Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expiration.
Appears in 3 contracts
Samples: License Agreement (Keryx Biopharmaceuticals Inc), License Agreement (Keryx Biopharmaceuticals Inc), License Agreement (Keryx Biopharmaceuticals Inc)
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of Within ninety (90) days after Landlord furnishes its Annual Cost Statement for any calendar year ending not more than thirty-six to Tenant (36) months prior the “Audit Election Period”), Tenant may, at Tenant’s expense during Landlord’s normal business hours, elect to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to audit Landlord’s Common Area Maintenance Expenses for such calendar year only, subject to the following conditions: (1) there is no uncured Event of Default under this Lease; (2) the audit shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such an independent certified public accountant, accounting firm; (3) in no event shall any audit be performed by a copy of which promptly firm retained on a “contingency fee” basis; (4) the audit shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment commence within thirty (30) days after Licensee's receipt of such report, Landlord makes Landlord’s books and if such underpayment exceeds records available to Tenant’s auditor and shall conclude (and Tenant shall provide to Landlord a certified copy thereof) within forty-five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (12045) days after commencement; (5) the audit shall be conducted where Landlord maintains its books and records (provided such books and records are kept in the Dallas/Ft. Worth metropolitan area) and shall not unreasonably interfere with the conduct of Landlord’s business; (6) Tenant and its accounting firm shall treat any audit in a confidential manner and shall each execute Landlord’s confidentiality agreement for Landlord’s benefit prior to commencing the audit (subject to the requirements of litigation and to exception for information which is generally known to the public); and (7) the accounting firm’s audit report shall, at no charge to Landlord, be submitted in draft form for Landlord’s review and comments before the final approved audit report. Notwithstanding the foregoing, Tenant shall have no right to conduct an audit if Landlord furnishes to Tenant an audit report for the calendar year in question prepared by an independent certified accounting firm of recognized national standing (whether originally prepared for Landlord or another party). This paragraph shall not be construed to limit, suspend, or xxxxx Tenant’s obligation to pay Rent when due, including estimated Common Area Maintenance Expenses. Unless Landlord disputes such audit, Landlord shall credit any Tenant overpayment determined by the final approved audit report against the next sums due and owing by Tenant or, if no further Rent is due, refund overpayment determined by the final approved audit report within thirty (30) days of determination. The foregoing obligations shall survive the expiration date of such termination or expiration.this Lease. If Tenant does not provide written notice to Landlord within the Audit Election Period of Tenant’s election to audit Landlord’s Common Area Maintenance Expenses, it shall be conclusively deemed that Tenant shall have forever waived any right to contest the amount of Tenant’s Proportionate Share of Common Area Maintenance Expenses arising prior to the commencement of the Audit Election Period. Landlord
Appears in 2 contracts
Samples: Lease Agreement, Commercial Lease Agreement (CareView Communications Inc)
Right to Audit. Upon written request During the Term and for a period of Licensor*** (***) years thereafter, but VIA shall keep (and shall cause its Affiliates, licensees and sublicensees to keep) complete and accurate records pertaining to the purchase, storage, sale, or other disposition of Licensed Products in sufficient detail to permit Roche to confirm the accuracy of all royalty and other payments due hereunder. Records will include, at a minimum, master files, product numbers, description, quantities purchased, shipped, sold and on-hand at period end, customer or supplier name, address, customer agreements, date of purchase or sale, cost of purchase or sale price, and delivery address. Roche shall have the right to cause an independent, certified public accountant to audit such royalty payments, and milestone payments related to Net Sales for a period covering not more than once in each calendar year nor the preceding *** (***) years. Such audits may be exercised no more than once in respect to any given per calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access year during normal business hours upon reasonable prior written notice to those records of Licensee as may VIA. Prompt adjustments shall be reasonably necessary made by the parties to verify reflect the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date results of such requestaudit. Licensee Roche shall include in each Sublicense granted by it pursuant to bear the full cost of such audit *** Certain information on this Agreement a provision requiring page has been omitted and filed separately with the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountantCommission. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable Confidential treatment has been requested with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, omitted portions. unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared discloses an underpayment by such independent public accountant, a copy VIA of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds more than five percent (5%) of the amount of royalty dueor other payments due under this Agreement, Licensee in which case, VIA shall reimburse Licensor for its reasonable out-of-pocket expenses for bear the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion full cost of such overpayment not credited audit and shall promptly remit to the auditing party the amount of any underpayment, plus interest calculated at the three month US Dollar LIBOR rate plus *** percent (***%). If requested by Roche, VIA shall provide to Roche within one hundred twenty thirty (12030) days after such request any and all financial information relating to VIA that is controlled by VIA and necessary for Roche to prepare its financial statements and to make governmental filings, including full monthly reporting of data to Roche by the date third work day of such termination or expirationeach month and maintaining a set of accounting records, based on Roche Financial Group Accounting and Reporting Requirements (“FGAR”) and International Financial Reporting Standards (“IFRS”).
Appears in 2 contracts
Samples: And Commercialization Agreement, And Commercialization Agreement (Madrigal Pharmaceuticals, Inc.)
Right to Audit. Upon written request This Rider is attached to and a part of Licensorthat certain Lease Agreement dated as of August 4, 1998, executed by and between B. O. III, LTD., a Texas limited partnership ("Landlord"), and VIGNETTE, INC., a Delaware corporation ("Tenant). Any capitalized term used but not more than once defined herein shall have the meaning assigned to it in each calendar year nor more than once the provisions designated in respect the Lease as the Supplemental Lease Provisions. Landlord and Tenant mutually agree as follows: If a statement reflecting annual Operating Expenses is delivered to any given Tenant pursuant to subsection 2.202 of the Supplemental Lease Provisions and is not reviewed or prepared by an independent certified public accountant, Tenant shall have the right to perform an annual audit at Tenant's expense on Landlord's books and records to the extent necessary to verify Landlord's calculation of actual Additional Rent for the prior calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period provided that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be conducted by a certified public accountant whose fees are not determined on a percentage of recovery or contingency fee basis, and further provided that the auditor's report reflecting the results of such audit shall be promptly delivered to LicenseeLandlord. Any such audit shall be conducted, if at all, (i) within sixty (60) days after the receipt of the annual statement of actual Additional Rent from Landlord, (ii) during Landlord's normal business hours, (iii) at the place where Landlord maintains its records (or such other place as Landlord shall disclose deliver the appropriate records) and (iv) only after Landlord has received fifteen (15) days prior written notice. If the audit report reflects that estimated Additional Rent was overcharged or undercharged in the audited calendar year and provided Landlord agrees with such audit, Tenant shall within twenty (20) days after receipt of such report pay to Landlord the amount of any underpayment or overpayment of royaltiesor, if anyapplicable, without disclosure Landlord shall allow Tenant a credit against the next accruing installment of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor Additional Rent in the amount of such underpayment within thirty (30) days after Licensee's receipt of such reportany overpayment, and if such underpayment overpayment exceeds five percent (5%) of Tenant's Additional Rent payable for the royalty dueapplicable calendar year, Licensee Landlord shall reimburse Licensor for its reasonable out-of-pocket expenses Tenant for the reasonable cost of the audit. TENANT'S STUDY, upon submission TESTING AND INSPECTION RIGHTS This Rider is attached to and a part of supporting documentationthat certain Lease Agreement dated as of August 4, 1998, executed by and between B. O. III, LTD., a Texas limited partnership ("Landlord"), and VIGNETTE, INC., a Delaware corporation ("Tenant). Any overpayment capitalized term used but not defined herein shall have the meaning assigned to it in the provisions designated in the Lease as the Supplemental Lease Provisions. Landlord and Tenant mutually agree as follows: Prior to commencement of royalties any tenant finish work to be performed by Landlord, Tenant shall have the right to make such studies and investigations and conduct such tests and surveys of the Premises from an environmental standpoint as Tenant deems necessary or appropriate, subject to the condition that all such studies and investigations shall be creditable against future royalties payable completed prior to the commencement of any tenant finish work to be performed by Landlord. TENANT SHALL INDEMNIFY AND HOLD HARMLESS LANDLORD FROM, AND REIMBURSE LANDLORD FOR AND WITH RESPECT TO, ANY AND ALL LOSS, DAMAGES, AND CLAIMS RESULTING FROM OR RELATING TO TENANT'S STUDIES, TESTS AND INVESTIGATIONS. If such study, test, investigation or survey evidences hazardous or toxic materials which affect the Premises, Tenant shall have the right to terminate this Lease provided such right shall be exercised, if at all, prior to the commencement of any tenant finish work to be performed by Landlord and, in subsequent royalty periodsany event, allocated evenly over the next-following two within ten (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (12010) days after Tenant receives the date evidence of hazardous or toxic materials. If Tenant does not exercise such termination right prior to commencement of any such tenant finish work and within such five (5) day period, Tenant's right to terminate this Lease shall be null and void and of no further force or expirationeffect.
Appears in 2 contracts
Samples: Office Lease Agreement (Vignette Corp), Office Lease Agreement (Vignette Corp)
Right to Audit. Upon EMORY shall have the right, upon at least [*] prior written request of Licensornotice to ALIMERA, but not more than once [*] in each ALIMERA fiscal year during the term of this Agreement and the calendar year nor more than once in respect to any given calendar yearimmediately following termination of the Agreement, Licensee shall permit through an independent certified public accountant, accountant selected by Licensor EMORY and reasonably acceptable to Licensee, which acceptance shall not be unreasonable withheldALIMERA (“Auditor”), to have access during normal business hours of ALIMERA to those examine the records of Licensee ALIMERA to include, but not be limited to, sales invoice registers, sales analysis reports, original invoices, inventory records, price lists, sublicense and distributor agreements, accounting general ledgers, and sales tax returns, as may be * Certain Information has been omitted and filed separately with the Commission Confidential treatment has been requested with respect to the omitted portions. CONFIDENTIAL TREATMENT REQUESTED reasonably necessary in order to verify the accuracy of the royalty reports hereunder in respect required under Article 4.2 herein and the calculation of any calendar year ending not more than thirty-six (36) months prior to the date of such requestpayment due under this Agreement. Licensee ALIMERA shall include in each Sublicense any sublicenses granted by it pursuant to this Agreement Agreement, a provision requiring the Sublicensee sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountantby an Auditor. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year The Auditor’s report shall be binding and conclusive upon disclosed to both parties. ALIMERA or its sublicensee may require the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect Auditor to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor execute a reasonable nondisclosure agreement prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of conducting any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationaudits contemplated under this Article 4.4. If such independent accountant's the Auditor’s report shows any underpayment of royaltiesroyalties or other payments by ALIMERA, Licensee its Affiliates or sublicensees, within [*] after ALIMERA’s receipt of such report, ALIMERA shall remit or shall cause its Sublicensees sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expiration.EMORY:
Appears in 2 contracts
Samples: License and Option Agreement (Alimera Sciences Inc), License and Option Agreement (Alimera Sciences Inc)
Right to Audit. Upon written request of LicensorSublicensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee Sublicensee shall permit an independent public accountant, selected by Licensor Sublicensor or Panion and acceptable to LicenseeSublicensee, which acceptance shall not be unreasonable unreasonably withheld, to have access during normal business hours to those records of Licensee Sublicensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to LicenseeSublicensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee Sublicensee shall remit or shall cause its Sublicensees to remit to Licensor Sublicensor the amount of such underpayment within thirty (30) days after LicenseeSublicensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee Sublicensee shall reimburse Licensor Sublicensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor Sublicensor shall pay Licensee Sublicensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expiration.
Appears in 2 contracts
Samples: Sublicense Agreement (Keryx Biopharmaceuticals Inc), Sublicense Agreement (Keryx Biopharmaceuticals Inc)
Right to Audit. Upon written request Tenant shall have the right, at Tenant's sole cost and expense, for a period of Licensor, but not more than once in each sixty (60) days after Landlord delivers to Tenant the statement of Landlord's Actual Operating Expenses for the previous calendar year nor more than once in respect (the "Review Period") to any given conduct an audit of that portion of Landlord's books and records pertaining only to the Actual Operating Expenses for such preceding calendar year, Licensee shall permit an independent public accountant, selected by Licensor ; provided that the accounting firm conducting the audit and acceptable Tenant execute a confidentiality agreement for the benefit of Landlord prior to Licensee, which acceptance the commencement of any such audit. This paragraph shall not be unreasonable withheld, construed to have access during normal business hours limit or abatx Xxxant's obligation to those records of Licensee pay the Additional Rental when due as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationset forth hereinabove. If such independent accountantaudit conducted by Tenant discloses that Tenant has overpaid or underpaid Tenant's report shows any underpayment proportionate share of royaltiesActual Operating Expenses, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount then, after verification of such underpayment audit by Landlord or by accountants selected by Landlord, any overpayment shall be refunded to Tenant (so long as Tenant is not then in default of any of the terms of this Lease, in which event such overpayment shall be applied against any amount Tenant owes as a result of such default) within thirty (30) days after Licenseethe verification of the audit, or any underpayment shall be paid to Landlord within thirty (30) days after the verification of the audit. If the audit proves that Landlord's receipt calculation of such report, and if such underpayment exceeds Tenant's Additional Rental for the calendar year under inspection was overstated by more than five percent (5%) of the royalty due), Licensee then, after verification, Landlord shall reimburse Licensor for its pay Tenant's actual reasonable out-of-pocket expenses for audit and inspection fees applicable to the audit, upon submission review of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two said calendar year statement within thirty (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (12030) days after receipt of Tenant's invoice therefor. 39 (a copy of the date of current Building Standard Janitorial Services is attached hereto as Exhibit D, such termination or expiration.services are subject to change by Landlord at any time without notice to Tenant) __________________________________
Appears in 2 contracts
Samples: Office Lease (Pagemart Wireless Inc), Office Lease (Pagemart Inc)
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expiration. *****Confidential material redacted and filed separately with the Commission.
Appears in 2 contracts
Samples: License Agreement (Keryx Biopharmaceuticals Inc), License Agreement (Keryx Biopharmaceuticals Inc)
Right to Audit. Upon written request Notwithstanding anything in the Lease to the contrary, Tenant shall have the right, after reasonable notice and at reasonable times, during the ninety (90) day period following the delivery of LicensorLandlord’s statement of the actual Common Area Expenses, but not more than once in each calendar year nor more than once in to audit Landlord’s accounting records at Landlord’s office that pertain to and contain information concerning such expenses with respect to any given calendar yearthe immediately preceding year in order to verify the amounts thereof. Tenant shall be entitled to retain an independent, Licensee shall permit an independent certified public accountant, selected accountant to audit and/or review Landlord’s records to determine the proper amount of Additional Rent payable by Licensor and acceptable Tenant. Any parties retained by Tenant to Licensee, which acceptance audit and/or review Landlord’s records shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such requestcompensated on a contingency fee basis. Licensee Tenant shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, provide Landlord a copy of which promptly any audit obtained by Tenant. Tenant agrees that any Information obtained during an inspection by Tenant of Landlord’s books of account and records shall be provided kept in confidence by Tenant and Tenant agrees to Licensee, shall disclose only contractually require the amount same of any underpayment third party accountants or overpayment auditors engaged by Tenant to assist with such examination. Tenant agrees to pay the cost of royaltiessuch audit, provided that, if anythe audit reveals that Landlord’s determination of the Additional Rent payable by Tenant hereunder as set forth in any statement sent to Tenant was in error in Landlord’s favor by more than five percent (5%), without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee Landlord shall remit or shall cause its Sublicensees to remit to Licensor pay the amount reasonable cost of such underpayment audit. In the event such audit shall establish that Landlord’s statement of Tenant’s Proportionate Share of Additional Rent due for the prior year exceeded Tenant’s Proportionate Share of Additional Rent actually due and Tenant shall have theretofore paid such incorrect amount, such excess amount paid by Tenant shall be credited against the next maturing installments of Tenant’s Proportionate Share of Additional Rent due from Tenant to Landlord, or, if an insufficient Term remains, such excess amount shall be refunded by Landlord to Tenant within thirty (30) days after Licensee's receipt following presentation of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periodsa statement therefor. In the event this Agreement is terminated or expires before such overpayment is fully creditedaudit shall establish that Landlord’s statement of Tenant’s Proportionate Share of Additional Rent for the preceding twelve (12) months was understated, Licensor Tenant shall pay Licensee the portion of to Landlord such overpayment not credited excess amount due within one hundred twenty thirty (12030) days after following presentation of a statement therefor. Landlord shall be required to maintain records of Additional Rent for the date entirety of such termination or expirationthe one-year period (“Review Period”) following Landlord’s delivery to Tenant of each statement setting forth the actual Additional Rent.
