Common use of Earned Royalties Clause in Contracts

Earned Royalties. GEN-PROBE shall pay to PHRI an earned royalty for each sale of a Licensed Kit. GEN-PROBE shall also pay to PHRI an earned royalty for each performance of a Licensed Assay (other than an Assay performed by a customer using a Licensed Kit). The earned royalty for each Licensed Kit and each Licensed Assay shall be determined according to the remainder of this section. (a) For a Straight Sale of a Licensed Kit, the earned royalty shall be three percent (3%) of the Net Sales Price. (b) For distribution of a Licensed Kit which is not a Straight Sale for any reason, or for performance of a Licensed Assay, the earned royalty shall be that which provides a dollar return to PHRI equal to the dollar return PHRI would have received were the Licensed Kit sold in a Straight Sale or were the Assay reagents sold as a Licensed Kit in a Straight Sale. (c) Types of GEN-PROBE’s business transactions, including manner of sale and products or services to which applicable, falling under subsection 4.5(b) that have already been considered by The Parties, if any, are described in Appendix B to this Agreement, which includes for each type of transaction an earned royalty, for example a fixed dollar amount or a rate (X) on a base (Y), in accord with the definition of subsection 4.5(b), as agreed by The Parties. (d) Other types of business transactions falling under subsection 4.5(b) which GEN-PROBE may wish to utilize will be considered when necessary. Prior to introduction of a transaction not already covered by Appendix B, an earned royalty in accord with the definition of subsection 4.5(b) will be determined according to the procedure set forth in this subsection and added to Appendix B. (i) GEN-PROBE will provide to PHRI all information pertinent to arriving at an earned royalty in accordance with the principle set forth in subsection 4.5(b). (ii) Next, The Parties will, in good faith, confer and attempt to determine the earned royalty by agreement. (iii) If agreement cannot be reached, The Parties will, if possible, within thirty (30) days put the question to binding arbitration of a single, mutually acceptable arbitrator under a mutually acceptable procedure. (iv) If The Parties cannot agree on an arbitrator and/or procedure, they will promptly put the question, to binding arbitration under the rules of, and before a single arbitrator selected by, the Center for Public Resource (current address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ 10019); or if that service is unavailable, binding arbitration under the rules of, and before a single arbitrator selected by, the American Arbitration Association. (e) The Parties recognize the possibility that an earned royalty previously agreed to, as reflected in subsection 4.5(c), or subsequently determined according to subsection 4.5(d) may in time cease to satisfy the definition set forth in subsection 4.5(b). Therefore, either party may request review and revision of such earned royalty not more frequently than once per year, according to the procedure set forth in subsection 4.5(d). The pre-review earned royalty shall continue to apply until thirty (30) days after review and revision is requested. If a determination on the requested revision is not reached within thirty (30) days, royalty payments shall continue to be made using the pre-review amount, subject to retroactive adjustment to the end of the thirty-day period, if a revised earned royalty is ultimately determined in response to the request. Nothing contained in this Section 4.5 shall require payment of royalties for Licensed Assays performed by GEN-PROBE or its Affiliates for internal use.

Earned Royalties. GEN-PROBE shall pay to PHRI an earned royalty for each sale of a Licensed Kit. GEN-PROBE shall also pay to PHRI an earned royalty for each performance of a Licensed Assay (other than an Assay performed by a customer using a Licensed Kit). The earned royalty for each Licensed Kit and each Licensed Assay shall be determined according to the remainder of this section. (a) For a Straight Sale of a Licensed Kit, the earned royalty shall be three percent (3%) of the Net Sales Price[*]. (b) For distribution of a Licensed Kit which is not a Straight Sale for any reason, or for performance of a Licensed Assay, the earned royalty shall be that which provides a dollar return to PHRI equal to the dollar return PHRI would have received were the Licensed Kit sold in a Straight Sale or were the Assay reagents sold as a Licensed Kit in a Straight Sale. (c) Types of GEN-PROBE’s business transactions, including manner of sale and products or services to which applicable, falling under subsection 4.5(b) that have already been considered by The Parties, if any, are described in Appendix B to this Agreement, which includes for each type of transaction an earned royalty, for example a fixed dollar amount or a rate (X) on a base (Y), in accord with the definition of subsection 4.5(b), as agreed by The Parties. (d) Other types of business transactions falling under subsection 4.5(b) which GEN-PROBE may wish to utilize will be considered when necessary. Prior to introduction of a transaction not already covered by Appendix B, an earned royalty in accord with the definition of subsection 4.5(b) will be determined according to the procedure set forth in this subsection and added to Appendix B. (i) GEN-PROBE will provide to PHRI all information pertinent to arriving at an earned royalty in accordance with the principle set forth in subsection 4.5(b). (ii) Next, The Parties will, in good faith, confer and attempt to determine the earned royalty by agreement. (iii) If agreement cannot be reached, The Parties will, if possible, within thirty (30) days put the question to binding arbitration of a single, mutually acceptable arbitrator under a mutually acceptable procedure. (iv) If The Parties cannot agree on an arbitrator and/or procedure, they will promptly put the question, to binding arbitration under the rules of, and before a single arbitrator selected by, the Center for Public Resource (current address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ 10019); or if that service is unavailable, binding arbitration under the rules of, and before a single arbitrator selected by, the American Arbitration Association. (e) The Parties recognize the possibility that an earned royalty previously agreed to, as reflected in subsection 4.5(c), or subsequently determined according to subsection 4.5(d) may in time cease to satisfy the definition set forth in subsection 4.5(b). Therefore, either party may request review and revision of such earned royalty not more frequently than once per year, according to the procedure set forth in subsection 4.5(d). The pre-review earned royalty shall continue to apply until thirty (30) days after review and revision is requested. If a determination on the requested revision is not reached within thirty (30) days, royalty payments shall continue to be made using the pre-review amount, subject to retroactive adjustment to the end of the thirty-day period, if a revised earned royalty is ultimately determined in response to the request. Nothing contained in this Section 4.5 shall require payment of royalties for Licensed Assays performed by GEN-PROBE or its Affiliates for internal use.

