs. Upon All records shall be retained for at least three (3) years. At the request of Tenant (“Tenant’s Audit Notice”) given within one hundred eighty (180) days after Landlord delivers Landlord’s statement of Total Operating Costs with respect to any fiscal year during the Term, Tenant (at Tenant’s expense) shall have the right to examine Landlord’s books and records applicable to Total Operating Costs for such fiscal year. Such right to examine the records shall be exercisable: (i) upon reasonable advance notice to Landlord and at reasonable times during Landlord’s business hours and (ii) only during the 60-day period (the “Audit Period”) following Tenant’s Audit Notice. Landlord shall make such books and records available at Landlord’s office in Massachusetts or at the Property, or in electronically accessible form. In the event an audit of Landlord’s Total Operating Costs for such year, conducted by either a certified public accountant from a nationally-recognized accounting firm or a nationally-recognized commercial real estate services firm, in either case as approved by Landlord for such purpose (such approval not to be unreasonably withheld, conditioned or delayed), indicates that certain items were improperly included in Landlord’s Total Operating Costs and resulted in an overcharge to Tenant and Landlord disputes the results of said audit, then Tenant may request in writing that the disputed amount of Additional Rent for Total Operating Costs for the year in question be determined by an audit conducted by a certified public accountant reasonably selected by both parties, provided that if the parties are unable so to agree within ten (10) days after receipt of Tenant’s notice, then within twenty (20) days after Tenant’s notice is given, Tenant may submit the dispute for determination by an arbitration conducted by the Boston Office of the American Arbitration Association (“AAA”) in accordance with the AAA’s commercial real estate arbitration rules. The arbitrator shall be selected by AAA and shall be a certified public accountant with at least ten (10) calendar days’ written notice to Zinnia, Customer years of experience in auditing Class A commercial office and laboratory buildings and who shall not be affiliated with either Landlord or Tenant and has not worked for either party or its designee may audit and verify affiliates at any time during the matters relating to the TPA Services during normal business hoursprior five (5) years. If Customer engages the assistance Additional Rent due as finally determined for such fiscal year is less than the Additional Rent paid by Tenant, Landlord shall credit the excess against Additional Rent next due from Tenant; Tenant may off-set the same against Additional Rent if Landlord fails to provide such credit to Tenant within fifteen (15) days following notice from Tenant of a third party such overpayment. Any auditing firm retained by Tenant pursuant to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) paragraph shall not be compensated on a contingency contingent fee basis.
5.2. Zinnia will reasonably cooperate with Notwithstanding the foregoing, Tenant’s request to audit Landlord’s books and assist Customer, Customer designeesrecords shall not extend the time within which Tenant is obligated to pay the amounts shown on Landlord’s statement of Total Operating Costs, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer Tenant may not use make the request to audit Landlord’s books and records at any auditor, inspector, consultant, or representative who time Tenant is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result default of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiespayments. In the event the audit determines that Tenant has been overcharged by five percent (5.0%) or more of the Additional Rent due with respect to Total Operating Costs, Landlord shall pay for the cost of said audit. In all other cases, Tenant shall pay for the cost of said audit. As a condition precedent to performing any such reports include any negative audit findings impacting the Services in any wayexamination of Landlord’s books and records, Zinnia shall promptly correct such negative findings, and Zinnia Tenant’s examiners shall be solely responsible for all costs required to execute and fees necessary deliver to do soLandlord an agreement in form reasonably acceptable to Landlord agreeing to keep confidential any non-public, confidential information that they discover about Landlord or the Building or the Property in connection with such examination and not to disclose the results of such examination except as required by law. Notwithstanding any prior approval of any examiners by Landlord, Landlord shall have the right to rescind such approval at any time if in Landlord’s reasonable judgment the examiners have breached any confidentiality undertaking to Landlord or cannot provide reasonably acceptable assurances and procedures to maintain confidentiality.
Appears in 2 contracts
Sources: Lease Agreement (Senior Housing Properties Trust), Lease Agreement (Senior Housing Properties Trust)
Audit. 5.1By April 1 of each calendar year or as soon thereafter as is reasonably practicable, Landlord shall provide Tenant a statement (the “Annual Cost Statement”) of the total Impositions and other Additional Charges for the preceding year. Upon at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit The Annual Cost Statement shall include a statement of Landlord’s actual total Impositions and verify other Additional Charges for the matters relating to the TPA Services during normal business hoursprevious year. If Customer engages the assistance Annual Cost Statement reveals that Tenant paid more than Tenant’s Proportionate Share of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, actual total Impositions and other representativesAdditional Charges in the year for which such statement was prepared, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, then Landlord shall credit or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to reimburse Tenant for such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer excess within thirty (30) days after delivery of receipt the Annual Cost Statement; likewise, if Tenant paid less than Tenant’s Proportionate Share of an itemized invoice from Customer.
5.3the actual total Impositions and other Additional Charges, then Tenant shall pay Landlord such deficiency within thirty (30) days after delivery of the Annual Cost Statement. At least annuallyWithin sixty (60) days (the "Audit Election Period") after Landlord furnishes the Annual Cost Statement for any calendar year, Tenant may, at its expense during Landlord's normal business hours, elect to audit Landlord's accounting records relative to Impositions and at other Additional Charges for such calendar year only, subject to the following conditions: (i) there is no additional charge to Customer, Zinnia will provide to Customer copies uncured Event of SOC 1 Type 2 and SOC 2 Type 2 Default under this Lease; (ii) the audit reports Such reports must shall be prepared by an independent certified public accounting firm of recognized national standing; (iii) in no event shall any audit be performed by a nationally recognized firm retained on a "contingency fee" basis; (iv) the audit shall commence within thirty (30) days after Landlord makes Landlord's accounting records available to Tenant's auditor and shall conclude within sixty (60) days after commencement; (v) the audit shall be conducted where Landlord maintains its books and records and shall not unreasonably interfere with the conduct of Landlord's business; (vi) Tenant and its accounting firm shall treat any audit in a confidential manner and shall each execute Landlord's confidentiality agreement for Zinnia’s facility or facilities from which it Landlord's benefit prior to commencing the audit; and (includingvii) the accounting firm's audit report shall, as applicableat no charge to Landlord, be submitted in draft form for Landlord's review and comment before the final approved audit report is delivered to Landlord and any reasonable comments by Landlord shall be incorporated into the final audit report. If Tenant does not give written notice of its affiliates election to audit Landlord's accounting records relative to Impositions and subcontractors) is providing other Additional Charges during the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In Audit Election Period, Landlord's total Impositions and other Additional Charges for the event such reports include any negative audit findings impacting the Services in any way, Zinnia applicable calendar year shall promptly correct such negative findingsbe deemed approved for all purposes, and Zinnia Tenant shall be solely responsible for all costs and fees necessary have no further right to do soreview or contest the same.
Appears in 2 contracts
Sources: Lease Agreement (Cornerstone Healthcare Plus Reit, Inc.), Lease Agreement (Cornerstone Healthcare Plus Reit, Inc.)
Audit. 5.1American Regent shall keep and retain complete and accurate records pertaining to the disposition of the Product and amounts payable under this Agreement for each calendar year or part thereof during the Term in sufficient detail to permit CytoDyn to confirm the accuracy of all payments made or due hereunder for a period of three (3) years following the applicable calendar year or part thereof. Upon at least ten (10) CytoDyn shall have the right to appoint an independent internationally recognized audit firm, reasonably acceptable to American Regent, to audit the books of account of American Regent in order to determine whether American Regent has properly reported and accounted for any fees or payments due to CytoDyn pursuant to this Agreement. The appointed audit firm may perform audits during regular business hours, not more than once in any calendar days’ written year during the Term and upon reasonable prior notice to ZinniaAmerican Regent. CytoDyn shall bear the audit fees, Customer unless such Third Party auditor determines that the amount actually due CytoDyn, in the aggregate, exceeds the amounts paid or its designee may deemed paid by American Regent hereunder by the lower of [***] or [***], in which case American Regent shall bear the audit and verify fees. American Regent shall forthwith pay any amounts discovered to be due pursuant to an audit together with interest from the matters relating date payment was originally due at a rate equal to the TPA Services during normal business hours. If Customer engages the assistance lower of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth floating annual rate of [***] above the commercial prime rate as published in this TPA Addendum; the Wall Street Journal on the first Monday of every month calculated monthly or (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit The results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs final and fees necessary to do sobinding upon the Parties.
Appears in 2 contracts
Sources: Distribution and Supply Agreement (CytoDyn Inc.), Distribution Agreement (CytoDyn Inc.)
Audit. 5.1. Upon at least ten (10a) calendar days’ At the reasonable request, and sole expense, of AskGene within [**] after the applicable Calendar Quarter with respect to which a Quarterly Report is delivered hereunder, Xilio shall permit a qualified independent certified public accountant designated by AskGene and reasonably acceptable to Licensee (the “Auditor”) to access Xilio’s applicable records maintained pursuant to Section 5.1 upon reasonable (but not less than [**]) prior written notice to ZinniaXilio, Customer solely for the purpose of verifying the information in such Quarterly Report in relation to Royalty payments. The Auditor must conduct such audit during Xilio’s normal business hours in a manner designed to minimize disruption of Xilio’s normal business operations and complete such audit within a reasonable period of time after commencing such audit. All information and materials made available to or its designee may otherwise obtained or prepared by or for the Auditor in connection with such audit will be deemed Xilio’s Confidential Information and verify the matters relating will be subject to the TPA Services during normal business hours. If Customer engages the assistance of a third party Auditor’s entry, prior to perform conducting the audit, the third party must (a) execute into a written agreement with Xilio containing confidentiality agreement that contains protections for Confidential Information comparable to and restricted use obligations at least as restrictive as those set forth out in Article 8. AskGene may not exercise this TPA Addendum; right more than [**] period (except that AskGene may conduct a [**] audit in such [**] period if AskGene has reasonable grounds to suspect a material breach of this Agreement by Xilio of its reporting and payment obligations), and the Auditor may only disclose to AskGene information limited to the accuracy of the audited Quarterly Report and any deficiency in the Royalty payment made, or any overpayment, and no other information or materials made available to or otherwise obtained or prepared by or for the Auditor in connection with such audit. AskGene shall not compensate the Auditor (in whole or in part) contingent on the outcome of the audit.
(b) not be AskGene shall provide to Xilio a competitor copy of the Auditor’s audit report within [**] of AskGene’s receipt of the final report. If such report shows that payments made by Xilio are deficient, subject to Zinnia Section 4.5 and Section 4.6, Xilio shall pay AskGene the deficient amount within [**] after Xilio’s receipt of the audit report, except to the extent that Xilio disputes such deficiency in good faith (in which event Xilio may withhold payment of such disputed amount subject to resolution of such dispute). If the report shows that payments made by Xilio were in excess of the required payment, AskGene shall promptly pay to Xilio the excess amount at the time it provides the copy of the Auditor’s audit report to Xilio. If the Auditor’s audit report shows that payments made by Xilio are deficient by more than [**] percent ([**]%) of the amount due for the audited period, Xilio shall promptly reimburse AskGene for its reasonable, documented out-of-pocket costs of such audit.
(c) The failure of AskGene to request an audit or verification of any Quarterly Report during the [**] period after its receipt of such Quarterly Report is deemed acceptance by AskGene of the accuracy of such Quarterly Report and the payments made by Xilio in accordance with such Quarterly Report and, thereafter, AskGene’s audit rights under this Section 5.3 shall no longer apply with respect to such Quarterly Report, the payments made by Xilio in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate accordance with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, such Quarterly Report and any Regulatory Authority, in connection with audits in relation hereto and/or facts or circumstances to any Order which such Quarterly Report and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerpayments relate.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Cross License Agreement (Xilio Therapeutics, Inc.), Cross License Agreement (Xilio Therapeutics, Inc.)
Audit. 5.1(i) The payment by Tenant of any of Tenant’s Additional Rental or other Rent charged to Tenant hereunder pursuant to this Lease shall not preclude Tenant from questioning the accuracy of any statement provided by Landlord provided such question is submitted within the applicable time limits set forth in this Lease.
(ii) Landlord shall provide to Tenant in substantial detail each year the calculations performed to determine Tenant’s Operating Expenses Amount for the Project in accordance with the applicable provisions of this Lease. Upon Landlord shall show the total Operating Expenses by account for the Project and all adjustments corresponding to the requirements as set forth herein. Landlord shall also provide in reasonable detail its calculation of Tenant’s Additional Rental or other Rent charged to Tenant hereunder.
(iii) Provided Tenant is not in default under the terms of this Lease (including the payment by Tenant of Tenant’s Additional Rental within the time period specified in Section 2.3.3) and subject to this paragraph, Tenant, at its sole expense, shall have the right once per calendar year during the Term to employ a certified public accountant (on an hourly not a contingent fee arrangement) to audit Landlord’s books and records, relating to Tenant’s Additional Rental as well as other Rent payable by Tenant pursuant to this Lease to ensure that Landlord is complying with the applicable Lease provisions. This audit must take place on a mutually agreeable date during reasonable business hours at Landlord’s office at the address stated above and only after Tenant has given Landlord at least ten (10) calendar days’ business days prior written notice of the date and time Tenant desires to Zinnia, Customer or its designee may commence such audit. Landlord agrees to maintain all applicable records until the expiration of Tenant’s rights to audit and verify the matters relating to the TPA Services during normal business hourssaid records. If Customer engages Tenant elects to exercise this right, Tenant must do so within twelve (12) months after the assistance date Landlord delivers to Tenant the statements described in Section 2.3.3 or Tenant shall be deemed to have accepted the amount of a third party Tenant’s Additional Rental or other Rent charged to perform Tenant hereunder as presented by Landlord. If Tenant elects to audit Landlord’s books and records, Landlord shall have the audit, right to deliver to Tenant an audit of the third party must (a) execute a confidentiality agreement that contains protections Operating Expenses for Confidential Information comparable the immediately preceding calendar year prepared by an accounting firm of national prominence. If Tenant elects to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia proceed with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing and such audit reflects a difference from Landlord’s calculation of its determination, including the amount of Tenant’s Additional Rental or other Rent charged to Tenant hereunder, the overcharge and the basis for its conclusion, and, if Zinnia, parties will attempt to reconcile their respective calculations. If such audit indicates that there has been an overstatement in ▇▇▇▇▇▇Landlord’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer calculation of the amount of the overcharge Tenant’s Additional Rental or other Rent charged to Tenant hereunder, Landlord shall, within ten (10) days (“Overcharge Due Date”)after its receipt of such audit, refund any excess payment of Tenant’s Additional Rental or other Rent charged to Tenant hereunder to Tenant. If Zinnia does not repay in fact there has been an overstatement in Landlord’s calculation of the amount of Tenant’s Additional Rental or other Rent charged to Tenant hereunder of $50,000 or more, then in addition to refunding any excess payments of Tenant’s Additional Rental or other Rent charged to Tenant hereunder made by Tenant, Landlord shall reimburse Tenant for the reasonable costs and expenses incurred by Tenant in causing such overcharge within ten audit to be performed specifically excluding any costs based on a contingent fee arrangement. If in fact there has been an understatement in Landlord’s calculation of the amount of Tenant’s Additional Rental or other Rent charged to Tenant hereunder, Tenant shall pay the amount of the understatement to Landlord. In the event an audit reveals the overstatement or understatement of Landlord’s calculation of the amount of Tenant’s Additional Rental or other Rent charged to Tenant hereunder, Landlord or Tenant as applicable, may request the audit of the item or items giving rise to such error for the two (102) days, Customer may charge interest on such overdue amount at calendar years preceding the rate year which is the subject of one and one-half percent (1.5%) per month (or the highest rate permitted by lawaudit. In addition to the foregoing, if less) calculated from any audit by Landlord or its agents indicates that the Overcharge Due Date until amount of Tenant’s Additional Rental or other Rent charged to Tenant hereunder paid for any calendar year was greater than the date amount of ZinniaTenant’s Additional Rental or other Rent charged to Tenant hereunder charged by Landlord, Landlord shall refund any excess payment of Tenant’s Additional Rental or other Rent charged to Customer, unless such claim of overcharge is promptly (but in any event Tenant hereunder within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result after its receipt of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Office Lease Agreement (Exterran Holdings Inc.), Office Lease Agreement (Exterran Energy Solutions, L.P.)
Audit. 5.1. Upon Provided there is no Event of Default nor any event which, with the passage of time and/or the giving of notice would constitute an Event of Default, Tenant may, upon at least ten (10) calendar days’ prior written notice to Zinnianotice, Customer inspect or its designee may audit and verify the matters Landlord’s records relating to Operating Costs and/or Taxes for any periods of time within the TPA Services during normal business hoursprevious fiscal year before the audit or inspection (it being understood that if Tenant shall cure any such default within applicable notice and/or cure periods provided in Section 20.1 below, then Tenant shall thereafter be entitled to perform such inspection or audit). Landlord shall provide Tenant with access to such records at a location within the Greater Boston area in accordance with this Section 5.2(g) within ten (10) days after receipt of notice from Tenant. However, no audit or inspection shall extend to periods of time before the Rent Commencement Date. If Customer engages Tenant fails to object to the assistance calculation of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businessShare of Operating Costs and/or Taxes on the Year-End Statement within ninety (90) days after such statement has been delivered to Tenant and/or fails to complete any such audit or inspection within sixty (60) days after Landlord’s records are made available to Tenant in accordance with this Section 5.2(g), then Tenant shall be deemed to have waived its right to object to the calculation of Tenant’s Share of Operating Costs and/or Taxes, as the case may be, for the year in question and the calculation thereof as set forth on such statement shall be final. Tenant’s audit or inspection shall be conducted only at Landlord’s offices or the offices of Landlord’s property manager at a location within the Greater Boston area during business hours reasonably designated by Landlord. Tenant shall pay the cost of such audit or inspection, provided, however, that if such audit discloses that Tenant has been overcharged by more than five percent (5%), Landlord shall reimburse Tenant for Tenant’s reasonable out-of pocket costs incurred in connection with such audit. Tenant may not conduct an inspection or have an audit performed more than once during any fiscal year. If such inspection or audit reveals that an error was made in the calculation of Tenant’s Share of Operating Costs or Taxes previously charged to Tenant, then, provided there is no Event of Default nor an event which, with the passage of time and/or the giving of notice would constitute an Event of Default, Tenant may credit the difference against the next installment of additional rent on account of Operating Costs or Taxes, as the case may be, due hereunder (it being understood that if Tenant shall cure any such default within applicable notice and/or cure periods provided in Section 20.1 below, then Tenant shall thereafter be entitled to take such credit), except that if such difference is determined after the end of the Term, Landlord shall refund such difference to Tenant within thirty (30) days after such determination to the extent that such difference exceeds any amounts then due from Tenant to Landlord. If such inspection or audit reveals an underpayment by ▇▇▇▇▇▇ in its sole▇, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or then Tenant shall pay to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. IfLandlord, as a result additional rent hereunder, any underpayment of any such costs, after deducting the reasonable out of pocket costs of such inspection or audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days after such underpayment is determined. Tenant shall maintain the results of receipt any such audit or inspection confidential and shall not be permitted to use any third party to perform such audit or inspection, other than an independent firm of an itemized invoice from Customer.
5.3. At least annuallycertified public accountants (A) reasonably acceptable to Landlord, (B) which is not compensated on a contingency fee basis or in any other manner which is dependent upon the results of such audit or inspection, and at no additional charge (C) which executes Landlord’s standard confidentiality agreement whereby it shall agree to Customer, Zinnia will provide to Customer copies maintain the results of SOC 1 Type 2 and SOC 2 Type 2 such audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractorsinspection confidential. The provisions of this Section 5.2(g) is providing shall survive the Services. Such reports provided by Zinnia under expiration or earlier termination of this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soLease.
Appears in 2 contracts
Sources: Lease Agreement (uniQure B.V.), Lease Agreement (uniQure B.V.)
Audit. 5.1. Upon at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement Licensor’s Audit Rights.
(i) Licensor, through its outside auditor, which shall be subject to STE’s approval (with STE hereby pre-approving the so-called “Big 4” accounting firms and any non-affiliated entity that contains protections is at the time of an audit permitted hereunder providing audit services for Confidential Information comparable Licensor) shall have the right to those set forth inspect and audit STE’s books and records required to verify information relevant to, and to determine whether STE is in compliance with, this TPA Addendum; Amended & Restated Amendment, including, but not limited to, Sections 2(b)(v) and 2(c)(vii) (b“Licensor MFN Provisions”), Section 2(c) and Section 6. The parties acknowledge that STE shall not be required to disclose any documents subject to attorney/client privilege or other evidentiary legal privilege to Licensor in the course of such audit. Licensor may elect to conduct such audit (A) at any time within five business days after receipt of a competitor notice delivered to Zinnia Licensor in accordance with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, a the applicable Licensor MFN Provisions and (cB) no more than one time during any Year and such audits shall not cover time periods previously audited except to review additional information not available at the time of such prior audit. Any audit shall be compensated on conducted at STE’s home office and shall be made by such person or persons Licensor shall designate in accordance with the first sentence of this Section 28(a)(i) (“Approved Licensor Auditor”) during reasonable business hours upon reasonable prior notice and shall not last on-site for more than 20 consecutive business days, provided STE and its affiliates have supplied within a contingency basisreasonable period of time all information necessary to conduct standard auditing procedures.
5.2. Zinnia will reasonably cooperate with and assist Customer(ii) Additionally, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, audit performed as a result of any Licensor’s exercise of its rights under Section 28(a)(i)(A) above shall be subject to the following conditions: (1) prior to performing such audit, Customer determines the Approved Licensor Auditor shall enter into a confidentiality agreement with Licensor and STE, pursuant to which the Approved Licensor Auditor shall agree to not disclose any information to Licensor other than in accordance with the conditions set forth herein; (2) if the Approved Licensor Auditor determines, following such audit, that Zinnia overcharged itLicensor’s rights under the applicable Licensor MFN Provision(s) have not been triggered, Customer the Approved Licensor Auditor shall notify Zinnia so inform Licensor and STE and no other information shall be provided to Licensor in writing respect of such audit; (3) if the Approved Licensor Auditor believes, following such audit, that Licensor’s rights under the applicable Licensor MFN Provision(s) have been triggered, the Approved Licensor Auditor shall so inform only STE, and the Approved Licensor Auditor and STE shall attempt to resolve such apparent trigger; (4) if the Approved Licensor Auditor and STE, after discussions, determine that Licensor’s rights under the applicable Licensor MFN Provision(s) have not been triggered, the Approved Licensor Auditor shall so inform Licensor and STE and no other information shall be provided to Licensor; (5) if the Approved Licensor Auditor and STE, after discussions, either determine that Licensor’s rights under the applicable Licensor MFN Provision(s) have been triggered or are unable to agree as to whether Licensor’s rights under the applicable Licensor MFN Provision(s) have been triggered, the Approved Licensor Auditor shall provide to Licensor only such information as directly pertains to such trigger and the exercise of Licensor’s rights under the applicable Licensor MFN Provision(s). For the purposes of clarification, no audit performed under this Section shall relieve STE of its determination, including obligation to continue to provide notices to Licensor under the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (iiLicensor MFN Provision(s) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerand when appropriate.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Pay Television License Agreement, Pay Television License Agreement
Audit. 5.1. Upon at least ten (10) calendar days’ written notice to ZinniaThe University may, Customer itself or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of using a third party agent, audit the books and records of Licensee upon [***] advance written notice specifying any time of day during Licensee’s business hours (or if Licensee has no set business hours then during the hours of 8AM to 4PM) at Licensee’s place of business for the purpose of verifying Licensee’s reports and compliance by Licensee in all other respects with this Agreement. No such audits shall be conducted hereunder more frequently than once every [***] nor shall University be permitted to repeat an audit of books for a period previously audited unless: (i) there is reason to believe that any of the circumstances described in Section 9.02 has occurred; or (ii) with respect to a repeat audit, Licensee has undergone a restatement of its records for that period. Notwithstanding the foregoing, Licensee will grant University, or its auditor, access to all of Licensee’s records for all prior periods to the extent necessary to perform a proper audit. If any audit identifies an underpayment by Licensee, Licensee will promptly pay the underpayment to University including interest as provided for in Section 4.03. If any audit identifies an overpayment by Licensee, Licensee may deduct such overpayment from the next scheduled payments due University until such overpayment has been recovered by Licensee. If any audit leads to the discovery of an underpayment by Licensee in respect of any Calendar Quarter of [***] between amounts due in respect of such quarter and amounts reported to be due by Licensee in its quarterly report for such quarter or otherwise reveals a previously undisclosed material breach of this Agreement, Licensee will, within [***] after written notice from the University, reimburse the University for all of its costs related to the audit. Otherwise, any audit will be at the third party must (a) execute University’s expense. Licensee will, in any event and without regard to the size of the discrepancy, [***] pay to the University the amount of any previous underpayment, including interest from the time such amount was due until paid in full in accordance with Section 4.03. Any audit conducted pursuant to this Section 5.05 will be conducted, at University’s option, by the University itself or by an auditor selected by University and reasonably acceptable to the Licensee. For the avoidance of any doubt, University’s right to audit books under this Section 5.05 applies to all Affiliates that sell Licensed Products or practice Licensed Processes and to all Sublicensees to the same extent that it applies to Licensee. Failure by Licensee, an Affiliate or a confidentiality agreement that contains protections for Confidential Information comparable Sublicensee to those permit University to conduct an audit as set forth in this TPA Addendum; (b) not be a competitor Section 5.05 will [***] give University the right to Zinnia suspend the non-compliant party’s rights under the Patent Rights and/or Copyright until such time as said party becomes compliant with this Section 5.05. University’s right to audit Licensee’s books in accordance with this Section 5.05 will extend for [***] after the expiration or termination of this Agreement for any reason. With respect to in ▇▇▇▇▇▇any University’s third party administrator businessrights under a continuing Sublicense under Sections 2.03(A) and 2.03(E), as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basisUniversity’s right to audit the Sublicensee’s books will extend for [***] after the expiration or termination of said Sublicense for any reason.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Control Algorithm License Agreement (Beta Bionics, Inc), Control Algorithm License Agreement (Beta Bionics, Inc)
Audit. 5.1. (a) Upon at least ten the written request of a Party (10the "Auditing Party"), and not more than once in each calendar year, the other Party (the "Audited Party") calendar days’ written notice to Zinniashall permit an independent certified public accounting firm of nationally recognized standing selected by the Auditing Party, Customer or its designee may audit and verify the matters relating reasonably acceptable to the TPA Services Audited Party, at the Auditing Party's expense, to have access during normal business hours, and upon reasonable prior written notice, to such of the records of the Audited Party as may be reasonably necessary to verify the accuracy of the reports of the Audited Party's Fully-Burdened Manufacturing Costs for Components hereunder for any calendar year ending not more than thirty-six (36) months prior to the date of such request. If Customer engages The accounting firm shall disclose to the assistance of a third party Auditing Party and the Audited Party only whether such reports are correct or incorrect and the specific details concerning any discrepancies. No other information shall be provided to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; Auditing Party.
(b) not be If such accounting firm concludes that the Audited Party overstated its Fully-Burdened Manufacturing Costs for a competitor to Zinnia particular Component or Components during such period, the Audited Party shall reimburse the Auditing Party the difference between what the Auditing Party paid and what was actually owed, with respect to in ▇▇▇▇▇▇’s third party administrator businessinterest from the date originally due at the prime rate, as determined by ▇▇▇▇▇▇ published in its soleThe Wall Street Journal (Eastern U.S. Edition) on the last business day preceding such date, reasonable discretion, and within thirty (c30) not be compensated on a contingency basis.
5.2days after the date the Auditing Party delivers to the Audited Party such accounting firm's written report. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including If the amount of the overcharge difference is greater than five percent (5%) of the total amount owed, then the Audited Party shall in addition reimburse the Auditing Party for all costs related to such audit.
(c) The Auditing Party shall treat all information subject to review under this Section 5.2 in accordance with the confidentiality provisions of Article 6 of this Agreement, and shall cause its accounting firm to enter into an acceptable confidentiality agreement with the basis Audited Party obligating such firm to retain all such financial information in confidence pursuant to such confidentiality agreement.