Appears in 2 contracts
Samples: Industrial Space Lease (XBiotech Inc.), Industrial Space Lease (XBiotech Inc.)
Right to Audit. Upon written request of LicensorP&U, but at P&U's expense and not more than once in each calendar fiscal year nor more than once in respect to of any given calendar LUNG RX fiscal year, Licensee LUNG RX shall permit an independent public accountant, selected by Licensor P&U but not regularly employed by P&U and acceptable to LicenseeLUNG RX, which acceptance shall not be unreasonable withheldunreasonably refused, to have access during normal business hours to those records of Licensee LUNG RX as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar fiscal year ending not more than thirtytwenty-six four (3624) months prior to the date of such request. Licensee LUNG RX shall include in each Sublicense sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensorby P&U's independent accountant. Upon the expiration of thirtytwenty-six four (3624) months following the end of any calendar fiscal year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon P&U, unless (a) an audit requested by P&U prior to expiration of such twenty-four (24) month period has not yet been completed, or (b) P&U has notified LUNG RX that such audit has revealed a discrepancy regarding such calculation prior to the parties, expiration of such twenty-four (24) month period; and Licensee LUNG RX and its Sublicensees sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar fiscal year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountantaccountants, a copy of which promptly shall be provided to LicenseeLUNG RX, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent public accountant's report shows any underpayment of royalties, Licensee LUNG RX shall remit or shall cause its Sublicensees sublicensees to remit to Licensor LUNG RX the amount of such underpayment within thirty (30) days after LicenseeP&U's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor P&U shall pay Licensee LUNG RX the portion of such overpayment not credited within one hundred twenty thirty (12030) days after the date of such termination or expirationexpiration hereof.
Appears in 2 contracts
Samples: Exclusive License Agreement (United Therapeutics Corp), Exclusive License Agreement (United Therapeutics Corp)
Right to Audit. Upon written request of LicensorSublicensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee Sublicensee shall permit an independent public accountant, selected by Licensor Sublicensor or Panion and acceptable to LicenseeSublicensee, which acceptance shall not be unreasonable unreasonably withheld, to have access during normal business hours to those records of Licensee Sublicensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to LicenseeSublicensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's ’s report shows any underpayment of royalties, Licensee Sublicensee shall remit or shall cause its Sublicensees to remit to Licensor Sublicensor the amount of such underpayment within thirty (30) days after Licensee's Sublicensee’s receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee Sublicensee shall reimburse Licensor Sublicensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor Sublicensor shall pay Licensee Sublicensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expiration.
Appears in 2 contracts
Samples: Sublicense Agreement (Keryx Biopharmaceuticals Inc), Sublicense Agreement (Keryx Biopharmaceuticals Inc)
Right to Audit. Upon EMORY shall have the right, upon at least [*] prior written request of Licensornotice to ALIMERA, but not more than once [*] in each ALIMERA fiscal year during the term of this Agreement and * Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. the calendar year nor more than once in respect to any given calendar yearimmediately following termination of the Agreement, Licensee shall permit through an independent certified public accountant, accountant selected by Licensor EMORY and reasonably acceptable to Licensee, which acceptance shall not be unreasonable withheldALIMERA (“Auditor”), to have access during normal business hours of ALIMERA to those examine the records of Licensee ALIMERA to include, but not be limited to, sales invoice registers, sales analysis reports, original invoices, inventory records, price lists, sublicense and distributor agreements, accounting general ledgers, and sales tax returns, as may be reasonably necessary in order to verify the accuracy of the royalty reports hereunder in respect required under Article 4.2 herein and the calculation of any calendar year ending not more than thirty-six (36) months prior to the date of such requestpayment due under this Agreement. Licensee ALIMERA shall include in each Sublicense any sublicenses granted by it pursuant to this Agreement Agreement, a provision requiring the Sublicensee sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountantby an Auditor. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year The Auditor’s report shall be binding and conclusive upon disclosed to both parties. ALIMERA or its sublicensee may require the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect Auditor to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor execute a reasonable nondisclosure agreement prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of conducting any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationaudits contemplated under this Article 4.4. If such independent accountant's the Auditor’s report shows any underpayment of royaltiesroyalties or other payments by ALIMERA, Licensee its Affiliates or sublicensees, within [*] after ALIMERA’s receipt of such report, ALIMERA shall remit or shall cause its Sublicensees sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expiration.EMORY:
Appears in 2 contracts
Samples: Confidential Treatment Requested (Alimera Sciences Inc), Confidential Treatment Requested (Alimera Sciences Inc)
Right to Audit. Either Party (herein, the “Auditing Party”) may demand, no more than [ * ] for any calendar year in the Term, an audit of the relevant books and records of the other Party (herein, the “Audited Party”) in order to verify the Audited Party’s reports on financial matters addressed in this Agreement, which shall include, without limitation, Spectrum’s right to audit Eagle’s books and records relating to calculation of Net Sales and of the Performance Bonus payable to Spectrum and Eagle’s right to audit Spectrum’s books and records relating to the Base Fee and Commercialization Support Costs. Upon no less than [ * ] days’ prior written request notice to the Audited Party by the Auditing Party, the Audited Party shall grant reasonable access to members of Licensor, a nationally-recognized independent certified public accounting firm selected by the Auditing Party (but not more than once the auditor that conducts or has within the past three years conducted the audit of the Auditing Party’s financial statements) to the relevant books and records of the Audited Party in each calendar year nor more than once in respect order to any given calendar year, Licensee conduct a review or audit thereof. Such access shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access permitted only during normal business hours hours. The auditor will execute a written confidentiality agreement with the Audited Party and will disclose to those records the Auditing Party only such information necessary or relevant to verify the Audited Party’s reports on the financial matters addressed in this Agreement. The accountant shall report its conclusions and calculations to the Auditing Party and the Audited Party; provided, that in no event shall the accountant disclose any information of Licensee as may be reasonably the Audited Party except to the extent necessary to verify the accuracy Audited Party’s reporting and other compliance with the terms of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such requestthis Agreement. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year Such examination shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless conducted (a) an audit requested by Licensor prior to expiration of at the facility(ies) where such thirty-six (36) months period has not yet been completed, or books and records are maintained and (b) Licensor has notified Licensee prior without disruption to operations of the expiration Audited Party. Except as set forth in Section 8.5(b), the Auditing Party shall bear the full cost of the performance of any such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculationaudit. The report prepared by such independent public accountant, a copy of which promptly All inspections made under this Section 8.5 shall be provided to Licensee, shall disclose only made no later than [ * ] years after the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor reports that are the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) subject of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationinvestigation were made.
Appears in 2 contracts
Samples: Co Promotion Agreement (Eagle Pharmaceuticals, Inc.), Co Promotion Agreement (Eagle Pharmaceuticals, Inc.)
Right to Audit. Upon written request Notwithstanding anything in the Lease to the contrary, Tenant shall have the right, after reasonable notice and at reasonable times, during the ninety (90) day period following the delivery of LicensorLandlord’s statement of the actual Common Area Expenses, but not more than once in each calendar year nor more than once in to audit Landlord’s accounting records at Landlord’s office that pertain to and contain information concerning such expenses with respect to any given calendar yearthe immediately preceding year in order to verify the amounts thereof. Tenant shall be entitled to retain an independent, Licensee shall permit an independent certified public accountant, selected accountant to audit and/or review Landlord’s records to determine the proper amount of Additional Rent payable by Licensor and acceptable Tenant. Any parties retained by Tenant to Licensee, which acceptance audit and/or review Landlord’s records shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such requestcompensated on a contingency fee basis. Licensee Tenant shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, provide Landlord a copy of which promptly any audit obtained by Tenant. Tenant agrees that any information obtained during an inspection by Tenant of Landlord’s books of account and records shall be provided kept in confidence by Tenant and Tenant agrees to Licensee, shall disclose only contractually require the amount same of any underpayment third party accountants or overpayment auditors engaged by Tenant to assist with such examination. Tenant agrees to pay the cost of royaltiessuch audit, provided that, if anythe audit reveals that Landlord’s determination of the Additional Rent payable by Tenant hereunder as set forth in any statement sent to Tenant was in error in Landlord’s favor by more than five percent (5%), without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee Landlord shall remit or shall cause its Sublicensees to remit to Licensor pay the amount reasonable cost of such underpayment audit. In the event such audit shall establish that Landlord’s statement of Tenant’s Proportionate Share of Additional Rent due for the prior year exceeded Tenant’s Proportionate Share of Additional Rent actually due and Tenant shall have theretofore paid such incorrect amount, such excess amount paid by Tenant shall be credited against the next maturing installments of Tenant’s Proportionate Share of Additional Rent due from Tenant to Landlord, or, if an insufficient Term remains, such excess amount shall be refunded by Landlord to Tenant within thirty (30) days after Licensee's receipt following presentation of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periodsa statement therefor. In the event this Agreement is terminated or expires before such overpayment is fully creditedaudit shall establish that Landlord’s statement of Tenant’s Proportionate Share of Additional Rent for the preceding twelve (12) months was understated, Licensor Tenant shall pay Licensee the portion of to Landlord such overpayment not credited excess amount due within one hundred twenty thirty (12030) days after following presentation of a statement therefor. Landlord shall be required to maintain records of Additional Rent for the date entirety of such termination or expirationthe one-year period (“Review Period”) following Landlord’s delivery to Tenant of each statement setting forth the actual Additional Rent.
Appears in 2 contracts
Samples: Industrial Space Lease (XBiotech Inc.), Industrial Space Lease (XBiotech Inc.)
Right to Audit. Upon written request of Licensornot less than ten (10) day’s notice to LICENSEE, but LICENSOR, at its expense, shall have the right during the Licensed Term and for three (3) years thereafter at any time during regular business hours, not more frequently than once in each calendar year nor more than once in respect one time annually,. to any given calendar year, Licensee shall permit an independent public accountant, have a qualified accountant selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those LICENSOR audit the records of Licensee as may be reasonably LICENSEE to the extent necessary to verify LICENSEE’S statements and payments of Royalties, including the accuracy right to examine, photocopy and make extracts from such records. Such records shall be made available to LICENSOR’S accountant at LICENSEE’S Notice Address stated above. LICENSEE shall cooperate with and assist LICENSOR’S accountant for the purpose of facilitating such audit. The provisions of this paragraph shall survive the termination or expiration of this Agreement. If, as a result of such audit, LICENSOR’S accountant determines that the amount of Royalties due was greater than the amount reported by LICENSEE in any Quarterly Report furnished pursuant to Section 5. 1, LICENSOR shall promptly furnish to LICENSEE a copy of the royalty reports hereunder report of its accountant setting forth the amount of the deficiency showing, in respect of any calendar year ending not more than thirty-six (36) months prior reasonable detail, the basis upon which such deficiency was determined. LICENSEE shall promptly remit to LICENSOR a sum equal to such deficiency, together with interest thereon at the rate prescribed in Section 5.2 from the date such Royalty was due until the date of such requestremittance. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royaltiesIn addition, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any the audit reveals underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five by more than three percent (53%) of the royalty Royalties in any quarterly period, LICENSEE shall pay to LICENSOR the cost of such audit. If, as a result of such audit, LICENSOR’S accountant determines that the amount of Royalties paid was greater than the amount actually due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationwill be promptly refunded to LICENSEE.
Appears in 2 contracts
Samples: Trademark License Agreement (Fashion House Holdings Inc), Trademark License Agreement (Fashion House Holdings Inc)
Right to Audit. Upon written request of LicensorAxis shall provide Data Controller access to all available and necessary information to demonstrate that Axis has fulfilled its obligations under the GDPR. Axis shall also contribute to Exhibit 1 audits, but not more than once in each calendar year nor more than once in respect to any given calendar yearincluding inspections, Licensee shall permit an independent public accountant, selected by Licensor if and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of extent such requestaudits are required to comply with mandatory law and/or conducted by a supervisory authority having authority over Data Controller’ s operations. Licensee Data Controller shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) request an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within Axis in writing at least thirty (30) days after Licensee's in advance; such request to include a comprehensive audit plan indicating what information and resources that Data Controller expects Axis to provide to support the audit. Any audit shall be (i) performed by an independent certified public accountant or the equivalent selected by Data Controller and acceptable to Axis, and (ii) carried out during normal business hours, and Data Controller shall take all necessary measures to minimize disturbances on Axis’ business operations. Data Controller must reimburse Axis for its time expended in connection with an audit at Axis’ standard hourly rates, which will be made available to Data Controller on request. In addition, Data Controller undertakes to ensure that every person who carries out the audit approves Axis’ security policies and upon Axis’ request, signs a confidentiality agreement with Axis. Axis shall under no circumstances be obliged to disclose information that is confidential under law or agreement, nor Axis’ trade secrets or other similar information. Data Controller must promptly disclose to Axis any written audit report created, and any findings of noncompliance discovered, as a result of the audit. Data Controller may not perform more than one audit in any 12-month period, except where required by a competent supervisory authority. To the extent Axis can demonstrate Axis’ compliance with the obligations set out in this DPA and the GDPR by providing written documentation, Data Controller undertakes, unless required by a competent supervisory authority, to primarily use and rely on such written documentation to satisfy Data Controller’s need for information. If Data Controller can demonstrate that the written documentation provided by Axis is clearly insufficient, Data Controller may request an audit in accordance with the preceding paragraph. 9 SUBCONTRACTORS Data Controller hereby grants Axis a general written authorisation to engage subcontractors for processing of personal data. Upon Data Controller’s request, Axis shall inform Data Controller of all engaged subcontractors and their geographic location. Furthermore, Axis shall inform Data Controller by way of posting an update on its webpage and/or by providing the relevant information in the relevant Service, of any plans to engage new or replace existing subcontractors, and thereby giving Data Controller the opportunity to object to such changes. Such objections by Data Controller shall be made in writing without undue delay from receipt of such report, and if such underpayment exceeds five percent (5%) the information by Data Controller. Axis shall provide Data Controller with all information that Data Controller may reasonably request to assess whether the appointment of the royalty dueproposed subcontractor complies with Data Controller’s obligations under this DPA and the GDPR. If, Licensee in accordance with Data Controller’s justifiable opinion, compliance with these obligations is not possible through the proposed subcontractor but the subcontractor is appointed by Axis, Data Controller is entitled to terminate the Service Agreement and this DPA at no extra cost (and notwithstanding anything to the contrary in the Service Agreement). If the objection is not justified, Data Controller is not entitled to terminate the Service Agreement or this DPA. Axis shall reimburse Licensor for its reasonable out-of-pocket expenses for enter into a data processing agreement with each subcontractor. Such agreement shall impose obligations on the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over subcontractor that are essentially the next-following two (2) royalty periods. In the event same and corresponding to Axis’ obligations under this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationData Processing Agreement.
Appears in 1 contract
Samples: Data Processing Agreement
Right to Audit. Upon written request During the Term and for a period of Licensor*** (***) years thereafter, but VIA shall keep (and shall cause its Affiliates, licensees and sublicensees to keep) complete and accurate records pertaining to the purchase, storage, sale, or other disposition of Licensed Products in sufficient detail to permit Roche to confirm the accuracy of all royalty and other payments due hereunder. Records will include, at a minimum, master files, product numbers, description, quantities purchased, shipped, sold and on-hand at period end, customer or supplier name, address, customer agreements, date of purchase or sale, cost of purchase or sale price, and delivery address. Roche shall have the right to cause an independent, certified public accountant to audit such records to confirm gross sales, Net Sales, royalty reductions, royalty payments, and milestone payments related to Net Sales for a period covering not more than once in each calendar year nor the preceding *** (***) years. Such audits may be exercised no more than once in respect to any given per calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access year during normal business hours upon reasonable prior written notice to those records VIA. Prompt adjustments shall be made by the parties to reflect the results of Licensee as may be reasonably necessary to verify *** Certain information on this page has been omitted and filed separately with the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such requestCommission. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable Confidential treatment has been requested with respect to the omitted portions. such calendar year audit. Roche shall be binding and conclusive upon bear the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration full cost of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that audit unless such audit has revealed a discrepancy regarding such calculation. The report prepared discloses an underpayment by such independent public accountant, a copy VIA of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds more than five percent (5%) of the amount of royalty dueor other payments due under this Agreement, Licensee in which case, VIA shall reimburse Licensor for its reasonable out-of-pocket expenses for bear the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion full cost of such overpayment not credited audit and shall promptly remit to the auditing party the amount of any underpayment, plus interest calculated at the three month US Dollar LIBOR rate plus *** percent (***%). If requested by Roche, VIA shall provide to Roche within one hundred twenty thirty (12030) days after such request any and all financial information relating to VIA that is Controlled by VIA and necessary for Roche to prepare its financial statements and to make governmental filings, including full monthly reporting of data to Roche by the date third work day of such termination or expirationeach month and maintaining a set of accounting records, based on Roche Financial Group Accounting and Reporting Requirements (“FGAR”) and International Financial Reporting Standards (“IFRS”).