Earned Royalties. GEN-PROBE shall pay to PHRI an earned royalty for each sale of a Licensed Kit. GEN-PROBE shall also pay to PHRI an earned royalty for each performance of a Licensed Assay (other than an Assay performed by a customer using a Licensed Kit). The earned ***Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. royalty for each Licensed Kit and each Licensed Assay shall be determined according to the remainder of this section. (a) For a Straight Sale of a Licensed Kit, the earned royalty shall be three percent (3%) of the Net Sales Price[***]. (b) For distribution of a Licensed Kit which is not a Straight Sale for any reason, or for performance of a Licensed Assay, the earned royalty shall be that which provides a dollar return to PHRI equal to the dollar return PHRI would have received were the Licensed Kit sold in a Straight Sale or were the Assay reagents sold as a Licensed Kit in a Straight Sale. (c) Types of GEN-PROBE’s 's business transactions, including manner of sale and products or services to which applicable, falling under subsection 4.5(b) that have already been considered by The Parties, if any, are described in Appendix B to this Agreement, which includes for each type of transaction an earned royalty, for example a fixed dollar amount or a rate (X) on a base (Y), in accord with ***Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. the definition of subsection 4.5(b), as agreed by The Parties. (d) Other types of business transactions falling under subsection 4.5(b4.5 (b) which GEN-PROBE may wish to utilize will be considered when necessary. Prior to introduction of a transaction not already covered by Appendix B, an earned royalty in accord with the definition of subsection 4.5(b4.5 (b) will be determined according to the procedure set forth in this subsection and added to Appendix B. (i) GEN-PROBE will provide to PHRI all information pertinent to arriving at an earned royalty in accordance with the principle set forth in subsection 4.5(b). (ii) Next, The Parties will, in good faith, confer and attempt to determine the earned royalty by agreement. (iii) If agreement cannot be reached, The Parties will, if possible, within thirty (30) days put the question to binding arbitration of a single, mutually acceptable arbitrator under a mutually acceptable procedure. (iv) If The Parties cannot agree on an arbitrator and/or procedure, they will promptly put the question, question to binding arbitration under the rules of, and before a single arbitrator selected by, the Center for Public Resource (current address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ 10019); or if that service is unavailable, binding arbitration under the rules of, and before a single arbitrator selected by, the American Arbitration Association. (e) The Parties recognize the possibility that an earned royalty previously agreed to, as reflected in subsection 4.5(c), or subsequently determined according to subsection 4.5(d) may in time cease to satisfy the definition set forth in subsection 4.5(b). Therefore, either party may request review and revision of such earned royalty not more frequently than once per year, according to the procedure set forth in subsection 4.5(d). The pre-review earned royalty shall continue to apply until thirty (30) days after review and revision is requested. If a determination on the requested revision is not reached within thirty (30) days, royalty payments shall continue to be made using the pre-review amount, subject to retroactive adjustment to the end of the thirty-day period, if a revised earned royalty is ultimately determined in response to the request. Nothing contained in this Section 4.5 shall require payment of royalties for Licensed Assays performed by GEN-PROBE or its Affiliates for internal use.