(d) If the Audited Party in good faith disputes the conclusion of the accounting firm under subsection (b) above that the Audited Party overstated its Fully-Burdened Manufacturing Costs for its a particular Component or Components, or any specific aspect of the conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer then the amount of Audited Party shall inform the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted Auditing Party by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s written notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt receiving a copy of an itemized invoice from Customer.
5.3the audit containing such conclusion, specifying in detail the reasons for the Audited Party's disputing such conclusion. At least annually, The Parties shall promptly thereafter meet and at no additional charge negotiate in good faith a resolution to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesdispute. In the event that the Parties are unable to resolve such reports include any negative audit findings impacting dispute within sixty (60) days after such Audited Party notice, the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia matter shall be solely responsible for all costs and fees necessary to do soresolved in a manner consistent with the procedures set forth in Section 11.7.
Appears in 2 contracts
Sources: Manufacturing and Supply Agreement, Manufacturing and Supply Agreement (Dendreon Corp)
Audit. 5.1. Upon The Borrower shall, and shall cause the Servicer, the Custodian and the Parent to, permit each Lender, the Administrative Agent or their duly authorized representatives, attorneys or auditors during ordinary business hours and upon three (3) Business Days written notice, to visit the offices thereof and to inspect the Collateral and the Collateral Packages, and the related accounts, records and computer systems, software and programs used or maintained by the Borrower, the Servicer, the Parent or the Custodian, as the case may be at least ten such times as such Lender or the Administrative Agent may reasonably request, using auditors and/or accountants selected by such Lender or the Administrative Agent in its sole and absolute discretion (10a “Collateral Audit”) calendar days’ written notice and the Borrower shall enable the Insurance Consultant to Zinnia, Customer or its designee may audit seek and verify receive from the matters relating related Issuing Insurance Companies any verifications of coverage related to the TPA Services during normal business hoursPledged Policies as often as the Administrative Agent may request the Insurance Consultant to do so (though not more frequently than once per month unless an Event of Default or Unmatured Event of Default has occurred and is continuing). If Customer engages Unless an Event of Default or an Unmatured Event of Default has occurred and is continuing, a Collateral Audit under this Section 9.1(i) may be conducted not more frequently than once per month. The Borrower shall promptly on demand reimburse the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge Administrative Agent and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible Lenders for all costs and fees expenses incurred by or on behalf of the Administrative Agent and the Lenders in connection with any Collateral Audit and their ongoing review and Insurance Consultant’s ongoing review of the documents related to the Pledged Policies, including without limitation the documents on the FTP Site; provided, however, if no Event of Default or Unmatured Event of Default has occurred and is continuing, no more than one Collateral Audit per year shall be at the expense of the Borrower (all other Collateral Audits in a year being at the expense of the Lenders) and the total expenses incurred by or on behalf of the Borrower related to a Collateral Audit (including any reimbursements actually made by the Borrower to the Lenders and the Administrative Agent in connection with such Collateral Audit), a Servicer Collateral Audit, enabling the Insurance Consultant to receive any verifications of coverage, information requests described in Section 9.1(cc) and audits conducted pursuant to Section 13.8(a)(iv), in each case, excluding any internal and third-party costs and expenses incurred in the ordinary course by or on behalf of the Borrower, shall be limited to no more than $2,200 for each Pledged Policy (or if such Pledged Policy is a Small Face Policy and payment of Premiums in respect of such Pledged Policy are made on an annual basis, $500 for each such Pledged Policy) (as adjusted annually for inflation or such higher amount if such higher amount is the Insurance Consultant’s reasonably determined prevailing market cost in the industry for such Collateral Audits or ongoing reviews of the type in question as adjusted for changes in audit standards) during the shorter of (i) the prior twelve (12) month period and (ii) the period of time commencing on the most recent Advance Date and ending on the date of such Collateral Audit, verification of coverage, information request or audit, as applicable. Upon instructions from the Administrative Agent, the Borrower shall, and shall cause the Servicer (and the Administrative Agent may cause the Custodian) to release any document related to any Collateral to the Administrative Agent. If an Event of Default or Unmatured Event of Default has occurred and is continuing, the Administrative Agent, at the Borrower’s expense, shall have the right to conduct a Collateral Audit at any time and as often the Administrative Agent determines is necessary to do soor desirable. For the avoidance of doubt, any review and evaluation of Additional Policies conducted by the Administrative Agent or the Lenders in connection with a Borrowing Request shall not constitute a Collateral Audit.
Appears in 2 contracts
Sources: Loan and Security Agreement (GWG Holdings, Inc.), Loan and Security Agreement (GWG Holdings, Inc.)
Audit. 5.1. Upon at least ten For ninety (1090) calendar days’ days following Landlord’s delivery to Tenant of the Annual Expense Reconciliation, Tenant will have the right, during normal business hours and upon no less than five (5) days prior written notice to ZinniaLandlord, Customer to examine Landlord’s books and records for the purpose of confirming the Annual Expense Reconciliation, which records will be either located in the State of New Jersey or its designee may audit provided through a cloud-based storage service, such as Dropbox. Tenant will be deemed to have accepted the Annual Expense Reconciliation unless, within fifteen (15) days after Tenant’s examination of Landlord’s books and verify the matters relating records, Tenant delivers an objection notice to Landlord specifying in detail why Tenant believes such Annual Expense Reconciliation is incorrect. Notwithstanding anything to the TPA Services during normal business hours. If Customer engages the assistance of a third party contrary contained in this Section 5.5, Tenant will not be permitted to perform the auditexamine Landlord’s books and records or to dispute any Annual Expense Reconciliation unless (i) Tenant has paid to Landlord all amounts due as shown on such Annual Expense Reconciliation, the third party must and (aii) execute Tenant has signed a confidentiality agreement that contains protections acceptable to Landlord. Tenant shall not engage the services of any legal counsel or other professional consultant who charges for Confidential Information comparable its services on a so-called contingency fee basis for the purpose of reviewing Landlord’s books and records. Landlord shall maintain its books and records for each Annual Expense Reconciliation for no less than five (5) years. If (i) such audit discloses an overcharge to those set forth Tenant which is in this TPA Addendum; excess of five percent (b5%) not be a competitor of the amount charged to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businessTenant, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion(ii) Landlord disputes such audit results, and (ciii) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge dispute is not settled by Landlord and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer Tenant within thirty (30) days after the dispute arises, or such longer period to which they may mutually agree, then such dispute may, at the option of either party, be submitted to arbitration in accordance with the terms of Section 29.18 of this Lease. If Tenant’s audit discloses any overcharge to Tenant and Landlord agrees with such findings, or, in the event of a dispute submitted to arbitration pursuant to the immediately preceding sentence, the arbitrator rules in favor of Tenant, then the amount of the overcharge shall be applied by Landlord against the next accruing monthly installment(s) of Additional Rent due under this Article 5, unless the surplus equals or exceeds Ten Thousand and 00/100 ($10,000.00) Dollars, in which case Tenant may require that Landlord refund such surplus to Tenant within thirty (30) days after Tenant’s notice thereof to Landlord. If the Term has expired or has been terminated, Landlord shall refund the surplus to Tenant within thirty (30) days after receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 Tenant’s audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesresults. In addition, if the event amount of Landlord’s Operating Expenses as shown on the Annual Expense Reconciliation is five percent (5%) or more in excess of the amount actually owed by Tenant, then, in addition to refunding to Tenant the amount of any such reports include any negative overcharges so disclosed (with interest on such overcharges at the Prime Rate), Landlord shall also pay to Tenant the reasonable, actual, third-party cost of Tenant’s audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, an amount not to exceed Five Thousand and Zinnia shall be solely responsible for all costs and fees necessary to do so00/100 ($5,000.00) Dollars.
Appears in 2 contracts
Sources: Lease Agreement (BTRS Holdings Inc.), Lease Agreement (South Mountain Merger Corp.)
Audit. 5.1. Upon at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify the matters relating Subject to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those requirements set forth in Section 7.1 of this TPA Addendum; (b) not Franchise, Franchisee shall be a competitor responsible for making available to Zinnia with respect the LFA for inspection and audit, all records necessary to in confirm the accurate payment of Franchise Fees and the ▇▇▇ ▇▇▇▇▇▇, whether the records are held by the Franchisee or an Affiliate, including records received in the ordinary course of business from any entity that collects or receives funds related to the Franchisee’s third party administrator businessCable Services operation in the LFA subject to the payment of Franchise Fees under this Agreement (e.g., as determined by ▇▇▇▇▇▇ any entity that sells advertising on the Franchisee’s behalf). Franchisee shall maintain such records for six (6) years, provided that, if the LFA commences an audit within that six (6) year period, Franchisee shall continue to maintain such records for the duration of any audit in its sole, reasonable discretionprogress at the end of that six (6) year period. The LFA shall conduct all audits expeditiously, and neither the LFA nor Franchisee shall unreasonably delay the completion of an audit. The LFA’s audit expenses shall be borne by the LFA unless the audit determines that the payment to the LFA should be increased by five percent (c5%) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authorityor more in the audited period, in connection with audits in relation hereto and/or to any Order and shallwhich case the reasonable, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate documented out of a competitor to Zinnia or its Affiliates Customer will pay all pocket costs attributable to such audits except as otherwise stated herein. If, as a result of any such the audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including together with any additional amounts due to the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely LFA as a result of such material faultaudit, and ▇▇▇▇▇▇ will reimburse Customer shall be paid by Franchisee to the LFA within sixty (i60) for days following written notice to Franchisee by the reasonable and documented costs LFA of the portion underpayment, which notice shall include a copy of the audit report; provided, however, that uncovered Franchisee’s obligation to pay or reimburse the LFA’s audit expenses shall not exceed SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500). If re-computation results in additional revenue to be paid to the LFA, such material faultamount shall be subject to interest charges computed from the due date, at the then-current rate set forth in Section 5004 of the New York Civil Practice Law and Rules (which as of the date of execution of this Agreement is nine percent (9%) per annum) per annum during the period such unpaid amount is owed. If the audit determines that there has been an overpayment by Franchisee, the Franchisee may credit any overpayment against its next quarterly payment. Said audit shall be conducted by an independent third party and no auditor so employed by the LFA shall be compensated on a success based formula, e.g., payment based on a percentage of an underpayment, if it is commercially feasible to identify only those any. The LFA shall not conduct an audit costs that are attributable to such material fault or more frequently than once every three (ii3) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customeryears.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Cable Franchise Agreement, Cable Television Franchise Agreement
Audit. 5.1. Upon 8 (a) At its option, Landlord may at least any time upon ten (10) calendar days’ prior written notice to Zinnia9 Tenant, Customer or its designee may cause a complete audit (including a physical inventory) to be made by an auditor selected by 10 Landlord of the entire records and verify the matters operations of Tenant and/or any subtenants, concessionaires, licensees 11 and/or assignees relating to the TPA Services during normal business hours. If Customer engages Premises for the assistance of period covered by any statement issued or required to be 12 issued by Tenant or a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those concessionaire as above set forth in this TPA Addendum; Article III. Tenant shall make available to 13 Landlord's auditor at the Premises or at Tenant's principal business office in the United States, within 14 thirty (b30) not be a competitor to Zinnia with respect to in days following ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any 's notice requiring such audit, Customer determines that Zinnia overcharged itall of the books, Customer shall notify Zinnia in writing source documents, 15 accounts, records and sales tax reports of Tenant and any of its determinationconcessionaires which such auditor deems 16 necessary or desirable for the purpose of making such audit, including Tenant’s state and federal income 17 tax returns. If such audit discloses that Tenant's Gross Sales as previously reported for the amount period audited 18 were understated, Tenant shall immediately pay to Landlord the additional percentage rental due for the 19 period audited. Further, if such understatement was in excess of three percent (3%) of Tenant's actual 20 Gross Sales as disclosed by such audit, Tenant shall immediately pay to Landlord the overcharge cost of such audit, 21 and if such understatement was in excess of ten percent (10%) of Tenant's Gross Sales as disclosed by 22 such audit, Landlord may declare this Lease terminated and the basis for its conclusion, and, if ZinniaTerm ended, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest which event this Lease 23 shall cease and terminate on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless specified in such claim of overcharge is promptly notice (but in any event within ten (10) days from the date of Customer’s which notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will shall be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within no less than thirty 24 (30) days days) with the same force and effect as though the date set forth in such notice were the date set forth 25 in this Lease for expiration of receipt of an itemized invoice from Customer.
5.3. At least annuallythe Term, and at no additional charge to Customer, Zinnia will provide to Customer copies Tenant shall vacate and surrender the Premises on or before 26 such date in the condition required by this Lease for surrender upon the expiration of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soTerm.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Audit. 5.1A. For purposes of this Section, an audit will mean a Customer requested comprehensive review (hereinafter "Audit") of a Service, except as cited in paragraph F of this Section. Upon at least Such Audit may encompass one (1) or more departments. Customer may conduct one (1) Audit during each year of the term of this Agreement over the Qwest Regions in which Qwest is billing for Customer under this Agreement; provided, however, that if an Audit uncovers a discrepancy in excess of ten percent (10%), then Customer will be entitled to another Audit within that one (1) calendar days’ year period. If an Audit is requested in one (1) or more Qwest Regions, it will be counted as one (1) Audit.
B. Both Parties agree that the Audit will be limited to a statistically valid sample with a ninety percent (90%) confidence level and be further limited to the exact subject matter outlined in the written notice notification, as described in paragraph E, below. All Qwest expenses incurred during the Audit, including, but not limited to, investigative work, extraction of data and travel, will be shared equally by the Parties.
C. At such time as Customer desires to Zinniaexpand an Audit beyond a ninety percent (90%) confidence level, Customer or its designee may audit agrees to pay all of Qwest's reasonable expenses for the incremental Audit activities required, including, but not limited to, account extraction, masking, analyzing accounts, and verify other Audit activities, at the matters relating to rates set forth in Exhibit C, Consulting Services.
D. At such time as an Audit is requested, the TPA Services during normal business hours. If Customer engages the assistance of Parties will share equally all expenses associated with hiring a third party single independent auditor to perform the auditAudit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businessprovided, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditorif the Audit proves a discrepancy in excess of fifteen percent (15%) in favor of Customer, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer Qwest will pay all costs attributable such expenses. Prior to performing an Audit, the independent auditor will be required to sign a joint non-disclosure agreement with Customer and Qwest.
E. To initiate an Audit, Customer will provide Qwest with written notice of its intent to Audit as well as the specific requirements of the Audit. Such requirements will identify:
1. the exact Service to be audited;
2. the desired start date;
3. the desired Audit location;
4. Customer's representatives; and
5. specific materials to be reviewed, i.e.,
a. number of accounts;
b. type of accounts;
c. Billing Transaction detail; and
d. time period of data to be reviewed.
F. After the Parties have agreed on the specific details of an Audit, including all requirements, a detailed time and cost estimate will be prepared by Qwest in accordance with the prices specified in Exhibit C, Consulting Service.
G. The independent auditor will have the right, on behalf of Customer, to review all such records and accounts as may, under recognized or generally accepted accounting practices, or as otherwise will be reasonably necessary for the completion of the Audit, contain information on Customer's End User accounts and Services. Qwest will cooperate with all reasonable requests of the independent auditor and provide as promptly as reasonably practicable all information relevant to such audits except request (subject to the other provisions of this Agreement including Section 9.C and the remainder of this Section 9.G). All information reviewed by the independent auditor is considered Confidential Information as otherwise stated hereinsuch term is defined in Section 17 hereof. If, as a result Qwest will provide for review extracts or masked data containing information pertinent only to Customer. Qwest will not provide for review portions of any such audit, Customer determines source documents that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount contain information relating to other entities for which Qwest is providing Services.
H. Upon completion of the overcharge and the basis for its conclusionAudit, andcorrective action, if Zinniaany, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer initiated within thirty (30) days of receipt the mutually agreed upon resolution. Any Qwest liability for Services disclosed by the Audit will result in an adjustment, which will be limited in accordance with the provisions of Section 10.
I. All costs incurred by Qwest when Qwest participates on behalf of Customer during the course of an itemized invoice Audit of Customer ordered by a Governmental Entity will be the responsibility of Customer. Prior to Qwest's participation in a third party Audit, a detailed estimate will be prepared, based upon Customer's written notice, in accordance with the terms and prices set forth in Exhibits B and C respectively, Consulting Services. The estimate will be valid for a period of thirty (30) days from the date the estimate is delivered to Customer. Unless Qwest is ordered to conduct the Audit by a court or regulatory authority, both Parties must approve the estimate, and any subsequent revisions, in writing, prior to Qwest performing such services or Customer incurring any costs.
5.3. At least annuallyJ. Notwithstanding the foregoing Audit provisions, Qwest will provide Customer and at no additional charge its representatives (including financing providers), during normal business hours and as soon as commercially practicable after reasonable written request during the Term, with access to review and discuss the books and records and other information and personnel related to Customer's Account Receivables hereunder, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services subject in any way, Zinnia shall promptly correct such negative findings, event to all applicable law and Zinnia shall be solely responsible for all costs and fees necessary to do soconfidentiality provisions.
Appears in 2 contracts
Sources: Agreement for the Provision of Billing and Collection Services (Dex Media East LLC), Agreement for the Provision of Billing and Collection Services (Dex Media Inc)
Audit. 5.1. Upon The Borrower shall, and shall cause the Servicer, the Custodian and the Parent to, permit each Lender, the Administrative Agent or their duly authorized representatives, attorneys or auditors during ordinary business hours and upon three (3) Business Days written notice, to visit the offices thereof and to inspect the Collateral and the Collateral Packages, and the related accounts, records and computer systems, software and programs used or maintained by the Borrower, the Servicer, the Parent or the Custodian, as the case may be at least ten such times as such Lender or the Administrative Agent may reasonably request, using auditors and/or accountants selected by such Lender or the Administrative Agent in its sole and absolute discretion (10a “Collateral Audit”) calendar days’ written notice and the Borrower shall enable the Insurance Consultant to Zinnia, Customer or its designee may audit seek and verify receive from the matters relating related Issuing Insurance Companies any verifications of coverage related to the TPA Services during normal business hoursPledged Policies as often as the Administrative Agent may request the Insurance Consultant to do so (though not more frequently than once per month unless an Event of Default or Unmatured Event of Default has occurred and is continuing). If Customer engages Unless an Event of Default or an Unmatured Event of Default has occurred and is continuing, a Collateral Audit under this Section 9.1(i) may be conducted not more frequently than once per month. The Borrower shall promptly on demand reimburse the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge Administrative Agent and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible Lenders for all costs and fees expenses incurred by or on behalf of the Administrative Agent and the Lenders in connection with any Collateral Audit and their ongoing review and Insurance Consultant’s ongoing review of the documents related to the Pledged Policies, including without limitation the documents on the FTP Site; provided, however, if no Event of Default or Unmatured Event of Default has occurred and is continuing, no more than one Collateral Audit per year shall be at the expense of the Borrower (all other Collateral Audits in a year being at the expense of the Lenders) and the total expenses incurred by or on behalf of the Borrower related to a Collateral Audit (including any reimbursements actually made by the Borrower to the Lenders and the Administrative Agent in connection with such Collateral Audit), a Servicer Collateral Audit, enabling the Insurance Consultant to receive any verifications of coverage, information requests described in Section 9.1(cc) and audits conducted pursuant to Section 13.8(a)(iv), in each case, excluding any internal and third-party costs and expenses incurred in the ordinary course by or on behalf of the Borrower, shall be limited to no more than $2,200 for each Pledged Policy (or if such Pledged Policy is a Small Face Policy and payment of Premiums in respect of such Pledged Policy are made on an annual basis, $500 for each such Pledged Policy) (as adjusted annually for inflation or such higher amount if such higher amount is the Insurance Consultant’s reasonably determined prevailing market cost in the industry for such Collateral Audits or ongoing reviews of the type in question as adjusted for changes in audit standards) during the shorter of (i) the prior twelve (12) month period and (ii) the period of time commencing on the most recent Advance Date and ending on the date of such Collateral Audit, verification of coverage, information request or audit, as applicable. Upon instructions from the Administrative Agent, the Borrower shall, and shall cause the Servicer (and the Administrative Agent may cause the Custodian) to release any document related to any Collateral to the Administrative Agent. If an Event of Default or Unmatured Event of Default has occurred and is continuing, the Administrative Agent, at the Borrower’s expense, shall have the right to conduct a Collateral Audit at any time and as often the Administrative Agent determines is necessary to do soor desirable.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (GWG Holdings, Inc.)
Audit. 5.1. Upon at least ten (10) calendar days’ written notice Isis will have the right to Zinniahave an independent certified public accounting firm of nationally recognized standing, Customer or its designee may audit and verify the matters relating reasonably acceptable to the TPA Services Archemix, have access during normal business hours, and upon reasonable prior written notice, to Archemix’s records as may be reasonably necessary to verify the accuracy of Net Sales or Sublicense Revenue, as applicable, for any calendar quarter or calendar year ending not more than [***] months prior to the date of such request; provided, however, that Isis will not have the right to Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 406 of the Securities Act. If Customer engages the assistance of a third party conduct more than one such audit in any Calendar Year except as provided below or more than one such audit covering any given time period. Isis will require such accounting firm to perform the audit, the third party must (a) execute enter into a confidentiality agreement that contains protections for Confidential Information comparable with Archemix in a form reasonably acceptable to those set forth in this TPA Addendum; (b) not be a competitor Archemix prior to Zinnia with respect the conduct of any audit. The accounting firm will disclose to in ▇▇▇▇▇▇’s third party administrator businessIsis only whether the Net Sales and/or Sublicense Revenue has been correctly reported, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionthe specific detail concerning any discrepancies, and (c) not be compensated on a contingency basis.
5.2the corrected amount of Net Sales and/or Sublicense Revenue payments. Zinnia Isis will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authoritybear the cost of such audit unless the audit reveals an underpayment to Isis of more than [***]%, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer which case Archemix will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including bear the amount cost of the overcharge and audit. In any agreement for a Sublicense granted by Archemix hereunder, Archemix will use Commercially Reasonable Efforts to secure a similar right on the basis for part of Archemix to audit its conclusionArchemix Sublicensee, and, if Zinniareasonably requested in writing by Isis, in ▇▇▇▇▇▇will enforce such audit right and disclose its audit report to Isis’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerauditors.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: License Agreement (Archemix Corp.), License Agreement (Nitromed Inc)
Audit. 5.1. Upon Seller will have the right, at least ten (10) calendar days’ written notice its own cost, to Zinniahave an independent certified public accounting firm of nationally recognized standing, Customer or its designee may audit reasonably acceptable to Buyer and verify the matters relating who agrees to the TPA Services be bound by a customary undertaking of confidentiality, have access during normal business hours. If Customer engages , and upon reasonable prior written notice, to Buyer’s books, records and accounts (including, without limitation, electronic records and accounts) as may be reasonably necessary to verify the assistance accuracy of a third party to perform the auditNet Sales, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businessSublicense Receipts and Royalties, as determined by ▇▇▇▇▇▇ in its soleapplicable, reasonable discretionfor any period ending not more than twenty-four (24) months prior to the date of such request; provided, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may Seller will not use have the right to conduct more than one such audit in any auditorcalendar year or more than one such audit covering any given time period. The auditing firm will disclose to Seller only the results of its audit and not any other information. Any such audit shall be made during Buyer’s normal business hours and shall not unreasonably interfere with the business of Buyer and shall be completed within a reasonable timeframe. Seller will bear all the costs of such audit, inspector, consultant, or representative who is unless a competitor or Affiliate discrepancy of a competitor to Zinnia or its Affiliates Customer more than 5% exists in favor of the Seller in which case the Buyer will pay all bear the costs attributable to such audits except as otherwise stated hereinof said audit. If, as a result based on the results of any such audit, Customer determines that Zinnia overcharged itadditional payments are owed by Buyer under this Agreement, Customer shall notify Zinnia in writing of Buyer shall, at its determinationown cost, including the amount of the overcharge have an additional thirty (30) days to conduct an additional (second) audit to verify Seller’s audit results and the basis for its conclusiondiscrepancies found during the first audit, and, if Zinniaassuming the two audits reconcile, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay Buyer shall make such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer additional payments within thirty (30) days of after the date on which such second accounting firm’s written report is delivered to Buyer. Buyer will promptly, but no later than 7 days after the receipt of the second accounting firm's written report, give a copy of that report to Seller. If the results of the two audits do not reconcile, then the parties must engage in good faith negotiations for a period of thirty (30) days with the view of resolving the audit discrepancies as soon as possible. If the parties are unable to reach an itemized invoice from Customer.
5.3agreement as to how the audit discrepancies should be resolved, then a party may engage a third independent auditor (who will be selected by the head of the Institute of Certified Public Accountants in Israel if the parties are unable to agree an auditor) to review the discrepancies between the two audits and conduct (if necessary) a third and final audit to resolve those discrepancies. At least annually, and at no additional charge to Customer, Zinnia The third auditor will provide its draft report to Customer copies Seller and Buyer for their reasonable comment and review before finalizing same. The determination of SOC 1 Type 2 the third auditor will be final and SOC 2 Type 2 binding on the parties in the absence of manifest error. The parties shall equally share the costs incurred by the third auditor to be conducted, unless the third audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from substantially confirms the results of the either parties’ individual audit in which it (including, as applicable, its affiliates and subcontractors) is providing case the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from cost of such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do sopaid by the other party hereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (RedHill Biopharma Ltd.), Asset Purchase Agreement (RedHill Biopharma Ltd.)
Audit. 5.1Roche shall keep, and shall require its Affiliates and sublicensees to keep, accurate and correct records of Products sold under this Agreement after the Effective Date appropriate to determine the amounts due hereunder to Trimeris. Upon Such records shall be retained for at least ten three (103) years following the end of the calendar daysyear to which such records pertain. At Trimeris’ written notice request, Roche will cause its independent certified public accountants to Zinniaprepare abstracts of Roche’s relevant business records for review by Trimeris. If, Customer or its designee based upon a review of such abstracts, Trimeris reasonably believes that a full audit of said business records would be necessary for the confirmation of the accuracy of all payments due hereunder, Trimeris shall have the right to engage Roche’s independent public accountant to perform, on behalf of Trimeris, an audit of all work papers and supporting documents pertinent to such abstracts. The audit rights under this Agreement may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the auditbe exercised by Trimeris (i) no more often than once per calendar year, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (bii) not be a competitor to Zinnia more frequently than once with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionrecords covering any specific period of time, and (ciii) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including no later than three (3) years after the amount end of the overcharge payment period to which such records relate, provided that once Trimeris requests an abstract of Roche’s relevant business records, such three (3) year period shall be tolled during the period that it takes for Roche’s independent certified public accountants to prepare such abstracts and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment Trimeris’ notice to Customer, unless Roche of Trimeris’ exercise of such claim of overcharge is promptly (but in any event within ten (10) days from audit rights shall be deemed to be the date of Customer’s notice to Zinnia) disputed exercise by Vendor in writing, in good faithTrimeris. All audits will The audit shall be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within upon no less than thirty (30) days prior written notice to Roche, during Roche’s normal business hours. The terms of receipt this Section 7.8 shall survive the Term for a period of three (3) years. Trimeris will bear the full cost of any such abstracts or audit unless such audit discloses an itemized invoice underpayment to Trimeris of more than five percent (5%) from Customer.
5.3the amounts paid. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia Roche shall promptly correct (i) pay any underpayment due to Trimeris and, (ii) if the underpayment is more than five percent (5%) of the amount paid, Roche shall bear the full reasonable cost of such negative findings, and Zinnia audit. Any overpayment by Roche shall be solely responsible for all costs and fees necessary deducted from the next payment due Trimeris under Section 7 of this Agreement or, if no such further payments are due, promptly reimbursed to do soRoche by Trimeris.
