Maintenance of Records; Audit. Buyer and its Affiliates and Seller and its Affiliates will keep and maintain (and will require Sublicensees (or for Seller, sublicensees of the license granted in Section 2.7) to keep and maintain) books, records and accounts in connection with royalty and other payments due pursuant to Sections 2.7 (License Grant by Buyer), 2.9 (Royalties) and 2.10 (Sublicense Fees and Milestones) in sufficient detail to permit accurate determination of all figures necessary for verification of such payments. Such books, records and accounts shall be maintained for a period of at least 3 years after the end of the calendar year in which they were generated. No more frequently than once during any calendar year, each party will have the right, upon at least 10 days’ advance notice, to have a nationally recognized auditor conduct an audit of such books, records and accounts, during the other party’s (or its Affiliates) normal business hours and in a manner as not to unreasonably interfere with the other party’s normal business activities. The auditing party’s auditor will execute and deliver to the other party a confidentiality agreement reasonably acceptable to the other party. During any such audit, the other party (and its Affiliates) will (a) supply the auditing party’s auditor with all the relevant books, records and accounts in the other party’s (or its Affiliate’s) possession or under its control that the auditing party’s auditor may reasonably request and (b) instruct its employees to cooperate with the review and answer fully all relevant inquiries from the auditor. The auditing party will bear the fees and expenses of such audit, provided that if the audit reveals aggregate underpayment by the other party of at least [*] during the audited period, such costs will be borne by the other party. Any payment discrepancy correctly identified as a result of an audit under this Section 5.5 will promptly be corrected by a payment from the other party to the auditing party of an underpaid amount, plus interest as provided for in Section 2.18 (Payment Provisions Generally), or a credit against future payments for an overpaid amount. Buyer and its Affiliates shall obtain the right to audit its Sublicensees so that it can provide such information as is required to confirm the payments owed to Seller hereunder with respect to [*] of such Sublicensees to any auditor conducting an audit in accordance with the foregoing.
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Samples: Asset Purchase Agreement (Targeted Genetics Corp /Wa/), Asset Purchase Agreement (Targeted Genetics Corp /Wa/)
Maintenance of Records; Audit. Buyer and its Affiliates and Seller and its Affiliates will Thermal Cycler Supplier shall keep and maintain (and will shall require Sublicensees (or for Seller, sublicensees of the license granted in Section 2.7) its Affiliates to keep and maintain) books, complete and accurate records and accounts in connection with royalty and other payments due pursuant to Sections 2.7 (License Grant by Buyer), 2.9 (Royalties) and 2.10 (Sublicense Fees and Milestones) in sufficient detail to permit accurate determination enable an independent certified public accountant or auditor retained by ABI to validate Thermal Cycler Supplier’s compliance with this Agreement, and for the time period preceding the Effective Date to validate Thermal Cycler Supplier's compliance with its earlier Thermal Cycler Supplier Agreement having an effective date of all figures necessary for verification of April 1, 1998, and verify amounts payable by Thermal Cycler Supplier. To the extent such paymentsrecords are financial in nature or relate to royalty obligations, such records shall be compiled and maintained in accordance with Generally Accepted Accounting Principles (“GAAP”). Such books, Thermal Cycler Supplier shall keep and maintain such records and accounts shall be maintained supporting data during the term of this Agreement and for a period of at least 3 years after [**] . Such records and the supporting data shall be available for inspection and copying, for a period of [**] the end of the calendar year to which they pertain, during regular business hours by an independent certified public accountant or auditor retained by ABI. If in dispute, such records shall be kept at least until the dispute is settled. Inspection and auditing shall be at ABI's expense, unless the audit demonstrates that the amount payable that is stated in a report is understated by [**] , in which they were generated. No more frequently than once during any calendar year, each party will have case Thermal Cycler Supplier shall reimburse ABI for the right, upon at least 10 days’ advance notice, to have a nationally recognized auditor conduct an audit of such books, records and accounts, during the other party’s (or its Affiliates) normal business hours and in a manner as not to unreasonably interfere with the other party’s normal business activities. The auditing party’s auditor will execute and deliver to the other party a confidentiality agreement reasonably acceptable to the other party. During any such audit, the other party (and its Affiliates) will (a) supply the auditing party’s auditor with all the relevant books, records and accounts in the other party’s (or its Affiliate’s) possession or under its control that the auditing party’s auditor may reasonably request and (b) instruct its employees to cooperate with the review and answer fully all relevant inquiries from the auditor. The auditing party will bear the fees and expenses expense of such audit, provided . The Parties agree that if the audit reveals aggregate underpayment by the other party of at least [*] during the audited period, such costs will be borne by the other party. Any payment discrepancy correctly identified any certified public accountant or auditor inspecting Thermal Cycler Supplier's records pursuant to this Section 3.5 shall retain as confidential all information about Thermal Cycler Supplier's finances and customers gained as a result of that inspection, with the exception that the accountant shall be free to communicate with ABI (i) whether or not Thermal Cycler Supplier complied with the terms of its Thermal Cycler Supplier Agreement having an audit under this Section 5.5 will promptly be corrected by a payment from the other party to the auditing party effective date of an underpaid amountApril 1, plus interest as provided for in Section 2.18 (Payment Provisions Generally)1998, or a credit against future payments for is in compliance with the terms of this Agreement, (ii) the results of the audit, including financial information but not customer information, and (iii) if, in the auditor's professional opinion, Thermal Cycler Supplier