Common use of Cost of Audit Clause in Contracts

Cost of Audit. The Auditing Party shall bear the full cost of the performance of any audit requested by the Auditing Party except as hereinafter set forth. If, as a result of any inspection of the books and records of the Audited Party and/or its Affiliates, it is shown that payments made by ERS to the Company under this Agreement were less than the amount which should have been paid, then ERS shall make all payments required to be made to eliminate any discrepancy revealed by said inspection within 30 days after the Company's demand therefor. Furthermore, if the payments made were less than 95% of the amount that should have been paid during the period in question, ERS shall also reimburse the Company for the reasonable costs of such audit; provided, however, that no such reimbursement of such audit costs shall be made in the event such audit determines that, in the period in question, the Company misstated the financial data it reported to ERS pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the underpayment by ERS great enough to trigger the threshold set forth above, without which ERS would be within such threshold. In the event that the audit shows that an overpayment has been made by ERS, such amounts shall be deducted from Distribution Fees owed to the Company. If such overpayment amounts have not been settled by such deductions from Distribution Fees within one year from the date originally overpaid, then the Company shall make all payments required to be made to ERS to eliminate any such overpayment. Furthermore, if (i) the overpayment made was more than 105% of the amount that should have been paid during the period in question and (ii) the costs invoiced by the Company were more than 105% of the audited costs during the period in question, then the Company shall also reimburse ERS for the reasonable costs of such audit; provided, however, that no such reimbursement of such audit costs shall be made in the event such audit determines that, in the period in question, ERS misstated the financial data it reported to the Company pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the costs invoiced by the Company and/or the overpayment by ERS great enough to trigger the thresholds set forth above, without which the Company would be within such thresholds.

Cost of Audit. The Auditing Party Unless expressly provided for herein below, EpiCept shall bear the full cost of the performance of any audit examination requested by the Auditing Party except as hereinafter set forthpursuant to Section 5.6 of this Agreement. If, as a result of any inspection audit examination of the books and records of the Audited Party and/or its AffiliatesDurect, it is shown that payments made by ERS Durect to the Company EpiCept under this Agreement were less than the EpiCept License (final) Confidential amount which that should have been paid, then ERS then, subject to Section 5.8, below, Durect shall make all payments required to be made to eliminate any discrepancy revealed by said inspection within 30 days after the Company's EpiCept’s demand therefor. FurthermoreIn addition, if the if, as a result of any such audit examination, it is shown that payments made by Durect to EpiCept under this Agreement were less than 95% of the amount that should have been paid during paid, and such deficiency is greater than 5 percent (5%) of the period in questiontotal aggregate amount Royalties due to EpiCept under this Agreement, ERS then, subject to Section 5.8 below, Durect shall also further reimburse the Company EpiCept for the reasonable costs actually incurred by EpiCept for performance of such audit; provided, however, that no such reimbursement of such the subject audit costs shall be made in the event such audit determines that, in the period in question, the Company misstated the financial data it reported to ERS pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the underpayment by ERS great enough to trigger the threshold set forth above, without which ERS would be within such thresholdexamination. In the event that the audit examination shows that an overpayment has been made by ERSDurect then, subject to Section 5.8, such amounts shall be deducted from Distribution Fees Royalties owed to the CompanyEpiCept and/or any other payment owing to EpiCept under Section 4 of this Agreement. If such overpayment amounts have not been settled by such deductions from Distribution Fees Royalties and/or any other payment owing to EpiCept under this Agreement within one year from the date originally overpaid, then the Company EpiCept shall promptly make all payments required to be made to ERS Durect to eliminate any such overpayment. Furthermore, if (i) the overpayment made was more than 105% of the amount that should have been paid during the period in question and (ii) the costs invoiced by the Company were more than 105% of the audited costs during the period in question, then the Company shall also reimburse ERS for the reasonable costs of such audit; provided, however, that no such reimbursement of such audit costs shall be made in the event such audit determines that, in the period in question, ERS misstated the financial data it reported to the Company pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the costs invoiced by the Company and/or the overpayment by ERS great enough to trigger the thresholds set forth above, without which the Company would be within such thresholds.

Cost of Audit. The Auditing Party shall bear the full cost Cost of the performance of any audit requested by the Auditing Party except as hereinafter set forth. If, as a result of any inspection of the books and records of the Audited Party and/or its AffiliatesParty, it is shown that payments made by ERS one Party to the Company other under this Agreement were less than the amount which should have been paidpaid (in the case of Royalties) or the amount of costs charged by one Party to the other Party were more than the amount that should have been charged (in the case of Durect Development Costs), then ERS the under-paying or over-charging Party, as applicable, shall make all payments required to be made to eliminate any discrepancy revealed by said inspection within 30 days after [* * *], including in each case interest at the Company's demand thereforrate of [* * *] percent ([* * *]%) per month (or the maximum interest allowable by Applicable Law, whichever is less) for the amount of the discrepancy. Furthermore, if the payments made were less than 95% [* * *] percent ([* * *]%) of the amount that should have been paid during any calendar year, or if there was an overcharge of more than [* * *] percent ([* * *]%) of the period amount of that was owed, in questioneither case due to the error of the Audited Party, ERS the Audited Party shall also reimburse the Company Auditing Party for reasonable Costs incurred by the reasonable costs Auditing Party in respect of such audit; provided, however, that no such reimbursement of such audit costs shall be made in the event such audit determines that, in the period in question, the Company misstated the financial data it reported to ERS pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the underpayment by ERS great enough to trigger the threshold set forth above, without which ERS would be within such threshold. In the event that the audit shows that an overpayment Confidential treatment has been made by ERS, such amounts shall be deducted from Distribution Fees owed requested for portions of this exhibit. The copy filed herewith omits the information subject to the Companyconfidential treatment request. If such overpayment amounts have not Omissions are designated as * * *. A complete version of this exhibit has been settled by such deductions from Distribution Fees within one year from filed separately with the date originally overpaid, then the Company shall make all payments required to be made to ERS to eliminate any such overpayment. Furthermore, if (i) the overpayment made was more than 105% of the amount that should have been paid during the period in question Securities and (ii) the costs invoiced by the Company were more than 105% of the audited costs during the period in question, then the Company shall also reimburse ERS for the reasonable costs of such audit; provided, however, that no such reimbursement of such audit costs shall be made in the event such audit determines that, in the period in question, ERS misstated the financial data it reported to the Company pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the costs invoiced by the Company and/or the overpayment by ERS great enough to trigger the thresholds set forth above, without which the Company would be within such thresholdsExchange Commission.