Appears in 2 contracts
Sources: Development and License Agreement, Development and License Agreement (Trimeris Inc)
Audit. 5.1SSG shall maintain at its principal place of business during ----- the term of this Agreement and for a period of five (5) years thereafter all books, records, accounts, and technical materials regarding SSG's activities in connection herewith sufficient to determine and confirm SSG's royalty obligations and other material obligations hereunder. Upon at least ten InterTrust's request, SSG will permit an auditor or agent of InterTrust's choice (10subject to SSG's consent, which shall not be unreasonably withheld or delayed) calendar days’ written notice to Zinnia, Customer or its designee may audit examine and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must during a reasonable time (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; but no more than once every six (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business6 months), as determined by ▇▇▇▇▇▇ in its solesuch books, reasonable discretionrecords, accounts, documentation and materials, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate take extracts therefrom or make copies thereof for the purpose of verifying the correctness of SSG's reported royalty statements and payments provided by SSG or compliance with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, the license terms and other representatives, and material obligations hereunder. SSG shall pay any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge unpaid delinquent amounts within ten (10) days of InterTrust's request. To the extent such examination: (“Overcharge Due Date”a) discloses an underpayment of more than [*] dollars ($[*]) and such underpayment represents a sum greater than [*] percent ([*]%) of the sums paid to InterTrust by SSG during the applicable period subject to such audit; or (b) discloses an underpayment of more than [*] dollars ($[*]), SSG shall fully reimburse InterTrust, promptly upon demand, for the fees and disbursements due the auditor for such audit; provided that such prompt payment shall not be in lieu of any other remedies or rights available to InterTrust hereunder. If Zinnia does not repay such overcharge within ten (10) daysan audit reveals an overpayment, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result InterTrust shall notify SSG of such material faultoverpayment and SSG will apply the amount of such overpayment against future royalties due and payable to InterTrust. Notwithstanding the foregoing, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt a request by SSG, InterTrust shall reimburse SSG up to [*] dollars ($[*]) of an itemized invoice any such overpayment amount; provided that InterTrust posted a profit in accordance with GAAP in the calendar year preceding such request. Any balance will be paid from Customerfuture royalties as provided for above.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Technology Development and License Agreement (Intertrust Technologies Corp), Technology Development and License Agreement (Intertrust Technologies Corp)
Audit. 5.1. Upon Landlord shall keep, for a period of at least ten three (103) years after the expiration of any calendar days’ written year for which Tenant actually paid a share of Common Expenses, accurate records and supporting documents in connection with Landlord’s annual statement of Common Expenses for such calendar year. No more than once in any calendar year, and within 90 days after receipt of any year-end statement referred to above, and so long as there exists no Default of Tenant, Tenant shall have the right to challenge the accuracy of any Common Expenses for the year described in such statement, by giving Landlord notice to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance (within such 90-day period) of a third party to perform the audit, the third party must any such challenge (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those which notice shall set forth in this TPA Addendum; (b) not reasonable detail the particular instances in which Tenant believes such accounting to be a competitor in error), Landlord shall make Landlord’s invoices or supporting documents for the year in question available to Zinnia with respect to Tenant and Tenant may inspect the same at Landlord’s management office at reasonable times upon Tenant’s request. No auditor shall be compensated in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionany manner that is based on the amount of any recovery, and no audit shall be made for any year other than the year described in the applicable statement. If any inspection or audit pursuant to this paragraph and conducted using generally accepted auditing standards reveals an overcharge, such amounts shall be credited against amounts coming due from Tenant for Common Expenses (c) not but Tenant shall in no event be compensated on entitled to a contingency basis.
5.2credit in excess of the amount actually paid by Tenant for the period in question). Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who If Tenant is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of entitled any such auditcredit upon the expiration or early termination of this Lease, Customer determines the amount of such credit shall be repaid to Tenant. If such audit or inspection reveals that Zinnia overcharged itTenant was undercharged, Customer Tenant shall notify Zinnia in writing of its determination, including pay the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge undercharge within ten (10) business days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at after the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost completion of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event that Tenant’s audit indicates that Tenant was required to pay more than 110% of Tenant’s Share of the actual Common Expenses incurred by Landlord for the calendar year in question (as indicated by Landlord’s year-end reconciliation statement), Landlord will reimburse Tenant on request for the actual and reasonable out-of-pocket cost paid by Tenant for such reports include any negative audit findings impacting the Services in any wayaudit, Zinnia shall promptly correct such negative findings, and Zinnia shall provided that Landlord will not be solely responsible for all costs and fees necessary required to do soreimburse Tenant more than $2,500 hereunder.
Appears in 2 contracts
Sources: Lease (ConforMIS Inc), Lease Agreement (ConforMIS Inc)
Audit. 5.1To validate Bayer’s compliance with its obligations under or in connection with this Agreement, Recursion may, during the course of this Agreement and for [***] after expiration or termination of this Agreement, appoint auditors, at Recursion’s expense (except as otherwise contemplated below), to carry out an audit of Bayer’s records from time to time on behalf of Recursion. Upon The auditors selected by Recursion shall be subject to acceptance by Bayer, such acceptance not to be unreasonably withheld. Audits may be undertaken subject to the following conditions:
I. Any such audits shall be undertaken by an independent certified public accountant;
II. Any such audits shall be conducted during regular business hours at least ten (10) calendar Bayer’s premises upon [***] days’ prior written notice by Recursion and shall not interfere unreasonably with Bayer’s business activities;
III. The auditor may inspect records for up to Zinnia, Customer or its designee two years after the end of the period to which they pertain;
IV. Audits may audit not take place more than once per Calendar Year and verify the matters relating no period may be audited more than once;
V. Prior to the TPA Services during normal business hours. If Customer engages the assistance of a third party audit taking place, auditor shall undertake to perform the audit, the third party must Bayer that they shall keep all information confidential and shall not disclose any information (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those except as set forth in this TPA Addendum; VI) to any Third Party including Recursion;
VI. Details of the auditor’s findings (bincluding, for the avoidance of doubt, monetary values and supporting calculations) shall not be shared with Recursion except in the form of a competitor summary report and, in the event the auditor finds any incorrect payments, details required to Zinnia explain such discrepancies. In any event, the results shall be communicated to Bayer before being shared with respect Recursion. Bayer shall be given a period of [***] Business Days to in ▇▇▇▇▇▇review and respond to the auditor’s third party administrator businessfindings before the summary report may be provided to Recursion, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) such reports to include Bayer’s response to the findings;
VII. The auditor shall not be compensated on a contingency basis.permitted to include any extrapolation calculations in the calculation of amounts underpaid to Recursion;
5.2VIII. Zinnia will reasonably cooperate with and assist CustomerIf an audit reveals that Bayer has underpaid royalties due, Customer designeesRecursion may invoice Bayer for the underpaid amount; if the audit reveals that Bayer has overpaid royalties due, and their respective auditorsRecursion shall credit Bayer for the overpaid amount;
IX. If an audit reveals an underpayment in excess of [***] percent ([***]%) of the fees for the period subject to review by Recursion, inspectors, consultants, and other representatives, and any Regulatory Authority, then Bayer shall pay the reasonable costs of Recursion in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, conducting the audit (including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion auditors) within [***] days of Recursion notifying Bayer that the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerhas been completed.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Research Collaboration and Option Agreement (Recursion Pharmaceuticals, Inc.), Research Collaboration and Option Agreement (Recursion Pharmaceuticals, Inc.)
Audit. 5.1. Upon at least ten (10) calendar days’ written notice The Parties agree to Zinnia, Customer or its designee may audit keep full and verify accurate books and records setting forth in reasonable detail the matters relating payments payable to the TPA Services during normal business hoursother Party hereunder, or Glass Product Expenses to be recorded hereunder, and the calculation thereof. If Customer engages Each Party (the assistance of a third party “AUDITING PARTY”) shall have the right to perform appoint an internationally recognized accounting firm (but not the audit, Auditing Party’s accounting firm) reasonably acceptable to the third party must other Party (athe “INDEPENDENT AUDITOR”) execute a confidentiality agreement to audit the financial books and records that contains protections for Confidential Information comparable the other Party (the “AUDITED PARTY”) is expressly required to those set forth in keep under this TPA Addendum; (b) not be a competitor to Zinnia Agreement with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or payments owed to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultantthe Auditing Party, or representative who is a competitor or Affiliate of a competitor Glass Product Expenses to Zinnia or its Affiliates Customer will pay all costs attributable be recorded, under this Agreement (the “RELEVANT BOOKS AND RECORDS”). The Audited Party may require the Independent Auditor, prior to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines to agree to reasonable confidentiality restrictions and the Independent Auditor shall (i) treat as confidential information of the Audited Party all information obtained in connection with such audit and (ii) not disclose the same to the Auditing Party or others, except that Zinnia overcharged itthe Independent Auditor may disclose to the Auditing Party only whether the audit revealed an underpayment, Customer shall notify Zinnia in writing of its determinationor an inaccuracy with respect to Glass Product Expenses, including and the amount of the overcharge and the basis for its conclusion, andsuch underpayment or inaccuracy, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)any. If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount An audit shall be permitted only upon at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within least thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annuallydays’ prior written notice to the Audited Party, and at in no event more than once during any calendar year (unless an audit in any calendar year revealed an underpayment, in which case the Auditing Party may conduct one (1) additional charge audit in such calendar year). The Independent Auditor shall conduct the audit during normal business hours solely as necessary to Customer, Zinnia will confirm the accuracy of the Relevant Books and Records. The Independent Auditor may not be paid on a contingency fee basis and shall provide its report simultaneously to Customer copies of SOC 1 Type 2 both Parties. The Auditing Party shall be solely liable for all costs and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from expenses accrued in connection with such reports those portions containing confidential information of third partiesaudit. In the event such reports include any negative the audit findings impacting reveals an underpayment or inaccuracy, *** - indicates material omitted pursuant to a confidential treatment request and filed separately with the Services in any way, Zinnia shall promptly correct such negative findings, Securities and Zinnia Exchange Commission. prompt adjustment of all unpaid amounts owed under this Agreement shall be solely responsible for all costs and fees necessary made by the Audited Party, provided that nothing contained herein is intended to do sowaive or limit the Audited Party’s right to contest the accuracy of any finding of the Independent Auditor.
Appears in 2 contracts
Sources: Patent Cross License Agreement, Patent Cross License Agreement (Asml Holding Nv)
Audit. 5.1(a) Subject to the remainder of this clause 6 of this Module, and in addition to the audit rights granted to Data Republic pursuant to Clause Error! Reference source not found. Upon (Audit) of the Data Republic Software Agreement, during the period for which Data Republic is in control of Participant Data and for 12 months after the end of that period Participant shall have the right to conduct an audit of, or engage an independent third party auditor which must be approved by Data Republic in writing (such approval not to be unreasonably withheld or delayed) to conduct an audit of, Data Republic in order to verify:
(i) that Data Republic is compliant with the terms of the Agreement. This includes validating that Data Republic is using, accessing and providing access to Participant Data in accordance with the terms of the Agreement (including the terms of any applicable Approved Data Licence and the Data Security Protocols); and
(ii) any information provided by Data Republic to Participant in accordance with its Reporting Obligations; or
(b) Data Republic must reasonably assist Participant to address security and risk related queries in connection with the subject matter of the Agreement in response to any requests made by a Government Agency.
(c) Except in respect of an audit by a Government Agency (which will be conducted as required by the Government Agency in accordance with Law), each audit conducted under clause 6(a) must be conducted:
(i) on at least ten (10) calendar days20 Business Days’ prior written notice to Zinnia, Customer or its designee may audit Data Republic;
(ii) no more than once per calendar year during the Term and verify once in the matters relating to 12 months following the TPA Services end of that Term on reasonable notice; and
(iii) during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, hours and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended designed to minimize disruption to either party’s respective businesses and in compliance not unreasonably interfere with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result ordinary business operations of such material faultData Republic, and ▇▇▇▇▇▇ under supervision by Data Republic (if required).
(d) No audit may continue for longer than 10 consecutive Business Days, unless otherwise agreed between the parties.
(e) Any information gathered during an audit shall only be made available to personnel of Participant and/or its approved auditor (as applicable) on a strictly need to know basis and subject to the confidentiality obligations under the Agreement.
(f) Participant acknowledges and agrees that the audit will reimburse Customer not include, and that the auditor will not have access to, any Other Participant Data.
(ig) for To the reasonable and documented costs extent an audit reveals that Data Republic has not complied with the requirements described in this Module, the parties will engage in good faith discussions about the resolution of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of concerns raised by the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge (h) Participant will bear its own costs associated with any audits conducted pursuant to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soclause 6.
Appears in 2 contracts
Audit. 5.1. Upon at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable Ligand shall make reasonable efforts to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, confirm the accuracy of the milestone and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, royalty reports it receives from GSK in connection with audits in relation hereto and/or to sales of Eltrombopag, other Products or Combination Products under the GSK Agreement, and LGD-4665 [***]. To the extent that any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, underpayments by GSK are found as a result of Ligand’s review, [***] Ligand shall pay Rockefeller its share of the underpayments, calculated pursuant to Sections 1.3, 1.4 and 1.5 of this Settlement Agreement.
b) Ligand shall maintain for not less than [***] ([***]) years from the date of creation, complete and accurate Financial Records and information relating to sales of Eltrombopag, other Products or Combination Products under the GSK Agreement, and LGD-4665. Upon written request by Rockefeller, not more than once in a calendar year and at Rockefeller’s expense, Rockefeller shall be entitled and Ligand shall permit an independent certified accountant selected by Rockefeller and reasonably acceptable to Ligand to have access during normal business hours to those Financial Records and such other information that the auditor determines may be reasonably necessary to verify the accuracy of the quarterly royalty reports provided to Rockefeller under Section 1.7 and the calculations therein, provided that such access shall be limited to prevent the disclosure of any such audit, Customer determines third party confidential information. Ligand will use diligent efforts to confirm with GSK that Zinnia overcharged it, Customer shall notify Zinnia in writing any of its determinationrelevant confidential information can be provided to Rockefeller and its independent certified accountant. The independent certified accountant shall disclose to Rockefeller whether the quarterly royalty reports are correct or not and specify whether the amounts paid to Rockefeller pursuant thereto were correct or, including if incorrect, the amount of any discrepancy. If the independent certified accountant’s report shows any underpayment, Ligand shall pay the amount of the overcharge and underpayment to Rockefeller within 30 days after Rockefeller delivers to Ligand its independent certified accountant’s written report indicating the basis underpayment. If such underpayment exceeds [***] percent ([***]%) of the total amount owed for its conclusionthe calendar year then being audited, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia Ligand will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly necessary fees and solely as a result expenses of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of independent certified accountant performing the audit, all such reimbursements subject to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerreasonable substantiation thereof.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement (Ligand Pharmaceuticals Inc)
Audit. 5.112.1. Upon at least ten (10) calendar days’ written notice to ZinniaPharmacy shall keep complete and accurate books and records, Customer or its designee may audit and verify the matters including electronic data, relating to the TPA transactions and Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer identified herein for the reasonable and documented costs Customer incurred directly and solely as a result longer of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault [***] years from creation thereof; or (ii) if not commercially feasible as required by Applicable Laws. Upon [***] days’ advance written notice, at its own expense, during Pharmacy’s regular business hours, and no more frequently than once annually, Manufacturer (and/or its designee) shall have the right, during the Term of this Agreement, and for a period of [***] thereafter, to do soinspect and audit the books and records of Pharmacy, ▇▇▇▇▇▇ will reimburse Customer with or without cause, for the total cost purposes of (a) verifying compliance with this Agreement, Applicable Laws and/or the Product’s REMS Program and (b) satisfying Manufacturer’s obligations to FDA to inspect and audit CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. pharmacies that dispense the Product (including obligations articulated in written or verbal instructions or requests received by Manufacturer from FDA). In addition to the foregoing audit right, Manufacturer (and/or its designee) shall have the right to audit Pharmacy within [***] calendar days after the Effective Date to ensure that all processes and procedures are in place and functioning to support the requirements of the auditProduct’s REMS Program. If Manufacturer determines after any such audit that Pharmacy is not in compliance with the Product’s REMS Program, all Pharmacy shall, at its expense, institute such reimbursements processes and procedures as are necessary to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerensure compliance with the Product’s REMS Program.
5.312.2. At least annuallyNotwithstanding anything to the contrary in Section 12.1, and at no Manufacturer may conduct additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audits without providing prior notice (i) in the event any audit reports Such reports must be prepared conducted by Manufacturer or an audit by a nationally recognized firm for Zinnia’s facility regulatory Authority reveals a material compliance deficiency, or facilities from which it (including, ii) as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees reasonably necessary to do socomply with Applicable Laws, the Product’s REMS Program or requests from governmental authorities, including without limitation, FDA.
Appears in 2 contracts
Sources: Product Purchase and Pharmacy Services Agreement (Braeburn Pharmaceuticals, Inc.), Product Purchase and Pharmacy Services Agreement (Braeburn Pharmaceuticals, Inc.)
Audit. 5.1Financial Records under this Agreement shall be open during reasonable business hours for a period of two (2) years from creation of individual records for examination. Upon the written request of Licensor but not more often than once each year, at least ten (10) calendar days’ written notice Licensor’s expense, Licensee shall permit an independent public accounting firm of national prominence selected by Licensor and acceptable to Zinnia, Customer or its designee may audit and verify the matters relating Licensee to the TPA Services have access during normal business hours. If Customer engages hours to those records of Licensee as may be reasonably necessary for the assistance sole purpose of a third party verifying the accuracy of the Net Sales report and royalty calculation conducted by Licensee pursuant to perform the audit, the third party must this Agreement.
(a) execute Licensee shall include in each sublicense or Commercialization agreement entered into by it pursuant to this Agreement, a confidentiality provision requiring, among others, the Sublicensee or Commercialization partner to keep and maintain adequate Financial Records pursuant to such sublicense or Commercialization agreement that contains protections and to grant access to such records by the aforementioned independent public accountant for Confidential Information comparable to those set forth the reasons specified in this TPA Addendum; Agreement.
(b) not The report prepared by such independent public accounting firm, a copy of which shall be a competitor sent or otherwise provided to Zinnia with respect Licensee by such independent public accountant at the same time as it is sent or otherwise provided to in ▇▇▇▇▇▇’s third party administrator businessLicensor, as determined by ▇▇▇▇▇▇ in its soleshall contain the conclusions of such independent public accountant regarding the audit and will specify that the amounts paid to Licensor pursuant thereto were correct or, reasonable discretionif incorrect, and the amount of any underpayment or overpayment.
(c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist CustomerIf such independent public accounting firm’s report shows any underpayment, Customer designeesLicensee shall remit or shall cause its Sublicensees or Commercialization partners to remit to Licensor within 30 days after Licensee’s receipt of such report, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including (i) the amount of the overcharge such underpayment and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer such underpayment exceeds five percent (5%) of the total amount owed for the total cost Calendar Year then being audited, the reasonable and necessary fees and expenses of such independent public accountant performing the audit, all subject to reasonable substantiation thereof. If such reimbursements independent public accounting firm’s report shows any overpayment, Licensee shall receive a credit equal to be made by Zinnia such overpayment against the royalty otherwise payable to Customer within thirty (30) days of receipt of an itemized invoice from CustomerLicensor.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 2 contracts
Sources: License, Development, and Commercialization Agreement, License, Development, and Commercialization Agreement (Provention Bio, Inc.)
Audit. 5.1NeoPharm and any Licensor shall each have the right for a period of five (5) years after receiving any report, statement or payment with respect to Net Sales or Royalties, to obtain, at its expense, from an accountant or auditor selected by NeoPharm and agreed by NK an audit of all relevant records of NK to verify such report, statement or payment. Upon NK shall make its records available for inspection by such accountant or auditor during regular business hours at least ten (10) calendar days’ written such place or places where such records are customarily kept, upon reasonable notice from NeoPharm or any Licensor, to Zinnia, Customer or its designee may audit and the extent reasonably necessary to verify the matters relating accuracy of the reports and payments. Neither NeoPharm nor any Licensor may exercise its inspection right more than once in any calendar year, nor more than once with respect to sales in any given period, unless a subsequent inspection reveals discrepancies which may have also occurred during such period. Such accountant or auditor shall report to NeoPharm, or a Licensor, as the case may be, only as to the TPA Services during normal business hoursaccuracy of the Net Sales computation and Royalty payments. If Customer engages the assistance of a third party to perform audit shows that NK has underpaid any Royalties by five percent (5%) or more, for any period covered by the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory AuthorityNK shall, in connection with audits in relation hereto and/or addition to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor promptly remitting to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including NeoPharm the amount of underpayment, (i) pay for the overcharge cost of such audit and (ii) pay interest to NeoPharm at a per annum rate equal to three percent (3%) above London Inter Bank, Offered Rate (LIBOR), as in effect on the basis for its conclusiondate of such determination, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated underpayment from the Overcharge Due Date date such amounts were accrued until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that amounts are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiespaid. In the event the audit shows that NK has overpaid any Royalties due to NeoPharm hereunder, NK shall be allowed to deduct the amount of such reports include any negative audit findings impacting overpayment from the Services next Royalty payment due to NeoPharm. Such accountant or auditor must agree to hold in any way, Zinnia shall promptly correct such negative findingsstrict confidence all information concerning Royalty payments and reports, and Zinnia all information learned in the course of any audit or inspection, except to the extent necessary for such entity to reveal such information in order to allow NeoPharm to enforce its rights under this Agreement, perform its obligations to any Licensor(s), or disclosure is required by law. The failure of NeoPharm to request verification of any report, statement or payment during the five (5) year period shall be solely responsible for all costs considered acceptance of the accuracy of such report, and fees necessary NK shall have no obligation to do somaintain records pertaining to such report, statement or payment beyond the five (5) year period. The results of the inspection shall be binding on both Parties.
Appears in 2 contracts
Sources: Sublicense and License Agreement (Neopharm Inc), Sublicense and License Agreement (Neopharm Inc)
Audit. 5.1. Upon RFSP (or RFSP’s designee) shall have the right, from time to time at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services reasonable times during normal business hourshours through an independent certified accountant, to examine the records of Pharmasset, including, without limitation, sales invoice registers, sales analysis reports, original invoices, inventory records, price lists, sublicense and distributor agreements, accounting general ledgers, and sales tax returns, in order to verify the calculation of any Royalties or other payments. If Customer engages Such examination and verification procedures shall not occur more than once each twelve (12) month period during the assistance Term and the twelve (12) month period immediately following termination of a third party this Agreement. Before permitting such independent certified accountant to perform the audithave access to such books and records, the third party must (a) execute Pharmasset may require that such independent certified accountant sign a confidentiality agreement that contains protections for (in form and substance reasonably acceptable to Pharmasset) as to any confidential information which is to be provided to such independent certified accountant or to which such independent certified accountant will have access, while conducting the examination and verification under this Section 5.8. The independent certified accountant will prepare and provide to each Party a written report stating whether the royalty reports submitted and Royalties paid are correct or incorrect and the details concerning any discrepancies which report and amounts owed shall be final and binding upon the Parties. Such independent certified accountant may not reveal to RFSP (or its designee) any Confidential Information comparable to those set forth learned in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, the course of such examination and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and verification other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result than the amount of any such auditdiscrepancies. In the event there was an underpayment by Pharmasset hereunder, Customer determines that Zinnia overcharged it, Customer Pharmasset shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any no event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within later than thirty (30) days of after RFSP’s receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge the independent certified accountant’s report) pay to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing RFSP the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesshortfall amount. In the event such reports include any negative audit findings impacting the Services in any waythere was an overpayment by Pharmasset hereunder, Zinnia RFSP shall promptly correct such negative findings(but in no event later than thirty (30) days after RFSP’s receipt of the independent certified accountant’s report) refund to Pharmasset or credit to future Royalties, and Zinnia at RFSP’s option, the excess amount. RFSP (or its designee) shall be solely responsible for all costs the fees and expenses of performing such examination and verification, provided, however, that if such examination and verification reveals an underpayment by Pharmasset of more than five percent (5%), or any overpayment, for any quarter examined, Pharmasset shall be responsible for such fees necessary to do soand expenses.
Appears in 2 contracts
Sources: License Agreement (Pharmasset Inc), License Agreement (Pharmasset Inc)
Audit. 5.1. Upon Not more than once per year, or at least ten any time a Party has a reasonable, good faith belief that the other Party has materially breached this Agreement, or (10to the extent with respect to this Agreement) calendar days’ the Umbrella Secrecy Agreement, and provides written notice to Zinniasuch other Party as well as detailed documentation or other evidence of such alleged breach, Customer or its designee upon thirty (30) days’ advance written notice, such first Party may audit and verify the matters relating cause an independent Third Party auditor that is reasonably acceptable to the TPA Services audited Party and subject to written confidentiality obligations that are reasonably acceptable to the audited Party to audit, during normal regular business hourshours and in a manner that complies with the reasonable building and security requirements of the audited Party and its Affiliates, the books, records and facilities of such audited Party and its Affiliates to the extent reasonably necessary to determine such audited Party’s and its Affiliates’ compliance with this Agreement or (to the extent with respect to this Agreement) the Umbrella Secrecy Agreement. If Customer engages Any audit conducted under this Section 2.12 shall not interfere unreasonably with the assistance operations of such audited Party or any of its Affiliates. The Party requesting the audit shall pay the costs of conducting such audit; provided that if such audit reveals a third party material breach of this Agreement or (to perform the extent with respect to this Agreement), the Umbrella Secrecy Agreement, the audited Party shall pay all such costs. Upon conclusion of the audit, the third party must (a) execute Third Party auditor shall furnish to both Parties a confidentiality agreement that contains protections for Confidential Information comparable report stating only its findings during such audit as to those set forth whether or not the audited Party is in compliance with this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionAgreement, and (c) not be compensated on if such audit has revealed a contingency basis.
5.2. Zinnia will breach, shall include no more information than is reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or necessary to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and provide the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faithfinding. All audits will information learned or obtained from such audit shall be performed deemed Confidential Information for purposes of this Agreement. Notwithstanding anything to the contrary in a manner intended this Section, the audited Party may require that the Third Party conducting the audit pursuant to minimize disruption to either partythis Section 2.12 be accompanied by the audited Party’s respective businesses (and in compliance with ▇▇▇▇▇▇the case of an audit of its Affiliates or Sublicensees, its Affiliate’s security and safety policiesor its Sublicensee’s, respectively) representatives at all times during such audit. If any audit results in a final determination that Zinnia was materially at faultFor clarity, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs Licensee shall cause its Affiliates that are attributable Sublicensees to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customercomply with this Section 2.12.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Intellectual Property Cross License Agreement (Corteva, Inc.)
Audit. 5.1. Upon 16.1 The Operator’s records relating to the Joint Venture will be audited in accordance with Canadian GAAP annually at least ten the end of the Fiscal Year by the Auditor and upon completion of such audit:
(101) calendar any adjustments required by such audit will be made forthwith;
(2) a copy of the audited statements will be delivered to the Participants within 45 business days of the end of the Fiscal Year, and all such accounts and records will be deemed to be correct and accurate unless questioned by a Participant within 45 days following the delivery of such audited statements; and
(3) all information required by any Participant to this Agreement in order for such Participant to prepare its financial actuarials in accordance with Applicable Law shall be provided to such Participant at the expense of such Participant.
16.2 Each Participant that is a Non-Operator (the “Auditing Participant”), at reasonable times and upon not less than seven days’ written notice to Zinniathe other Participant, Customer or its designee may will have the right to inspect, audit and verify copy the matters Operator’s accounts and records relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections Joint Venture for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge Fiscal Year within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) 15 days from the date receipt of Customer’s notice the audited financial statements for such Fiscal Year at its own expense. The Auditing Participant will make all reasonable efforts to Zinnia) disputed by Vendor in writing, in good faith. All conduct audits will be performed in a manner intended which will result in a minimum of inconvenience to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policiesthe Operator. If any the audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for by an Auditing Participant is concluded within two months from the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs end of the portion Fiscal Year in question and indicates a difference of more than 2% of Costs prior to Commercial Production or 2% of Net Cash Flow after commencement of Commercial Production, before interest and tax from the amount determined by the Auditor, then the accounts will be re-audited by a third independent firm of chartered accountants, the decision of which will be final. If the results of the third audit that uncovered such material faultindicate a difference of more than 2% of Costs prior to Commercial production or 2% of Net Cash Flow after commencement of Commercial Production, if it is commercially feasible before interest and tax from the amount determined by the Auditor, then appropriate 50651077.7 adjustments to identify only those the audited financial statements will be made. Any audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost made on behalf of the audit, all Auditing Participant of the audited financial statements of the Joint Venture for any Fiscal Year will be at the expense of the Auditing Participant unless an adjustment to the audited financial statements for such reimbursements to be Fiscal Year is made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under in accordance with this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In in which case the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall expenses will be solely responsible for all costs and fees necessary to do soCosts.