Appears in 1 contract
Samples: Research, Development and Commercialization Agreement (Via Pharmaceuticals, Inc.)
Right to Audit. Upon written request The financial statements of LicensorLICENSEE and of its sublicenses will be audited annually by an independent certified public accountant. Cyplasin shall have the right to employ, but at its own expense, a qualified accountant of its own selection to whom LICENSEE shall make no unreasonable objection, to examine the books and records of LICENSEE and its sublicenses relating to the SALE of LICENSED PRODUCT for the purpose of verifying the amount of royalty payments due. Such examination of books and records of LICENSEE and its sublicenses shall take place during regular business hours during the term of this Agreement and for two (2) years after its termination, provided however, that such an examination shall not take place more than once in each calendar a year nor and shall not cover records for more than once in respect the preceding three (3) years, and provided that such accountant shall report to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable Cyplasin as to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect statements and payments. If such accountant shall find an underpayment to Cyplasin a presentation of any calendar year ending not more than thirty-six (36) months prior to a written statement substantiating the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall underpayment will be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationLICENSEE. If such independent accountant's report shows any underpayment LICENSEE is not in agreement with the findings of royalties, Licensee the qualified accountant selected by Cyplasin then LICENSEE shall remit or shall cause its Sublicensees to remit to Licensor the amount so notify of such underpayment in writing within thirty (30) days after of receipt by LICENSEE of said findings, in which case the parties will jointly appoint, within a further period of thirty (30) days, an independent qualified accountant to validate, at Licensee’s expense, Cyplasin's receipt of such reportaccountant's findings, and if the decision of said independent accountant shall be final. If said independent accountant verifies that an underpayment has occurred, the amount due and interest (accruing at the prevailing Prime Rate from the date payment was due through the date of actual payment to Cyplasin shall be paid within thirty (30) days. Should such underpayment exceeds represent more than five percent (5%) of the royalty dueroyalties due to Cyplasin, Licensee LICENSEE shall reimburse Licensor for its reasonable out-of-pocket expenses Cyplasin for the audit, upon submission cost of supporting documentationthe examination by Cyplasin’s accountant which disclosed such underpayment. Any overpayment of royalties All payments due to CYPLASIN BIOMEDICAL LTD. under this Agreement shall be creditable against future royalties payable made in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationUnited States dollar except where so noted.
Appears in 1 contract
Samples: Exclusive License and Option Agreement (Cyplasin Biomedical Ltd.)
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect Tenant will be entitled from time to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor time to audit and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy Reconciliation to assure that the Operating Expenses from time to time reported by Landlord are in keeping with the provisions of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period Section 6; provided that such audit has revealed is performed by Tenant or a discrepancy regarding such calculationdesignated representative of Tenant performing audits for Tenant or its affiliates on a national or regional basis. The report prepared Upon Tenant’s request to audit the Reconciliation (which request must be made within one hundred and eighty (180) days following Tenant’s receipt of the Reconciliation or any correction thereof), Landlord shall make available to Tenant electronically, or at Tenant’s election, at the Premises or Landlord’s designated office, for photocopying by such independent public accountantTenant (or Tenant’s employee or designated representative), a copy invoices of which promptly expenditures, as well as other standard Landlord reports, for the expenses as provided in the Reconciliation (as well as for prior years, for purposes of evaluating compliance with the limitations on increases in Controllable Operating Expenses). Landlord’s books and records shall be provided kept in accordance with GAAP, consistently applied. Landlord may correct any Reconciliation within one hundred and eighty (180) days after it is initially issued, but may not further correct it thereafter, except in the event that the correction would result in a credit to Licensee, Tenant or that the Reconciliation of Taxes may occur at any time within three hundred and sixty-five (365) days following the final determination of the Taxes owed. Tenant’s right to receive the Reconciliations and perform the audit shall disclose only survive the amount termination or expiration of this Lease. In the event of any underpayment or overpayment of royaltieserrors, if any, without disclosure of or reference the appropriate party will make a correcting payment in full to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment other party within thirty (30) days after Licensee's receipt the determination and communication to all parties of the amount of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periodserror. In the event this Agreement is terminated or expires before such overpayment is fully creditedof any errors on the part of Landlord costing Tenant in excess of three percent (3%) of Tenant’s actual Operating Expense liability for any calendar year, Licensor shall pay Licensee Landlord will also, within the portion above thirty (30)-day period, reimburse Tenant for the costs of such overpayment not credited within one hundred twenty an audit reasonably incurred by Tenant up to a maximum reimbursement of Five Thousand and 00/100 Dollars (120) days after the date of such termination or expiration$5,000.00).
Appears in 1 contract
Samples: Lease Agreement (ROX Financial LP)
Right to Audit. Upon written request Within ninety (90) days after receipt of Licensorthe -------------- Operating Expenses Statement, but not Tenant shall have the right, at its expense, to inspect Landlord's Operating Expenses records relating to the Lease Year covered by the Statement, including the Statement covering the Base Year, except that any inspection that discloses that Tenant's Proportionate Share of Operating Expenses has been overstated by more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six seven percent (367%) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculationat Landlord's expense. The report prepared by such independent public accountant, a copy of which promptly shall inspection must be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment completed within thirty (30) days after Licenseeof commencement. Before conducting any inspection, Tenant must pay the full amount of Operating Expenses billed and there must not be an Event of Default of any other Lease provisions. Tenant may review only those records of Landlord that are specifically related to Operating Expenses. The audit shall be conducted in a location IN THE NORTHERN VIRGINIA, WASHINGTON, D.C. METROPOLITAN AREA and at a time reasonably determined by Landlord. If Landlord unreasonably delays in allowing Tenant access to its records, the time periods provided herein shall be extended to account for such unreasonable delay. Upon receipt thereof, Tenant will deliver to Landlord a copy of any report procured as a result of the inspection and all accompanying data. Tenant's receipt Proportionate Share of Operating Expense Increases shall be appropriately adjusted based upon the results of such reportaudit. Tenant will keep confidential any information gained through and the result of any inspection. Tenant may not conduct an inspection more often than once each Lease Year. Tenant may audit records only with respect to the Lease Year in question; PROVIDED, and if such underpayment exceeds five percent HOWEVER, THAT TENANT SHALL HAVE A ONE (5%1) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expiration.TIME ONLY RIGHT TO AUDIT THE BASE YEAR..
Appears in 1 contract
Samples: Disturbance and Attornment Agreement (Apache Medical Systems Inc)
Right to Audit. Upon written VF’s request with reasonable notice, SUPPLIER shall permit technical, financial and operational audits by an Auditor of LicensorVF and its AFFILIATES, but related to the subject matter of the relevant PURCHASE ORDER. Audits will not occur more than once in each a given calendar year nor more than once unless the audit is materially different in respect scope from a preceding audit or VF has a good faith belief that SUPPLIER is in material breach of an applicable PURCHASE ORDER or these Ts&Cs. During each audit, SUPPLIER shall grant the Auditors reasonable access to any given calendar yearSUPPLIER’S books, Licensee shall permit records, third-party audit and examination reports, controls, processes, procedures, service-level measurement systems and actual Service Levels to the extent related to a reasonable assessment of SUPPLIER’s performance of its obligations to VF. Supplier shall, in a timely manner, fully cooperate with the Auditors and provide the Auditors all assistance as they may reasonably request in connection with the audit. The auditors will seek to avoid disrupting SUPPLIER’s operations during the audit. If the auditors document either an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy overcharge of the royalty reports hereunder in respect fees for the audited period/activities or a material breach of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee SUPPLIER obligations, SUPPLIER shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless promptly (a) an reimburse VF for its reasonable cost of performing the audit requested by Licensor prior to expiration if the overcharge is more than two percent (2%) of such thirty-six (36) months period has not yet been completedthe fees for the audited period/activities, or (b) Licensor has notified Licensee prior reimburse VF for any overcharge, (c) promptly cure any identified breach, and (d) and the audit will not be counted for the purposes of the limitation as described in this provision. If the SERVICES include any processing of VF DATA, SUPPLIER shall provide, upon request from and at no additional cost to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountantVF, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royaltiesan annual audit report, if any, without disclosure prepared by SUPPLIER in accordance with the International Standard of Assurance Engagements 3402 or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty Type 2 U.S. Statement on Standards for Attestation Engagements 16 (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (SOC 2) royalty periods. In (or an equivalent audit under the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee successor standard as may then be in effect) covering an audit of SUPPLIER’s policies and procedures applicable to the portion processing and protection of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationVF DATA.
Appears in 1 contract
Samples: S Supplier Terms and Conditions Emea
Right to Audit. Upon the written request of LicensorGSK, but not more than once in each calendar year nor more than once in respect and at GSK’s expense, ViroPharma shall permit and shall cause its Affiliates to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor GSK and acceptable to LicenseeViroPharma, which acceptance shall will not be unreasonable withheldunreasonably refused, to have access during normal business hours to those records of Licensee ViroPharma and its Affiliates as may be reasonably necessary to verify the accuracy of the milestone payments or the royalty reports hereunder furnished by ViroPharma pursuant to Section 4.1 of this Agreement in respect of any calendar year ending not more than thirty-six forty eight (3648) months prior to the date of such requestnotice. Licensee ViroPharma shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and require that its Sublicensees selling Products on ViroPharma’s behalf to grant the same right of such access to such their records to Licensor's GSK’s independent accountant. Upon the expiration of thirty-six sixty (3660) months following the end of any calendar year, the calculation of royalties payable calculations with respect to such calendar year shall will be binding and conclusive upon GSK with respect to those Products identified in the parties, report and Licensee ViroPharma and its Affiliates and Sublicensees shall will be released from any liability or accountability with respect to such royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall accountant will disclose only the conclusions of the accountant regarding the audit and specify the amount of any underpayment or overpayment overpayment, and will not include copies of royaltiesany books or records reviewed; provided, however, that if anythe report includes significant questions as to the validity of the data relied upon, without disclosure GSK may request additional information regarding such report from the auditor. A copy of such report will be sent or reference otherwise provided to supporting documentationViroPharma by such accountant at the same time it is sent or otherwise provided to GSK. If such independent public accountant's ’s report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's ViroPharma’s receipt of such report, and if ViroPharma shall remit to GSK the amount of such underpayment. If the underpayment exceeds five is in excess of ******* percent (5*******%) of the royalty due), Licensee then ViroPharma shall reimburse Licensor for its reasonable also remit to GSK an amount equal to GSK’s substantiated out-of-pocket expenses for costs of the audit, upon submission of supporting documentation. Any overpayment of royalties shall be fully creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periodsRoyalty Periods. In the event If this Agreement is terminated or expires before such overpayment is fully credited, Licensor GSK shall pay Licensee ViroPharma the portion of such overpayment not credited within one hundred twenty thirty (12030) days after the date of such termination or expirationexpiration hereof. ViroPharma acknowledges that GSK may invoke the audit rights specified herein to confirm the applicability of Section 3.2(b) hereof.
Appears in 1 contract
Samples: License Agreement (Viropharma Inc)
Right to Audit. Upon written request Tenant shall have the right to dispute any statement submitted by Landlord to Tenant relating to the payment of LicensorIncreases in Real Estate Taxes or Increases in Operating Costs, including the accuracy thereof and the method of calculating the same, but not more than once only if (a) within sixty (60) days after Tenant’s receipt of such statement, Tenant shall have notified Landlord in each calendar year nor more than once writing of the nature of the dispute, specifying the particular respects in respect which the statement is claimed to any given calendar yearbe incorrect, Licensee and (b) Tenant shall permit an independent public accountanthave paid the statement so in dispute. In such event, selected by Licensor and acceptable to LicenseeTenant shall have the right, which acceptance shall not be unreasonable withheldat its own expense, to have access during normal business hours to those inspect and/or audit Landlord’s books and records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties statement in question for a period of sixty (and Licensor for an overpayment of royalties60) for such calendar year, unless days commencing ten (a10) an audit requested by Licensor prior to expiration days after Tenant’s delivery of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior notice to Landlord. Tenant shall notify Landlord of the expiration results of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountantinspection, a copy including its determination of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment overpayment or overpayment of royaltiesunderpayment, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's such inspection is completed. If Landlord disputes such results, it shall give notice to Tenant setting forth the nature of such dispute within ten (10) days after receipt of Tenant's notice, whereupon Tenant's representatives will promptly meet with Landlord's representatives in an effort to resolve such reportdispute. If such representatives are unable to resolve such dispute within fifteen (15) days after Landlord gives such notice, then they shall designate a nationally or regionally recognized accounting firm that is unaffiliated with either party to finally resolve such dispute. Such accounting firm shall render its decision within twenty (20) days and such decision shall be final and binding upon the parties. Each party shall pay the fees of their own representatives and one-half of the fees of such joint accounting firm; provided, however, if such underpayment exceeds Landlord and Tenant determine that actual Increases in Real Estate Taxes or Increases in Operating Costs for the calendar year in question were less than stated by more than five percent (5%) of the royalty due), Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the auditLandlord, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two within thirty (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (12030) days after its receipt of paid invoices therefor from Tenant, shall reimburse Tenant for the date reasonable amounts paid by Tenant to third parties in connection with such review by Tenant. All Additional Rent attributable to Increases in Real Estate Taxes or Increases in Operating Costs shall be appropriately adjusted (in the form of a credit or reimbursement to Tenant) based upon the final resolution, and the results of such termination resolution shall be final and binding upon Landlord and Tenant. The accountants conducting the audit shall be compensated on an hourly basis and shall not be compensated based upon a percentage of overcharges it discovers. Such inspections or expirationaudits shall be conducted, upon reasonable prior notice, at Landlord’s office at a time reasonably convenient to Landlord during normal business hours. Each statement given by Landlord in connection with this Lease shall be conclusive and binding upon Tenant unless Tenant shall have strictly and timely complied with the foregoing conditions, without any extension of such time period which may otherwise be permitted by any other terms of this Lease.
Appears in 1 contract
Right to Audit. Upon written request of LicensorSo long as Tenant has paid in full any amount owing under an Annual Additional Rent Notice, but not more than once in each calendar year nor more than once in respect Tenant may, at any time after at least three (3) days notice to any Landlord given calendar yearwithin sixty (60) days after Tenant receives such Annual Additional Rent Notice from Landlord, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those review Landlord’s records of Licensee as may each of Excess Taxes and Excess Expenses for the time period covered by such Annual Additional Rent Notice. Any such review and correction requested by Tenant must be reasonably necessary to verify the accuracy completed and requested within one hundred twenty (120) days of Tenant’s receipt of the royalty reports hereunder Annual Additional Rent Notice in respect question or Tenant’s right to object shall be deemed waived. If Tenant’s review of any calendar year ending not more than thirty-six Landlord’s books and records discloses that Tenant’s Pro Rata Share of Excess Taxes and/or Excess Expenses paid by Tenant for the period under review exceeded the actual amount properly allocable to Tenant (36an “Overpayment”), then, so long as Landlord agrees with such determination by Tenant, Landlord shall (i) months prior promptly pay to Tenant an amount equal to the Overpayment, together with interest thereon at the Interest Rate from the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring determination until the Sublicensee to keep date actually paid; and maintain records of sales made pursuant to such sublicense and to grant (ii) if the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds Overpayment is greater than five percent (5%) of the royalty dueactual amount properly allocable to Tenant, Licensee shall reimburse Licensor promptly pay to Tenant an amount equal to the actual cost and expense of any such audit or examination to the extent incurred by Tenant for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periodssuch review. In no event shall Tenant use an auditor who is compensated in any manner on a contingency or similar fee basis. If Landlord and Tenant are unable to agree on the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee amount of the portion of such overpayment not credited excess paid by Tenant within thirty (30) days after the one hundred twenty (120) day period referred to above, then Tenant shall have the right, within five (5) days after the date expiration of such termination or expirationextended period to submit such dispute for resolution by binding arbitration with a mutually acceptable certified public accountant (a “CPA”) having not less than three (3) years experience with respect to the auditing and review of operating expense statements for Class B office buildings in the Fort Lauderdale Metropolitan Area. If Landlord and Tenant cannot agree on a CPA within fifteen (15) days of Landlord’s receipt of Tenant’s election to submit such dispute to arbitration, then within five (5) days thereafter, each shall select a CPA and within ten (10) days thereafter, the two appointed CPAs shall select a third CPA and the third CPA shall be the arbitrator to resolve such dispute.