Cost of Audit. The Auditing Party Unless expressly provided for herein below, EpiCept shall bear the full cost of the performance of any audit examination requested by the Auditing Party except as hereinafter set forthpursuant to Section 5.6 of this Agreement. If, as a result of any inspection audit examination of the books and records of the Audited Party and/or its AffiliatesDurect, it is shown that payments made by ERS Durect to the Company EpiCept under this Agreement were less than the amount which that should have been paid, then ERS then, subject to Section 5.8, below, Durect shall make all payments required to be made to eliminate any discrepancy revealed by said inspection within 30 days after the Company's EpiCept’s demand therefor. FurthermoreIn addition, if the if, as a result of any such audit examination, it is shown that payments made by Durect to EpiCept under this Agreement were less than 95% of the amount that should have been paid during paid, and such deficiency is greater than 5 percent (5%) of the period in questiontotal aggregate amount Royalties due to EpiCept under this Agreement, ERS then, subject to Section 5.8 below, Durect shall also further reimburse the Company EpiCept for the reasonable costs actually incurred by EpiCept for performance of such audit; provided, however, that no such reimbursement of such the subject audit costs shall be made in the event such audit determines that, in the period in question, the Company misstated the financial data it reported to ERS pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the underpayment by ERS great enough to trigger the threshold set forth above, without which ERS would be within such thresholdexamination. In the event that the audit examination shows that an overpayment has been made by ERSDurect then, subject to Section 5.8, such amounts shall be deducted from Distribution Fees Royalties owed to the CompanyEpiCept and/or any other payment owing to EpiCept under Section 4 of this Agreement. If such overpayment amounts have not been settled by such deductions from Distribution Fees Royalties and/or any other payment owing to EpiCept under this Agreement within one year from the date originally overpaid, then the Company EpiCept shall promptly make all payments required to be made to ERS Durect to eliminate any such overpayment. Furthermore, if (i) the overpayment made was more than 105% of the amount that should have been paid during the period in question and (ii) the costs invoiced by the Company were more than 105% of the audited costs during the period in question, then the Company shall also reimburse ERS for the reasonable costs of such audit; provided, however, that no such reimbursement of such audit costs shall be made in the event such audit determines that, in the period in question, ERS misstated the financial data it reported to the Company pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the costs invoiced by the Company and/or the overpayment by ERS great enough to trigger the thresholds set forth above, without which the Company would be within such thresholds.

Cost of Audit. The Auditing Party shall bear the full cost of the performance of any audit requested by the Auditing Party except as hereinafter set forth. If, as a result of any inspection of the books and records of the Audited Party and/or its Affiliates, it is shown that payments made by ERS to the Company under this Agreement were less than the amount which should have been paid, then ERS shall make all payments required to be made to eliminate any discrepancy revealed by said inspection within 30 days after the Company's demand therefor. Furthermore, if the payments made were less than 95% of the amount that should have been paid during the period in question, ERS shall also reimburse the Company for the reasonable costs of such audit; providedPROVIDED, howeverHOWEVER, that no such reimbursement of such audit costs shall be made in the event such audit determines that, in the period in question, the Company misstated the financial data it reported to ERS pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the underpayment by ERS great enough to trigger the threshold set forth above, without which ERS would be within such threshold. In the event that the audit shows that an overpayment has been made by ERS, such amounts shall be deducted from Distribution Fees owed to the Company. If such overpayment amounts have not been settled by such deductions from Distribution Fees within one year from the date originally overpaid, then the Company shall make all payments required to be made to ERS to eliminate any such overpayment. Furthermore, if (i) the overpayment made was more than 105% of the amount that should have been paid during the period in question and (ii) the costs invoiced by the Company were more than 105% of the audited costs during the period in question, then the Company shall also reimburse ERS for the reasonable costs of such audit; providedPROVIDED, howeverHOWEVER, that no such reimbursement of such audit costs shall be made in the event such audit determines that, in the period in question, ERS misstated the financial data it reported to the Company pursuant to Section 7.1 and the Financial Appendix by such an amount as to cause an increase in the costs invoiced by the Company and/or the overpayment by ERS great enough to trigger the thresholds set forth above, without which the Company would be within such thresholds.