Appears in 1 contract
Sources: Option and Joint Venture Agreement (Crosshair Exploration & Mining Corp)
Audit. 5.1. Upon Provided there is no Event of Default nor any event which, with the passage of time and/or the giving of notice would constitute an Event of Default, Tenant may, upon at least ten (10) calendar days’ prior written notice to Zinnianotice, Customer inspect or its designee may audit and verify the matters Landlord’s records relating to Operating Costs for any periods of time within the TPA Services during normal business hoursprevious fiscal year before the audit or inspection (it being understood that if Tenant shall cure any such default within applicable notice and/or cure periods provided in Section 20.1 below, then Tenant shall thereafter be entitled to perform such inspection or audit). Landlord shall provide Tenant with access to such records in accordance with this Section 5.2(g) within ten (10) days after receipt of notice from Tenant. However, no audit or inspection shall extend to periods of time before the Commencement Date. If Customer engages Tenant fails to object to the assistance calculation of a third party Tenant’s Share of Operating Costs on the Year-End Statement within ninety (90) days after such statement has been delivered to perform the audit, the third party must Tenant and/or fails to complete any such audit or inspection within thirty (a30) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in days after ▇▇▇▇▇▇▇▇’s third party administrator businessrecords are made available to Tenant in accordance with this Section 5.2(g), then Tenant shall be deemed to have waived its right to object to the calculation of Tenant’s Share of Operating Costs for the year in question and the calculation thereof as set forth on such statement shall be final. Tenant’s audit or inspection shall be conducted only at Landlord’s offices or the offices of Landlord’s property manager during business hours reasonably designated by Landlord. Tenant shall pay the cost of such audit or inspection, provided, however, that if such audit discloses that Tenant has been overcharged by more than five percent (5%), Landlord shall reimburse Tenant for up to $5,000 of Tenant’s reasonable out-of pocket costs incurred in connection with such audit. Tenant may not conduct an inspection or have an audit performed more than once during any fiscal year. If such inspection or audit reveals that an error was made in the calculation of Tenant’s Share of Operating Costs previously charged to Tenant, then, provided there is no Event of Default nor an event which, with the passage of time and/or the giving of notice would constitute an Event of Default, Tenant may credit the difference against the next installment of additional rent on account of Operating Costs due hereunder (it being understood that if Tenant shall cure any such default within applicable notice and/or cure periods provided in Section 20.1 below, then Tenant shall thereafter be entitled to take such credit), except that if such difference is determined after the end of the Term, Landlord shall refund such difference to Tenant within thirty (30) days after such determination to the extent that such difference exceeds any amounts then due from Tenant to Landlord. If such inspection or audit reveals an underpayment by ▇▇▇▇▇▇ in its sole▇, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or then Tenant shall pay to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. IfLandlord, as a result additional rent hereunder, any underpayment of any such costs, after deducting the reasonable out of pocket costs of such inspection or audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days after such underpayment is determined. Tenant shall maintain the results of receipt any such audit or inspection confidential and shall not be permitted to use any third party to perform such audit or inspection, other than an independent firm of an itemized invoice from Customer.
5.3. At least annuallycertified public accountants (A) reasonably acceptable to Landlord, (B) which is not compensated on a contingency fee basis or in any other manner which is dependent upon the results of such audit or inspection, and at no additional charge (C) which executes Landlord’s standard confidentiality agreement whereby it shall agree to Customer, Zinnia will provide to Customer copies maintain the results of SOC 1 Type 2 and SOC 2 Type 2 such audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractorsinspection confidential. The provisions of this Section 5.2(g) is providing shall survive the Services. Such reports provided by Zinnia under expiration or earlier termination of this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soLease.
Appears in 1 contract
Sources: Lease Agreement (Quanterix Corp)
Audit. 5.1Federal enabling legislation and applicable regulations require an audit of each CWSRF Loan. Upon at least ten (10) calendar days’ written notice The Borrower agrees to Zinnia, Customer or its designee may provide to DEQ the following which DEQ agrees to accept as adequate to meet this federal audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must requirement.
(a) execute As soon as possible, but in no event later than six (6) months following the Project Completion Date, a confidentiality agreement that contains protections for Confidential Information comparable full and complete accounting of the Costs of the Project, including but not limited to those set forth in this TPA Addendumdocumentation to support each cost element and a summary of the Costs of the Project and the sources of funding; and
(b) As soon as possible, but in no event later than nine (9) months after the end of each fiscal year, a copy of the Borrower's annual audit report, if requested by DEQ.
(a) Subrecipients receiving federal funds in excess of $750,000 in the subrecipient’s fiscal year are subject to audit conducted in accordance with the provisions of 2 CFR part 200, subpart F. The Borrower, if subject to this requirement, shall at its own expense submit to DEQ a copy of, or electronic link to, its annual audit subject to this requirement covering the funds expended under this Agreement and shall submit or cause to be submitted to DEQ the annual audit of any subrecipient(s), contractor(s), or subcontractor(s) of the Borrower responsible for the financial management of funds received under this Agreement.
(b) Audit costs for audits not required in accordance with 2 CFR part 200, subpart F are unallowable. If the Borrower did not expend $750,000 or more in Federal funds in its fiscal year, but contracted with a certified public accountant to perform an audit, costs for performance of that audit shall not be a competitor charged to Zinnia the funds received under this Agreement.
(c) The Borrower shall save, protect and hold harmless DEQ from the cost of any audits or special investigations performed by the Federal awarding agency or any federal agency with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined the funds expended under this Agreement. The Borrower acknowledges and agrees that any audit costs incurred by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, the Borrower as a result of allegations of fraud, waste or abuse are ineligible for reimbursement under this or any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including other agreement between the amount of the overcharge Borrower and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount State of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from CustomerOregon.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Loan Agreement
Audit. 5.1. Upon at least ten On Subtenant’s written request given not more than ninety (1090) calendar days’ written notice days after Subtenant’s receipt of an Annual Expense Statement, provided that Subtenant is not then in default under this Sublease beyond the applicable cure period provided in this Sublease, Sublandlord shall provide Subtenant with a reasonable opportunity to Zinniareview the books and records supporting such determination of Sublease Expenses in the office of Sublandlord, Customer or its designee may audit and verify the matters relating to the TPA Services Sublandlord’s agent, during normal business hours. If Customer engages Sublandlord shall provide this opportunity to inspect within twenty (20) days of Subtenant’s written request. Within fifteen (15) days following Subtenant’s inspection, Subtenant and Sublandlord shall concurrently be provided with any audit report prepared in connection with such inspection, and Subtenant shall advise Sublandlord if Subtenant disputes the assistance Sublease Expenses or Subtenant’s share of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those them as set forth in this TPA Addendum; (b) not the applicable Monthly Expense Statement or Annual Expense Statement. Thereafter, if Sublandlord ascertains that an error has been made, Subtenant’s sole remedy shall be a competitor for the parties to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businessmake such appropriate payments or reimbursements, as determined by ▇▇▇▇▇▇ in its solethe case may be, reasonable discretion, and (c) not be compensated including interest on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or Agreed Rate, to each other as are determined to be owing, provided that any reimbursements payable by Sublandlord to Subtenant may, at Sublandlord’s option, instead be credited against the highest rate permitted by law, if less) calculated from Base Rent next coming due under this Sublease unless the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writingSublease term has expired, in good faith. All audits will be performed in a manner intended which event Sublandlord shall refund the appropriate amount to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policiesSubtenant. If any audit results in Subtenant fails to make a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable written request to review Sublandlord’s books and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer records within ninety (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (3090) days of receipt of an itemized invoice Annual Expense Statement as described above, then Subtenant shall have no further right to conduct such a review or to dispute any Sublease Expense set forth in such Annual Expense Statement. Subtenant shall keep any information gained from Customer.
5.3its review of Sublandlord’s records confidential and shall not disclose it to any other party, except as required by law. At least annuallyIf requested by Sublandlord, and at no additional charge Subtenant shall require its employees or agents reviewing Sublandlord’s records to Customer, Zinnia will provide sign a confidentiality agreement as a condition of Sublandlord providing Subtenant the opportunity to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia inspect under this section are Zinnia Confidential InformationParagraph 3.2(h). Zinnia may redact from such reports those portions containing confidential Notwithstanding anything in this Paragraph 3.2(h) to the contrary, with regard to Master Lease Expenses, Sublandlord shall not be required to provide more information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soSubtenant than is offered to Sublandlord.
Appears in 1 contract
Sources: Sublease (Ariba Inc)
Audit. 5.1. (A) Upon at least ten (10) calendar days’ reasonable advance written notice to ZinniaQuest, Customer or Ameritech shall be entitled from time to time (but no more frequently than every six (6) months) to audit (a) Quest's books and records to confirm the accuracy of charges invoiced by Quest to Ameritech, (b) the End User database of information to verify its designee may accuracy and completeness, and (c) Quest's personnel and methods and procedures to verify Quest's compliance with this Agreement. Any such audit shall be performed at reasonably convenient times for the Parties and verify the matters relating to the TPA Services during normal business hours. If Customer engages Any audit of the assistance accuracy and completeness of a third party Quest's invoices to perform Ameritech shall be limited to transactions underlying those invoices submitted within one (1) year of Ameritech's request for the audit. If any audit conducted by Ameritech reveals a discrepancy of five percent (5%) or more, then Quest shall reimburse Ameritech's reasonable audit expenses. Nothing herein shall give Ameritech the third party must right to have access to any information other than that information related to Ameritech's account.
(aB) execute a confidentiality agreement that contains protections Notwithstanding the foregoing, Ameritech shall be entitled to place one (1) or more of its employees and/or consultants at Quest's facilities in order to audit the accuracy, correctness and completeness of the Carrier's bills to Quest for Confidential Information comparable Wholesale Transmission Services sold by Quest to those set forth Ameritech. Quest shall furnish such employees/consultants reasonable accommodations, facilities and assistance in this TPA Addendum; effort, and Ameritech shall reimburse Quest for any reasonable out of pocket expenses (bto include such expenses as telephone charges but not to include an allocation for rent, lights, heat, etc.) not be incurred by Quest in providing such accommodations, facilities and assistance. If Quest requests and they have time, Ameritech will direct those employees/consultants to also audit the accuracy, correctness and completeness of the Carrier's bills to Quest for Retail Transmission Services provided by Quest to Ameritech's Customers and/or End Users, in which event Quest shall reimburse Ameritech for a competitor to Zinnia with respect to in pro rata portion of the employees'/consultants' time and expenses based on Ameritech's portion of the ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇'▇ ▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount Quest's portion of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇'▇ ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Services Agreement (Teltrust Inc)
Audit. 5.1Subject to the confidentiality requirements of Section 9.2 of this Agreement, the LFA may audit or conduct a Franchise fee review of Franchisee’s books and records no more than once every three (3) years during the term of this Agreement. Upon All records reasonably necessary for any such audit shall be made available by Franchisee to the LFA. Franchisee shall maintain such records for three (3) years provided that, if the LFA commences an audit within that three-year period, Franchisee shall continue to maintain such records for the duration of any audit in progress at least ten (10) calendar days’ the end of that three-year period. The LFA shall conduct all audits expeditiously, and the LFA shall not unreasonably delay the completion of an audit; the LFA shall provide Franchisee with written notice of its completion of the audit. Each party shall bear its own costs of an audit; provided, however, that if the results of any audit indicate that Franchisee underpaid the Franchise fees by five percent (5%) or more, then Franchisee shall pay those costs of the third-party audit which are reasonable, documented, out-of-pocket costs up to Zinniaan aggregate of Five Thousand Dollars ($5,000). If the results of an audit indicate an overpayment or underpayment of Franchise fees, Customer the parties agree that such overpayment or its designee may audit and verify the matters relating underpayment shall be returned or offset against future payments if applicable, to the TPA Services during normal business hoursproper party within sixty (60) days, unless audit findings are in dispute; provided, however, that Franchisee shall be required to remit underpayments to the LFA together with interest at the rate provided in Section 7.2 above of the amount correctly due from the date such underpayment would have been due. If Customer engages the assistance of audit determines that there has been an overpayment by Franchisee, such overpayment shall be subject to interest charges computed from the overpayment date at the rate provided above. Any audit shall be conducted by a qualified independent third party to perform party. Any entity employed by the audit, LFA that performs the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) audit or Franchise fee review shall not be a competitor permitted to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2success-based formula, e.g., payment based on an underpayment of Franchise fees, if any. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory AuthoritySubject to the terms set forth above, in connection with audits in relation hereto and/or to any Order and shallthe event Harford County, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days Maryland (“Overcharge Due DateCounty”). If Zinnia does not repay such overcharge within ten (10) daysseeks to exercise its rights to audit its franchise fee payments, Customer may charge interest on such overdue amount at the rate of one LFA hereby reserves the right to join into the County’s audit upon the County’s concurrence and one-half percent (1.5%) per month (or the highest rate permitted written notice by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment LFA to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from CustomerFranchisee.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Cable Franchise Renewal Agreement
Audit. 5.1. Upon During the Term, and for a period of twenty-four (24) months thereafter, Licensor’s authorized independent representatives may, during regular business hours and upon reasonable advance written notice of at least ten twenty (1020) calendar days’ written notice Business Days to ZinniaLicensee, Customer or its designee may audit such books and records of Licensee as are reasonably necessary to verify the matters relating accuracy of payments made to the TPA Services during normal business hoursLicensor under this Agreement. If Customer engages the assistance of Licensor’s representative shall be a third party to perform the independent nationally recognized cable audit, law or accounting firm designated by Licensor and approved by Licensee, such approval not to be unreasonably withheld, and such cable, audit, law or accounting firm and/or the third party must individuals involved shall have executed appropriate confidentiality agreements in a form reasonably designated by Licensee prior to the commencement of an audit. Any such audit shall be at Licensor’s sole cost and expense. Licensor may not audit more than one time per year during the Term or more than one time after the expiration of the Term (a) execute and, so long as Licensee is promptly responding to the auditor’s reasonable requests for documents and information, no such audit shall continue for more than 45 calendar days), and any such audited information shall be subject to Section 17 of these Standard Terms and any such audit shall be conducted only during reasonable business hours and in such a confidentiality agreement manner as not unreasonably to interfere with the normal business activities of Licensee. Commencing as of the Effective Date, each audit shall be limited to the two Term Years prior to the then-current Term Year (it being understood that contains protections for Confidential Information comparable accounting statements covering periods prior to those set forth the Effective Date shall be governed by the Prior Agreement). Licensee shall keep and maintain complete and accurate books of account and records in this TPA Addendum; (b) not be a competitor to Zinnia connection with each Included Program. Licensee shall maintain such records with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in each Included Program at its sole, reasonable discretion, and principal place of business for a period of four (c4) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days years from the date of CustomerLicensee’s notice first exhibition of the particular Included Program. The acceptance by Licensor of any statement or payment shall be without prejudice to Zinnia) disputed by Vendor in writingany of Licensor’s rights or remedies and shall not bar Licensor from thereafter disputing the accuracy of any such payment or statement, and Licensee shall remain fully liable for any balance due under the terms of this Agreement. If Licensor shall audit Licensee’s books and records, then Licensor shall, within 6 months of the conclusion of such audit, inform Licensee, in good faith. All audits will be performed in writing of any claim resulting therefrom (including a manner intended to minimize disruption to either partytrue copy of the auditor’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at faultreport), ▇▇▇▇▇▇ will reimburse Customer and, except for the reasonable and documented costs Customer incurred directly and solely as a result of claims set forth in such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the auditnotice, all statements rendered by Licensee with respect to the period covered by such reimbursements audit and any prior period shall be conclusive and binding on the parties and not subject to be made by Zinnia further audit. Notwithstanding anything to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annuallythe contrary contained herein, and no provision herein shall limit Licensor’s rights at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In law in the event such reports include any negative audit findings impacting the Services in any way, Zinnia that Licensee shall promptly correct such negative findings, and Zinnia shall be solely responsible for have concealed information from or provided false information or failed to make available all costs and fees necessary to do so.pertinent information
Appears in 1 contract
Sources: License Agreement
Audit. 5.1If within the fifteen (15) days term referred to in section 4 of this annex, THE TRANSFEROR made any observations to the NSR Royalty payment settlements submitted by THE ACQUIRER, THE TRANSFEROR and THE ACQUIRER shall make their reasonable best efforts to reach an agreement regarding any differences which may have arisen between them. Upon at least ten If THE ACQUIRER and THE TRANSFEROR fail to reach an agreement within fifteen (1015) calendar days’ written notice days following the date in which THE TRANSFEROR notifies its observations to ZinniaTHE ACQUIRER, Customer or its designee may the differences between such parties shall be submitted to a final and conclusive analysis of a titled public accountant experienced in the mining industry and that is acceptable for both parties. The expenses for the hiring of such consultant firm shall be initially assumed by THE TRANSFEROR. The public accountant referred to in the preceding paragraph shall conduct an audit of all the documents supporting the NSR Royalty payment settlements subject to observations by THE TRANSFEROR, as well as of all such other information and/or documents as are necessary to that effect. The audit shall take place at the place to be designated by THE ACQUIRER for those effects and verify during the matters relating to business hours of the TPA Services during normal business hourslatter. If Customer engages the assistance audit reveals that the calculation of the NSR Royalties made by THE ACQUIRER is within a third party to perform 2.5% range of the audit results, the cost of the audit shall be fully borne by THE TRANSFEROR. However, if the audit reveals that the calculation of the NSR Royalties made by THE ACQUIRER exceeds the 2.5% range of the audit results, THE ACQUIRER shall bear the costs thereof. In any case, THE ACQUIRER shall pay THE TRANSFEROR – as an NSR Royalty payment – any shortfall determined by the audit, in which case the third party must (a) execute a confidentiality agreement NSR Royalty payment settlements that contains protections for Confidential Information comparable had been subject to those set forth observations, will be amended in this TPA Addendum; (b) not be a competitor accordance to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount results of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)audit. If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion Upon completion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost and delivery of the results to THE ACQUIRER and THE TRANSFEROR, THE ACQUIRER shall pay, without any interests, any additional NSR Royalties that might have been determined by the audit, all such reimbursements to . Such payment will be made by Zinnia to Customer THE ACQUIRER within thirty fifteen (3015) calendar days of receipt of an itemized invoice from Customer.
5.3the audit. At least annuallyHowever, and at no additional charge if the audit determined that THE ACQUIRER paid NSR Royalties in excess of what is was really obliged to Customermake, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared THE TRANSFEROR shall reimburse THE ACQUIRER the amount paid in excess by a nationally recognized firm for Zinnia’s facility or facilities from which it (includingwithout interests) within fifteen (15) calendar days of receipt of the audit. It is hereby expressly agreed that during the term in which the audit is being conducted, the term established in this annex for THE ACQUIRER to pay the NSR Royalties will not be suspended and, in this sense, THE ACQUIRER should continue compliance its payment obligation of the NSR Royalty when and as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Master Purchase Agreement (Black Tusk Minerals Inc.)
Audit. 5.1Angion shall have the right, at its own expense and not more than once in any four consecutive calendar quarters during the term of this Agreement (except for one (1) post- termination audit), to have an independent, certified public accountant, selected by Angion and reasonably acceptable to Ohr, review the records of Ohr, its Affiliates and sublicensees, in the location(s) where such records are maintained by Ohr upon reasonable notice (which shall be no less than forty five (45) days prior written notice) and during regular business hours and under obligations of strict confidence, for the sole purpose of verifying the basis and accuracy of payments required and made under this Agreement. Upon at least ten (10) calendar days’ written notice The independent public accountants selected by Angion and agreed to Zinniaby Ohr will be required to sign Ohr’s confidential disclosure agreement prior to performing any audit procedures or receiving any information from Ohr. The report and communication of such accountant shall be limited to a certificate stating whether any report made or payment submitted by Ohr during such period is accurate or inaccurate and the amount of any payment discrepancy, Customer regardless if the discrepancy is favorable or its designee may audit and verify unfavorable to Angion. Ohr shall receive a copy of each such report concurrently with receipt by Angion. Should the matters relating inspection lead to the TPA Services during normal business hours. If Customer engages the assistance discovery of a third party discrepancy to perform the auditAngion’s detriment, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will Ohr shall pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten discrepancy (10without interest) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt Ohr’s agreement with the findings of the inspection. Should the inspection lead to the discovery of a discrepancy to Ohr’s detriment, Ohr will have the right to deduct such amount (without interest) from any future royalty payment obligations; to the extent that no or insufficient future royalty obligations are due to Angion, Angion agrees to pay such amount to Ohr within thirty (30) days of receiving an itemized invoice from CustomerAngion. Angion shall pay the full cost of the inspection unless the discrepancy is greater than five percent (5%) to Angion’s detriment, in which case Ohr shall pay the reasonable cost charged by such accountant for such inspection.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Audit. 5.1MITSUBISHI shall keep and shall cause to be kept accurate records in sufficient detail to enable the amounts due hereunder to be determined and to be verified by VERTEX. Upon the written request of VERTEX, at least ten (10) VERTEX’s expense and not more than once in any calendar days’ written notice year, MITSUBISHI shall permit an independent accountant of national prominence selected by VERTEX, and approved by MITSUBISHI, to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services have access during normal business hourshours to those records of MITSUBISHI as may be reasonably necessary to verify the accuracy of the sales reports furnished by MITSUBISHI pursuant to this Section 6.5, in respect of any calendar year ending not more [***] prior to the date of such notice. If Customer engages Such accountant shall not disclose any information except that which should properly be contained in a sales report required under this Agreement. MITSUBISHI shall include in each sublicense entered into by it pursuant to this Agreement a provision requiring the assistance sublicensee to keep and maintain adequate records of a third party sales made pursuant to perform such sublicense and to grant access to such records by the auditaforementioned independent accountant for the reasons specified in this Section 6.5. Upon the expiration of three (3) years following the end of any calendar year, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia calculation of amounts payable with respect to such calendar year, [***] Information redacted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. unless then in ▇▇▇▇▇▇’s third party administrator businessdispute, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionshall be binding and conclusive upon VERTEX, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with MITSUBISHI and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer and sublicensees shall be released from any liability or accountability with respect to payments for such year. The report prepared by such independent accountant, a copy of which shall be sent or otherwise provided to MITSUBISHI by such independent accountant at the same time it is sent or otherwise provided to VERTEX, shall contain the conclusions of such independent accountant regarding the audit and will pay all costs attributable specify that the amounts paid to such audits except as otherwise stated herein. IfVERTEX pursuant thereto were correct or, as a result of any such auditif incorrect, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay any underpayment or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)overpayment. If Zinnia does not repay such overcharge within ten (10) daysindependent accountant’s report shows any underpayment, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (MITSUBISHI shall remit or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment shall cause its Affiliates or sublicensees to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice remit to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer VERTEX within thirty (30) days of after MITSUBISHI’ receipt of an itemized invoice from Customer.
5.3such report, (i) the amount of such underpayment and (ii) if such underpayment exceeds five percent (5%) of the total amount owed for the calendar year then being audited, the reasonable and necessary fees and expenses of such independent accountant performing the audit, subject to reasonable substantiation thereof. At least annually, and at no additional charge Any overpayments shall be fully creditable against amounts payable in subsequent payment periods. VERTEX agrees that all information subject to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia review under this section are Zinnia Confidential Information. Zinnia may redact from Section 6.5 or under any sublicense agreement is confidential and that VERTEX shall retain and cause its accountant to retain all such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soconfidence.
Appears in 1 contract
Sources: License, Development and Commercialization Agreement (Vertex Pharmaceuticals Inc / Ma)
Audit. 5.1Contractor shall maintain accurate and complete records and accounts relating to Services provided hereunder, and, in accordance with generally-accepted accounting principles, complete and accurate records of expenses incurred sufficient to document the Fees and Expenses invoiced to Company for at least three (3) years following the date of the invoice (“Records and Accounts”). Upon at least ten (10) calendar days’ written notice request by Company provided with reasonable prior notice, Contractor shall allow Company or Company’s authorized representatives to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services visit Contractor’s facilities during normal business hourshours to observe and verify Contractor’s compliance with this Agreement, review the Records and Accounts, inspect those facilities of Contractor which are being utilized in the Services, and/or to make copies of relevant records. If Customer engages Records and Accounts shall be maintained for a period of seven (7) years after the assistance creation of a third party the applicable Record or Account. In order to assure the quality of Contractor’s performance of the Services hereunder, Company will be entitled to perform such audits no more than two (2) times in any twelve (12) month period; provided, however, Company may also visit Contractor’s offices with reasonable frequency during normal business hours to discuss the auditprogress of the Services. In the event said audits exceed two (2) times in any twelve (12) month period (such additional audits, the third party must (a) execute a confidentiality agreement “Additional Audits”), Contractor agrees to allow Company or its authorized representatives to conduct such Additional Audits; provided, however, that contains protections Company shall reimburse Contractor for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇Contractor’s third party administrator business, as determined costs and expenses actually incurred by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, Contractor in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, such Additional Audits. If Company discovers that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, Contractor has been overcharging Company as a result of any such audit, Customer determines that Zinnia overcharged itincluding any Additional Audit, Customer shall notify Zinnia in writing of its determination, including Contractor will refund the amount of any overcharging that is not disputed in good faith by Company. Notwithstanding anything to the contrary in this Section 5.1, if the amount of any such undisputed overcharge and exceeds 10% of the basis amounts actually due during the period being audited, Contractor shall reimburse Company for its conclusion, Company’s costs of thereto and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) dayswas discovered during an Additional Audit, Customer may charge interest on Company shall not be responsible for reimbursing Contractor for Contractor’s costs and expenses actually incurred with respect to such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faithAdditional Audit. . All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses Records and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia Accounts shall be solely responsible for all costs and fees necessary to do sodeemed Confidential Information under the Confidentiality Agreement.
Appears in 1 contract
Audit. 5.14.6.1 SONIM shall maintain full and accurate records of all licensed activities sufficient for the appointed representative to ensure compliance with the licence terms and check the accuracy of royalty amounts due and paid. Upon at least ten (10) calendar days’ written notice This duty shall extend to Zinniaall parties related to SONIM, Customer its Affiliates, any sub-contractors and other relevant parties.
4.6.2 SONIM shall permit an authorised representative appointed by NOKIA, who is an appropriately qualified accountant or its designee may auditor, to carry out an audit and verify to ensure that SONIM is complying with the matters relating to the TPA Services during normal business hours. If Customer engages the assistance terms of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia Agreement with respect to the amount of royalty due to NOKIA under this Agreement.
4.6.3 SONIM shall provide the representative such accounts, information, documentation (including, but not limited to, SONIM’s consolidated audited accounts, books and records and covering details of all Licensed Products including manufacturing records) and explanations as the representative shall require, to satisfy the representative that the provisions of this Agreement with respect to royalties due are being complied with. The representative shall be provided access to staff and to facilities and premises (i) where the royalties are calculated and where the back up royalty and other related information (as detailed in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, this paragraph) is held and (cii) not where they believe licensed activities may be compensated on a contingency basistaking place including Affiliates, sub-contractors and other related parties. Patent License Agreement dated 23rd September 2008 between NOKIA and SONIM TECHNOLOGIES
4.6.4 The representative shall have the right to take copies and extracts of documents relevant for the purposes of the audit.
5.2. Zinnia 4.6.5 Such audit will reasonably cooperate with not take place more than once every year and assist Customershall be restricted to a period not more than [***] preceding the notice given for the audit.
4.6.6 Such duties as set out above, Customer designees, and their respective auditors, inspectors, consultants, and other representativesin full shall extend to all Affiliates, and any Regulatory Authority, sub-contractor or other relevant party who have been granted rights under the Licence.