Appears in 1 contract
Right to Audit. Upon written request If a statement reflecting annual Operating Expenses is delivered to Tenant pursuant to subsection 2.202 of Licensorthe Supplemental Lease Provisions, but not more than once in each calendar year nor more than once in respect Tenant shall have the right to any given perform an annual audit at Tenant's expense on Landlord's books and records to the extent necessary to verify Landlord's calculation of actual Additional Rent for the prior calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period provided that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be conducted by a certified Public accountant and further provided that the auditor's report reflecting the results of such audit shall be promptly delivered to LicenseeLandlord. Any such audit shall be conducted, if at all, (i) within ninety (90) days after the receipt of the annual statement of actual Additional Rent from Landlord, (ii) during Landlord's normal business hours, (iii) at the place where Landlord maintains its records (or such other place as Landlord shall disclose deliver the appropriate records) and (iv) only after Landlord has received ten (10) days prior written notice. IF THE AUDIT REPORT REFLECTS AN OVERCHARGE IN ADDITIONAL RENT OF MORE THAN FIVE PERCENT (5%), THEN LANDLORD SHALL REIMBURSE TENANT FOR REASONABLE COSTS INCURRED BY TENANT FOR SUCH AUDIT. If the audit report reflects that estimated Additional Rent was overcharged or undercharged in the audited calendar year and provided Landlord agrees with such audit, Tenant shall within twenty (20) days after receipt of such report pay to Landlord the amount of any underpayment or overpayment of royaltiesor, if anyapplicable, Landlord shall allow Tenant a credit against the next accruing installment of Additional Rent in the amount of any overpayment (HAZARDOUS MATERIALS SURVEYS) NO KNOWN HAZARDOUS MATERIALS Landlord has heretofore engaged one or more independent contractors to perform limited surveys at the Property to determine if hazardous materials exist on or at the Property (whether one or more, the "Survey"). The scope of visual inspection, testing and sampling performed in connection with the Survey is set forth in the written report (whether one or more, the "Written Report") submitted to Landlord by independent contractor(s) performing the Survey. However, the Tenant is advised that neither extensive testing nor sampling of any portion of the Property was performed in connection with the Survey of the Property. A copy of each Written Report is on file in the Property Manager's office and Tenant shall have the right to inspect each such report. Except as expressly stated in the next following sentence, Landlord makes no representations or warranties whatsoever (express or implied) to Tenant regarding (x) the Survey (including, without disclosure limitation, the contents, accuracy and/or scope thereof) or the Written Report or (y) the presence or absence of hazardous or toxic materials or wastes in, at, or under the Premises or the Property. Landlord is not aware of (i) any written reports or surveys concerning the Building other than the Written Report and the Survey on file with the Property Manager and (ii) any fact that makes the Written Report or Survey inaccurate in any material respect. Tenant (a) shall not rely on and has not relied on the Survey or the Written Report, the same having been provided for informational purposes only and (b) acknowledges that Tenant has taken such actions as Tenant deems appropriate to fairly evaluate the Premises and has otherwise satisfied itself that the Premises are acceptable and suitable from an environmental perspective WITHOUT LIMITING LANDLORD'S OBLIGATIONS UNDER THE LEASE. Tenant shall furnish Landlord with a complete and legible copy of any study, report, test, survey or investigation performed by or on behalf of Tenant at any time involving the Premises and shall fully restore all areas and improvements where samples were taken or work was performed and repair all damage resulting from any of the same and shall indemnify and hold Landlord harmless from any against all claims, actions, liabilities, damages, losses, injuries or deaths in connection with or arising out of or reference from any inspection, testing, sampling or similar or dissimilar activity conducted by or on behalf of Tenant at or in the Premises or the Property for hazardous or toxic materials or wastes. TENANT'S STUDY, TESTING AND INSPECTION RIGHTS Prior to supporting documentationcommencement of any tenant finish work to be performed by Landlord, Tenant shall have the right to make such studies and investigations and conduct such tests and surveys of the Premises from an environmental standpoint as Tenant deems necessary or appropriate, subject to the condition that all such studies and investigations shall be completed prior to the commencement of any tenant finish work to be performed by Landlord. Tenant shall restore the Premises and hold Landlord harmless from and indemnify Landlord against all loss, damages and claims resulting from or relating to Tenant's studies, tests and investigations. If such independent accountant's report shows study, test, investigation or survey evidences hazardous or toxic materials which effect the Premises, Tenant shall have the right to terminate this Lease provided such right shall be exercised, if at all, prior to the commencement of any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees tenant finish work to remit to Licensor the amount of such underpayment be performed by Landlord and within thirty five (305) days after Licensee's receipt Tenant receives the evidence of hazardous or toxic materials. If Tenant does not exercise such report, right prior to commencement of any such tenant finish work and if within such underpayment exceeds five percent (5%) of the royalty dueday period, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties Tenant's right to terminate this Lease shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated null and void and of no further force or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationeffect.
Appears in 1 contract
Right to Audit. Upon written request The financial statements of LicensorLICENSEE and of its sublicenses will be audited annually by an independent certified public accountant. Virionics shall have the right to employ, but at its own expense, a qualified accountant of its own selection to whom LICENSEE shall make no unreasonable objection, to examine the books and records of LICENSEE and its sublicenses relating to the SALE of LICENSED PRODUCT for the purpose of verifying the amount of royalty payments due. Such examination of books and records of LICENSEE and its sublicenses shall take place during regular business hours during the term of this Agreement and for two (2) years after its termination, provided however, that such an examination shall not take place more than once in each calendar a year nor and shall not cover records for more than once in respect the preceding three (3) years, and provided that such accountant shall report to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable Virionics as to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect statements and payments. If such accountant shall find an underpayment to Virionics a presentation of any calendar year ending not more than thirty-six (36) months prior to a written statement substantiating the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall underpayment will be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationLICENSEE. If such independent accountant's report shows any underpayment LICENSEE is not in agreement with the findings of royalties, Licensee the qualified accountant selected by Virionics then LICENSEE shall remit or shall cause its Sublicensees to remit to Licensor the amount so notify of such underpayment in writing within thirty (30) days after of receipt by LICENSEE of said findings, in which case the parties will jointly appoint, within a further period of thirty (30) days, an independent qualified accountant to validate, at Licensee’s expense, Virionics's receipt of such reportaccountant's findings, and if the decision of said independent accountant shall be final. If said independent accountant verifies that an underpayment has occurred, the amount due and interest (accruing at the prevailing Prime Rate from the date payment was due through the date of actual payment to Virionics shall be paid within thirty (30) days. Should such underpayment exceeds represent more than five percent (5%) of the royalty dueroyalties due to Virionics, Licensee LICENSEE shall reimburse Licensor for its reasonable out-of-pocket expenses Virionics for the audit, upon submission cost of supporting documentationthe examination by Virionics’s accountant which disclosed such underpayment. Any overpayment of royalties All payments due to Virionics under this Agreement shall be creditable against future royalties payable made in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationUnited States dollar except where so noted.
Appears in 1 contract
Samples: Exclusive License Agreement (Cyplasin Biomedical Ltd.)
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy Section 4.2(f) of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to Lease is hereby modified by -------------- adding the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following at the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only Section 4.2(f): "If Tenant disputes the amount of any underpayment actual Operating Expenses set forth in Landlord's statement (the "Statement"), Tenant shall have the right, at Tenant's expense, not later than ninety (90) days following receipt of such Statement, to inspect Landlord's books and records which directly relate to the Operating Expenses for the calendar year which is the subject of the Statement. 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 provided, however, that Tenant's right to audit shall be limited to the ninety (90) day period following the date that Landlord gives Tenant such Statement. If Tenant disputes Landlord's calculations or overpayment of royaltiesdetermination (Tenant's notice must be given within ten (10) days after the ninety (90) day period referred to herein), if any, without disclosure of or reference such dispute shall be resolved by a public accounting firm reasonably acceptable to supporting documentationeach party. If such independent accountantaudit determines that an error has been made in Landlord's report shows any underpayment determination and calculation which results in Tenant having paid an amount in excess of royaltiesthe actual Operating Expenses by ten percent (10%) or more, Licensee Landlord shall remit or shall cause its Sublicensees to remit to Licensor pay for the amount fees and expenses of such underpayment firm, otherwise, Tenant shall pay for such fees and expenses. Upon final resolution of the matter, Tenant shall pay any shortfall to Landlord within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission or in the alternative, if the audit determined that Tenant made an overpayment to Landlord on account of supporting documentation. Any overpayment of royalties Operating Expenses, Landlord shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before reimburse Tenant for such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty thirty (12030) days after the date of such termination or expirationaudit."
Appears in 1 contract
Right to Audit. Upon Sprint and its accountants, attorneys and agents will have the right to audit Z-Tel's records relating to its performance under this Agreement at reasonable times and places upon prior written request notice for the sole purposes of Licensorconfirming that all charges and payments have been made, and all SLAs have been satisfied, each in accordance with this Agreement. The right to audit will include the right to verify that costs associated with the ILECs and other third party vendors fairly represent the direct costs incurred by Z-Tel. The audits will in no event be more frequent than two (2) times per year. Sprint will provide Z-Tel with at least twenty (20) calendar days' prior notice of an audit, but not more than once in each calendar year nor more than once in respect Z-Tel may reasonably delay any audit if Z-Tel is temporarily unable to any given calendar yearassist Sprint and its auditors. In conjunction with the audit notice, Licensee shall permit an independent public accountantSprint will give a written list of the materials requested for review during the audit, selected by Licensor and acceptable to Licensee, which acceptance shall but Sprint's auditors will not be unreasonable withheld, limited by this list if they discover that additional materials may be relevant or helpful to have access the audit. Z-Tel will make the information that Sprint reasonably requires to conduct the audit available on a timely basis during normal business hours and assist Sprint and its internal or external auditors as reasonably necessary. Z-Tel may provide to those records Sprint certain materials concerning Z-Tel operations not connected with the furnishing of Licensee as may be reasonably necessary Services to verify Sprint only under a limited use release. Sprint will provide to Z-Tel the accuracy results of the royalty reports hereunder in respect of any calendar year ending audit. Z-Tel will not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensorbe responsible for Sprint's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor expenses incurred for an overpayment of royalties) for such calendar yearaudit, unless (a) the audit discloses an audit requested by Licensor prior to expiration over billing in excess of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) during the period the audit covers, in which case Z-Tel will pay for the entire cost of the royalty dueaudit. Z-Tel will immediately, Licensee shall but in no event more than ten (10) calendar days after discovery of an over billing, reimburse Licensor Sprint for its reasonable out-of-pocket expenses for the over billing disclosed by the audit, upon submission together with simple interest for the period of supporting documentationtime between the date on which overpayment was made and the date on which Sprint is reimbursed, at a rate of one percent (1%) per month. Any overpayment of royalties shall Notwithstanding the foregoing, if Z-Tel disputes that it has over billed Sprint, the dispute will be creditable against future royalties payable treated as a Billing Dispute under this Agreement. Sprint will immediately, but in subsequent royalty periods, allocated evenly over the next-following two no event more than ten (210) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) calendar days after discovery of an under billing, reimburse Z-Tel for the date of such termination or expirationunder billing disclosed by the audit. Notwithstanding the foregoing, if Sprint disputes that Z-Tel under billed Sprint, the dispute will be treated as a Billing Dispute under this Agreement.
Appears in 1 contract
Samples: Agreement (Z Tel Technologies Inc)
Right to Audit. Upon written request In the event that within ninety (90) days after Tenant’s receipt of Licensor, but not more than once in each calendar year nor more than once in respect to any given the Statement for the prior calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be Tenant reasonably necessary to verify the accuracy believes that certain of the royalty reports hereunder Operating Expenses charged by Landlord include costs that are not properly included within the term “Operating Expenses” or that Landlord has erred in respect calculating same, Tenant shall have the right to audit Landlord’s books and records in accordance with this paragraph. Tenant shall exercise such audit right by providing Landlord with a written notice of any calendar year ending not more than thirty-six (36) months prior Tenant’s exercise of such audit right within such 90‑day period and a statement enumerating reasonably detailed reasons for Tenant’s objections to the date of such request. Licensee shall include in each Sublicense granted Statement issued by it pursuant to this Agreement a provision requiring Landlord (the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant“Audit Notice”). Upon the expiration receipt by Landlord of thirty-six an Audit Notice, Landlord shall instruct its property manager at the Building to meet with a designated employee of Tenant (36the “Tenant Representative”) months following to discuss the end of any calendar year, objections set forth in the calculation of royalties payable Audit Notice. Landlord shall provide the Tenant Representative with respect reasonable access to such Landlord’s books and records at the Building relating to Operating Expenses for the calendar year shall be binding in question in order to attempt to resolve the issues raised by Tenant in the Audit Notice. If, within ninety (90) days after Landlord’s receipt of the Audit Notice, Landlord and conclusive upon the partiesTenant are unable to resolve Tenant’s objections, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has then not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within later than thirty (30) days after Licensee's receipt the expiration of such report90‑day period, and Tenant shall notify Landlord if such underpayment exceeds five percent (5%) of the royalty dueTenant wishes to employ an independent, Licensee shall reimburse Licensor reputable certified public accounting firm charging for its reasonable out-of-pocket expenses services on an hourly rate (and not a contingent fee) basis (“Acceptable Accountants”) to inspect and audit Landlord’s books and records for the audit, upon submission Building relating to the objections raised in Tenant’s statement. Such audit shall be limited to a determination of supporting documentationwhether or not Landlord calculated the Operating Expenses in accordance with the terms and conditions of this Lease and normal and customary accounting methods used by owners of similar buildings in the area for calculating Tenant’s Expense Increase. All costs and expenses of any such audit shall be paid by Tenant. Any overpayment audit performed pursuant to the terms of royalties this section shall be creditable against future royalties payable conducted only by the Acceptable Accountants at the offices of Landlord’s property manager at the Building. Notwithstanding anything contained herein to the contrary, Tenant shall be entitled to exercise its audit right pursuant to this section only in subsequent royalty periods, allocated evenly over strict accordance with the next-following two (2) royalty periodsforegoing procedures no more often than once per calendar year and each such audit shall relate only to the calendar year most recently ended. In the event this Agreement is terminated or expires before that Tenant fails to notify Landlord within the foregoing 90‑day period that Tenant objects to the Statement, then Tenant’s right to audit such overpayment is fully credited, Licensor year’s Statement shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationbe null and void.
Appears in 1 contract
Right to Audit. Upon written request This Section 25.5 governs Owner’s rights of Licensoraccess to Contractor’s records for purposes other than tax. If Owner requests verification of Direct Costs claimed by Contractor for reimbursement or for any Work performed or provided on a Time and Materials Basis or the Target Price, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit Owner (or an independent public accountantaccounting professional hired by Owner that is subject to the approval of the Contractor) may examine and audit Contractor’s records and books related to those costs. Such audit will cover whether specified Equipment and Services were in fact provided, selected by Licensor were charged to the proper category of expenses and acceptable did not exceed the rates or amounts permitted hereunder for such matters. In addition the audit will permit Owner or Owner’s independent accounting professional to Licenseeverify that costs and charges have been properly invoiced in accordance with the terms of this Agreement. Notwithstanding anything in the Agreement to the contrary, which acceptance Owner shall not be unreasonable withheldentitled to access information that would enable Owner to determine [***]. In addition Owner shall not be entitled to audit or to information pertaining to [***]. If any audit reveals charges to or paid by Owner as charges or fees (including any Contractor Taxes reimbursed by Owner) which are or were incorrectly charged, then the affected Party shall be entitled upon demand to corrective reimbursement of such amounts. Notwithstanding anything in this Section to the contrary, Owner shall not be restricted from any audit rights provided that a mutually acceptable third party accounting professional (having executed a reasonable confidentiality agreement acceptable to both Parties) conducts such audit that it is required to have access during normal business hours in order to those records of Licensee as may be reasonably necessary to verify comply with applicable Laws, including the accuracy regulations of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six NRC. Audits shall take place at times and locations mutually agreed upon by both Parties. Contractor shall make the materials to be audited available within fifteen (3615) months prior to the date Business Days or as soon as reasonably practicable, of such requestthird party’s reasonable request for them. Licensee shall include Costs incurred in each Sublicense granted undertaking the audit will be borne by it pursuant Owner but costs incurred by Contractor as a result of Owner’s exercising its right to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountantaudit will be borne by Contractor. Upon the expiration of thirty-six (36) months following the end of any calendar yearExcept for reports which account for FERC requirements, the calculation of royalties payable with respect to such calendar year Owner shall be binding and conclusive upon entitled only to a statement from such third party that the parties, and Licensee and its Sublicensees shall be released from any liability audit was satisfactory or accountability with respect what adjustments to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationpayments are required.