is not complying or has not complied with the terms of its Thermal Cycler Supplier Agreement having an overpaid amounteffective date of April 1, 1998 or this Agreement, the underlying facts and information relevant to said non-compliance. Buyer and Without limiting the foregoing audit rights Applera, through its Affiliates independent auditors, shall obtain have the right to audit its Sublicensees so that it can provide software (including, without limitation, source code, and the same shall be made available by Thermal Cycler Supplier for such information as is required audit) distributed or provided directly or otherwise by Thermal Cycler Supplier to confirm determine the payments owed accuracy and completeness of BioRad’s reporting and paying of royalties under this Agreement in view of the licenses granted pursuant to Seller hereunder with respect to Article 2 of this Agreement under the Algorithm Patent Rights. [*] of such Sublicensees to any auditor conducting an audit in accordance with the foregoing.*]
Appears in 1 contract
Samples: Thermal Cycler Supplier Agreement (Bio Rad Laboratories Inc)
Maintenance of Records; Audit. Buyer and its Affiliates and Seller and its Affiliates will keep and maintain (and will require Sublicensees (or for Seller, sublicensees of the license granted in Section 2.7) to keep and maintain) books, records and accounts in connection with royalty and other payments due pursuant to Sections 2.7 (License Grant by Buyer), 2.9 (Royalties) and 2.10 (Sublicense Fees and Milestones) in sufficient detail to permit accurate determination of all figures necessary for verification of such payments. Such books, records and accounts shall be maintained for For a period of at least 3 years four (4) Fiscal Years (as defined in Section 7.2(a)) after the end of the calendar year relevant Fiscal Year of DSP, DSP shall maintain and shall cause its Affiliates and sublicensees to maintain complete and accurate books and records in which they were generatedconnection with the sale of Products hereunder, as necessary to allow the accurate calculation of Royalties due hereunder including any records required to calculate any Royalty adjustments hereunder. No more frequently than once during any calendar yearOnce per Fiscal Year, each party will Neurocrine (and/or its licensors of technology included within the Neurocrine Technology) shall have the rightright to engage an independent accounting firm reasonably acceptable to DSP, upon at least 10 days’ advance noticeNeurocrine’s expense, which shall have the right to have a nationally recognized auditor conduct an audit examine in confidence the relevant DSP records as may be reasonably necessary to determine and/or verify the amount of such books, records and accounts, Royalty payments due hereunder. Such examination shall be conducted during the other party’s (or its Affiliates) normal business hours and in a manner as not to unreasonably interfere with the other partyDSP’s normal business activitieshours, after at least thirty (30) days prior ***Text Omitted and Filed Separately with the Securities and Exchange Commission. The auditing partyConfidential Treatment Requested Under 17 C.F.R. Sections 200.80(b)(4) and 240.24b-2 written notice to DSP and shall take place at the DSP facility(ies) where such records are maintained. In the event there was an under-payment by DSP hereunder, DSP shall promptly (but in no event later than thirty (30) days after DSP’s auditor will execute receipt of the independent auditor’s report) make payment to Neurocrine of any short-fall unless DSP reasonably disputes such auditor’s findings. In the event that there was an over-payment by DSP hereunder, DSP may credit the excess amount against future payments due to Neurocrine hereunder unless Neurocrine reasonably disputes such auditor’s findings. In case of dispute on auditor’s findings, DSP’s auditors and deliver Neurocrine’s auditors shall be required to resolve the matter in accordance with generally accepted accounting principles in the Territory within thirty (30) days after the complaining Party notifies the other party a confidentiality agreement reasonably acceptable Party that it disputes such findings (which notice shall be made no later than thirty (30) days after the complaining Party’s receipt of such report). In the event any payment by DSP shall prove to have been incorrect by more than five percent (5%) to Neurocrine’s detriment, DSP shall pay the other partyreasonable fees and costs of Neurocrine’s or its licensor’s independent auditor for conducting such audit. During In connection with any such audit, the other party auditor shall be permitted to report to the auditing Party only as to the accuracy of the audited Party’s payment reports and compliance with its payment obligations hereunder (and its Affiliates) will provided that the auditor shall be required to provide such report to the audited Party simultaneously). Each Party agrees that the information set forth in (a) supply the auditing party’s auditor with all the relevant booksreports required by Section 7.8(b), records and accounts in the other party’s (or its Affiliate’s) possession or under its control that the auditing party’s auditor may reasonably request and (b) instruct its employees the records subject to cooperate with the review and answer fully all relevant inquiries from the auditor. The auditing party will bear the fees and expenses of such audit, provided that if the audit reveals aggregate underpayment by the other party of at least [*] during the audited period, such costs will be borne by the other party. Any payment discrepancy correctly identified as a result of an audit under this Section 5.5 will promptly 7.8(e), (i) shall be corrected by a payment from the other party Confidential Information of DSP subject to the auditing party confidentiality restrictions set forth in Article Eight hereof and maintained in confidence by Neurocrine, its licensors as applicable and the independent accounting firm; (ii) shall not be used by Neurocrine, its licensors as applicable or such accounting firm for any purpose other than verification of an underpaid amountthe performance by DSP of its payment obligations hereunder; and (iii) shall not be disclosed by Neurocrine, plus interest its licensors as provided for in Section 2.18 (Payment Provisions Generally), applicable or a credit against future payments for an overpaid amount. Buyer and its Affiliates shall obtain the right to audit its Sublicensees so that it can provide such information as is required to confirm the payments owed to Seller hereunder with respect to [*] of such Sublicensees accounting firm to any auditor conducting an audit in accordance with the foregoingother Person.
Appears in 1 contract