4.6.7 The fees and expenses of the representative will be borne by NOKIA. If the audit discloses an underpayment to the NOKIA of [***] of the amount due in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate the period of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including SONIM will promptly on demand reimburse NOKIA the amount fees and costs of the overcharge representative and the reasonable costs incurred by NOKIA in respect of the audit.
4.6.8 NOKIA will have the right and SONIM agrees to have the audit commence within [***] of the NOKIA giving notice to this effect.
4.6.9 The auditor will provide a report of the results of their audit and the basis of their findings. The report will be provided to SONIM for its conclusioncomments in advance of being forwarded to NOKIA.
4.6.10 Any [***], andincluding but not limited to [***], if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit shall as of said date entitle [***] to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault[***], if it is commercially feasible to identify only those audit costs that are attributable to such material fault or and/or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer [***]. The rights and licenses granted [***] for the total cost purpose of the auditthis Section 4.6.10. [***] shall include, all such reimbursements but not be limited to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer[***].
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Audit. 5.1Angion shall have the right, at its own expense and not more than once in any four consecutive calendar quarters during the term of this Agreement (except for one (1) post termination audit), to have an independent, certified public accountant, selected by Angion and reasonably acceptable to Ohr, review the records ofOhr, its Affiliates and sublicensees, in the location(s) where such records are maintained by Ohr upon reasonable notice (which shall be no less than forty five (45) days prior written notice) and during regular business hours and under obligations of strict confidence, for the sole purpose of verifying the basis and accuracy of payments required and made under this Agreement. Upon at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined The independent public accountants selected by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not agreed to by Ohr will be compensated on required to sign ▇▇▇'s confidential disclosure agreement prior to performing any audit procedures or receiving any information from Ohr. The report and communication of such accountant shall be limited to a contingency basis.
5.2. Zinnia will reasonably cooperate with certificate stating whether any report made or payment submitted by Ohr during such period is accurate or inaccurate and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of any payment discrepancy, regardless if the overcharge and the basis for its conclusion, and, if Zinnia, in discrepancy is favorable or unfavorable to Angion. Ohr shall receive a copy of each such report concurrently with receipt by ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit . Should the inspection lead to Customer the amount discovery of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment a discrepancy to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies'▇ detriment, Ohr shall pay the amount of the discrepancy (without interest) within thirty (30) days ofOhr's agreement with the findings of the inspection. If Should the inspection lead to the discovery ofa discrepancy to ▇▇▇'s detriment, Ohr will have the right to deduct such amount (without interest) from any audit results in a final determination future royalty payment obligations; to the extent that Zinnia was materially at faultno or insufficient future royalty obligations are due to Angion, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of agrees to pay such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible amount to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer Ohr within thirty (30) days of receipt of ofreceiving an itemized invoice from Customer.
5.3Angion. At least annuallyAngion shall pay the full cost of the inspection unless the discrepancy is greater than five percent (5%) to Angion's detriment, in which case Ohr shall pay the reasonable cost charged by such accountant for such inspection. 4.7 W-9 Forms. Angion shall provide to Ohr a completed IRS Form W9 within five (5) days after the Effective Date. ARTICLE 5 OHR'S DILIGENCE 5,1 Diligence. Ohr shall exercise Best Efforts to develop, manufacture, and at no additional charge commercialize Licensed Products. Notwithstanding the foregoing, Ohr does not represent or warrant to Customer, Zinnia Angion that any commercializable product will provide to Customer copies be developed hereunder or that any Licensed Product will be commercially exploitable or of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do socommercial value.
Appears in 1 contract
Audit. 5.1. Upon After delivery to Landlord of at least ten thirty (1030) days’ prior written notice delivered no later than one hundred twenty (120) days after receipt of a Statement, Tenant, at its sole cost and expense through any accountant designated by it, shall have the right to examine and/or audit the books and records evidencing such costs and expenses for the previous one (1) calendar days’ written notice to Zinniayear, Customer or its designee during Landlord’s reasonable business hours but not more frequently than once during any calendar year. Any such accounting firm designated by Tenant may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency fee basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result The results of any such auditaudit (and any negotiations between the parties related thereto) shall be maintained strictly confidential by Tenant and its accounting firm and shall not be disclosed, Customer determines published or otherwise disseminated to any other party other than to Landlord and its authorized agents. Landlord and Tenant each shall use its best efforts to cooperate in such negotiations and to promptly resolve any discrepancies between Landlord and Tenant in the accounting of such costs and expenses. If Tenant fails to timely deliver written notice of Tenant’s desire to audit a Statement pursuant to this Section 4.6 or Tenant fails to commence and complete such audit within six (6) months after Landlord’s delivery of the Statement in question, then Tenant shall be deemed to have approved of such Statement and such Statement shall be final and binding upon Tenant. If through such audit it is determined that Zinnia overcharged it, Customer shall notify Zinnia there is a discrepancy of more than five percent (5%) in writing of its determination, including the amount of Operating Expense, Tax Expense and Utility Cost payments made by Tenant for such calendar year when compared to the overcharge actual Operating Expenses, Tax Expenses and the basis Utilities Costs for its conclusionsuch year, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will then Landlord shall reimburse Customer Tenant for the reasonable accounting costs and documented costs Customer expenses incurred directly and solely as a result of by Tenant in performing such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty including Tenant’s outside auditors or accountants (30) days of receipt of an itemized invoice from Customerbut excluding Tenant’s in-house personnel).
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Office Lease (Xactly Corp)
Audit. 5.1. Upon at least ten thirty (1030) calendar days’ written notice to ZinniaESE, Customer or its designee may ESE shall permit a reputable third party auditor selected by the Company through a competitive solicitation and agreed to by the ESE, such agreement not to be unreasonably withheld, (the “CSA”) to audit and verify inspect ESE, at Company’s sole expense (except as otherwise provided in this Agreement), and provided that the matters audit may occur no more often than once per twelve (12) month period (unless otherwise required by Company’s regulators).The audit may include (A) the facilities of ESE and ESE’s Third-Party Representatives where Confidential Company Information is Processed by or on behalf of ESE; (B) any computerized or paper systems used to Process Confidential Company Information; and (C) ESE’s security practices and procedures, facilities, resources, plans, procedures, and books and records relating to the TPA Services during normal business hoursprivacy and security of Confidential Company Information. Such audit rights shall be limited to verifying ESE’s compliance with this Agreement, including all applicable Data Protection Requirements. If Customer engages the assistance ESE provides a SOC II report or its equivalent to the Company, or commits to complete an independent third-party audit of ESE’s compliance with this Agreement acceptable to the Company at ESE’s sole expense, within one hundred eighty (180) days, no audit by a third party auditor selected by the Company through a CSA and conducted at Company’s sole expense is necessary absent a Data Security Incident. Notwithstanding the foregoing, a suspected or actual Data Security Incident will not be the basis for an audit hereunder if, i) ESE provides a written verification to perform the Company that the suspected Data Security Incident was not confirmed and did not result in an actual Data Security Incident, or ii) ESE provides a written verification to the Company that the actual Data Security Incident has been resolved and appropriate controls have been implemented by the ESE to protect Company’s IT Systems and Company Confidential Information; provided that ESE’s actions and written verifications thereof are satisfactory to the Company and are subject to approval by Company, which approval shall not be unreasonably withheld or delayed. In the event an audit relating to a Data Security Incident does occur, the scope will be to investigate ESE’s IT Systems and security practices involved in the Data Security Incident; provided that Company has the right to approve the scope of the audit, the third party with such approval not to be unreasonably withheld or delayed. Any audit must (a) execute a be subject to confidentiality agreement that contains protections for Confidential Information comparable to those and non-disclosure requirements set forth in Section 6 of this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requestedAgreement; provided that any information obtained by Company and/or its auditors which is not capable of being marked confidential, shall be deemed to be ESE Confidential Information; provided further, however, that Customer may Company shall be permitted to share Confidential Information as contemplated in Section 7 of this Data Security Agreement and to use Confidential Information in order to pursue appropriate remedial and/or legal actions that flow from a Data Security Incident consistent with an appropriate protective order. The auditor will audit the ESE’s compliance with the Agreement and provide those results to the Company and ESE. The audit report sent to the Company shall not use include any auditorESE confidential information, inspector, consultant, or representative who is a competitor or Affiliate it will simply provide an assessment as to the ESE’s compliance with the terms of this Agreement. In the event of a competitor “failed” audit dispute, the dispute resolution processes outlined in the Governing Documents can be utilized or a complaint can be brought to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated hereinthe Commission. If, Company shall provide ESE with a report of the findings as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted audit carried out by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.auditor selected
Appears in 1 contract
Sources: Data Security Agreement
Audit. 5.1Contractor shall maintain accurate and complete records and accounts relating to Services provided hereunder, and, in accordance with generally-accepted accounting principles, complete and accurate records of expenses incurred sufficient to document the Fees and Expenses invoiced to PhaseBio for at least three (3) years following the date of the invoice. ("Records and Accounts"). Upon at least ten (10) calendar days’ written notice request by PhaseBio provided with reasonable prior notice, Contractor shall allow PhaseBio or PhaseBio's authorized representatives to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services visit Contractor's facilities during normal business hourshours to observe and verify Contractor's compliance with this Agreement, review the Records and Accounts, inspect those facilities of Contractor which are being utilized in the Services, and to make copies of relevant records. Records and Accounts shall be maintained for a period of three (3) years after the creation of the applicable Record or Account. To assure the quality of Contractor's performance of the Services hereunder, PhaseBio may perform such audits no more than two (2) times in any twelve (12) months; provided, however, PhaseBio may also visit Contractor's offices with reasonable frequency during normal business hours to discuss the progress of the Services. If Customer engages the assistance of a third party to perform the auditsaid audits exceed two (2) times in any twelve (12) month period, the third party must (a) execute a confidentiality agreement that contains protections PhaseBio shall reimburse Contractor for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined costs and expenses actually incurred by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, Contractor in connection with audits in relation hereto and/or to any Order and shallthe additional audits, on a reasonably timely basisprovided, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines if PhaseBio discovers that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely Contractor has been overcharging PhaseBio as a result of such material faultaudit, and ▇▇▇▇▇▇ will Contractor shall refund the amount of any overcharging that is not disputed in good faith by Contractor. In addition, if the amount of any such undisputed overcharge exceeds 10% of the amounts actually due during the period being audited, Contractor shall reimburse Customer (i) PhaseBio for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the any said additional audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, All Records and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia Accounts shall be solely responsible for all costs and fees necessary to do sodeemed Confidential Information under the Confidentiality Agreement.
Appears in 1 contract
Sources: Master Services Agreement (PhaseBio Pharmaceuticals Inc)
Audit. 5.1. Upon Within 30 days after Landlord furnishes its statement of actual Operating Costs for any calendar year, Tenant may, at least ten (10) calendar days’ written notice its expense, elect to Zinniaaudit Landlord Operating Costs, Customer or its designee may audit and verify the matters relating subject to the TPA Services following conditions: (1) there is no uncured Event of Default under this Lease; (2) the audit shall be prepared by an independent certified public accounting of recognized national or regional standing; (3) in no event shall any audit be contingency ; (4) the audit shall commence within 10 days after Landlord makes Landlord Tenant and shall conclude within 10 days after commencement; (5) the audit shall be conducted during Landlord normal business hours. If Customer engages hours at the assistance location where Landlord maintains its books and records and shall not unreasonably interfere with the conduct of Landlord s business; (6) Tenant and its audit firm shall treat any audit in a third party confidential manner and shall each execute Landlord s confidentiality agreement for Landlord s benefit prior to perform commencing the audit; and (7) the audit firm s audit report shall, at no charge to Landlord, be submitted in draft form for Landlord s review and comment before the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable final approved audit report is delivered to those set forth in this TPA Addendum; (b) Landlord, and any reasonable comments by Landlord shall be incorporated into the final audit report. This paragraph shall not be a competitor construed to Zinnia with respect to in limit, suspend, or ▇▇▇▇▇▇’s third party administrator business, as determined by ▇ ▇▇▇▇▇▇ s obligation to pay Rent when due, including Additional Rent. Landlord shall credit any overpayment determined by the final approved audit report against the next rent due and owing by Tenant or, if no further rent is due, refund such overpayment directly to Tenant within 30 days of determination. Likewise, Tenant shall pay Landlord any underpayment determined by the final approved audit report within 30 days of determination. The foregoing obligations shall survive the expiration or termination of this Lease. The right to audit granted hereunder is personal to the initial Tenant named in its sole, reasonable discretion, this Lease and (c) shall not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or available to any Order and shall, on subtenant under a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount sublease of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)Leased Premises. If Zinnia does the audit proves that Landlord s calculation of Operating Costs for the calendar year under inspection was overstated by more than 10%, then, after verification, Landlord shall pay Tenant s actual reasonable out-of-pocket audit and inspection fees not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly exceed $2,500.00 (but in specifically excluding any event travel and lodging expenses) applicable to the review of said calendar year statement within ten (10) 30 days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of after receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.Tenant
Appears in 1 contract
Sources: Lease Agreement
Audit. 5.1. Upon at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit Until the expiration of all royalty payment obligations hereunder and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault[***], ▇▇▇▇▇▇ will reimburse Customer keep complete and accurate records pertaining to the sale or other disposition of Product by Haisco, its Affiliates and Sublicensees in sufficient detail to permit Starton to confirm the accuracy of License Royalties payable under this Agreement. Starton will have the right to cause an independent internationally recognized accounting firm (the “Accounting Firm”) reasonably acceptable to Haisco to audit such records for the reasonable sole purpose of confirming Net Sales and documented costs Customer incurred directly royalties for a period covering not more than [***]. The Accounting Firm will disclose to Starton only whether the payments subject to such audit are correct or incorrect and solely as a result the specific details concerning any discrepancies. No other information regarding the results of such material faultaudit will be provided to Starton without the prior consent of Haisco. Haisco may require such accounting firm to execute a reasonable confidentiality agreement with Haisco prior to commencing the audit. Such audits must be conducted during normal business hours upon reasonable prior written notice to Haisco, but no more frequently than once in the first Calendar Year after the Effective Date and ▇▇▇▇▇▇ no more than once per two (2) Calendar Years thereafter. No accounting period of Haisco will reimburse Customer be subject to audit more than one time by Starton. Adjustments (iincluding remittances of underpayments or overpayments disclosed by such audit) for will be made by the reasonable Parties to reflect the results of such audit, which adjustments will be paid promptly following receipt of an invoice therefor. Starton will bear the full cost and documented costs expense of such audit unless such audit discloses an underpayment by Haisco of [***] or more of the portion amount of royalties due under this Agreement, in which case Haisco will bear the audit that uncovered full cost and expense of such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do soaudit. For the avoidance of doubt, ▇▇▇▇▇▇ will reimburse Customer for shall not be obligated to permit Governmental Authorities outside the total cost of Territory to conduct any inspections or audits inside the audit, all such reimbursements Territory relating to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerthe Products.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Development and Commercial License Agreement (HWEL Holdings Corp.)
Audit. 5.1. Upon at least ten (10) calendar days’ written notice to ZinniaCornerstone shall keep and maintain true and complete records setting forth the gross sales of the Product in the Territory, Customer or its designee may audit and verify the of all matters relating to the TPA Services during normal business hours. If Customer engages computation of the Net Sales of the Product in the Territory, including quantities of Product used as clinical supplies or in patient assistance programs, volume of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultantProduct distributed, or representative who is a competitor or Affiliate of a competitor records otherwise related to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing Cornerstone’s performance of its determinationobligations under this Agreement, including the amount for a period of the overcharge and the basis for its conclusion[***] following such sales, and, if Zinnia, in ▇▇▇▇▇▇such records shall be open to inspection at Cornerstone’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest corporate headquarters on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days written notice provided by Chiesi, during the normal [***] Confidential portions of receipt the exhibit have been omitted and filed separately with the Securities and Exchange Commissions. office hours of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared Cornerstone (but not more frequently than once per year) by a nationally recognized firm independent certified public accountant selected by Chiesi and reasonably acceptable to Cornerstone, and retained solely for Zinniathe purpose of auditing the same at Chiesi’s facility or facilities from which it (includingexpense; provided, as applicablehowever, its affiliates and subcontractors) is providing that records with respect to any Calendar Quarter may be audited no more than once in connection with the Servicessame audit and/or subject matter; provided, further that nothing in this Section 6.5.1 shall limit Chiesi’s right to have audited Cornerstone’s records with respect to any Calendar Quarter in connection with Chiesi’s year-end review. Such audit shall be conducted exclusively for the purpose of verifying the accuracy of reports delivered by Cornerstone to Chiesi pursuant to Section 6.4 and the accuracy of Cornerstone’s determination of the amounts payable or paid by Cornerstone to Chiesi hereunder. The accountant shall sign a confidentiality agreement prepared by Cornerstone and shall then have the right to examine the records kept pursuant to this Section 6.5.1 and report to Chiesi the findings (but not the underlying data) of such examination of records. The accountant shall provide a draft copy of the report to Chiesi and Cornerstone for review and comment, and each of Chiesi and Cornerstone shall have thirty (30) days after receipt of that report to review and comment on the report which comments shall be provided to the accountant and to each other. The final report shall be provided simultaneously to Chiesi and Cornerstone by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from the independent certified public accountant within twenty (20) days after the accountant’s receipt and consideration of such reports those portions containing confidential information of third partiescomments. In the event such reports include any negative that an audit findings impacting has been initiated by Chiesi, the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia records that have been the subject of the audit shall be solely responsible kept until the later of (i) the expiry of any time period set out in Section 6.5.2 for all costs and fees necessary the payment or credit of any amounts owing or (ii) the resolution of any dispute arising from the audit. If such examination of records reveals more than a five percent (5%) underpayment of any amounts payable hereunder as compared to do sothe amounts actually reported by Cornerstone as payable to Chiesi, as determined by such examination for the period which is the subject of such examination, the expenses for said accountant shall be borne by Cornerstone.
Appears in 1 contract
Sources: License and Distribution Agreement (Cornerstone Therapeutics Inc)
Audit. 5.1. Upon Auspex shall be entitled to appoint, at least ten its sole expense, a certified public accountant or other professional as appropriate and reasonably acceptable to Purchaser (10the “CPA Representatives”) calendar days’ written notice to Zinniainspect, Customer or its designee may audit and verify the matters relating to the TPA Services not more than once a Calendar Year, during normal business hours. If Customer engages hours Purchaser’s and its Affiliates’ books and records contemplated by Section 2.8 above, including all books of account, records and other relevant documentation to the assistance extent relevant or necessary for the sole purpose of a third party to perform verifying compliance with the auditpayment and related obligations under this Agreement, the third party must calculation of amounts due to Auspex under this Agreement and of all financial information required to be provided in the Periodic Reports, provided that Auspex shall coordinate such inspection with Purchaser or its Affiliate (aas the case may be) execute reasonably in advance. In addition, Auspex may require that Purchaser, through the CPA Representatives, inspect, at Auspex’s expense, during normal business hours the books and records contemplated by Section 2.8 above, including all applicable books of account, records and other relevant documentation of any licensees, not more than once a confidentiality agreement that contains protections Calendar Year, to the extent relevant or necessary for Confidential Information comparable the sole purpose of verifying the compliance with the payment obligations under this Agreement, the calculation of amounts due to those set forth Auspex under this Agreement and of all financial information provided in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionthe Periodic Reports, and (c) not Purchaser shall use its commercially reasonable efforts to cause such inspection to be compensated on performed. Prior to making any inspection or audit pursuant to this Section 2.9, the CPA Representatives shall sign a contingency basis.
5.2confidential agreement in form and substance reasonably acceptable to Purchaser. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and The Parties shall reconcile any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, underpayment or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including overpayment within [***] after the amount of CPA Representatives deliver the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered to Auspex and Purchaser. The results of such material faultinspection, if it is commercially feasible any, shall be binding on both Parties. Any underpayment shall be subject to identify only those audit costs that interest in accordance with the terms of Section 2.11, below. Any overpayments shall be fully creditable against amounts payable in subsequent payment periods during the Royalty Term, or if such overpayments are attributable to identified following the Royalty Term, then such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to overpayments shall be made by Zinnia to Customer refunded within thirty (30) days [***] of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 the corresponding audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesresults. In the event that any inspection of Purchaser aforesaid reveals any underpayment by Purchaser to Auspex in respect of any Calendar Quarter of this Agreement in an amount exceeding [***] of the amount actually paid by Purchaser to Auspex in respect of such reports include any negative audit findings impacting Calendar Quarter, then Purchaser shall pay the Services in any way, Zinnia shall promptly correct reasonable out-of-pocket cost of such negative findings, and Zinnia inspection. Any underpayments or overpayments under this Section 2.9 shall be solely responsible for all costs and fees necessary subject to do sothe currency exchange provisions set forth in Section 2.6(g) as applied to the Calendar Quarter during which the payment obligations giving rise to such underpayment or overpayment were incurred by Purchaser.
Appears in 1 contract
Audit. 5.1. Upon During the Term, and for a period of twenty-four (24) months thereafter, Licensor’s authorized independent representatives may, during regular business hours and upon reasonable advance written notice of at least ten twenty (1020) calendar days’ written notice Business Days to ZinniaLicensee, Customer or its designee may audit such books and records of Licensee as are reasonably necessary to verify the matters relating accuracy of payments made to the TPA Services during normal business hoursLicensor under this Agreement. If Customer engages the assistance of Licensor’s representative shall be a third party to perform the independent nationally recognized cable audit, law or accounting firm designated by Licensor and approved by Licensee, such approval not to be unreasonably withheld, and such cable, audit, law or accounting firm and/or the third party must individuals involved shall have executed appropriate confidentiality agreements in a form reasonably designated by Licensee prior to the commencement of an audit. Any such audit shall be at Licensor’s sole cost and expense. Licensor may not audit more than one time per year during the Term or more than one time after the expiration of the Term (aand, so long as Licensee is promptly responding to the auditor’s reasonable requests for documents and information, no such audit shall continue for more than 45 calendar days), and any such audited information shall be subject to Section 17 of these Standard Terms and any such audit shall be conducted only during reasonable business hours and in such a manner as not unreasonably to interfere with the normal business activities of Licensee. Commencing as of the Effective Date, each audit shall be limited to the two Term Years prior to the then-current Term Year (it being understood that accounting statements covering periods prior to the Effective Date shall be governed by the Prior Agreement). Licensee shall keep and maintain complete and accurate books of account and records in connection with each Included Program. Licensee shall maintain such records with respect to each Included Program at its principal place of business for a period of four (4) execute years from the date of Licensee’s first exhibition of the particular Included Program. The acceptance by Licensor of any statement or payment shall be without prejudice to any of Licensor’s rights or remedies and shall not bar Licensor from thereafter disputing the accuracy of any such payment or statement, and Licensee shall remain fully liable for any balance due under the terms of this Agreement. If Licensor shall audit Licensee’s books and records, then Licensor shall, within 6 months of the conclusion of such audit, inform Licensee, in writing of any claim resulting therefrom (including a confidentiality agreement that contains protections true copy of the auditor’s report), and, except for Confidential Information comparable to those the claims set forth in this TPA Addendum; (b) not be a competitor to Zinnia such notice, all statements rendered by Licensee with respect to the period covered by such audit and any prior period shall be conclusive and binding on the parties and not subject to further audit. Notwithstanding anything to the contrary contained herein, no provision herein shall limit Licensor’s rights at law in ▇▇▇▇▇▇the event that Licensee shall have concealed information from or provided false information or failed to make available all pertinent information requested by Licensor’s third party administrator businessauditors. Licensor shall commence an action or proceeding with respect to any such claim within twenty (20) months of the commencement of any audit hereunder or shall forever be barred from bringing same. Licensor may not commence a new audit until all prior audits have been closed (i.e., after delivery of the notice of the auditor’s findings). If an examination establishes an error in Licensee’s computation of the sums due to Licensor for the period covered by such audit, which error is in excess of 5% of the sums due to Licensor for such period (and provided that such error is either acknowledged by Licensee or confirmed by a final non-appealable order of a court of competent jurisdiction), then Licensee shall pay to Licensor, in addition to the additional sums due to Licensor, (i) interest on such additional sums computed at the best rate charged by Licensor’s principal bank to its best customers, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionthe same may vary from time to time, and (cii) the reasonable direct out-of-pocket costs of such examination (but only to the extent that such sums are actually paid by Licensor to outside auditors, it being expressly understood that Licensee shall not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and responsible for any Regulatory Authority, portion of Licensor’s inside costs in connection with audits in relation hereto and/or to any Order and shallsuch claims); provided, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer in no event shall notify Zinnia in writing of its determination, including the additional sums so paid exceed the amount of the overcharge error. Errors and Omissions Insurance. Prior to the basis commencement of the License Period for its conclusioneach Included Program, andLicensor shall secure, if Zinniaat Licensor’s sole cost and expense, a standard producer’s liability insurance policy covering Licensee’s exhibition, distribution and exploitation of such Included Program in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the minimum amount of the overcharge within ten (10) days $3 million/$5 million (“Overcharge Due DateErrors and Omissions Insurance”). If Zinnia does not repay Such Errors and Omissions Insurance shall name as additional insureds, Licensee, its Affiliates, its licensees and the officers, directors, agents and employees of the same, and shall contain a statement that the insurance being provided therein is primary and that any errors and omissions insurance carried by Licensee or any of its Affiliates is neither primary nor contributing. Licensor shall maintain such overcharge within ten Errors and Omissions Insurance in full force and effect and unmodified throughout such License Period and for one (101) daysyear beyond the termination of such License Period. To the extent that Licensee shall have Errors and Omissions Insurance with regard to its operation of the Licensed Service, Customer may charge interest Licensee shall provide that Licensor is named as an additional insured on such overdue amount at Errors and Omissions Insurance policy and Licensee will pass through to Licensor the rate benefit of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated any of its indemnities from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerproduct suppliers.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: License Agreement
Audit. 5.1i. Roomlinx shall permit Hotel or its designated representative (the “Auditor”) reasonable access to any of Roomlinx’ or its agents’ or subcontractors’ premises, personnel and relevant records as may be reasonably required in order to (y) fulfill any legally enforceable request by any government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled by any applicable law to supervise, regulate, investigate or influence the matters dealt with in this HSA or any other affairs of Hotel; or (z) undertake verification that Roomlinx is complying with this Data Privacy and Protection Provision. Upon Hotel agrees that such audits shall be conducted no more than two (2) times per year.
ii. Hotel shall use reasonable endeavors to ensure that the conduct of each audit does not unreasonably disrupt Roomlinx or delay the provision of services by Roomlinx and that, where possible, individual audits are coordinated with each other to minimize any disruption. Roomlinx shall provide Hotel or the Auditor with all reasonable co-operation, access and assistance in relation to each audit. Roomlinx shall provide at least ten five (105) calendar business days’ written notice of its intention to Zinniaconduct an audit unless such audit is conducted in respect of a suspected fraud, Customer or in which event no notice shall be required. The Parties shall bear their own costs and expenses incurred in respect of compliance with their obligations under this clause, unless the audit identifies a material default of Roomlinx in complying with its designee may obligations under this Data Privacy and Protection Provision, in which case Roomlinx shall reimburse Hotel for all its reasonable costs incurred in the course of the audit.
iii. If an audit identifies that: that Roomlinx is failing to comply, in a material respect, with any of its obligations under this Data Privacy and verify the matters relating Protection Provision, without prejudice to the TPA Services during normal business hoursother rights and remedies of Hotel, Roomlinx shall take the reasonably necessary steps to comply with its obligations at no additional cost to Hotel.
iv. If Customer engages the assistance of The Parties may agree that a third party to perform the auditreport or certification (e.g., the third party must (aa SSAE 16 type report) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In Roomlinx will satisfy the event such reports include any negative above audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do sorequirements.