Appears in 1 contract
Right to Audit. Upon written request Tenant shall keep, or cause to be kept, true and complete books of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor record and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder accounts in respect of matters that are required by this Lease to be reported by Tenant to Landlord or that are monetary obligations governed by or relating to this Lease and Tenant Obligations hereunder, including monthly records of Adjusted Gross Revenues, PA Retail Adjusted Gross Revenues, Roof Top Garden Adjusted Gross Revenues and Lobby Sublease Space Adjusted Gross Revenues and records and calculations in respect of Theater Surcharge, Tenant's Construction Work, Sales Tax Saving and Sales Tax Payments Amounts. Tenant shall require, pursuant to the applicable Sublease, each Subtenant of Retail Space, PA Retail Space or Common Elements Leaseable Space that is required pursuant to the terms of its Sublease to pay percentage rent to Tenant, to keep true and complete books of record and accounts in respect of such Subtenant's business that are relevant to such percentage rent payment, in all cases in accordance with Accounting Principles, or if Accounting Principles are inapplicable to any calendar year ending expenditures, in accordance with sound accounting principles consistently applied. Such records shall be located or made available in New York City and shall be maintained as aforesaid for a period of not more less than thirty-six (366) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following years after the end of any calendar yearthe applicable Lease Year to which such records relate. Landlord and Landlord's accountants and other representatives and the Comptroller of the City (the "Comptroller") shall have the right from time to time to conduct a review of Tenant's books of record and accounts relating to the relevant matters governed by or relating to this Lease and Tenant Obligations hereunder (including Adjusted Gross Revenues, PA Retail Adjusted Gross Revenues, Roof Top Garden Adjusted Gross Revenues, Lobby Sublease Space Adjusted Gross Revenues and Sales Tax Savings) and Tenant shall cooperate with the calculation performance of royalties payable such review. Each Sublease shall provide that Landlord and Landlord's accountants and other representatives and the Comptroller shall have the right from time to time to conduct a review of such Subtenant's books of record and accounts relating to Percentage Rent payments, and shall require such Subtenant to cooperate with respect to the performance of such calendar year review. All such reviews shall occur during regular business hours and upon not less than three (3) days' prior written notice. The cost of such review shall be binding and conclusive upon borne solely by Landlord, except that if the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration results of such thirty-six review determine that Tenant (36or any such Subtenant, as applicable), whether or not inadvertently, has understated the Percentage Rent payable to Landlord (or percentage rent payments payable to Tenant, as applicable) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds more than five percent (5%) of what is owed, then Tenant (or such Subtenant in the royalty due, Licensee case of such percentage rent payments) shall pay or shall reimburse Licensor Landlord on demand for its payment of the reasonable out-of-pocket costs and expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable involved in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationreview.
Appears in 1 contract
Right to Audit. Upon written request Landlord agrees to maintain accurate books and records -------------- of Licensor, but not more than once in the Operating Costs for each calendar year nor more than once in respect to any given Operating Year (or partial Operating year) throughout the Term and for a period of three (3) years thereafter. Once per calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after LicenseeXxxxxx's receipt of such reportrequest, and if such underpayment exceeds five percent (5%) Landlord shall provide a written response to any questions that Tenant may have concerning the calculation of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses Actual Operating Costs for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periodsimmediately preceding Operating Year. In the event this Agreement is terminated of any reasonable good faith dispute or expires before uncertainty as to said amounts, Tenant shall have the right, at its own expense, to conduct an audit of Landlord's books and records relating to the determination of Operating Costs, upon reasonable prior written notice, during normal business hours for the immediately preceding Operating Year of the Term. In addition, Tenant shall have a one-time-only right to audit Operating Costs for the Base Year. Notwithstanding any such overpayment is fully crediteddispute or uncertainty, Licensor Tenant shall pay Licensee Base Rent and all additional rent in accordance with the portion terms of this Lease. If Xxxxxx, reasonably and in good faith, challenges Xxxxxxxx's computations of the Actual Operating Costs for the immediately preceding Operating Year, Tenant shall notify Landlord in writing of its objections. If Tenant's audit indicates that Tenant has been overcharged for the Actual Operating Costs, Landlord shall revise its records and xxxxxxxx accordingly; provided, however, that if Landlord disputes the findings of Xxxxxx's audit, then Landlord and Tenant shall mutually agree upon a nationally recognized firm of certified public accountants which shall conduct an independent audit (and which shall not be compensated on a contingency fee basis), and the findings of such overpayment not credited within one hundred twenty firm shall be binding on the parties hereto. Within thirty (12030) days after the date resolution of such termination dispute, the party which owes money to the other shall remit the sum owed. Subject to the following, Tenant shall be responsible for the cost of its own audit and also for the cost of any audit by an independent accounting firm; provided, however, that notwithstanding the foregoing, if Tenant's audit, or expirationif an audit was conducted by an independent accounting firm then the independent audit, determines that Tenant has been overcharged by seven and one-half percent (7 1/2%) or more for the Actual Operating Costs for the immediately preceding Operating Year of the Term, then Landlord shall pay for or reimburse Tenant for the reasonable cost of Tenant's audit, and, if an audit by an independent accounting firm was also conducted in accordance with the foregoing provisions of this Section 5. Landlord shall also pay for the cost of such independent --------- audit. If the audit determines that Tenant has been overcharged by an amount less than 5%, Landlord and Tenant will each pay for its own auditor and shall split the cost of any independent auditor making such determination.
Appears in 1 contract
Samples: Digitas Inc
Right to Audit. Upon written request Tenant or its representatives, at their sole cost and expense, shall have the right to examine Landlord’s books and records of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access Operating Costs during normal business hours to those records of Licensee as may be reasonably necessary to verify at Landlord’s property manager’s office, currently located in Austin, Texas, within thirty (30) days following the accuracy furnishing of the royalty reports hereunder summary to Tenant. If Tenant takes exception to any item, Tenant shall deliver written notice specifying the exception in respect adequate detail to Landlord not later than the fortieth day following the furnishing of the summary to Tenant. Unless Tenant so notifies Landlord of any calendar year ending such exception within forty (40) days following the furnishing of the summary to Tenant (which item shall be paid in any event), such summary shall be considered as final and accepted by Tenant. Landlord and Tenant will attempt to negotiate a resolution of such item(s) for ten (10) days after Landlord’s receipt of the written exception notice which is timely delivered. If the parties are not more than thirty-six able to come to a resolution, then Landlord shall, acting in good faith, choose a person reasonably acceptable to Tenant, experienced in commercial real estate, knowledgeable about commercial real estate operating expenses regarding industrial properties, inclusive of mixed use office/lab properties in the Austin, Texas market and unrelated to any of Landlord, Tenant, Landlord’s property manager or Tenant’s Broker and shall refer the matter to such person (36) months prior the “Operating Cost Expert”), who shall be deemed to be acting as an expert and not as an arbitrator or appraiser. The Operating Cost Expert shall make a determination of as to the date correctness of such request. Licensee shall include the item(s) to which Tenant took exception as expeditiously as possible, but in each Sublicense granted by it pursuant no event later than thirty (30) days after referral of the matter to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar yearhim or her, the calculation of royalties payable with respect to such calendar year which determination shall be conclusive and binding and conclusive upon on the parties, and Licensee and its Sublicensees . Any adjustment required as a result of the determination of the Operating Cost Expert shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment made within thirty (30) days after Licensee's receipt the Operating Cost Expert provides its determination. The party required to make payment pursuant to the decision of such reportthe Operating Cost Expert shall pay the costs of the Operating Cost Expert; provided however, and if such underpayment exceeds there is a net downward adjustment in Operating Costs required by the Operating Cost Expert’s determination which is greater than five percent (5%) of the royalty dueOperating Costs included in Landlord’s summary to Tenant, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor Landlord shall pay Licensee the portion cost of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationOperating Cost Expert; in all other instances, Tenant shall pay the Operating Cost Expert.
Appears in 1 contract
Samples: Lease Agreement (Ideal Power Inc.)
Right to Audit. Upon written request of Licensorthe non-Selling Party, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee the Selling Party shall permit an independent public accountant, selected by Licensor the non-Selling Party and acceptable to Licenseethe Selling Party, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee the Selling Party as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee The Selling Party shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's the non-Selling Party’s independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee the Selling Party and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor the non-Selling Party for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor the non-Selling Party prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor the non-Selling Party has notified Licensee the Selling Party prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licenseethe Selling Party, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's ’s report shows any underpayment of royalties, Licensee the Selling Party shall remit or shall cause its Sublicensees to remit to Licensor the non-Selling Party the amount of such underpayment within thirty (30) days after Licensee's the Selling Party’s receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee then the Selling Party shall reimburse Licensor the non-Selling Party for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expiration.)
Appears in 1 contract
Right to Audit. Upon written request Tenant shall keep, or cause to be kept, true and complete books of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor record and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder accounts in respect of any calendar year ending matters that are required by this Lease to be reported by Tenant to Landlord or that are monetary obligations governed by or relating to this Lease and Tenant Obligations hereunder, including monthly records of Lobby Sublease Space Adjusted Gross Revenues and records and calculations in respect of Theater Surcharge. Such records shall be located or made available in New York City and shall be maintained as aforesaid for a period of not more less than thirty-six (366) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following years after the end of any calendar yearthe applicable Lease Year to which such records relate. Landlord and Landlord’s accountants and other representatives and the Comptroller of the City (the “Comptroller”) shall have the right from time to time to conduct a review of Tenant’s books of record and accounts relating to the relevant matters governed by or relating to this Lease and Tenant Obligations hereunder (including Lobby Sublease Space Adjusted Gross Revenues) and Tenant shall cooperate with the performance of such review. Each Sublease shall provide that Landlord and Landlord’s accountants and other representatives and the Comptroller shall have the right from time to time to conduct a review of such Subtenant’s books of record and accounts relating to Percentage Rent payments, and shall require such Subtenant to cooperate with the calculation performance of royalties payable with respect to such calendar year review. All such reviews shall occur during regular business hours and upon not less than three (3) days’ prior written notice. The cost of such review shall be binding and conclusive upon borne solely by Landlord, except that if the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration results of such thirty-six review determine that Tenant (36or any such Subtenant, as applicable), whether or not inadvertently, has understated the Percentage Rent, payable to Landlord (or percentage rent payments payable to Tenant, as applicable) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds more than five percent (5%) of what is owed, then Tenant (or such Subtenant in the royalty due, Licensee case of such percentage rent payments) shall pay or shall reimburse Licensor Landlord on demand for its payment of the reasonable out-of-pocket costs and expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable involved in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationreview.
Appears in 1 contract
Right to Audit. Upon written request of LicensorLandlord shall have the right, but not more than once during any twelve-month period, unless Tenant fails to report Gross Receipts for six (6) consecutive months, to make independent examinations or audits of all of Tenant’s books, records and accounts which pertain to or show Gross Receipts, or to have same made by an accountant or certified public accountants designated by Landlord. Such audits shall be limited to the determination of the Gross Receipts as defined herein and shall be conducted at Tenant’s home office during normal business hours and after reasonable prior notice. If the examination or audit shows that there has been a deficiency in each calendar year nor the payment of Percentage Rent, Additional Rent or Minimum Rent, Tenant shall immediately pay to Landlord the deficiency together with interest at the rate of ten percent (10%) per annum from the date the payment should have been made. If, as a result of any audit of Tenant’s records it is determined that Gross Receipts are understated by more than once 3%, then Tenant shall also pay the reasonable cost and expenses incurred in respect connection with such audit. If Tenant shall fail to prepare and deliver any given calendar yearstatement of Gross Receipts, Licensee shall permit an independent required hereunder, within the time provided, then in addition to the remedies available to Landlord under Section 11.2, Landlord may have a certified public accountant, selected by Licensor Landlord, audit Tenant’s records and acceptable to Licenseeprepare such statements which shall be conclusive on Tenant and Tenant shall pay the expenses of such an audit and preparation of such statements and the Percentage Rent so determined, which acceptance together with the interest at the rate of ten percent (10%) per annum from the date the payment should have been made. Any information gained from statements as herein provided or any examination or audit shall be confidential and shall not be unreasonable withhelddisclosed except to carry out the purposes hereof, to have access during normal business hours to those records of Licensee as provided, however, that Landlord may be reasonably necessary to verify disclose the accuracy of the royalty reports hereunder in respect contents of any calendar year ending not more than thirty-six (36) months prior to such statements and/or audit in connection with any financing arrangements or assignment of Landlord’s interest in the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of Premises or with any calendar year, the calculation of royalties payable litigation with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability Tenant regarding Gross Receipts or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationPercentage Rent.
Appears in 1 contract
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee The Company shall permit an independent public accountant, selected by Licensor maintain complete and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those accurate records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior expenses charged to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable Company with respect to such calendar year shall be binding the Net Cash Proceeds and conclusive Specified Transaction Proceeds. During the term of this Agreement and for a period of three (3) years thereafter, upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior reasonable notice to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountantCompany, a copy of which promptly each Investor shall be provided access for auditing purposes and to Licensee, shall disclose only determine the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationCompany’s compliance with this Agreement and activities contemplated hereunder. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties Such audits shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over performed by the next-following two (2) royalty periodsInvestor or its designee and there shall be no charge to the Investor from the Company. In the event that any audit determines that the Company has failed to pay any amount due to an Investor hereunder then the Investor shall deliver to the Company a statement of the amount due to the Investors within twenty (20) Business Days following the audit determination (the “Audit Statement”). The Audit Statement shall be final and binding on the Company unless the Company delivers to the Investors an audit dispute notice (the “Audit Dispute Notice”) within ten (10) Business Days following the receipt thereof. Within five (5) Business Days following the Investors’ receipt of such Audit Dispute Notice, the Investors shall provide the Company with reasonable access to the information used to prepare and to support the Audit Statement, all in a manner not unreasonably interfering with the business of each Investor. Thereafter, the Investors and the Company shall attempt to resolve all such matters identified in the Audit Dispute Notice. If the Investors and the Company are unable to resolve all such disagreements within ten (10) Business Days after the receipt by the Investors of the Audit Dispute Notice (or such longer period as may be agreed by the Company and the Investors), then the remaining disputed matters shall be promptly submitted to the Arbitrators for binding resolution. The Arbitrators will consider only those items and amounts set forth in the Audit Statement as to which the Company and the Investors have disagreed, shall resolve such disagreements in accordance with the terms and provisions of this Agreement is terminated and shall not resolve any particular amount in dispute to be an amount less than the lowest amount claimed by one of the parties or expires before such overpayment is an amount higher than the highest amount claimed by one of the parties. The Arbitrators shall issue a written report containing a final Audit Statement setting forth their determination of the amount due to the Investors, which determination shall be final and binding upon the Company and the Investors. The fees and expenses of the Arbitrators incurred in connection with the determination of the disputed items shall be paid by the Investors and by the Company based on the relative success of their positions as compared to the final determination of the Arbitrators; provided, however, that any fees incurred by the Company shall not be deducted from the Net Cash Proceeds. The Company and the Investors shall cooperate fully creditedwith the Arbitrators and respond on a timely basis to all requests for information or access to documents or personnel made by the Arbitrators, Licensor all with the intent to fairly and in good faith resolve all disputes relating to the Audit Statement as promptly as reasonably practicable. Unless otherwise provided herein, all disputes under this Section 5.5 shall pay Licensee be settled by arbitration pursuant to Section 8.7(b). [**] Certain information in this document has been omitted and filed separately with the portion of such overpayment not credited within one hundred twenty (120) days after Securities and Exchange Commission. Confidential treatment has been requested with respect to the date of such termination or expiration.omitted portions. 13
Appears in 1 contract
Right to Audit. Upon If Tenant wishes to dispute Landlord's determination of Common Operating Costs or calculation of Tenant's Proportionate Share thereof payable by Tenant, Tenant shall give Landlord written request notice of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal such dispute within ten (10) business hours to those records of Licensee as may be reasonably necessary to verify the accuracy days after Tenant's receipt of the royalty reports hereunder statement from Landlord referred to in respect of any calendar year ending subsection C. above. If Tenant does not more than thirty-six (36) months prior give Landlord such notice within such time, Tenant hereby agrees that its right to the date dispute such determination or calculation is waived. Promptly after giving of such request. Licensee written notice, Landlord shall include meet with Tenant in each Sublicense granted by it pursuant an attempt to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of reconcile any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationoutstanding disputes. If such independent accountantefforts do not succeed, Landlord shall make its records relating to the matter in dispute reasonably available for audit and copying by Tenant and its representatives at Tenant's report shows any underpayment of royaltiessole cost. If Tenant's audit reveals a greater than ten percent (10%) variance from Landlord's calculation, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment then within thirty fifteen (3015) business days after LicenseeLandlord's receipt of notice thereof, Landlord and Tenant shall mutually agree upon an accountant to conduct an independent audit, the initial cost of which shall be borne equally by Landlord and Tenant. If Landlord and Tenant cannot so agree, then Landlord shall select a national accounting firm to conduct such reportaudit. If this independent audit reveals that the amount previously determined by Landlord was incorrect, a correction shall be made and if such either Landlord shall promptly refund any overpayment to Tenant or Tenant shall promptly pay any underpayment exceeds five to Landlord within fifteen (15) business days after receipt of the results of the audit. If the independent audit reveals a greater than ten percent (510%) of the royalty duevariance from Landlord's calculation, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor then Landlord shall pay Licensee the portion full cost of such overpayment not credited independent audit and shall within one hundred twenty fifteen (12015) business days after demand reimburse Tenant any portion thereof previously paid by Tenant. If a variance of less than ten percent (10%) is revealed, then Tenant shall pay the date full cost of such termination or expirationindependent audit and shall within fifteen (15) business days after demand reimburse Landlord for any portion thereof previously paid by Landlord. Notwithstanding the pendency of any dispute hereunder, Tenant shall make payments based upon Landlord's calculation until it has been established to be incorrect pursuant to the foregoing procedures.