Appears in 1 contract
Sources: Master Services & Equipment Purchase Agreement (Roomlinx Inc)
Audit. 5.1. Upon After delivery to Landlord of at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days prior written notice, Tenant, at its sole cost and expense, shall have the right to examine and/or audit the books and records evidencing such costs and expenses for the previous one (1) calendar year, during Landlord's ordinary business hours but not more frequently than once during any calendar year. Notwithstanding the foregoing, Tenant may only audit the books and records of receipt Landlord with respect to the Premises and/or the Lease so long as Tenant fully complies with all of the following requirements: (i) any audit by Tenant shall be conducted by an itemized invoice from Customer.
5.3. At least annuallyaccounting or audit firm not compensated on a contingency fee basis or financial officer of Tenant; (ii) any audit shall be conducted in Landlord's offices during ordinary business hours, and after delivery to Landlord of at no additional charge least thirty (30) days' prior written notice; (iii) Tenant may only audit the books and records for the previous one (1) year period in question and after the lapse of one (1) year from the date on which Landlord delivers to CustomerTenant any accounting or statement regarding any rental payments to be made by Tenant under this Lease, Zinnia will provide Tenant shall not have any right or ability to Customer copies audit Landlord's books and records with respect to such rental payments or charges; and (iv) if it is determined through such audit that the amount of SOC 1 Type 2 the expenses actually paid by Tenant to Landlord for the period in question have not been overstated by an amount that is more than ten percent (10%) of the aggregate of such expenses, then Tenant shall immediately pay to Landlord, and SOC 2 Type 2 audit reports Such reports must be prepared reimburse Landlord for, the costs and expenses incurred by a nationally recognized firm for Zinnia’s facility Landlord in connection with such audit, including without limitation, costs attributable to the time spent by Landlord's or facilities from which it (includingLandlord's property management company's staff in connection with such audit, as applicablesuch costs are reasonably determined by Landlord; provided, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia Landlord shall promptly correct pay to Tenant tile amount by which such negative findings, expenses had been overstated. Landlord and Zinnia Tenant shall be solely responsible for all use their commercially reasonable efforts to cooperate in such negotiations and to promptly resolve any discrepancies between Landlord and Tenant in the accounting of such costs and fees necessary to do soexpenses.
Appears in 1 contract
Sources: Lease Agreement (Loudcloud Inc)
Audit. 5.1Provided no Default then exists, after receiving an annual statement of the actual Additional Rent and giving Landlord [***] prior written notice thereof, Tenant may inspect or audit Landlord’s records relating to Expenses and Taxes for the period of time covered by such statement in accordance with the following provisions. Upon If Tenant fails to object to the calculation of Expenses and Taxes on an annual statement of Additional Rent within [***] after the statement has been delivered to Tenant or if Tenant fails to conclude its audit or inspection within [***] after the statement has been delivered to Tenant, then Tenant shall have waived its right to object to the calculation of Expenses and Taxes for the year in question and the calculation of Expenses and Taxes set forth on such statement shall be final. Tenant’s audit or inspection shall be conducted where Landlord maintains its books and records, shall not unreasonably interfere with the conduct of Landlord’s business, and shall be conducted only during business hours reasonably designated by Landlord. Tenant shall pay the cost of such audit or inspection unless the total Expenses and Taxes for the period in question is determined to be in error by more than [***] in the aggregate, in which case Landlord shall pay the audit cost, not to exceed the amount Tenant was overcharged for the period in question. Tenant may not conduct an inspection or have an audit performed more than once during any calendar year. If such inspection or audit reveals that an error was made in the Expenses and Taxes previously charged to Tenant, then Landlord shall refund to Tenant any overpayment of such costs, or Tenant shall pay to Landlord any underpayment of such costs, as the case may be, within [***] after notification thereof. Tenant shall maintain the results of each such audit or inspection confidential and shall not be permitted to use any third party to perform such audit or inspection other than an independent firm of certified public accountants with at least ten (10) calendar days’ written notice years of experience reviewing office building expense reconciliations: (1) which is not compensated on a contingency fee basis or in any other manner which is dependent upon the results of such audit or inspection (and Tenant shall deliver the fee agreement or other similar evidence of such fee agreement to ZinniaLandlord upon request), Customer and (2) which agrees with Landlord in writing to maintain the results of such audit or its designee may audit and verify the matters relating to the TPA Services during normal business hoursinspection confidential. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth Nothing in this TPA Addendum; (b) not section shall be a competitor construed to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businesslimit, as determined by ▇suspend, or ▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or Tenant’s obligation to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determinationRent when due, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from CustomerAdditional Rent.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Office Lease (Enfusion, Inc.)
Audit. 5.1a. UCTT shall keep full, clear, complete, true and accurate records with respect to the CDP Services and CDP Licenses and the associated CDP Service Fees and CDP License Fees. Upon Such books and records shall be kept in the English language and in compliance with international accounting principles as issued by the International Accounting Standards Board. Such books and records shall be kept at UCTT for at least ten three (103) years following the end of the calendar days’ written notice quarter to Zinniawhich they pertain. As more fully described in this Section, Customer IMI shall have the right through its accredited representatives to examine and audit at reasonable times all such records and such other records and accounts as may under recognized accounting practices contain information bearing upon the amount of Service Net Profits and Licensing Royalty Profits due to IMI hereunder.
b. Prompt adjustment shall be made by UCTT to compensate for any errors or its designee may audit omissions disclosed by such examination or audit.
c. Inspections conducted under this Section shall be at the expense of IMI, unless a variation or error producing an increase exceeding [***] percent ([***]%) of the amounts payable for any period covered by the inspection is established and verify confirmed in the matters course of any such inspection, whereupon all reasonable costs relating to the TPA inspection for such period and any unpaid amounts that are discovered will be paid promptly by UCTT.
d. At IMI’s request, UCTT will permit an independent auditor and technical consultant selected by IMI and reasonably acceptable to UCTT, to examine during ordinary business hours no more than once each calendar year such records and other documents as may be necessary to verify or determine CDP Service Fees, CDP License Fees and other payments paid or payable under this Agreement.
e. On reasonable notice (provided that IMI shall give UCTT at least 7 calendar days prior written notice of its election to inspect such records)and during regular business hours, IMI or its authorized representative shall each have the right to inspect and copy the books of accounts, records and other relevant documentation of UCTT or of any Affiliate of UCTT insofar as they relate to the CDP Services or CDP Licenses, in order to ascertain or verify the amount of Service Net Profits and Licensing Royalty Profits due to IMI hereunder, and the accuracy of the information provided to IMI in the aforementioned reports.
f. The audit shall be conducted at the location(s) where such books and records are normally kept, IMI shall also have the right, not more than once each calendar year, to audit UCTT's books and financial records for the purpose of verifying full payment by UCTT of its payment obligations hereunder.
g. Such audits shall be conducted during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) hours and shall not be a competitor to Zinnia unreasonably interfere with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing UCTT's conduct of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within business. Upon ten (10) days written notice and not more than once per calendar year, UCTT agrees to permit one or more Certified Public Accountant(s) appointed by IMI (“Overcharge Due Date”except one to whom UCTT has a reasonable objection). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount to enter upon the premises or UCTT during all usual business hours of UCTT at any time following the rate [***] of one any [***] in order to inspect files records pertaining to CDP Service Fees and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material faultLicensing Fees under this Agreement, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable to make on UCTT's premises and documented costs retain copies of any and all parts of the portion of records and accounts kept by UCTT pursuant to this Section, including without limitation, invoices which are relevant to any report required to be rendered by UCTT.
h. Upon a request by IMI, UCTT shall permit IMI'S auditors to have access during normal business hours to UCTT'S records regarding the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements reports required to be made under this Agreement, in order to verify the correctness of or necessity for any payment or report by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (includingUCTT, as applicablesaid auditor deems necessary. IMI agrees that such auditors shall not disclose to IMI any information other than information relating solely to correctness of or necessity for the reports and payments made hereunder. If UCTT refuses IMI'S auditors access to UCTT'S records, its affiliates then upon request of IMI, UCTT shall permit an independent certified public accountant, selected by IMI and subcontractors) is providing approved by UCTT to have access during normal business hours to UCTT'S records under the Services. Such reports provided by Zinnia under terms set forth for IMI'S auditors in this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesparagraph. In the event that an independent certified public accountant is necessary because of UCTT'S refusal of access then UCTT shall bear the cost of such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soindependent certified public accountant.
Appears in 1 contract
Audit. 5.1. Upon at least ten During the Term and until the second anniversary of the last Quarterly Report to be provided hereunder, each Payee (10the “Auditing Party”) calendar days’ written notice shall have the right to Zinniaappoint an independent, Customer or its designee may audit and verify internationally recognized accounting firm (but not the matters relating Auditing Party’s generally used accounting firm) reasonably acceptable to the TPA Services during normal business hoursPayor (the “Independent Auditor”) to audit the financial books and records that the Payor (the “Audited Party”) is expressly required to keep under this Agreement with respect to payments owed to the Auditing Party under Section 5.2 (the “Relevant Books and Records”). If Customer engages The Audited Party may require the assistance of a third party Independent Auditor, prior to perform the any such audit, to agree to reasonable confidentiality restrictions and the third party must Independent Auditor shall (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth treat as confidential information of the Audited Party all information obtained in this TPA Addendum; connection with such audit and (b) not be a competitor disclose the same to Zinnia the Auditing Party or others, except that the Independent Auditor may disclose to the Auditing Party only whether the audit revealed an underpayment, or an inaccuracy with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionroyalties owed pursuant to Section 5.2, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, andsuch underpayment or inaccuracy, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)any. If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount An audit shall be permitted only upon at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within least thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annuallydays’ prior written notice to the Audited Party, and at in no event more than once during any calendar year and only during the third reporting quarter of any financial reporting year for the Party to be audited (unless an audit in any calendar year revealed an underpayment, in which case the Auditing Party may conduct one (1) additional charge audit in such calendar year). The Independent Auditor shall conduct the audit during normal business hours solely as necessary to Customerconfirm the accuracy of the Relevant Books and Records and any Quarterly Reports submitted by the Payor hereunder. The Independent Auditor may not be paid on a contingency fee basis and shall provide its report simultaneously to the Payor and the Payee. The Auditing Party shall be solely liable for all costs and expenses accrued in connection with such audit unless the audit reveals an underpayment of five percent (5%) or more, Zinnia will provide to Customer copies of SOC 1 Type 2 in which case the Audited Party shall reimburse the Auditing Party for the reasonable costs and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm expenses incurred for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesaudit. In the event the audit reveals an underpayment or inaccuracy, prompt adjustment of all unpaid amounts owed under this Agreement shall be made by the Audited Party, provided that nothing contained herein is intended to waive or limit the Audited Party’s or the Auditing Party’s right to contest the accuracy of any finding of the Independent Auditor. Preliminary Reports, Quarterly Reports, and any information obtained by the Independent Auditor are confidential information of the Party providing such reports include and information and may not be used by the other Party for any negative audit findings impacting the Services in purpose other than verifying payment of any way, Zinnia shall promptly correct such negative findings, amounts owed hereunder and Zinnia shall be solely responsible for all costs and fees necessary to do soexercising its rights under this Agreement.
Appears in 1 contract
Audit. 5.1Sellers shall, as promptly as practicable after the date of this Agreement, cause Climax and the Subsidiaries to cause an audit (the "Audit") to be conducted in accordance with generally accepted auditing standards, of the books, records, and financial statements of Climax and the Subsidiaries as of and for each of the fiscal years ended December 31, 1996 and December 31, 1997. Upon at least ten The Audited Financial Statements (10hereinafter defined) calendar days’ written notice shall be prepared with respect to Zinniasuch two years in accordance with the accounting policies and procedures customarily followed by Climax and its Subsidiaries, Customer or its designee may audit so long as such policies and verify procedures are in accordance with GAAP in all material respects. As used in this Agreement, "Audited Financial Statements" shall mean for Climax and the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must Subsidiaries (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; an audited consolidated balance sheet as of December 31, 1996 and 1997, (b) not an audited consolidated statement of operations and cash flows as of the end of and for the fiscal years ended December 31, 1996 and December 31, 1997 and (c) an audited consolidated statement of changes in stockholders equity as of the end of and for the fiscal years ended December 31, 1996 and December 31, 1997. The Audit will be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined conducted by ▇▇Magi▇▇▇▇ & ▇are▇, ▇▇P (the "Climax Auditor"), a firm of independent certified public accountants which has previously been engaged by Climax and which is located in Portland, Oregon. The Seller shall cause the Climax Auditor to provide Team with the Audited Financial Statements and with its sole, reasonable discretion, written report ("Audit Report") with respect to the Audit and (c) not be compensated on a contingency basis.
5.2the Audited Financial Statements promptly after the completion thereof. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, The Seller shall also cause the Climax Auditor to consent to the use of the Audited Financial Statements by Team in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each filings with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determinationappropriate governmental authorities, including the amount SEC. The fees and expenses of such accounting firm shall be paid by Team. The Sellers agree to cause the officers, directors, employees, accountants and attorneys of Climax and the Subsidiaries to cooperate with Team and its respective officers, accountants and other representatives at all reasonable times and in all material respects during the conduct of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from CustomerAudit.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Stock Purchase Agreement (Team Inc)
Audit. 5.1. Upon at least ten On Subtenant's written request given not more than sixty (1060) calendar days’ written notice days after Subtenant's receipt of a Monthly Expense Statement or an Annual Expense Statement, and provided that Subtenant is not then in default under this Sublease beyond the applicable cure period provided in this Sublease and that Subtenant has paid all amounts required to Zinniabe paid under the applicable Monthly Expense Statement or Annual Expense Statement (reserving the right to recover any excess payments in accordance with this Paragraph 3.2(h)), Customer then Sublandlord shall provide Subtenant with a reasonable opportunity to review the books and records supporting such determination of Sublease Expenses in the office of Sublandlord, or its designee may audit and verify the matters relating to the TPA Services Sublandlord's agent, during normal business hours. If Customer engages Sublandlord shall provide this opportunity to inspect within twenty (20) days of Subtenant's written request. Within fifteen (15) days following Subtenant's inspection, Subtenant and Sublandlord shall concurrently be provided with any audit report prepared in connection with such inspection, and Subtenant shall advise Sublandlord if Subtenant disputes the assistance Sublease Expenses or Subtenant's Project Share of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those them as set forth in this TPA Addendum; (b) not the applicable Monthly Expense Statement or Annual Expense Statement. Thereafter, if Sublandlord ascertains that an error has been made, Subtenant's sole remedy shall be a competitor for the parties to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businessmake such appropriate payments or reimbursements, as determined by ▇▇▇▇▇▇ in its solethe case may be, reasonable discretion, and (c) not be compensated including interest on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or Agreed Rate, to each other as are determined to be owing, provided that any reimbursements payable by Sublandlord to Subtenant may, at Sublandlord's option, instead be credited against the highest rate permitted by law, if less) calculated from Base Rent next coming due under this Sublease unless the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writingSublease term has expired, in good faith. All audits will be performed in a manner intended which event Sublandlord shall refund the appropriate amount to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policiesSubtenant. If any audit results in Subtenant fails to make a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable written request to review Sublandlord's books and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer records within sixty (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (3060) days of receipt of an itemized invoice from Customer.
5.3. At least annuallya Monthly Expense Statement or Annual Expense Statement as described above, and at then Subtenant shall have no additional charge further right to Customer, Zinnia will provide conduct such a review or to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility dispute any Sublease Expense set forth in such Monthly Expense Statement or facilities from which it (includingAnnual Expense Statement, as applicable. Subtenant shall keep any information gained from its review of Sublandlord's records confidential and shall not disclose it to any other party, except as required by law. If requested by Sublandlord, Subtenant shall require its affiliates and subcontractors) is employees or agents reviewing Sublandlord's records to sign a confidentiality agreement as a condition of Sublandlord providing Subtenant the Services. Such reports provided by Zinnia opportunity to inspect under this section are Zinnia Confidential InformationParagraph 3.2(h). Zinnia may redact from such reports those portions containing confidential Notwithstanding anything in this Paragraph 3.2(h) to the contrary, with regard to Master Lease Expenses, Sublandlord shall not be required to provide more information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soSubtenant than is offered to Sublandlord.
Appears in 1 contract
Audit. 5.1. Upon at least ten (10) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify If Tenant disputes the matters relating to the TPA Services during normal business hours. If Customer engages the assistance amount of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those operating expenses as set forth in this TPA Addendum; (b) not be the invoice from the Landlord within forty -five days after receipt thereof, Tenant shall have the right upon notice to have Landlord's book and records relating to operating expenses audited by a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined qualified professional selected by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2Tenant or by Tenant itself. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to If after such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including audit Tenant still disputes the amount of operating expenses, a certification as to the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the proper amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to shall be made by Zinnia to Customer an independent certified public accountant in consultation with LANDLORD'S AND TENANT'S PROFESSIONALS, which certification shall be final and conclusive, ABSENT MANIFEST ERROR. If such audit reveals that operating expenses were overstated in the calendar year audited Landlord shall within thirty (30) days after the certification pay to Tenant the amount of any overstatement which it had collected from Tenant, AND IF THE OVERSTATEMENT IS GREATER THAN THREE PERCENT (3%), LANDLORD SHALL PAY ALL OF TENANT'S REVIEW AND AUDIT COSTS. However, if such certification does not show that Landlord had made such an overstatement then Tenant shall pay both the costs of its professional as well as the reasonable charges of Landlord's independent certified public accountant engaged to determine the correct amount of operating expenses. If the certification shows that Landlord has undercharged Tenant then Tenant shall within thirty (30) days pay to Landlord the amount of any undercharge. Books and records necessary to accomplish any audit permitted under this Section shall be retained for twelve months after the end of each calendar year, and on receipt of an itemized invoice from Customer.
5.3. At least annuallynotice of Tenant's dispute of the operating expenses shall be made available to Tenant to conduct the audit, and which may be either at no additional charge to Customerthe Premises, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (includingat Landlord's office in Winston-Salem, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesNorth Carolina. In the event that the Tenant elects to have a professional audit Landlord's operating expenses as provided in this Lease, such reports include audit must be conducted by an independent nationally or regionally recognized accounting firm that is not being compensated by Tenant on a contingency fee basis. All information obtained through such audit as well as any negative compromise, settlement or adjustment reached as a result of such audit findings impacting shall be held in strict confidence by Tenant and its officers, agents, and employees and as a condition to such audit, the Services Tenant's auditor shall execute a written agreement agreeing that the auditor is not being compensated on a contingency fee basis and that all information obtained through such audit as well as any compromise, settlement or adjustment reached as a result of such audit, shall be held in strict confidence and shall not be revealed in any waymanner to any person except upon the prior written consent of the Landlord, Zinnia which consent shall promptly correct not be unreasonably withheld in Landlord's sole discretion, or if required pursuant to any litigation between Landlord and Tenant materially related to the facts disclosed by such negative findingsaudit, or if required by law. No subtenant shall have any right to conduct an audit and Zinnia no assignee shall be solely responsible conduct an audit for all costs and fees necessary to do soany period during which such assignee was not in possession of the Premises.
Appears in 1 contract
Audit. 5.1For a period of [ * ] years (the “Audit Period”) after sales of any Intersol Products by Baxter in the Territory, Baxter will keep records of all such sales and [ * ] = 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 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Upon at least ten (10) calendar days’ written notice Integration Premium of Intersol Product in sufficient detail to Zinniaenable the Intersol Sharing payable hereunder to be determined. For a period of [ * ] years after any activities pursuant to Section 2 hereof, Customer Baxter will keep records of its expenditures that are charged against the Escrow Account or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in against ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇’▇ in its sole, reasonable discretionfunding commitments pursuant to Sections 2.1 through 2.13, and of its FTEs (cincluding dedicated and allocated FTEs) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable committed to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including activities for the amount of the overcharge Platelet System and the basis for its conclusionPlasma System, andrespectively. For a period of [ * ] years after any determination of Adjusted Gross Margin pursuant to Section 8.3, if ZinniaBaxter will keep records in sufficient detail to enable such amount to be determined. Notice by Cerus, in pursuant to Section 8.3, accepting ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount ’▇ determination of Adjusted Gross Margin does not preclude Cerus from later obtaining an adjustment of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and oneEuropean Buy-half percent (1.5%) per month (Out Price or the highest rate permitted by lawROW Country Buy-Out Price, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies’▇ determination of Adjusted Gross Margin subsequently proves to have been inaccurate. If any From time to time during such Audit Period, Cerus may at its own expense cause an independent third party auditor reasonably acceptable to Baxter to audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇’▇ will reimburse Customer relevant books and records for the reasonable and documented costs Customer incurred directly and solely as a result purpose of such material fault, and determining compliance with this Agreement. In the event that an audit is proposed with respect to ▇▇▇▇▇▇’▇ proprietary information (“Restricted Information”), then on the written demand of Baxter the individuals conducting the audit with respect to the Restricted Information will reimburse Customer (i) for be limited to Cerus’ independent auditors. Such independent auditors shall enter into an agreement with Baxter, under which such independent auditors shall agree to maintain the reasonable and documented costs confidentiality of the portion information obtained during the course of such audit and establishing what information such auditors will be permitted to disclose in reporting the results of any audit of Restricted Information. Any such audit shall be conducted during regular business hours in a manner that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if does not commercially feasible to do so, interfere unreasonably with the operations of Baxter. The aggregate number of audits of ▇▇▇▇▇▇’▇ will reimburse Customer for books and records conducted under this Section 13.6 shall not exceed, in any [ * ] month period, one (1) financial audit, relating to sales of Intersol Products, one (1) financial audit relating to activities pursuant to Section 2, in addition to audit of any determination of Adjusted Gross Margin pursuant to Section 8.3. Subject to the total cost foregoing limitations, any such audit shall be conducted when requested by notice given not less than [ * ] days prior to the commencement of the audit, all . Any overpayment or underpayment determined by this Section 13.6 shall be due and payable to the other party by the party owing such reimbursements to be made by Zinnia to Customer amount within thirty (30) [ * ] days after notice of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 such audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesfinding. In the event such reports include that any negative audit findings impacting the Services performed hereunder results in an increase of [ * ] percent ([ * ]%) or more in any waypayment due Cerus hereunder, Zinnia shall promptly correct such negative findings, and Zinnia Baxter shall be solely responsible for all costs and fees necessary obligated to do sopay any reasonable expenses incurred by Cerus with respect to such audit.
Appears in 1 contract
Sources: Restructuring Agreement (Cerus Corp)
Audit. 5.1. Upon at least ten (10) calendar 30 days’ advance written notice by ACT, Company shall permit, and shall cause its Sublicensees to Zinniapermit, Customer an independent certified public accounting firm of nationally recognized standing selected by ACT (who has not been engaged by ACT to provide any material services in any other capacity at any time during the three-year period before such selection), and reasonably acceptable to Company or its designee may audit such Sublicensee, to have access to and verify the matters relating to the TPA Services review, during normal business hours. If Customer engages the assistance of a third party to perform the audithours on business days upon reasonable prior written notice, the third party must applicable records of Company and its Sublicensees to verify the accuracy of the royalty payments pursuant to Section 3. Such review may cover: (a) execute a confidentiality agreement that contains protections the records for Confidential Information comparable to those set forth sales made in this TPA Addendum; any calendar year ending not more than three years before the date of such request, and (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs periods that are attributable have not been subject to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the a prior audit. Except as described hereafter, all such reimbursements to audits shall be made by Zinnia to Customer within thirty (30) days conducted at the expense of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the ServicesACT. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesaudits shall be conducted not more than once in each calendar year and not more than once for each audited period. In the event such reports include accountant concludes that additional payments of any negative audit findings impacting kind as required by this Agreement were owed to ACT during such period, the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia additional amounts shall be solely responsible paid within 30 days after the date of the corresponding invoice sent by ACT and delivered to Company with copy of the aforementioned accountant’s written report so concluding, unless Company disputes the results of such audit in accordance with Section 13.3. The fees charged by such accountant shall be paid by ACT, unless the audit discloses that the amounts payable by Company for the audited period are more than 110% of the amounts actually paid for such period, in which case Company shall pay the reasonable fees and expenses charged by the accountant for such audit (pending the results of any dispute initiated by either Party pursuant to Section 13.3 with respect to the same). In the event such accountant concludes that there was an overpayment by Company to ACT during such period, at Company’s option, the overpayment shall be paid by ACT to Company within 30 days after the date of the corresponding invoice sent by Company to ACT, unless ACT disputes the results of such audit in accordance with Section 13.3. ACT shall cause the independent certified public accountant to keep confidential any information obtained during such inspection in accordance with the provisions set forth in Section 7 hereof. The Parties agree that all costs and fees necessary information subject to do soreview under this Section 4.3 or under any Sublicense agreement is, as between the Parties, the Confidential Information of Company.
Appears in 1 contract
Audit. 5.1At its option, Landlord may at any time, upon A.~~\';) days' prior written notice to Tenant, arrange for an auditor selected by Landlord to conduct a complete audit (including a physical inventory) of the entire records and operations of Tenant and/or any concessionaire concerning business transacted upon or includable in Gross Sales from the leased premises during the period covered by any statement issued by Tenant or a concessionaire as above set forth in Article III. Upon Tenant shall make available to Landlord's auditor at the leased premises (or at Tenant's corporate headquarters, if elected by ~ within ~ days following Landlord's notice requiring such audit, all of the books, source documents, accounts and records referred to in Section 3.01 of this Lease and any other materials which such auditor deems necessary or desirable for the purpose of making such audit. Tenant shall promptly pay to Landlord the amount of any deficiency in percentage rent payments disclosed by any such audit. If such audit shall disclose that Tenant's statement of Gross Sales is ~ to the extent of "~p~-ti..~,'1~) or more, Landlord may bill to Tenant the amount of any d▇▇▇▇iency and the cost of such audit, which shall be paid by Tenant within ten (10) days after Tenant's receipt of Landlord's invoice; in the event Tenant fails to pay such discrepancy and costs, Landlord may terminate this Lease as set forth below and/or shall have such other rights and remedies as may be provided herein or at law arising by virtue of Tenant's failure to pay rent. If such audit shall disclose that Tenant's statement of Gross Sales is ~ to the extent of or more then Landlord. 4n addition to the foregoing remedy and other remedies available to Landlord, shall have the option, upon at least ten (10) calendar days’ written ' notice to ZinniaTenant, Customer or its designee may audit to declare this Lease terminated and verify the matters relating to term ended, in which event this Lease shall cease and terminate on the TPA Services during normal business hours. If Customer engages date specified in such notice with the assistance of a third party to perform same force and effect as though the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those date set forth in such notice were the date originally set forth herein and fixed for the expiration of the term, and Tenant shall vacate and surrender the leased premises but shall remain liable for all obligations arising during the balance of the original stated term as provided in this TPA Addendum; Lease. In addition to the foregoing, and in addition to all other remedies available to Landlord, in the event Landlord or Landlord's auditor shall schedule a date for an audit of Tenant's records in accordance with this Section, and Tenant shall fail to be available or shall otherwise fail to comply with the requirements for such audit, Tenant shall pay all costs and expenses associated In addition to all other remedies available to Landlord, in the event that any such audit shall disclose that Tenant's records and other documents as referred to in Articles III and IV hereof and such other materials provided by Tenant to Landlord's auditor are inadequate, in the opinion ~ Landlord's auditor to accurately disclose Tenant's Gross Sales, then Landlord shall be entitled to collect as additional rent from Tenant an amount equal to fifteen percent (b15%) not be a competitor of the highest Effective Rent (minimum rent plus percentage rent) payable by Tenant in any of the three (3) preceding lease years. Landlord's exercise of the foregoing remedy shall in no way limit or otherwise affect Landlord's ability to Zinnia exercise other remedies available to it, nor shall Tenant's obligations pursuant to the terms, covenants and conditions of this Lease (including, without limitation, Tenant's obligation with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, reporting Gross Sales and (cpayment of percentage rent) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from manner reduced or diminished by the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result exercise of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesremedy. In the event that Tenant shall, following the exercise of such reports include remedy, provide to Landlord all records and documentation as required to be provided pursuant to the terms of this Lease so as to permit Landlord's auditor to accurately establish Tenant's Gross Sales for the period in question, then Tenant shall be permitted a credit with respect to any negative audit findings impacting amount of additional rent collected by Landlord from Tenant pursuant to this paragraph, with such credit to be applied first against the Services installment of percentage rent due from Tenant for the period in question, with any remaining credit to be applied against the next installment of percentage rent payable by Tenant. Neither the provisions of this Section 4.02 nor any other provisions in this Lease shall restrict Landlord's rights to discovery in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do solitigation or arbitration proceeding.
Appears in 1 contract
Sources: Lease Agreement (Play Co Toys & Entertainment Corp)
Audit. 5.1. Upon With at least ten two (102) calendar daysweeks’ advance written notice from Keystone, Isotis shall permit Keystone or a Third Party auditor designated by Keystone to Zinnia, Customer or its designee may audit and verify perform reasonable quality audits at the matters relating to the TPA Services Facility during normal business hourshours and on a mutually agreeable date, in order to (i) inspect quality controls, including, but not limited to process validation, quality control documents, and those areas used in manufacturing, receiving, sampling, analyzing, storing, handling, packaging, shipping and distribution of the Dental Product and (ii) insure compliance with this Agreement and Applicable Law. Isotis shall reasonably cooperate with Keystone in such review. Such audits shall occur no more than once in any calendar year; provided, however, that if during any such audit Keystone reasonably identifies any material issues related to clauses (i) or (ii) above, it shall be entitled to review Isotis’ resolution of such material issues. Keystone’s representatives shall comply with all of Isotis’ policies and procedures, including those relating to safety, security and protection of Isotis Confidential Information, while conducting any review, inspection or audit of the Facility. Isotis shall comply with the reasonable requests of Keystone to remedy any non-conformances identified by Keystone. If Customer engages an employee of Keystone is injured during a visit to Isotis’ facilities in the assistance course of a third party his/her employment, Keystone or its insurance carrier will be responsible for workmen’s compensation payments to perform such employee unless such injury is the auditresult of the negligence or willful misconduct of Isotis. Isotis shall have the right to send its representatives to review, during regular business hours, Keystone’s marketing and regulatory records related to the third party must Dental Products and to Keystone’s compliance with this Agreement and Applicable Law by providing Keystone with not less than two (a2) execute a confidentiality agreement that contains protections for weeks’ advance written notice of Isotis’ desire to conduct such review. Keystone shall reasonably cooperate with Isotis in such review. Such reviews shall occur no more than once in any calendar year. Isotis’ representatives shall comply with all of Keystone’s policies and procedures, including those relating to safety, security and protection of Keystone Confidential Information comparable Information, while conducting any such review. Keystone shall comply with the reasonable requests of Isotis to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined remedy any non-conformances identified by Isotis. If an employee of ▇▇▇▇▇▇ is injured during a visit to Keystone’s facilities in its solethe course of his/her employment, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia Isotis or its Affiliates Customer insurance carrier will pay all costs attributable be responsible for workmen’s compensation payment to such audits except as otherwise stated herein. If, as a employee unless such injury is the result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing the negligence or willful misconduct of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from CustomerKeystone.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Processing and Supply Agreement (Capstone Dental Pubco, Inc.)
Audit. 5.1To validate Bayer’s compliance with its obligations under or in connection with this Agreement, Recursion may, during the course of this Agreement and for [***] after expiration or termination of this Agreement, appoint auditors, at Recursion’s expense (except as otherwise contemplated below), to carry out an audit of Bayer’s records from time to time on behalf of Recursion. Upon The auditors selected by Recursion shall be subject to acceptance by Bayer, such acceptance not to be unreasonably withheld. Audits may be undertaken subject to the following conditions:
I. Any such audits shall be undertaken by an independent certified public accountant;
II. Any such audits shall be conducted during regular business hours at least ten (10) calendar Bayer’s premises upon [***] days’ prior written notice by Recursion and shall not interfere unreasonably with Bayer’s business activities;
III. The auditor may inspect records for up to Zinnia, Customer or its designee two years after the end of the period to which they pertain;
IV. Audits may audit not take place more than once per Calendar Year and verify the matters relating no period may be audited more than once;
V. Prior to the TPA Services during normal business hours. If Customer engages the assistance of a third party audit taking place, auditor shall undertake to perform the audit, the third party must Bayer that they shall keep all information confidential and shall not disclose any information (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those except as set forth in this TPA Addendum; VI) to any Third Party including Recursion;
VI. Details of the auditor’s findings (bincluding, for the avoidance of doubt, monetary values and supporting calculations) shall not be shared with Recursion except in the form of a competitor summary report and, in the event the auditor finds any incorrect payments, details required to Zinnia explain such discrepancies. In any event, the results shall be communicated to Bayer before being shared with respect Recursion. Bayer shall be given a period of [***] Business Days to in ▇▇▇▇▇▇review and respond to the auditor’s third party administrator businessfindings before the summary report may be provided to Recursion, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) such reports to include Bayer’s response to the findings;
VII. The auditor shall not be compensated permitted to include any extrapolation calculations in the calculation of amounts underpaid to Recursion; if the auditor wants to base the audit assessment on a contingency basis.
5.2. Zinnia will reasonably cooperate with selection of samples, the auditor shall use a reasonable and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or appropriate approach to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, ensure that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate the outcome of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest calculation based on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit samples results in a final determination comprehensible and reliable outcome. Such approach shall be discussed and agreed upon between the auditor and Bayer, beforehand.
VIII. If an audit reveals that Zinnia was materially at faultBayer has underpaid royalties due, ▇▇▇▇▇▇ will reimburse Customer Recursion may invoice Bayer for the reasonable and documented costs Customer incurred directly and solely as a result of such material faultunderpaid amount; if the audit reveals that Bayer has overpaid royalties due, and ▇▇▇▇▇▇ will reimburse Customer (i) Recursion shall credit Bayer for the overpaid amount;
IX. If an audit reveals an underpayment in excess of [***] percent ([***]%) of the fees for the period subject to review by Recursion, then Bayer shall pay the reasonable and documented costs of Recursion in conducting the audit (including the reasonable costs of the portion auditors) within [***] days of Recursion notifying Bayer that the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerhas been completed.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Research Collaboration and Option Agreement (Recursion Pharmaceuticals, Inc.)
Audit. 5.1. Upon at least ten (10) calendar days’ written notice The Parties agree to Zinnia, Customer or its designee may audit keep full and verify accurate books and records setting forth in reasonable detail the matters relating payments payable to the TPA Services during normal business hoursother Party hereunder, or Glass Product Expenses to be recorded hereunder, and the calculation thereof. If Customer engages Each Party (the assistance of a third party "AUDITING PARTY") shall have the right to perform appoint an internationally recognized accounting firm (but not the audit, Auditing Party's accounting firm) reasonably acceptable to the third party must other Party (athe "INDEPENDENT AUDITOR") execute a confidentiality agreement to audit the financial books and records that contains protections for Confidential Information comparable the other Party (the "AUDITED PARTY) is expressly required to those set forth in keep under this TPA Addendum; (b) not be a competitor to Zinnia Agreement with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or payments owed to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultantthe Auditing Party, or representative who is a competitor or Affiliate of a competitor Glass Product Expenses to Zinnia or its Affiliates Customer will pay all costs attributable be recorded, under this Agreement (the "RELEVANT BOOKS AND RECORDS"). The Audited Party may require the Independent Auditor, prior to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines to agree to reasonable confidentiality restrictions and the Independent Auditor shall (i) treat as confidential information of the Audited Party all information obtained in connection with such audit and (ii) not disclose the same to the Auditing Party or others, except that Zinnia overcharged itthe Independent Auditor may disclose to the Auditing Party only whether the audit revealed an underpayment, Customer shall notify Zinnia in writing of its determinationor an inaccuracy with respect to Glass Product Expenses, including and the amount of the overcharge and the basis for its conclusion, andsuch underpayment or inaccuracy, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)any. If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount An audit shall be permitted only upon at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within least thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annuallydays' prior written notice to the Audited Party, and at in no event more than once during any calendar year (unless an audit in any calendar year revealed an underpayment, in which case the Auditing Party may conduct one (1) additional charge audit in such calendar year). The Independent Auditor shall conduct the audit during normal business hours solely as necessary to Customer, Zinnia will confirm the accuracy of the Relevant Books and Records. The Independent Auditor may not be paid on a contingency fee basis and shall provide its report simultaneously to Customer copies of SOC 1 Type 2 both Parties. The Auditing Party shall be solely liable for all costs and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from expenses accrued in connection with such reports those portions containing confidential information of third partiesaudit. In the event such reports include any negative the audit findings impacting the Services in any wayreveals an underpayment or inaccuracy, Zinnia shall promptly correct such negative findings, and Zinnia prompt adjustment of all unpaid amounts owed under this Agreement shall be solely responsible for all costs and fees necessary made by the Audited Party, provided that nothing contained herein is intended to do sowaive or limit the Audited Party's right to contest the accuracy of any finding of the Independent Auditor.
Appears in 1 contract
Audit. 5.1Each party will maintain complete and accurate accounting records during the term of this Agreement and for 12 months following conclusion or expiration of all post-agreement payment obligations of the parties in a consistent form to substantiate the direct monetary payments and reporting obligations of one party to any other party under this Agreement. Upon at least ten Each party may, upon reasonable advanced written notice, conduct during the other party's regular business hours, and in accordance with applicable law and reasonable security requirements, audits of such direct monetary payment and reporting obligation accounts and records, in accordance with the following guidelines and restriction: (10a) calendar days’ written notice to Zinniathe audit may be conducted by members of the internal audit department who are employees of the auditing party or by an independent auditor, Customer or its designee may audit and verify provided that the matters relating auditor has signed a confidentiality agreement acceptable to the TPA Services audited party, (b) the audited party may require audit on the premises of the audited party, (c) the audited party will have the right to have an employee or representative present at all times during normal business hours. If Customer engages the assistance of a third party to perform the audit, (d) the third auditing party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable will not have direct unrestricted access to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionthe audited party's computer database without the consent of the audited party, and (c) not will be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customerentitled to review only those specific records of the audited party directly related to the monetary obligations of the audited part hereunder or the applicable Addendum, Customer designeesspecifically limited to customer activations, and their respective auditorsdeactivations, inspectors, consultants, and other representativescustomer billing records, and any Regulatory Authorityother records directly related to the monetary obligations of such party hereunder; and (e) the auditing party's audit of activation, deactivation and Customer billing records will be limited to a reasonable random sampling audit of these records. Subject to the restrictions set forth above, the audited party shall cooperate fully with the auditing party. All reasonable fees and costs incurred (including a reasonable charge for the services of any employee of the audited party directly involved in the audit) by either party in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated hereinshall be paid by the auditing party. If, as a result The audited party will have the right to have the results of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including audit reviewed by the amount audited party's internal auditing staff or by the audited party's independent accountants who then audit the financial statements of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten audited party (10) days (“Overcharge Due Date”"Independent Auditors"). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result The cost of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault internal or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia Independent Auditors review shall be solely responsible for all costs and fees necessary borne by the audited party. The audited party shall use its commercially reasonable efforts to do soimmediately correct any deficiencies related to performance uncovered by such audit.
Appears in 1 contract
Audit. 5.1Axeda shall maintain accurate and complete records specifically relating to the fees received by it under the Continuing Customer Contracts and the Grant Back License (including the number of copies of the Licensed Product provided to the Prior Licensees) and, upon reasonable notice, Sonic IP shall have the right to retain an independent public accounting firm, reasonably acceptable to Axeda, to audit Axeda's books and records solely for the purpose of confirming the accuracy of the license fees or other revenues due and owing to Sonic IP under Sections 5.7 and 5.8. Upon Any such audit shall be performed on at least ten (10) calendar 10 days’ ' prior written notice to ZinniaAxeda, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages hours and, at Axeda's option, subject to the assistance independent accounting firm's execution of a third party reasonable confidentiality agreement. The independent accounting firm shall report to perform Sonic IP only whether the auditcorrect amounts have been reported and/or the correct royalties have been paid, as applicable, and, if not, the third party must (a) execute amount of the discrepancy. Audits shall be conducted no more frequently than twice in any 12-month period, unless the preceding audit revealed a confidentiality agreement that contains protections for Confidential Information comparable to those set forth discrepancy, in this TPA Addendum; (b) not which case the next audit may be a competitor to Zinnia conducted at any reasonable time upon Sonic IP's request. Any such audit shall be performed at Sonic IP's expense. Axeda shall retain its records with respect to in ▇▇▇▇▇▇’s third party administrator businesshereto for a minimum period of 3 years from the date such records were generated. Notwithstanding the foregoing, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable reasonably incurred by Sonic IP in conducting any such audit shall be reimbursed by Axeda in the event that it is determined that Axeda has understated the number of copies of Licensed Product provided to such audits except as the Prior Licensees by more than 5% or that Axeda has otherwise stated hereinviolated the terms of the Grant Back License. IfIn addition, Axeda agrees to pay any amount determined to be due as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing the audit within 30 days of its determinationcompletion, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge together with interest on such overdue the unpaid amount at the a rate of one and one-half percent (1.5%) 12% per month (or the highest rate permitted by law, if less) annum calculated from the Overcharge Due Date until date the payment originally would have been due through the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerpayment.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Software Distribution Agreement (Axeda Systems Inc)
Audit. 5.1. Upon at least ten (10) calendar days’ written notice Tenant shall have the right to Zinniaexamine, Customer or its designee may audit and verify the matters photocopy Landlord’s books and records relating to Tenant’s Proportionate Share of Operating Expenses and Taxes for any Operating Year for a period of six (6) months following the TPA Services during normal business hours. If Customer engages date that Tenant receives the assistance of a third party to perform the auditOperating Statement and Tax Statement; provided, the third party must however, that (a) execute Tenant may exercise such right only once per twelve (12) month period; and (b) Tenant signs a confidentiality agreement that contains protections for Confidential Information comparable in form reasonably satisfactory to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ Landlord in its sole, reasonable sole discretion. Tenant shall give Landlord not less than thirty (30) days’ prior written notice of its intention to examine and audit such books and records, and (c) not such examination and audit shall take place in the city where the Premises are located. All costs of the examination and audit shall be compensated performed by a certified public accountant and shall be on a contingency basis.
5.2. Zinnia will reasonably cooperate with non-contingent fee basis and assist Customershall be borne by Tenant; provided, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate if such examination and audit establishes that Tenant’s Proportionate Share of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia Operating Expenses and Taxes for the year in writing of its determination, including question are less than the amount set forth on the Operating Statement and Tax Statement by at least three percent (3%), then Landlord shall pay the reasonable costs of the overcharge such examination and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)audit. If Zinnia does not repay the payments made by Tenant for such overcharge within ten (10) daysyear are more than Tenant’s required payment on account thereof for such Operating Year, Customer may charge interest on Landlord shall promptly refund such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policiesoverpayment. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be payments made by Zinnia Tenant for such year are less than Tenant’s required payment on account thereof for such Operating Year, Tenant shall pay the deficiency to Customer Landlord within thirty (30) days after conclusion of receipt the examination and audit as well as Landlord’s actual out-of-pocket costs in connection with such examination and audit. The obligation to make such refund or payment for any period within the Lease Term shall survive expiration of an itemized invoice from Customerthe Lease Term. If Tenant does not elect to exercise its right to examine and audit Landlord’s books and records for any Operating Year within the time period provided for by this Section 5, Tenant shall have no further right to challenge Landlord’s Operating Statement and Tax Statement.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Lease Agreement (Repligen Corp)
Audit. 5.1. Upon (i) Subject to any other agreement entered into with respect to Bank’s right to audit, or cause an audit of, Platform Agent, on an annual basis, Bank shall be permitted to cause an audit (except to the extent a Platform Technical Auditor has audited the Program) by an independent third party firm selected by Platform Agent and acceptable to Bank and at least ten (10) calendar days’ written notice Platform Agent’s sole cost and expense, not to Zinniaexceed [***], Customer or its designee may audit and verify the matters to be conducted of Platform Agent’s controls relating to the TPA Services during normal business hours. If Customer engages control, monitoring and supervision of the assistance operation of the Program and of Platform Agent’s and its Third-Party Service Provider’s compliance with this Agreement, including ensuring that all Loans comply with the Program Guidelines and all Applicable Laws; provided, however, that if such audit has been conducted within the twelve (12) months prior to the Effective Date, then Platform Agent shall have met its Platform Audit obligations for the initial year under this Agreement, so long as a summary of such audit or issues log has been provided to Bank and contains no material findings, or any such material findings are subject to management remediation efforts; provided further that Platform Agent shall (i) own the results of such audit, (ii) share such results with Bank, which Bank agrees to keep confidential, sharing only with Bank’s board and directly relevant regulators and (iii) keep such audit confidential except as required by Applicable Laws; provided further that Platform Agent may share the results of such audit with a third party party, as Platform Agent deems reasonably necessary (subject to perform the audit, the third party must (a) execute Platform Agent entering into a non-disclosure or other confidentiality agreement with any such third party). Platform Agent shall provide Bank with notice of such sharing of any audit that contains protections was paid for Confidential Information comparable by both Parties. In addition to those the foregoing, Platform Agent shall comply with all auditing obligations set forth in Schedule 3.2(f), and to cause the auditing reports to be delivered to Bank on the dates specified in such Schedule 3.2(f), each in form and substance satisfactory to Bank. For the avoidance of doubt, the [***] limit on Platform Agent’s liability for audit costs and expenses set forth above applies to the combination of all audits set forth in Schedule 3.2(f). Platform Agent may add additional audit scope in order to satisfy requirements for other partners, the cost of which shall be the sole responsibility of Platform Agent and excluded from the [***] limit above. To the extent Bank requests any audit not set forth in Schedule 3.2(f), the resource burden and cost and expense liability associated with such incremental audit will be subject to good faith discussion and agreement between the parties.
(ii) Notwithstanding anything in this TPA Addendum; (b) not be a competitor Agreement to Zinnia the contrary, Bank shall have the following obligations to Platform Agent with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, the annual audit performed pursuant to Section 3.2(f)(i):
a. Platform Agent shall prepare and (c) not be compensated send an annual audit plan to Bank on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount before March 1st of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of calendar year the audit that uncovered such material faultis scheduled to take place, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for which sets forth the total cost proposed scope and schedule of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia scope shall be solely responsible for all costs determined in accordance with Bank’s legal and fees necessary regulatory obligations and applied to do soBank’s other credit sponsorships; and
b. After an engagement letter has been negotiated and executed among the parties and the auditor, but before the audit has officially commenced, Bank shall, at a minimum, participate in a kick-off call (or multiple calls, if necessary) among Bank, Platform Agent and the auditor, which shall include a thorough discussion and consensus agreement about the exact scope and timeline of the audit.
Appears in 1 contract
Audit. 5.1During the Term and for two (2) years thereafter. Upon Company agrees to keep all usual and proper records relating to its reproduction and use of the Hosted Products. Notwithstanding the provisions of the applicable ASLA, in order to verify Company's compliance with the terms of this Agreement, during the Term and for two (2) years thereafter, Microsoft may cause (i) an audit to be made of Company's books and records and/or (ii) an inspection to be made of Company's facilities and procedures. Microsoft may cause an audit to be made only one time per twelve (12) month period so long as no material unlicensed use of Hosted Products is found to exist. Should any material unlicensed use of Hosted Products be found during an audit, then Microsoft may perform another audit within the same twelve (12) month period. Any audit and/or inspection shall be conducted during regular business hours at Company's facilities, with at least ten three (103) calendar days’ written notice ' notice, and in such a manner as not to Zinniainterfere unreasonably with the operations of the Company. Any audit shall be conducted by an independent certified public accountant selected by Microsoft (other than on a contingent fee basis). Prior to an audit, Customer Micrsoft will enter into a non-disclosure agreement with the independent public accountant performing the audit that will obligate such independent public accountant to hold in confidence any of Company's or its designee may Company affiliates' confidential information, including any unrelated financial, business and technical information observed in the course of the audit. Company agrees to provide Microsoft's designated audit and verify the matters relating or inspection team access to the TPA Services during normal business hoursrelevant Company records and facilities. If Customer engages Company shall promptly acquire sufficient Licenses to cover all usage disclosed by any such audit. In addition, if any such audit discloses material unlicensed use of Hosted Products, Company shall pay to Microsoft an amount equal to: (i) the assistance reasonable expenses incurred in conducting such audit; plus (ii) an additional License fee of a third party twenty percent (20%) of the price established by Microsoft (as set forth on the then current Hosted Product Price List) of the Licenses required to perform be acquired pursuant to the preceding sentence. For purposes of this section, "material unlicensed use of Hosted Products" shall exist if, upon audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia it is determined that, with respect to any Hosted Product the Company has Licenses for fewer than ninety-five percent (95%) of the copies made or access rights provided which are disclosed by the audit. Microsoft shall use the information obtained or observed in ▇▇▇▇▇▇’s third party administrator businessthe audit solely for the purposes of (x) determining whether the Company has sufficient Licenses for the Hosted Products it is using and has otherwise complied with the terms of this Agreement, as determined by ▇▇▇▇▇▇ in (y) enforcing its sole, reasonable discretionrights under this Agreement and any applicable laws, and (cz) not be compensated on a contingency basis.
5.2determining if Company has accurately reported Third Party contract information to Microsoft. Zinnia Microsoft will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, hold all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerinformation in confidence.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Microsoft Application Services Agreement (Futurelink Corp)
Audit. 5.1. Upon at least ten (10) calendar days’ written notice In the event of a dispute regarding the Purchase Price or the royalty, the Parties shall attempt to Zinniaresolve the discrepancy in good faith by providing such financial information as may be required, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hourswhich information shall be Confidential Information. If Customer engages the assistance Parties are unable to resolve the dispute informally, each of the Parties shall have the right, at its own expense and at any reasonable time or times, to cause a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) independent auditor not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated engaged on a contingency basis.
5.2basis and approved by the audited Party (not to be unreasonably withheld) to inspect and audit the books and records of the other Party solely to verify the Purchase Price or Royalty calculation for a period of two (2) years from and after the period in which such calculations were originally made. Zinnia will reasonably cooperate Any such audit (i) shall be conducted after reasonable prior notice, during [***] Confidential portions of the exhibit have been omitted and filed separately with the Securities and assist Customer, Customer designees, Exchange Commission. normal business hours and their respective auditors, inspectors, consultants, at the location(s) where such books and other representatives, records are normally kept and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer (ii) may not use be conducted more than once in any auditorgiven twelve (12) month period. The auditor shall only report to the Parties the amount, inspectorif any, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any correction (each a “Correction Amount”) and shall not disclose to the Parties either the detailed or underlying information supporting such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia conclusion or any of such auditor’s work papers. If the correction in writing of its determination, including either the amount Purchase Price or Royalty exceeds three per cent (3%) of the overcharge and payment previously made for the basis audited period, then in addition to paying the correction amount, the Party owing shall pay the other Party for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount full costs of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge audit and interest on such overdue the correction amount at the rate of one and one-half percent three per cent (1.53%) per month above The Wall Street Journal United States Prime Rate (“Rate”) as published in the Eastern edition for the date on which the audit result is sent to the Parties, or if not a business day, then the highest rate permitted by lawnext succeeding business day to such date. For example, if less) calculated from the Overcharge Due Date until Rate is 4% then the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days interest rate applicable hereunder would be 7%. Interest shall be due for the period from the date of Customer’s notice to Zinnia) disputed the incorrect payment and until paid by Vendor in writingthe applicable Party. The results of the Audit shall be Confidential Information, in good faith. All audits will shall be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance shared concurrently with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material faultParties, and ▇▇▇▇▇▇ will reimburse Customer (i) for shall be binding on the reasonable and documented costs Parties. Any payment required pursuant to any such Audit or the operation of this Article 7 by one Party to the portion of the audit that uncovered such material faultother Party, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to shall be made by Zinnia to Customer within thirty (30) days of the Parties’ receipt of an itemized invoice from Customerthe auditor’s report.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Products Development Agreement (Cornerstone Therapeutics Inc)
Audit. 5.1. Upon During the term of this Agreement and not more than once per calendar year (unless circumstances warrant additional audits as described below), having given at least ten (10) calendar 10 business days’ written notice to Zinnianotice, Customer the IETF LLC or its designee representatives (reasonably acceptable to Contractor) may audit the Contractor’s records, documents, books, files, relevant IT systems and verify data centers, as used in the matters relating performance of this Agreement, to ensure compliance with this Agreement. Notwithstanding the foregoing, the Parties agree that the IETF LLC or its representatives (reasonably acceptable to Contractor) may conduct an additional audit of Contractor during and within four (4) years after the term of the Agreement, in the event of
(i) audits required by governmental or regulatory authorities, (ii) investigations of claims of Contractor’s misappropriation, fraud, or business irregularities of a potentially criminal nature. (iii) ongoing or threatened litigation, suit or proceeding, or (iv) the IETF LLC reasonably believes that an audit is necessary to address a material operational problem or issue that poses a threat to the TPA Services during normal business hoursIETF or the IETF LLC. If Customer engages Contractor and the assistance IETF LLC will use reasonable efforts to agree in advance on reasonable timing and scope of a third party to perform the audit, . Contractor will set reasonable security controls applicable to the third party must audit (aincluding restricting access to Contractor’s trade secrets and data belonging to Contractor’s other customers) execute a confidentiality agreement that contains protections for Confidential Information comparable as may be reasonably acceptable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis.
5.2the IETF LLC auditors. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to All such audits shall be at IETF LLC’s expense, except to the extent such audits reveal a breach by Contractor of its obligations to IETF LLC. Any adjustments in favor of IETF LLC that arise from any such audit of Contractor will be recognized as otherwise stated herein. Ifan adjustment of any future payment due to Contractor or, as a result if no future payment is so due, Contractor will promptly pay the amount of any such auditadjustment to IETF LLC, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including unless Contractor disputes the amount results of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, audit in good faith, in which case the parties will submit to the dispute resolution processes described below. All To the extent such audits will be performed cause or result in a manner intended to minimize disruption to either partydata loss, security breaches, intellectual property misappropriation, or IT system errors (unless disputed by IETF LLC in good faith), the IETF LLC shall reimburse Contractor for Contractor’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customerresulting costs.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Contracted Services Agreement
Audit. 5.1. Upon at least ten Within one hundred twenty (10120) calendar days’ written notice to Zinnia, Customer or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance days after receipt of a third party to perform ----- Statement by Tenant ("REVIEW PERIOD"), if Tenant disputes the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those amount set forth in this TPA Addendum; the Statement, Tenant's employees or an independent certified public accountant (b) which accountant is a member of a nationally or regionally recognized accounting firm), designated by Tenant, may, after reasonable notice to Landlord and at reasonable times, inspect Landlord's records at Landlord's offices, provided that Tenant is not be a competitor to Zinnia with respect to then in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretiondefault after expiration of all applicable cure periods and provided further that Tenant and such accountant or representative shall, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and each of them shall use their commercially reasonable efforts to cause their respective auditorsagents and employees to, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with maintain all information reasonably requested; provided howevercontained in Landlord's records in strict confidence. Notwithstanding the foregoing, that Customer may not use Tenant shall only have the right to review Landlord's records one (1) time during any auditortwelve (12) month period. Tenant's failure to dispute the amounts set forth in any Statement within the Review Period shall be deemed to be Tenant's approval of such Statement and Tenant, inspectorthereafter, consultant, waives the right or representative who is a competitor or Affiliate of a competitor ability to Zinnia or its Affiliates Customer will pay all costs attributable to dispute the amounts set forth in such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”)Statement. If Zinnia does not repay after such overcharge within ten (10) daysinspection, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days after the Review Period, Tenant notifies Landlord in writing that Tenant still disputes such amounts, a certification as to the proper amount shall be made in accordance with Landlord's standard accounting practices, at Tenant's expense, by an independent certified public accountant selected by Landlord and who is a member of a nationally or regionally recognized accounting firm. Landlord shall cooperate in good faith with Tenant and the accountant to show Tenant and the accountant the information upon which the certification is to be based. However, if such certification by the accountant proves that the Direct Expenses set forth in the Statement were overstated by more than ten percent (10%), then the cost of the accountant and the cost of such certification shall be paid for by Landlord. Promptly following the parties receipt of an itemized invoice from Customer.