Appears in 1 contract
Samples: Office Lease (PSW Technologies Inc)
Right to Audit. Upon written request Provided that no Event of LicensorDefault shall exist under this Lease at the time Tenant exercises any audit right hereunder, but not more than once in each calendar year nor more than once in respect Tenant shall have one hundred eighty (180) days after delivery of the Operating Expense Rental reconciliation statement within which to any given calendar yearcomplete an audit of Landlord's books and records concerning the Operating Expenses for the Project for such previous Calendar Year, Licensee shall permit at Tenant's sole cost and expense. Tenant, or an independent certified public accountant designated by Tenant shall have the right to inspect Landlord's books and records concerning the Operating Expenses for the Project for such previous Calendar Year during Landlord's Normal Business Hours (as defined in Exhibit C) and at Landlord's local office upon at least thirty (30) days prior written notice. Such notice shall be accompanied by a Confidentiality Agreement, substantially in the form attached hereto as Exhibit H executed by Tenant and any other person which may perform such audit for Tenant. Tenant shall be entitled to only one audit per Calendar Year during the Term and in no event shall any audit extend beyond thirty (30) days, nor shall any auditor be compensated on a contingency fee basis. In the event of an assignment, Tenant and any assignee shall together be entitled to one audit per Calendar Year. No subtenant shall have any right to conduct an audit and no assignee shall conduct an audit for any period during which such assignee was not in possession of the Premises. Tenant shall deliver to Landlord a copy of the results of such audit within ten (10) days of receipt by Tenant. In the event that Tenant's review of Landlord's books and records results in a determination that Tenant's payment of Tenant's Proportionate Share of the Operating Expenses exceeded Tenant's Proportionate 5055 Wilshire - Playboy Enterprises, Inc. - Lease 12/22/98 Share of the actual Operating Expenses which should have been passed through to Tenant, as substantiated, at Landlord's option, by an independent certified public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify then a credit in the accuracy amount of the royalty reports hereunder overpayment shall be applied towards Tenant's next monthly payments of Operating Expenses or, in respect the event no monthly estimated Operating Expenses are being paid, Landlord shall credit Basic Rent. In the event the Lease has expired, any overpayment shall be paid directly to the Tenant. Furthermore, in the event that Tenant's review of any calendar year ending not Landlord's books and records results in a determination that Tenant's payment of Tenant's Proportionate Share of Operating Expenses exceeded Tenant's Proportionate Share of the actual Operating Expenses which should have been passed through to Tenant by more than thirtyten percent (10%), as substantiated, at Landlord's option, by an independent certified public accountant using generally accepted accounting principles, then, in addition to a credit to Operating Expense Rental as described above, Landlord shall also credit Tenant against Tenant's payments of future Operating Expense Rental (or, in the event no monthly estimated Operating Expenses are being paid, Landlord shall credit Basic Rent), all out-six (36) months prior of-pocket reasonable third party expenses incurred by Tenant in conducting the review. In the event the Lease has expired, such payment shall be made directly to the date Tenant. In the event that Tenant's review of such request. Licensee shall include Landlord's books and records results in each Sublicense granted a determination that Tenant's payment of Tenant's Proportionate Share of the Operating Expenses was less than Tenant's Proportionate Share of the actual Operating Expenses which should have been passed through to Tenant, as substantiated at Landlord's option by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent certified public accountant, a copy of which promptly then Tenant shall be provided to Licensee, shall disclose only pay the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the total amount of such underpayment deficiency to Landlord within thirty (30) days after Licensee's receipt delivery of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationan invoice from Landlord.
Appears in 1 contract
Samples: Office Lease (New Playboy Inc)
Right to Audit. Upon written request (First Paragraph is Statutory) The State shall have the right to audit the Contractor’s performance of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement contract upon a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such reportdays’ written notice. Contractor shall utilize generally accepted accounting principles, and if such underpayment shall maintain the accounting records, and other records and information relevant to the contract (Information) to enable the State to audit the contract. (Neb. Rev. Stat. §84-304 et seq.) The State may audit and the Contractor shall maintain, the Information during the term of the contract and for a period of five (5) years after the completion of this contract or until all issues or litigation are resolved, whichever is later. The Contractor shall make the Information available to the State at Contractor’s place of business or a location acceptable to both Parties during normal business hours. If this is not practical or the Contractor so elects, the Contractor may provide electronic or paper copies of the Information. The State reserves the right to examine, make copies of, and take notes on any Information relevant to this contract, regardless of the form or the Information, how it is stored, or who possesses the Information. Under no circumstance will the Contractor be required to create or maintain documents not kept in the ordinary course of contractor’s business operations, nor will contractor be required to disclose any information, including but not limited to product cost data, which is confidential or proprietary to contractor. The Parties shall pay their own costs of the audit unless the audit finds a previously undisclosed overpayment by the State. If a previously undisclosed overpayment exceeds five one-half of one percent (5.5%) of the royalty duetotal contract xxxxxxxx, Licensee or if fraud, material misrepresentations, or non-performance is discovered on the part of the Contractor, the Contractor shall reimburse Licensor for its reasonable out-of-pocket expenses the State for the total costs of the audit, upon submission of supporting documentation. Any overpayment of royalties Overpayments and audit costs owed to the State shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two paid within ninety (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (12090) days after of written notice of the date claim. The Contractor agrees to correct any material weaknesses or condition found as a result of such termination the audit. MASTER AGREEMENT ACCEPTANCE PAGE FOR HIGH SPEED TRANSPORT SERVICES FOR NETWORK NEBRASKA RFPs BIDDER MUST COMPLETE THE FOLLOWING By signing this Master Agreement form, the bidder guarantees compliance with the procedures stated in this Master Agreement, and agrees to the terms and conditions and certifies that bidder maintains a drug free work place. I hereby certify that I am a Resident disabled veteran or expirationbusiness located in a designated enterprise zone in accordance with Neb. Rev. Stat. § 73-107 and wish to have preference, if applicable, considered in the award of this contract. Per Nebraska’s Transparency in Government Procurement Act, Neb. Rev Stat § 73-603 DAS is required to collect statistical information regarding the number of contracts awarded to Nebraska Contractors. This information is for statistical purposes only and will not be considered for contract award purposes.
Appears in 1 contract
Samples: Master Agreement
Right to Audit. Upon written request Landlord agrees to maintain accurate books and records of Licensor, but not more than once in the Operating Costs for each calendar year nor more than once in respect to any given Operating Year (or partial Operating year) throughout the Term and for a period of three (3) years thereafter. Once per calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after LicenseeTenant's receipt of such reportrequest, and if such underpayment exceeds five percent (5%) Landlord shall provide a written response to any questions that Tenant may have concerning the calculation of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses Actual Operating Costs for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periodsimmediately preceding Operating Year. In the event this Agreement is terminated of any reasonable good faith dispute or expires before uncertainty as to said amounts, Tenant shall have the right, at its own expense, to conduct an audit of Landlord's books and records relating to the determination of Operating Costs, upon reasonable prior written notice, during normal business hours for the immediately preceding Operating Year of the Term. In addition, Tenant shall have a one-time-only right to audit Operating Costs for the Base Year. Notwithstanding any such overpayment is fully crediteddispute or uncertainty, Licensor Tenant shall pay Licensee Base Rent and all additional rent in accordance with the portion terms of this Lease. If Tenant, reasonably and in good faith, challenges Landlord's computations of the Actual Operating Costs for the immediately preceding Operating Year, Tenant shall notify Landlord in writing of its objections. If Tenant's audit indicates that Tenant has been overcharged for the Actual Operating Costs, Landlord shall revise its records and xxxxxxxx accordingly; provided, however, that if Landlord disputes the findings of Tenant's audit, then Landlord and Tenant shall mutually agree upon a nationally recognized firm of certified public accountants which shall conduct an independent audit (and which shall not be compensated on a contingency fee basis), and the findings of such overpayment not credited within one hundred twenty firm shall be binding on the parties hereto. Within thirty (12030) days after the date resolution of such termination dispute, the party which owes money to the other shall remit the sum owed. Subject to the following, Tenant shall be responsible for the cost of its own audit and also for the cost of any audit by an independent accounting firm; provided, however, that notwithstanding the foregoing, if Tenant's audit, or expirationif an audit was conducted by an independent accounting firm then the independent audit, determines that Tenant has been overcharged by seven and one-half percent (7 1/2%) or more for the Actual Operating Costs for the immediately preceding Operating Year of the Term, then Landlord shall pay for or reimburse Tenant for the reasonable cost of Tenant's audit, and, if an audit by an independent accounting firm was also conducted in accordance with the foregoing provisions of this Section 5, Landlord shall also pay for the cost of such independent audit. If the audit determines that Tenant has been overcharged by an amount less than 5%, Landlord and Tenant will each pay for its own auditor and shall split the cost of any independent auditor making such determination.
Appears in 1 contract
Samples: Digitas Inc
Right to Audit. Upon written request Tenant shall have the right to dispute any such statement submitted by Landlord to Tenant relating to the payment of Licensorthe Increase in Expenses, Increase in Real Estate Taxes or Increase in Operating Costs, as applicable, including the accuracy thereof and the method of calculating the same, but not more than once only if (a) within twelve (12) months after Tenant’s receipt of such statement, Tenant shall have notified Landlord in each calendar year nor more than once writing of the nature of the dispute, specifying the particular respects in which the statement is claimed to be incorrect, and (b) Tenant shall have paid the statement so in dispute. In such event, Tenant shall have the right, at its own expense, to inspect and/or audit Landlord’s books and records with respect to any given calendar yearthe statement in question for a period of twelve (12) months commencing ten (10) days after Tenant’s delivery of such notice to Landlord. Such inspection or audit shall be conducted, Licensee shall permit an independent public accountantupon reasonable prior notice, selected by Licensor at Landlord’s office at a time reasonably convenient to Landlord and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access Tenant during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy hours. All costs and expenses of the royalty reports hereunder in respect of any audit shall be paid by Tenant unless the audit shows that Landlord overstated Operating Expenses or Real Estate Taxes for the subject calendar year ending not by more than thirty-six five percent (36) months prior to 5%), in which case Landlord shall reimburse Tenant for all costs and expenses of the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of Tenant’s demand for the same; provided, Landlord’s reimbursement obligation hereunder shall be limited to the costs and expenses of an audit conducted by an independent, certified public accountant paid on an hourly basis and not for the costs and expenses of any services provided on a contingency fee basis. Each statement given by Landlord in connection with this Lease shall be conclusive and binding upon Tenant unless Tenant shall have strictly and timely complied with the foregoing conditions, without any extension of such report, and if such underpayment exceeds five percent (5%) time period which may otherwise be permitted by any other terms of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationLease.
Appears in 1 contract
Samples: Lease Agreement (Ansys Inc)
Right to Audit. VAR shall maintain written records describing the use and location of all copies of the Software, including without limitation any such copies in the possession or control of VAR. Upon Nuance's written request of Licensorrequest, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee VAR shall permit an independent public accountant, selected by Licensor provide Nuance with all information and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably assistance necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior enable Nuance to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless determine (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period whether VAR has not yet been completed, categorized any or all [*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 13 VAR Agreement Number_______ Nuance Agreement Number_______ Applications in the appropriate Tier(s); and (b) Licensor has notified Licensee prior to whether any Calls are being Disconnected and Reconnected outside the expiration scope of the licenses granted herein. In connection with the foregoing obligation, VAR may provide, without limitation, data generated by the call logging features of the Software (if such thirty-six (36features are enabled), the access phone number(s) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountantfor any Application or Separate Application, a copy of which promptly any Application, Separate Application or other VAR software requested by Nuance, and other information similarly useful to enable Nuance to exercise its audit rights hereunder. Provision of such information by VAR shall not in any way restrict Nuance's right to request additional information hereunder. All information and software provided to Nuance or its agents pursuant to this Section 10.2 shall be treated as confidential by Nuance. VAR agrees that, upon written request by Nuance, VAR will assist Nuance to verify that Authorized Sublicensees are complying with the applicable licenses granted hereunder. Accordingly, VAR shall use reasonable efforts to include a provision in its agreements with all Authorized Sublicensees that such parties will provide to VAR, upon VAR's request, all assistance and information required to enable VAR to verify that Authorized Sublicensees are complying with the applicable licenses granted by VAR pursuant to this Agreement. All information provided by VAR to LicenseeNuance in connection with the foregoing obligation shall be treated by Nuance as VAR's Confidential Information. VAR shall also maintain a complete, clear, and accurate record of: (A) the location of each copy of the Software while in VAR's possession; (B) the number, type, Authorized Sublicensee identity and location for Software Sold or sublicense in an Integrated System or used internally by VAR during each calendar month; and (C) any other information which may be reasonably required by Nuance to determine whether VAR is complying with the terms of this Agreement. To ensure compliance with the terms of this Agreement, Nuance shall have the right, at its own expense and exercisable by outside auditors mutually agreed upon by the parties, to audit and to obtain copies of all such written records provided such audit does not interfere unreasonably with VAR's day to day business operations and that such auditors sign VAR's non- disclosure agreement. Such non-disclosure agreement shall be commercially reasonable and will not prohibit the auditors from disclosing their findings to Nuance. Nuance may exercise such right to audit upon reasonable advance notice to VAR, and no more frequently than one (1) time each calendar year. If any such audit should disclose only any underpayment of Fees, VAR shall promptly pay Nuance such underpaid amount, together with interest thereon at a rate of one and one-half percent (1.5%) per month or partial month during which each such amount was owed and unpaid, or the highest rate allowed by law, whichever is lower. If the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty dueamounts otherwise payable, Licensee then VAR shall immediately reimburse Licensor Nuance for its Nuance's reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationand customary audit expenses.
Appears in 1 contract
Samples: Var Agreement Number_______ Nuance Agreement (Nuance Communications)
Right to Audit. Upon written request In the event that within ninety (90) days after Tenant’s receipt of Licensor, but not more than once in each calendar year nor more than once in respect to any given the Statement for the prior calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be Tenant reasonably necessary to verify the accuracy believes that certain of the royalty reports hereunder Operating Expenses charged by Landlord include costs that are not properly included within the term “Operating Expenses” or that Landlord has erred in respect calculating same, Tenant shall have the right to audit Landlord’s books and records in accordance with this paragraph. Tenant shall exercise such audit right by providing Landlord with a written notice of any calendar year ending not more than thirty-six Tenant’s exercise of such audit right within such ninety (3690) months prior day period and a statement enumerating reasonably detailed reasons for Tenant’s objections to the date of such request. Licensee shall include in each Sublicense granted Statement issued by it pursuant to this Agreement a provision requiring Landlord (the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant“Audit Notice”). Upon the expiration receipt by Landlord of thirty-six an Audit Notice, Landlord shall instruct its property manager to meet with a designated employee of Tenant (36the “Tenant Representative”) months following to discuss the end of any calendar year, objections set forth in the calculation of royalties payable Audit Notice. Landlord shall provide the Tenant Representative with respect reasonable access to such Landlord’s books and records relating to Operating Expenses for the calendar year shall be binding in question in order to attempt to resolve the issues raised by Tenant in the Audit Notice. If, within ninety (90) days after Landlord's receipt of the Audit Notice, Landlord and conclusive upon the partiesTenant are unable to resolve Tenant's objections, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has then not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within later than thirty (30) days after Licensee's receipt the expiration of such reportninety (90) day period, and Tenant shall notify Landlord if such underpayment exceeds five percent (5%) of the royalty dueTenant wishes to employ an independent, Licensee shall reimburse Licensor reputable certified public accounting firm charging for its reasonable out-of-pocket services on an hourly rate (and not a contingent fee) basis (“Acceptable Accountants”) to inspect and audit Landlord’s books and records relating to the objections raised in Tenant's statement. Such audit shall be limited to a determination of whether or not Landlord calculated the Operating Expenses in accordance with the terms and conditions of this Lease and normal and customary accounting methods used by owners of similar buildings in the area for calculating Tenant's Additional Rent. All costs and expenses for the audit, upon submission of supporting documentationany such audit shall be paid by Tenant. Any overpayment audit performed pursuant to the terms of royalties this section shall be creditable against future royalties payable conducted only by the Acceptable Accountants at the offices of Landlord's property manager. Notwithstanding anything contained herein to the contrary, Tenant shall be entitled to exercise its audit right pursuant to this section only in subsequent royalty periods, allocated evenly over strict accordance with the next-following two (2) royalty periodsforegoing procedures no more often than once per calendar year and each such audit shall relate only to the calendar year most recently ended. In the event this Agreement is terminated or expires before that Tenant fails to notify Landlord within the foregoing ninety (90) day period that Tenant objects to the Statement, then Tenant’s right to audit such overpayment is fully credited, Licensor year’s Statement shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationbe null and void.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Texas Roadhouse, Inc.)