5.3. At least annuallysuch certification, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility the parties shall make such appropriate payments or facilities from which it (includingreimbursements, as applicablethe case may be, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section to each other, as are Zinnia Confidential Information. Zinnia may redact from determined to be owing pursuant to such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do socertification.
Appears in 1 contract
Audit. 5.1. Upon at least ten (10) calendar days’ written notice If Tenant is not satisfied with the answers it receives to Zinniaits questions pursuant to Paragraph 4.06.1 above, Customer then Tenant or its designee may agent shall have the right to review and audit Landlord’s books and verify the matters relating to the TPA Services records regarding such Expense Statement. Such review or audit shall take place during normal business hours, upon reasonable advance notice and at time reasonably scheduled by Landlord, in the accounting office of Landlord for the Project. If Customer engages Tenant shall give notice requesting the assistance review or audit of any Expense Statement not later than one year following Tenant’s receipt of such Expense Statement, and no Expense Statement shall be reviewed or audited more than once; provided, however, that Tenant may audit at a third party later date or further audit a particular Expense Statement if and to perform the auditextent required to comply with applicable Laws regarding governmental contracts or with other governmental requirements. From and after the date, if any, that the third party must (a) execute Premises no longer include the entirety of all of the Buildings, such review or audit may be conducted solely by an independent certified accountant, and neither the auditor nor any other person directly or indirectly involved in the review or audit be compensated pursuant to a confidentiality agreement that contains protections for Confidential Information comparable commission or other arrangement pursuant to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businesswhich the nature or extent of fees or other compensation is dependent upon the results thereof, as determined by excluding reviews or audits from ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated ▇▇▇ Companies or other successor local auditor. In the event that Tenant determines on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing the basis of its determination, including review or audit of Landlord’s books and records that the amount of Expenses paid by Tenant pursuant to this Paragraph IV for the overcharge and period covered by such Expense Statement (an “Expense Period”) is less than or greater than the basis for its conclusionactual amount properly payable by Tenant under the terms of this Lease, andTenant shall promptly pay any deficiency to Landlord or, if ZinniaLandlord concurs with the results of such review or audit in its reasonable discretion or is deemed to concur based on the procedure set forth below, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s Landlord shall refund any excess payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer Tenant within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and after Tenant’s written request or at no additional charge Tenant’s sole election apply the same to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (includingRent thereafter falling due, as applicablethe case may be. If Landlord does not concur with the results of such review or audit, its affiliates Landlord and subcontractorsTenant shall mutually appoint an independent certified public accountant with qualifications and experience appropriate to resolve matters as to which the parties do not agree (the “Joint Expense Expert”) is providing who shall determine the Servicesfinal calculation of Expenses. Such reports provided by Zinnia under this section are Zinnia Confidential InformationIf Landlord and Tenant cannot agree on the appointment of a Joint Expense Expert or otherwise fail to agree on the calculation of Expenses for such Expense Period, then such dispute shall be resolved in accordance with Paragraph 4.06.3. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia Tenant shall be solely responsible for all the costs and fees necessary expenses of the review or audit, except that if it is determined that the actual amount of Expenses paid by Tenant during any Expense Period exceeds the amount properly payable by Tenant hereunder during such Expense Period by an amount greater than two percent (2%) of the actual Expenses properly chargeable to do soTenant during such Expense Period, then Landlord shall reimburse Tenant (in the form of a credit against the Rent next coming due hereunder or, if the Term has previously expired, in the form of a direct payment) the reasonable costs of such review or audit (except that costs in the event of a determination by a Joint Expense Expert shall be as provided below).
Appears in 1 contract
Audit. 5.1. Upon at least ten (10) calendar days’ written notice Provided that Tenant is not in default under this Lease and pays any Operating Expenses billed by Landlord as and when due, Tenant or a qualified certified public accountant retained by Tenant who is experienced with accounting for operating expense recoveries in commercial leases, shall have the right to Zinnia, Customer or its designee may audit examine Landlord's books and verify the matters records relating to the TPA Services Operating Expenses upon reasonable prior notice given within ninety (90) days after receipt of Landlord's annual reconciliation, during normal business hourshours at the place or places where such records are normally kept. If Customer engages Tenant's representative shall be compensated on an hourly or project basis and not on (i) a contingent basis, (ii) the assistance basis of a third party to perform percentage of any savings or refund resulting from the audit, or (iii) in any other manner that makes such representative's compensation for such audit in any way dependent on the third party must results of the audit. Upon request, Tenant shall provide Landlord with a full copy of all correspondence, instructions between the accountant. Landlord's calculation shall be final and binding on Tenant upon delivery thereof, except as to matters to which written objection is made by Tenant in accordance with this Section. Tenant may dispute specific items included in Operating Expenses or Landlord's computation of Tenant's Share of Operating Expenses, by sending notice specifying such objections and including support for such findings with specific reference to the relevant Lease provisions disqualifying such expenses to Landlord no later than one hundred and twenty (a120) execute days after Tenant's representative examines such records. If Landlord agrees with Tenant's objections, appropriate rebates or charges shall be made to Tenant within a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) reasonable period of time thereafter. The results of any review of Operating Expenses hereunder shall be treated by Tenant, its accountant and each of their respective employees and agents as confidential, and shall not be a competitor discussed with nor disclosed to Zinnia with respect any third party. If Tenant objects to any matters as provided above, Landlord shall refer the matter to an independent certified public accountant selected by Landlord, whose certification as to the proper amount shall be final and binding on Landlord and Tenant. Tenant shall promptly pay the cost of such certification and all other costs incurred by Tenant to examine Landlord's books and records. Pending resolution of any such exceptions in ▇▇▇▇▇▇’s third party administrator businessthe foregoing manner, as Tenant shall continue paying Tenant's Share of Operating Expenses in the amounts determined by ▇▇▇▇▇▇ in its soleLandlord, reasonable discretionsubject to adjustment upon resolution of any objections by Tenant. If the certification determines that Landlord overstated Tenant's Share of Operating Expenses, and (cthen Tenant shall receive a credit for the amount of such overpayment against the next installment(s) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customerof Operating Expenses; provided, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will if the Term has expired Landlord shall pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including Tenant the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer excess within thirty (30) days after the certification is finalized. If the certification determines that Landlord understated Tenant's Share of receipt Operating Expenses, then Tenant shall pay such sum due with its next monthly installment of an itemized invoice from Customer.
5.3Rent. At least annually, and at no additional charge Landlord shall have the same rights with respect to Customer, Zinnia will provide Tenant's nonpayment of Operating Expenses as it has with respect to Customer copies any other nonpayment of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia Rent under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do soLease.
Appears in 1 contract
Audit. 5.1. Upon at least ten On an annual basis, upon thirty (1030) calendar days’ days prior written notice notice, the Town, including the Town’s Auditor or his/her authorized representative, shall have the right to Zinnia, Customer or its designee may audit and verify the matters relating conduct an independent audit/review of ▇▇▇▇▇▇▇'s records reasonably related to the TPA administration or enforcement of this Franchise. Pursuant to subsection 1.26 and Section 3.5, as part of the Franchise Fee audit/review the Town shall specifically have the right to review relevant data related to the allocation of revenue to Cable Services during normal business hoursin the event Grantee offers Cable Services bundled with non-Cable Services. If Customer engages the assistance For purposes of this section, “relevant data” shall include, at a third party to perform the auditminimum, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇▇’s third party administrator records, produced and maintained in the ordinary course of business, showing the Subscriber counts per package and the revenue allocation per package for each package that was available for Town Subscribers during the audit period. To the extent that the Town does not believe that the relevant data supplied is sufficient for the Town to complete its audit/review, the Town may require other relevant data. For purposes of this Section 3.6, the “other relevant data” shall generally mean all: (1) billing reports, (2) financial reports (such as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, General Ledgers) and (c3) not be compensated on sample Subscriber bills used by Grantee to determine Gross Revenues for the Franchise Area that would allow the Town to recompute the Gross Revenue determination. If the audit/review shows that Franchise Fee payments have been underpaid by five percent (5%) or more (or such other contract underpayment threshold as set forth in a contingency basis.
5.2. Zinnia will reasonably cooperate with generally applicable and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, enforceable regulation or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount policy of the overcharge and the basis for its conclusionTown related to audits), and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will Grantee shall pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit/review, all such reimbursements cost not to be exceed five thousand dollars ($5,000) for each year of the audit period. The Town’s right to audit/review and the Grantee’s obligation to retain records related to this subsection shall expire three (3) years after each Franchise Fee payment has been made by Zinnia to Customer within thirty (30) days of receipt the Town, unless the Grantee has been notified of an itemized invoice from Customer.
5.3. At least annuallyaudit/franchise fee review, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports in which case all records must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) retained until the audit/review is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do socomplete.
Appears in 1 contract
Sources: Cable Franchise Agreement
Audit. 5.1. Upon In the event Tenant disputes the amount of Additional Rent set forth in the Escalation Statement, then Tenant may, within one hundred twenty (120) days after Tenant receives the subject Escalation Statement, engage an independent certified public accountant (which accountant shall be a member of a nationally recognized accounting firm and is not working on a contingency fee basis), designated and paid for by Tenant, to inspect Landlord’s records with respect to such Escalation Statement at least ten the offices of Landlord where such records are customarily maintained or at such other location reasonably selected by Landlord provided that:
a) Tenant is not then in default under this Lease; Encino Terrace / Research Solutions, Inc. / MK / December 29, 2016 ____ ____ ____ ____ Initial Initial Initial Initial
b) Tenant provides Landlord with written notice of the dispute, which notice shall state with reasonable particularity the basis for the dispute, the amount at issue and identifying the accountant engaged or to be engaged by Tenant;
c) Tenant has paid all amounts that are required to be paid under the applicable Escalation Statement;
d) Such inspection is conducted during Landlord’s customary business hours (10with such inspection to be completed within one (1) calendar days’ business day) at time(s) reasonably designated by Landlord;
e) Tenant and Tenant’s agents shall, in a writing delivered to Landlord, agree in advance of such inspection to follow Landlord’s reasonable rules and procedures regarding inspections of Landlord’s records (including, without limitation, no photocopying);
f) Prior to any inspection of Landlord’s records, Tenant and Tenant’s agents execute a commercially reasonable confidentiality agreement regarding such inspection and deliver an original of the same to Landlord; and
g) Tenant’s failure to provide written notice to ZinniaLandlord in accordance with clause b), Customer or above, within one hundred twenty (120) days after Tenant’s receipt of the applicable Escalation Statement shall be deemed to be Tenant’s approval of such statement and, in case of such failure, Tenant, after the expiration of such one hundred twenty (120)-day period, shall have waived its designee may audit and verify right to dispute the matters relating amounts set forth in such statement. In addition, Tenant’s right of inspection hereunder shall be waived in the event Tenant fails to comply with any of the provisions of this Section 4.2.1. If, after such inspection, if any, Tenant still disputes such Additional Rent, a determination as to the TPA Services during normal business hoursproper amount shall be made, at Tenant’s expense, by an independent certified public accountant (the “Accountant”) selected by Landlord and subject to Tenant’s reasonable approval; provided that if such determination by the Accountant proves that the Operating Expenses (for the Building as a whole) were overstated in the applicable Escalation Statement by more than four percent (4%), then the fees and expenses of the Accountant and all other costs of such determination shall be paid for by Landlord. If Customer engages However, if the assistance Operating Expenses (for the Building as a whole) were overstated in the applicable Escalation Statement by four percent (4%) or less, or was in fact understated, Tenant shall promptly pay the fees and expenses of a third party to perform the auditAccountant and all other costs of such determination (including, without limitation, the third party must (a) execute a confidentiality agreement amount of Operating Expenses owed to Landlord as evidenced by the inspection). Any reconciliation of charges set forth in the Escalation Statement, which is necessitated by the inspection, shall be paid or credited by Tenant or Landlord, as applicable, in accordance with this Section 4.2.1. Tenant hereby acknowledges that contains protections for Confidential Information comparable Tenant’s sole right to those inspect Landlord’s books and records and to contest the amount of Operating Expenses payable by Tenant shall be as set forth in this TPA Addendum; (b) not be a competitor Section 4.2.1 and Tenant hereby waives any and all other rights pursuant to Zinnia with respect applicable law to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, inspect such books and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto records and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including contest the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted Operating Expenses payable by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from CustomerTenant.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Audit. 5.1. Upon at least ten The Parties specifically intend and agree that the Audit provision(s) of the MSA is stricken in its entirety and replaced with the following:
16.1 Supplier shall maintain during the course of the Work, and retain not less than three years after completion thereof, complete and accurate records of all costs of Supplier, Supplier’s contractors or subcontractors (10of any tier) calendar days’ written notice and its and their respective parent, subsidiaries and affiliates (for purposed of this Provision 16 “Supplier Group”) which are chargeable to ZinniaCompany under this Contract; and Company shall have the right, Customer or its designee may during normal working hours, to inspect, reproduce, audit and verify the matters inspect those records by authorized representatives of its own, or any third-party contract compliance auditing firm selected by Company. The records to be thus maintained and retained by Supplier Group must provide sufficient detail for such charges and shall include (without limitation):
A. All invoices billed to Company;
B. Payroll records (hours, employee name, employee classification, multiplier breakdown, etc.) and timesheets that account for total time worked related to Work;
C. Canceled payroll checks (or time/detail register from Kronos or other workforce managements system then used by Supplier, if applicable) or signed receipts for cash payroll;
D. Third-party invoices (including all back-up details) for purchases, receiving and issuing documents, and all inventory records for Supplier’s stock or capital items rebilled to Company;
E. Paid invoices and canceled checks (or electronic payment records, if applicable) for purchased Materials, subcontractor and third-party charges;
F. Detailed asset ledgers to support any Supplier-owned Materials billed to Company;
G. Records relating to air freight and ground transportation, including but not limited to handling, hauling and disposing of materials/equipment; and
H. Accurate, auditable records of gifts, entertainment and gratuities with a value of $10.00 or more to individual Company personnel. Notwithstanding the TPA Services during normal business hours. If Customer engages the assistance of a third party foregoing, under no circumstances will Supplier be obligated to perform the retain, nor may Company request to audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia any records with respect to in ▇▇▇▇▇▇’s third party administrator businessany Work completed before November 1, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and (c) not be compensated on a contingency basis2014.
5.216.2 In addition, Supplier shall assist Company with respect to ensuring that all members of Supplier Group, including in Supplier’s contracts with members of Supplier Group, adhere to and comply with the same requirements herein and shall cooperate fully to enforce Company’s right to audit and inspect records and accounts with respect to Work provided hereunder by any member of Supplier Group (including their successors and assigns).
16.3 Both Parties understand that as a demonstration of the trust shared in the alliance relationship, Company will routinely pay invoices promptly without detailed scrutiny. Zinnia will reasonably cooperate Notwithstanding the foregoing, to preserve the integrity of the relationship and to provide a reasonable level of quality assurance with and assist Customerrespect to contract compliance, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, it is necessary to periodically conduct a detailed audit in connection accordance with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise the defined parameters stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia shall be solely responsible for all costs and fees necessary to do so.
Appears in 1 contract
Sources: Master Commercial Agreement (FTS International, Inc.)
Audit. 5.1. Upon at least ten the written request of Athenex, Avalon shall permit an independent certified public accounting firm of recognized standing, selected by Athenex and acceptable by Avalon (10) calendar days’ written notice provided that such accounting firm shall not be retained or compensated on a contingency basis and shall have entered into a confidentiality agreement with Athenex in form and substance reasonably satisfactory to ZinniaAvalon), Customer or its designee may audit and verify the matters relating to the TPA Services have access not more than once in any Calendar Year, during normal business hours, to such of the records of Avalon as may be reasonably necessary to verify the accuracy of the Prices for any year ending not more than twenty four (24) months prior to the date of such request. The accounting firm shall disclose to Athenex whether the Prices are correct or incorrect, the specific details concerning any discrepancies. If Customer engages such accounting firm concludes that the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretionPrices were too high, and (c) not be compensated Avalon agrees with such conclusion, then Avalon shall pay the amount overpaid by Athenex to Athenex, together with interest at the Prime Rate on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusionsuch additional payments, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge the date Athenex delivers the Audit Report to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesAvalon. In the event that Avalon disagrees with the accounting firm’s conclusion, Avalon shall not have the obligation to make any additional payments to Athenex until there is a mutual agreement of the Parties regarding the amount owed by Avalon. For the avoidance of doubt, Avalon is not obligated to pay any interest for the period during which the Parties were in dispute of the accounting firm’s conclusion and amount owed thereunder. The fees charged by such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia accounting firm shall be solely responsible paid by Athenex, provided, however, that if the report shows that Athenex overpaid Avalon by more than five percent (5%) of the payments due hereunder for all costs the period being reviewed is discovered, then the reasonable fees and fees necessary to do soexpenses of the accounting firm shall be paid by Avalon.
Appears in 1 contract
Audit. 5.1. Upon 8.1 During the Term and for one (1) year thereafter, Licensor shall have the right, upon at least ten (10) calendar days’ business days written notice to ZinniaLicensee and no more than once per calendar year, Customer to inspect Licensee’s books and records in the possession of or its designee may audit and verify under the matters relating to the TPA Services during normal business hours. If Customer engages the assistance control of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; (b) not be a competitor to Zinnia Licensee solely with respect to in ▇▇▇▇▇▇the calculation of the Royalty, during Licensee’s third party administrator regular business hours and without any unreasonable disruption of Licensee’s business, as determined and at the place or places where such records are normally retained by ▇▇▇▇▇▇ in Licensee. While on Licensee’s premises, Licensor (or its solequalified third-party auditor) shall at all times comply with Licensee’s rules, reasonable discretionregulations, and (c) not be compensated on a contingency basis.
5.2. Zinnia will reasonably cooperate with and assist Customerpolicies, Customer designeesincluding security requirements, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or shall be subject to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated hereinsupervision by Licensee’s personnel. If, as a result The on-premises portion of any such audit, Customer determines that Zinnia overcharged it, Customer audit shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit be limited to Customer the amount of the overcharge within ten (10) days business days; provided that during such period Licensee has provided all records necessary to verify the calculation of the Royalty. Any third party auditors retained by Licensor shall be reputable, independent accounting or auditing firms. No audit may cover any period covered by a previous audit or cover a period spanning more than two (“Overcharge Due Date”)2) years prior to commencement of the audit. If Zinnia does not repay Licensor shall be permitted to make copies of the books and records made available to it and extracts therefrom. The results and proceeds of any audit shall be provided to Licensee and deemed Licensee’s confidential information to be used only in Licensor’s efforts to enforce compliance with the Agreement.
8.2 Any claim with respect to an audit must be made within nine (9) months following the date Licensor (or its third-party auditor) had been provided access to the information necessary to confirm the accuracy of the calculation of the Royalty. In the event that an audit reveals a discrepancy in the amount of Royalty owed Licensor from what was actually paid, Licensee shall pay such overcharge within ten (10) daysdiscrepancy, Customer may charge interest on such overdue amount plus interest, calculated at the rate of one and one-half percent equal [REDACTED] PERCENT (1.5%[REDACTED]%) per month (or annum calculated pro rata on a daily basis, but not to exceed the highest maximum rate permitted allowed by law. In the event that such discrepancy is in excess of [REDACTED] UNITED STATES DOLLARS ($[REDACTED]), if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will Licensee shall also reimburse Customer Licensor for the reasonable and documented costs Customer incurred directly and solely as a result of such material faultactual, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable reasonable, and documented costs of the portion such audit.
8.3 All books and records relative to Licensee’s calculation of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia Royalty hereunder shall be solely responsible maintained and kept accessible and available to Licensor for all costs and fees necessary to do soinspection for at least one (1) year after expiration or termination of this Agreement.
Appears in 1 contract
Audit. 5.1. Upon at least ten City reserves the right during the Term on an annual basis and within four (104) calendar days’ written notice years after expiration or termination of this Agreement to Zinniainspect and examine all Tenant’s books of account, Customer records, cash receipts, and other pertinent data, so City can ascertain Tenant’s Gross Revenue and Operational Margin from operation of the Premises, or its designee may audit and verify the matters relating to the TPA Services during normal business hours. If Customer engages the assistance of a third party to perform the audit, the third party must (a) execute a confidentiality agreement that contains protections for Confidential Information comparable to those any other items set forth in this TPA Addendum; Agreement. Specifically:
(a) An annual audited statement prepared by a certified public accountant in accordance with GAAP detailing all income shall be submitted within ninety (90) days of the closing of the Lease Year. The annual audited statements shall include the Gross Revenues, Operational Margin, Annual Rent expenditures, and Capital Improvement Expenditures, in addition to any other items set forth in this Agreement for the preceding Lease Year prepared by an independent Certified Public Accountant. If Tenant shall fail to deliver such annual audited statement to City within said ninety (90) day period, City shall have the right thereafter to audit or cause an audit to be performed, including without limitation an audit of all records required by Section 6.6 (Capital Improvement Expenditure) and Section 6.10 (Statement of Gross Revenue) herein, as may be necessary to certify the amounts of Operational Margin, Gross Revenue and Annual Rent for such Lease Year.
(b) not be The right to audit shall extend during the length of this Agreement and for a competitor period of four (4) years, or longer if required by law, following the date of final payment under this Agreement. Tenant agrees to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator business, as determined by ▇▇▇▇▇▇ in its sole, reasonable discretion, and retain all necessary records/documentation for the entire length
(c) An audit may be accomplished, in the City’s sole discretion, by either City forces or an outside auditing firm. In addition, City retains the right to perform spot check audits no more than once a year and upon providing notice at least forty eight (48) hours in advance; this limitation does not be compensated on a contingency basisapply to audits required to investigate criminal or suspicious behavior.
5.2(d) Tenant will be notified in writing of any exception taken as a result of an audit. Zinnia will reasonably cooperate with and assist Customer, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto Any adjustments and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, payments which Tenant agrees must be made as a result of any such audit, Customer determines that Zinnia overcharged it, Customer audit or inspection of Tenant’s invoices and/or records shall notify Zinnia in writing of its determination, including the amount of the overcharge and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days from presentation of receipt City’s findings to Tenant. If Tenant fails to make such payment, Tenant agrees to pay interest, accruing monthly, at the maximum legal rate. Interest will be computed form the date of an itemized invoice from Customer.
5.3written notification of exception(s) to the date Tenant reimburses City for any exception(s). At least annuallyIf audit inspection or examination in accordance with this section, and at no additional charge discloses overcharges (on any nature) by Tenant to CustomerCity in excess of one percent (1%) of the value of that portion of the contract that was audited, Zinnia will provide the actual cost of City’s audit shall be reimbursed to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared City by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third partiesTenant. In the event such reports include the parties are unable to agree as to the result of any negative audit findings impacting audit, the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia dispute shall be solely responsible for all costs resolved in mediation or arbitration in accordance with Section 22.3 (Memorandum of Agreement) hereafter.
(e) To the extent legally possible, City shall keep any information gained from such statements, inspection, or audit confidential and fees necessary shall not disclose it other than to do socarry out the purpose of this Agreement.”
Appears in 1 contract
Sources: Lease and Operation Agreement
Audit. 5.1. Upon at least ten During the Term and for a period of three (103) calendar days’ written notice to Zinniayears thereafter (the “Audit Period”), Customer or Emulex and its designee may audit Affiliates shall keep full, complete, clear and verify the matters relating accurate accounting, sales and other books and records pertaining to the TPA Services subject matter of the Reports (“Records”). During the Audit Period, during normal business hours. If Customer engages , Broadcom shall have the assistance of right (at its own expense) to have a nationally recognized accounting firm, working in conjunction with an independent third party technical advisor agreeable to perform Emulex, such agreement not to be unreasonably withheld (collectively, the “Auditor”) inspect and audit, and Emulex shall provide access to the Auditor, the Records for the purpose of verifying Emulex’s compliance with the terms and conditions of Section 4.5, including without limitation verification of the completeness and accuracy of Reports relating to sales of Licensed [**] (such inspection and audit, the “Audit”). Audits may be conducted no more than [**] per Fiscal Year, provided that if an Audit reveals a material inaccuracy with respect to any calendar quarter, Audits may thereafter be conducted [**] per Fiscal Year during the next [**] Fiscal Years. Audits shall be limited to [**] Each Audit shall in no case cover more than [**] prior years. The Auditor shall enter into a confidentiality agreement with Emulex in a form based on the form of confidentiality agreement set forth in Exhibit C hereto, subject to any modifications reasonably agreed upon between the Auditor and Emulex. The Auditor may inform Broadcom of the accuracy or inaccuracy of the Reports (and reasonable detail as to any inaccuracy). Broadcom shall not, and shall require the Auditor not to, disclose the results of the Audit to any third party must other than (a) execute to Broadcom’s attorneys, auditors and accountants on a need-to-know basis under circumstances that reasonably ensure the confidentiality agreement that contains protections for Confidential Information comparable to those set forth in this TPA Addendum; thereof, (b) not as may be a competitor to Zinnia with respect to in ▇▇▇▇▇▇’s third party administrator businessrequired by applicable law, as determined by ▇▇▇▇▇▇ in its soleregulation, reasonable discretionor governmental authority, and or (c) not be compensated on under seal to a contingency basis.
5.2court of competent jurisdiction with prior notice to Emulex sufficient to allow Emulex an opportunity to object or seek to limit such disclosure. Zinnia will Emulex shall reasonably cooperate with and assist Customerthe Audit; provided, Customer designees, and their respective auditors, inspectors, consultants, and other representatives, and any Regulatory Authority, in connection with audits in relation hereto and/or to any Order and shall, on a reasonably timely basis, furnish each with all information reasonably requested; provided however, that Customer may not use any auditor, inspector, consultant, or representative who is a competitor or Affiliate of a competitor to Zinnia or its Affiliates Customer will pay all costs attributable to such audits except as otherwise stated herein. If, as a result of any such audit, Customer determines that Zinnia overcharged it, Customer shall notify Zinnia in writing of its determination, including the amount of the overcharge inspection and the basis for its conclusion, and, if Zinnia, in ▇▇▇▇▇▇’s reasonable discretion, audit will be conducted with at least fourteen (14) calendar days prior notice. Emulex agrees that Customer was overcharged, Zinnia will pay or credit to Customer the amount of the overcharge within ten (10) days (“Overcharge Due Date”). If Zinnia does not repay such overcharge within ten (10) days, Customer may charge interest on such overdue amount at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) calculated from the Overcharge Due Date until the date of Zinnia’s payment to Customer, unless such claim of overcharge is promptly (but in any event within ten (10) days from the date of Customer’s notice to Zinnia) disputed by Vendor in writing, in good faith. All audits will be performed in a manner intended to minimize disruption to either party’s respective businesses and in compliance with ▇▇▇▇▇▇’s security and safety policies. If any audit results in a final determination that Zinnia was materially at fault, ▇▇▇▇▇▇ will reimburse Customer for the reasonable and documented costs Customer incurred directly and solely as a result of such material fault, and ▇▇▇▇▇▇ will reimburse Customer (i) for the reasonable and documented costs of the portion of the audit that uncovered such material fault, if it is commercially feasible to identify only those audit costs that are attributable to such material fault or (ii) if not commercially feasible to do so, ▇▇▇▇▇▇ will reimburse Customer for the total cost of the audit, all such reimbursements to be made by Zinnia to Customer within thirty (30) days of receipt of an itemized invoice from Customer.
5.3. At least annually, and at no additional charge to Customer, Zinnia will provide to Customer copies of SOC 1 Type 2 and SOC 2 Type 2 audit reports Such reports must be prepared by a nationally recognized firm for Zinnia’s facility or facilities from which it (including, as applicable, its affiliates and subcontractors) is providing the Services. Such reports provided by Zinnia under this section are Zinnia Confidential Information. Zinnia may redact from such reports those portions containing confidential information of third parties. In the event such reports include any negative audit findings impacting the Services in any way, Zinnia shall promptly correct such negative findings, and Zinnia Broadcom shall be solely responsible for all costs and fees necessary entitled to do sospecific performance to enforce this Section 4.7.
Appears in 1 contract
Sources: Patent License and Release Agreement (Emulex Corp /De/)