Right to Audit. Upon the written request of LicensorAvalon and with at least * prior written notice, but not more than once in each calendar year nor more than once in respect to any given calendar year* , Licensee and at Avalon's expense, MedImmune shall permit an independent certified public accountantaccounting firm of internationally recognized standing, selected by Licensor Avalon and acceptable to LicenseeMedImmune, which acceptance shall will not * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as * . A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. be unreasonable withheldunreasonably refused, to have access during normal business hours to those records of Licensee MedImmune as may be reasonably necessary to verify the accuracy of the milestone payments or the royalty reports hereunder furnished by MedImmune pursuant to SECTION 6.1 of this Agreement in respect of any calendar year ending not more than thirty-six (36) months * prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent certified public accountant, a copy of which promptly shall be provided to Licensee, shall accounting firm will disclose only the conclusions of the accounting firm regarding the audit and specify the amount of any underpayment or overpayment overpayment, and will not include copies of royalties, if any, without disclosure any books or records reviewed. A copy of such report will be sent or reference otherwise provided to supporting documentationMedImmune by such accounting firm at the same time it is sent or otherwise provided to Avalon. No other information obtained by the accounting firm will be shared with Avalon. If such independent accountantthe accounting firm's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days * after LicenseeMedImmune 's receipt of such report, and if MedImmune shall remit to Avalon the amount of such underpayment. If the underpayment exceeds five percent (5%) is in excess of the royalty due* , Licensee then MedImmune shall reimburse Licensor for its reasonable also remit to Avalon an amount equal to Avalon's substantiated out-of-pocket expenses for costs of the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion refunded to MedImmune by Avalon within * of such overpayment not credited within one hundred twenty (120) days after the date Avalon receives the written report of the accounting firm. Avalon shall treat all financial information subject to review under this SECTION 6.2 as Confidential Information of MedImmune and shall cause its accounting firm to retain all such termination or expirationfinancial information in confidence under terms at least as restrictive as those set forth in ARTICLE 8.
Appears in 1 contract
Samples: Collaboration and License Agreement (Avalon Pharmaceuticals Inc)
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in Seller acknowledges that Purchaser may cause to be prepared audited financial statements with respect to any given calendar yearthe Property in compliance with the policies of Purchaser and certain laws, Licensee shall permit an independent public accountantincluding applicable regulations (Rule 3-14 of Regulation S-X) promulgated by the Securities and Exchange Commission. Seller shall, selected at no cost to Seller, use commercially reasonable efforts to cooperate with Purchaser’s auditors in the preparation of such audited financial statements (including making available for interview, with reasonable advance notice from Purchaser, by Licensor Purchaser and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records Purchaser’s auditors the management personnel of Licensee as may be reasonably necessary to verify Seller who are responsible for the accuracy day-to-day operation of the royalty reports hereunder Property and the keeping of the books and records in respect of the operation of the Property if still employed by Seller), for three (3) years after Closing. In addition, if Seller has audited financial statements, Seller shall during the course of such three (3) year period after the Closing promptly upon request of Purchaser provide Purchaser with a copy of any calendar year ending not more than thirtysuch audited financial statements for the most-six (36) months recent period for which they have been prepared. Seller acknowledges that any such audit may require review of records existing for up to three years prior to the date of Closing, and Seller shall make available to Purchaser any records in Seller’s possession or reasonable control covering such requestperiod. Licensee If, after the Closing Date, Seller obtains an audited financial statement for a fiscal period prior to the Closing Date that was not completed as of the Closing Date, then Seller shall include in each Sublicense granted upon request from Purchaser promptly provide Purchaser with a copy of such audited financial statement. Seller acknowledges that providing any such audited financial statements to Purchaser does not necessarily obviate Purchaser’s need to perform Purchaser’s own audit. Purchaser agrees to indemnify and hold harmless Seller and the Related Parties from any claim, damage, loss, or liability to which Seller and/or the Related Parties is at any time subjected by it pursuant any person who is not a party to this Agreement as a provision requiring result of Seller’s compliance with this Section, except to the Sublicensee to keep and maintain records of sales made pursuant to extent any such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar yearclaim, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the partiesdamage, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completedloss, or (b) Licensor has notified Licensee prior liability arises from Seller’s fraud or intentional misrepresentation. Notwithstanding any provision herein to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountantcontrary, a copy of which promptly shall be no information provided to Licensee, shall disclose only the amount of or obtained by Purchaser as in connection with any underpayment financial statements or overpayment of royalties, if any, without disclosure of financial and reporting information that is provided or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days obtained after the date of this Agreement shall serve as a basis for any claim, damage, loss, or liability by or against Seller and/or the Related Parties, any and all such termination claims, damages, loss, or expirationliability being hereby waived by Purchaser, except to the extent any such claim, damage, loss, or liability arises from Seller’s fraud or intentional misrepresentation. The provisions of this Section shall survive the Closing of this Agreement.
Appears in 1 contract
Samples: Lease Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Right to Audit. Upon written request Within 60 days after Landlord furnishes its estimate of Licensor, but not more than once in each Additional Rental for any calendar year nor more than once (the “Audit Election Period”), Tenant may, at its expense, elect to audit Actual Operating Expenses for such calendar year only, subject to the following conditions: (1) there is no uncured event of default under the Lease (following the expiration of any applicable notice and cure period provided in respect to any given calendar year, Licensee the Lease); (2) the audit shall permit be prepared by an independent certified public accountantaccounting firm of recognized regional standing; (3) in no event shall any audit be performed by a firm retained on a “contingency fee” basis; (4) the audit shall commence within 30 days after Landlord makes Landlord’s books and records available to Tenant’s auditor and shall conclude within 60 days after commencement; (5) the audit shall be conducted during Landlord’s normal business hours at the location where Landlord maintains its books and records and shall riot unreasonably interfere with the conduct of Landlord’s business; (6) Tenant and its accounting firm shall treat any audit in a confidential manner (except for such disclosures as may be required by applicable Law or court order) and shall each execute Landlord’s confidentiality agreement for Landlord’s benefit prior to commencing the audit; and (7) the accounting firm’s audit report shall, selected at 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 Licensor and acceptable Landlord shall be incorporated into the final audit report. Notwithstanding the foregoing, Tenant shall have no right to Licensee, which acceptance conduct an audit if Landlord furnishes to Tenant an audit report for the calendar year in question prepared by an independent certified public accounting firm of recognized national standing (whether originally prepared for Landlord or another party). This paragraph shall not be unreasonable withheldconstrued to limit, suspend, or xxxxx Tenant’s obligation to have access during normal business hours pay Basic Rental or Additional Rental when due. Landlord shall credit any overpayment determined by the final approved audit report against the next amounts due and owing by Tenant or, if no further amounts are due, refund such overpayment directly to those records Tenant within 30 days of Licensee as may be reasonably necessary to verify determination. Likewise, Tenant shall pay Landlord any underpayment determined by the accuracy final approved audit report within 30 days of determination. The foregoing obligations shall survive the expiration or termination of the royalty reports hereunder in respect Lease. If Tenant does not give written notice of any calendar year ending not more than thirty-six (36) months prior its election to audit Actual Operating Expenses during the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring Audit Election Period, Actual Operating Expenses for the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such applicable calendar year shall be binding and conclusive upon the partiesdeemed approved for all purposes, and Licensee Tenant shall have no further right to review or contest the same. The right to audit granted hereunder is personal to Westwood Management Corp. and its Sublicensees to any assignee under a Permitted Transfer and shall not be released from available to any liability or accountability with respect to royalties subtenant under a sublease of the Premises. If the audit proves that Landlord’s calculation of Actual Operating Expenses for the calendar year under inspection was overstated by more than five percent (5%), then, after verification, Landlord shall pay Tenant’s actual reasonable out-of-pocket audit and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior inspection fees applicable to the expiration review of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment said calendar year statement within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationTenant’s invoice therefor.
Appears in 1 contract
Samples: Ninth Modification of Office Lease (Westwood Holdings Group Inc)
Right to Audit. Upon written request of LicensorNotwithstanding anything to the contrary contained in the Lease, but not Tenant shall have the right, at its own cost and expense and no more often than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an to audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior Landlord’s books and records with respect to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared Operating Expenses incurred by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only Landlord in the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, operation and if such underpayment exceeds five percent (5%) maintenance of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses Property for the auditpreceding calendar year only, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over accordance with the next-following two (2) royalty periodsprocedure. In the event this Agreement is terminated that Tenant desires to so audit Landlord’s books and records for the preceding calendar year, Tenant shall provide Landlord with not less than ten (10) days prior written notice of its intent to so audit Landlord’s books and records. Any such audit shall be performed at Landlord’s principal place of business (or expires before such overpayment is fully creditedother place as Landlord’s books and records are kept), Licensor and shall be performed by a certified public accountant. The results of such audit shall be presented to Landlord, along with the work papers of the certified public accountant performing the audit. Landlord shall have not less than ten (10) business days thereafter to review the results of the audit and to inform Tenant in writing of whether or not Landlord accepts the results of such audit. In the event that Landlord provides Tenant with written notice that it accepts the results of such audit within such ten (10) business day period, it shall be deemed that Landlord and Tenant agree to the results of such audit, and within ten (10) business days thereafter, Landlord shall pay Licensee to Tenant, or Tenant shall pay to Landlord, as applicable, any overpayment or underpayment of the portion Tenant’s Share of Operating Expenses for the preceding calendar year as revealed by the audit. In the event that Landlord either (i) fails to provide Tenant with such notice within such ten (10) business day period, or (ii) provides Tenant with notice that Landlord disputes the results of such overpayment not credited audit within one hundred twenty such ten (12010) days after business day period, Landlord and Tenant shall met as soon as practicable thereafter to review Landlord’s specific objections to the date validity of such termination audit and to negotiate a mutually acceptable agreement with respect to the results of audit. Within ten (10) business days following such agreement between Landlord and Tenant as to the results of the audit, Landlord shall pay to Tenant, or expirationTenant shall pay to Landlord, as applicable, any overpayment or underpayment of the Tenant’s Share of Operating Expenses for the preceding calendar year as mutually agreed to by Landlord and Tenant. The Lease is hereby amended accordingly.
Appears in 1 contract
Right to Audit. Upon written request The Licensor shall have the right to hire an independent auditor to audit the books and records of Licensor, but not more than once in each calendar year nor more than once in the Licensee with respect to any given calendar year, all transactions regarding the Deliverables and the Licensed Products in accordance with the following provisions: (i) the Licensee shall permit an independent public accountant, selected by Licensor and acceptable be given written notice of such audit at least __ days prior to Licensee, which acceptance the commencement thereof; (ii) such audit shall not be unreasonable withheld, to have access conducted during normal business hours hours; (iii) the Licensor may exercise this right to those records audit no more frequently than once every 12 months; (iv) the independent auditor shall be either: (a) one of Licensee the big four accounting firms; or (b) such other firm as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior acceptable to the date Licensee; (v) the independent auditor shall agree in writing to maintain the confidentiality of all information received in such request. Licensee audit except that the independent auditor shall include in each Sublicense granted by it pursuant disclose to this Agreement a provision requiring the Sublicensee Licensor any information relating to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar yearDeliverables, the calculation Licensed Products, and the royalties payable to the Licensor under this Agreement; (vi) the independent auditor shall be allowed to examine and audit all books, records, and accounts as may under recognized accounting practices contain information bearing upon the amount of royalties payable to the Licensor under this Agreement; (vii) the Licensee agrees to cooperate fully with any such audit; (viii) the parties agree to accept as final and binding any rulings and findings by such auditor and to pay promptly any amounts due to the other party with respect to any period audited; and (ix) the fees of such calendar year independent auditor shall be binding and conclusive upon paid by the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment unless the audit shows a shortfall in amounts received by the Licensor of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to at least $__________; in which case the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse the Licensor for its reasonable out-of-pocket expenses promptly for the reasonable costs and expenses of such audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationincluding accountants' and attorneys' fees incurred therewith.
Appears in 1 contract
Samples: Development and License Agreement
Right to Audit. Upon written request If Tenant disputes the amount set forth in the Annual Statements, Tenant shall have the right, at Tenant’s sole expense, not later than one hundred twenty (120) days following receipt of Licensorthe Annual Statements, but not more than once in each calendar year nor more than once to cause Landlord’s books and records in respect to any given the calendar year, Licensee shall permit an year which is the subject of the Annual Statement to be audited by a nationally or regionally recognized independent certified public accountant, selected by Licensor and accountant or other certified public accountant mutually acceptable to Licensee, which acceptance Landlord and Tenant. 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. Tenant shall have no right to conduct an audit or to give Landlord notice that it desires to conduct an audit at any time that there is an uncured Event of Default under the Lease. The accountant conducting the audit shall be compensated by Tenant on an hourly or flat fee basis and shall not in any manner be unreasonable withheldcompensated based upon a percentage of overcharges it discovers or on any other contingency fee basis. No subtenant shall have any right to conduct an audit, and no assignee shall conduct an audit for any period during which such assignee was not the tenant under the Lease. Tenant’s right to have access during normal business hours undertake an audit with respect to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within expire one hundred twenty (120) days after Tenant’s receipt of the date Annual Statement for such Operating Year, and such Annual Statement shall be final and binding upon Tenant and shall, as between the parties, be conclusively deemed correct, at the end of such 120-day period, unless prior thereto Tenant shall have given Landlord written notice of its intention to audit operating costs for the calendar year which is the subject of the Annual Statement. If Tenant gives Landlord written notice of its intention to audit Building Expenses, Tenant must commence such audit within thirty (30) days after such notice is delivered to Landlord, and the audit must be completed within ninety (90) days after such notice is delivered to Landlord. If Tenant does not commence and complete the audit within such periods, the Annual Statement that Tenant elected to audit shall be deemed final and binding upon Tenant and shall, as between the parties, be conclusively deemed correct. Tenant agrees that the results of any audit shall be kept strictly confidential by Tenant and shall not be disclosed to any other person or entity (other than Tenant’s accountants, attorneys and advisors) except as required by law. The time frames hereunder shall be extended for Landlord delays and force majeure delays. Any overpayments of Building Expenses or Taxes by Tenant shall be credited or refunded as provided herein, and any underpayments shall be paid to Landlord. if Tenant’s audit hereunder shows that the Building Expenses or Taxes so reviewed were overstated by Landlord by more than five percent (5%), then Landlord shall reimburse Tenant for the actual reasonable out-of-pocket costs and expenses incurred by Tenant in such audit; provided that the amount of such reimbursement shall be based on a reasonable hourly rate and reasonable out-of-pocket expenses and not on any contingent fee. This provision shall survive the termination or expirationexpiration of this Lease.
Appears in 1 contract
Right to Audit. Upon written request Buyer agrees to keep records showing gross sales and collections of Licensorall sales in sufficient detail to enable the payments required hereunder to be determined, but not more than once in each calendar year nor more than once in and Buyer further agrees to permit its books and records with respect to any given such gross sales and collections to be examined once per calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheldupon forty eight (48) hours written notice, to have access the extent necessary to verify the correctness of the payments made to Sellers for the prior Annual Payment Period. Such examination will be made during normal business hours to those records at Buyer's place of Licensee as business at the expense of Sellers by an auditor appointed by Sellers (and who may be reasonably necessary to verify the accuracy an employee or agent of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's seller or an independent accountant. Upon the expiration of thirty-six (36, at Seller's choice) months following the end of any calendar year, the calculation of royalties payable with respect who shall report to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only Sellers on the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationpayments owed for the period under audit. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor Any deficiency in the amount paid by Buyer versus the audited payments required of Buyer as determined by such underpayment audit shall be paid by Buyer with 10% simple interest on the amount underpaid within thirty (30) days after Licenseeof receipt by Buyer of a copy of the auditor's report and a notice from Seller of the additional amounts due, unless disputed by Buyer. If Buyer does dispute the auditor's report, Buyer shall provide to Seller a detailed justification of its dispute. If Seller and Seller's auditor still feel an underpayment has occurred and further work is required to reconcile the disputed amount, Seller shall appoint an independent auditor different from the prior auditor to re-examine the books and records of Buyer, and report to Seller the results of this second audit, which shall be independent of the first audit. If Seller, based upon the results of both audits feels there is still an amount underpaid and due from Buyer, then Seller shall notify Buyer within 30 days of the date of the independent auditor's report of the amount underpaid. Buyer shall remit the audited deficiency to Sellers within 30 days from Buyer's receipt of said notice of the results of such reportaudits plus 10% simple interest on the deficiency unless Buyer still disputes the auditor's reports. If so, Buyer shall provide to Seller a detailed justification for its dispute. Buyer shall then retain its own independent auditor which shall audit the amount due versus the amount paid for the applicable period, and the result of Buyer's auditor's findings shall be averaged with the average result of the Seller's auditors. Buyer shall remit the averaged deficiency to Sellers within 30 days from Buyer's receipt of notice of the results of such averaged deficiency plus 10% simple interest on the deficiency. If the amount ultimately determined due to Sellers (exclusive of interest) is greater than 10% of the amount previously paid to Sellers, then Buyer shall pay for the costs of the Seller's audit, and if such underpayment exceeds five percent (5%) there is a second audit and it does not confirm the validity of Buyer's dispute, Buyer shall pay the costs of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the second audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expiration.
Appears in 1 contract
Samples: Purchase Agreement (Ethika Corp)
Right to Audit. Upon written request of LicensorIf, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after LicenseeTenant's receipt of the Expense Statement, Tenant notifies Landlord that Tenant desires to audit or review all materials, invoices or receipts related to the Expense Statement, Landlord shall cooperate with Tenant to permit such reportaudit or review during normal business hours, and if all costs and expenses incurred in connection therewith shall be paid by Tenant; provided, however, in lieu of permitting such underpayment exceeds five percent audit or review by Tenant, Landlord shall have the right in its sole discretion to provide such an audit or review prepared by a certified public accountant of any Big 5 firm at Tenant's choosing and expense. The failure of Tenant to notify Landlord that Tenant desires an audit within thirty (5%30) days of Tenant's receipt of the royalty dueExpense Statement shall constitute an acceptance by Tenant of the Expense Statement and a waiver by Tenant of its right to audit for such calendar year. If Tenant commences an audit in accordance with this Section, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for then such audit and the Tenant's auditor's report must be completed within sixty (60) days of Tenant's notice to Landlord of Tenant's desire to audit, upon submission and failure of supporting documentationTenant to complete the audit within such sixty (60) day period shall constitute an acceptance by Tenant of the Expense Statement for such calendar year. Any overpayment If Landlord does not agree on the results of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two Tenant's auditor's report within thirty (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (12030) days after following delivery of Tenant's auditor's report to Landlord, then Landlord may commence arbitration with respect to the date matters disputed in Tenant's audit by notice to Tenant ("Arbitration Notice"). The failure of such termination or expiration.Landlord to provide an Arbitration Notice within sixty (60) days of Tenant's delivery of the Tenant's auditor's report to Landlord shall constitute a
Appears in 1 contract
Samples: Brightpoint Inc
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to Within 180 days from the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royaltiesAdjustment, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) but in no event later than 210 days after Licensee's receipt the end of such reporteach calendar year, Tenant shall have the right to dispute the Taxes and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses Operating Costs for the audit, upon submission prior calendar year and conduct an audit of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over same pursuant to the next-following two (2) royalty periodsprovisions set forth herein. In the event this Agreement is terminated or expires before such overpayment is fully creditedTenant disputes the amount of Operating Costs and Taxes for a prior calendar year, Licensor Landlord shall pay Licensee the portion permit Tenant, within 180 days of such overpayment not credited within one hundred twenty (120) days after the date of the Adjustment but in no event later than 210 days from the end of the particular calendar year, at Tenant’s sole cost and expense upon at least (10) ten days prior written notice to Landlord to have an audit made of Landlord’s books, records, and accounts relative to the Taxes and Operating Costs for such termination prior year by Tenant’s in house accountants, or expirationa reputable independent certified public accountant or Tenant’s counsel. Such inspection shall be made on such date and time reasonably set by Landlord in Landlord’s office during normal business hours. If such audit is not completed by Tenant within 180 days from the date of the Adjustment and if no Adjustment has been made, within 210 days from the end of the particular calendar year, Tenant shall have no further right of audit for that particular calendar year and the amount claimed to be owed by Landlord shall be conclusive and binding on Tenant. Notwithstanding anything to the contrary contained herein, Tenant or Tenant’s authorized representative (as set forth above) may conduct such audit no more than one (1) time during any twelve (12) month period. If the examination made by the Tenant discloses a discrepancy in the Taxes and Operating Costs charged to the Tenant, Tenant shall contest such charge within such 180 day period or 210 day period as set forth above. In the event that Tenant does not provide written notice to Landlord of Tenant’s intent to dispute or contest such expenses within such 180 day or 210 day period, as applicable, or if Tenant’s audit is not completed within such 180 or 210 day period, as applicable, Tenant waives the right to dispute or contest the Taxes and Operating Costs for the prior year. It is further understood and agreed that Tenant, Tenant’s accountant and Tenant’s outside counsel will retain as confidential the information contained in the above-described books, records and accounts.
Appears in 1 contract
Samples: Lease Agreement (Medquist Inc)
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement County shall reasonably and in good faith dispute the correctness of any Statement, County shall have the right to audit Landlord’s books and records relating to the Statement (and not any previous Statement) provided such audit is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within conducted no later than one hundred twenty (120) days after following receipt of such Statement and the County identifies in its audit notice to Landlord the portion of the Statement that the County is disputing. In no event shall an audit by County be conducted on a contingency basis, nor shall an audit by County be conducted on any other similar basis where a portion of the auditor’s compensation is tied to the results of the audit. County shall provide Landlord not less than ten (10) business days’ notice of the date on which County’s independent certified public accountant/auditor desires to examine Landlord’s non-confidential or non-proprietary books and records during Landlord’s regular business hours, and Landlord shall reasonably cooperate with such auditor. If such audit shows that the amounts paid by County to Landlord on account of increases in such charges exceeded the amounts to which Landlord was entitled hereunder in accordance with the applicable provision of this Lease, then provided that Landlord is not disputing the results of such termination audit, Landlord shall refund to County the amount of such excess within thirty (30) days of the date Landlord is notified in writing of the error (which notice shall contain reasonably detailed information substantiating such error). If such audit shows that the amounts paid by County to Landlord on account of increases in such charges were less than the amounts to which Landlord was entitled hereunder, County shall pay to Landlord as Additional Rent the amount of such shortfall within forty-five (45) days of the date County is notified. All costs and expenses of any such audit shall be paid by County, except if such audit discloses that the amounts paid by County to Landlord exceeded the amounts to which Landlord was entitled by more than three percent (3%), in which case Landlord shall promptly reimburse County for the reasonable costs and expenses incurred by County in such audit. County shall keep the results of any such audit strictly confidential, and such results shall be considered confidential business and financial information under applicable law, except to the extent reasonably required to be revealed in any legal action between Landlord and County relating to Operating Expenses. County shall not be entitled to delay any payment under this Lease during the pendency of any such inspection, audit or expirationdispute.
Appears in 1 contract
Samples: Lease Agreement
Right to Audit. Upon written request of LicensorSo long as Tenant has paid in full any amount owing under an Annual Additional Rent Notice, but not more than once in each calendar year nor more than once in respect Tenant may, at any time after at least ten (10) days’ notice to any Landlord given calendar yearwithin six (6) months after Tenant receives that Annual Additional Rent Notice from Landlord, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those review Landlord’s records of Licensee as Expenses and Taxes for the time period covered by that Annual Additional Rent Notice. The review must be performed by a qualified independent certified public accountant (“CPA”) or commercial brokerage firm that is not paid on a contingency fee basis, and shall be completed at Landlord’s corporate offices unless all such information is made available on-line (and no information other than real estate tax bills may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released removed from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar yearthat location), unless (a) an audit requested by Licensor prior Landlord in its sole discretion permits Tenant to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationconduct its review electronically. If such independent accountant's Tenant does not complete the review and deliver to Landlord a report shows any underpayment requesting correction of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount Landlord’s determination of such underpayment Expenses and Taxes within thirty ninety (3090) days after Licensee's receipt Tenant delivers to Landlord notice of such reportits intent to audit, Tenant shall be deemed to have waived its right to object set forth in this Section 2.2(E). If Tenant’s review of Landlord’s books and records discloses that Tenant’s Pro Rata Share of Expenses and Taxes paid by Tenant for the period under review exceeded the actual amount properly allocable to Tenant, then, so long as Landlord agrees with that determination, Landlord shall credit against Tenant’s next accruing Rent obligations an amount equal to the excess (or shall deliver to Tenant a refund of that excess amount, if such underpayment exceeds the excess relates to the last year of the Term), and, if Tenant’s Pro Rata Share of Expenses and Taxes paid by Tenant for the period under review exceeded one hundred five percent (5105%) of the royalty dueactual amount properly allocable to Tenant, Licensee Landlord shall reimburse Licensor Tenant for its any and all reasonable out-of-pocket expenses for costs incurred by Tenant in connection with such audit. If Landlord and Tenant are unable to agree on the audit, upon submission amount of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited excess paid by Tenant within one hundred twenty (120) days after the date of such termination or expiration.sixty
Appears in 1 contract
Right to Audit. Upon written request During the term of Licensorthis Agreement and for three (3) years thereafter, Licensee agrees to keep all usual and proper records, including but not limited to the CPO Annual Reports, Student records, books of account and all usual and proper entries relating to the Courses. Records and books of account include, but are not more than once in each calendar year nor more than once in respect limited to, information regarding the number of Courses purchased by Licensee and Courses distributed to any given calendar yearStudents by Licensee. Upon request, Licensee shall permit add Licensor as an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records administrator and/or trainer on their Ministry portal for the limited purpose of Licensee as may be reasonably necessary to verify confirming the accuracy of the royalty reports hereunder CPO Annual Reports provided to Licensor undersection 3(b) of this Agreement. Licensor may cause an audit and/or inspection to be made of the applicable Licensee records in respect order to verify statements issued by Licensee and Licensee’s compliance with the terms of any calendar year ending not more than thirty-six (36) months prior this Agreement. An inspection may be conducted by Licensor or its designee and an audit shall be conducted by an independent certified public accountant or other similar designee as selected by Licensor. Such auditor shall provide a summary of its findings regarding its verification of the statements by Licensee and Licensee’s compliance with the terms of this Agreement. Licensee agrees to provide Licensor's designated audit or inspection team access to the date of such requestrelevant Licensee records. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring pay Licensor the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the full amount of any underpayment or overpayment revealed by the audit plus interest from the date such payments were due under the terms of royaltiesthis section 3. Notwithstanding the foregoing, if any, without disclosure such audit reveals an underpayment by Licensee of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royaltiesmore than three percent (3%) for the period covered by the audit report, Licensee shall remit or shall cause its Sublicensees to remit to Licensor pay all of the fees and costs associated with such audit and the amount of underpaid with interest from the date such underpayment within thirty (30) days after Licensee's receipt of such reportpayment was due pursuant to this section 3. Furthermore, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses grants the right for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over Ministry to release Course specific student data to the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationLicensor.
Appears in 1 contract
Samples: Program License Agreement
Right to Audit. Upon written request of LicensorSo long as Tenant has paid in full any amount owing under an Annual Additional Rent Notice, but not more than once in each calendar year nor more than once in respect Tenant may, at Tenant’s sole cost and expense, at any time after at least five (5) days notice to any Landlord given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's Tenant receives such Annual Additional Rent Notice from Landlord, review Landlord’s records of each of Taxes and Expenses for the time period covered by such Annual Additional Rent Notice, to the extent such records are reasonably necessary for Tenant to conduct its audit. If any records are maintained at a location other than the management office for the Building or the Premises, Tenant may either inspect the records at such other location or pay for the reasonable cost of copying and shipping the records. Any such review and correction requested by Tenant must be completed and requested within ninety (90) days of Tenant’s receipt of the Annual Additional Rent Notice in question or Tenant’s right to object shall be deemed waived. The records obtained by Tenant shall be treated as confidential. If Tenant’s review of Landlord’s books and records discloses that Tenant’s Pro Rata Share of Taxes and/or Expenses paid by Tenant for the period under review exceeded the actual amount properly allocable to Tenant (an “Overpayment”), then, so long as Landlord agrees with such reportdetermination by Tenant, Landlord shall promptly pay to Tenant an amount equal to the Overpayment. In no event shall Tenant use an auditor who is compensated in any manner on a contingency or similar fee basis. If Landlord and if such underpayment exceeds five percent (5%) Tenant are unable to agree on the amount of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two excess paid by Tenant within thirty (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (12030) days after the date ninety (90) day period referred to above, then Tenant shall have the right, within five (5) days after the expiration of such termination or expirationextended period to submit such dispute for resolution by binding arbitration with a mutually acceptable certified public accountant (a “CPA”) having not less than five (5) years experience with respect to the auditing and review of operating expense statements office buildings in the Denver Metropolitan Area. If Landlord and Tenant cannot agree on a CPA within fifteen (15) days of Landlord’s receipt of Tenant’s election to submit such dispute to arbitration, then within five (5) days thereafter, each shall select a CPA and within ten (10) days thereafter, the two appointed CPAs shall select a third CPA and the third CPA shall be the arbitrator to resolve such dispute.
Appears in 1 contract
Samples: Lease Agreement (AntriaBio, Inc.)
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within Within one hundred twenty (120) days (except as provided in Section 1(a)(2) with respect to the Base Year) after receipt of any Statement referred to in (b) above, an independent certified public account retained by Tenant (“Auditor”) shall have the right, at Tenant’s expense, to inspect Landlord’s Operating Expenses records relating to the Lease Year covered by the Statement. The inspection must be completed within ninety (90) days of: Landlord’s making such records available to Tenant. No such inspection may be conducted on a contingency basis by the Auditor (and therefore no portion of the fee or other compensation payable to the Auditor may in any way be tied to the results of such inspection), and any such inspection conducted on such basis shall be deemed void for the purposes hereof, and Tenant hereby waives and further rights to inspect Landlord’s records relating to Operating Expenses following the performance of an inspection on such basis. No subtenant shall have any right to conduct an inspection and no assignee shall conduct an inspection for any period prior to the effective date of the assignment of the Lease. The results of such termination inspection and any information obtained during the performance thereof shall be kept confidential by Tenant and its Auditor, and at Landlord’s request, such Auditor must agree in writing (in a commercially reasonable form) to keep such results and information confidential and not to reveal the same to any parties other than Landlord and Tenant. Before conducting any inspection, Tenant must pay the full amount of Tenant’s Proportionate Share of Operating Expense Increases billed and other Rent due. Tenant may review only those records of Landlord that are specifically related to Operating Expenses. The inspection shall be conducted in a location in the Northern Virginia, Washington, D.C. metropolitan area and at a reasonable time determined by Landlord. Upon receipt thereof, but in any event, no later than thirty (30) days following the conduct of such inspection, Tenant will deliver to Landlord a copy of the written report procured as a result of the inspection and all accompanying data. Tenant may not conduct an inspection more often than once each Lease Year. Tenant may inspect records only with respect to the Lease Year in question. The parties shall negotiate in good faith to resolve any disputes that arise out of any such inspection. If such inspection by Tenant’s Auditor (as the results thereof are finally agreed upon by Landlord and Tenant) conclusively reveals that Landlord overstated Operating Expenses for the Lease Year in question by more than four percent (4%), then Landlord shall reimburse Tenant the reasonable out-of-pocket third party costs of Tenant in conducting such inspection up to a maximum of Five Thousand and 00/100 Dollars ($5,000.00). Any over payment or expirationunderpayment of Operating Expense Increases revealed by such inspection shall be refunded by Landlord or paid by Tenant within thirty (30) days.
Appears in 1 contract
Samples: Dulles Town Center (Trex Co Inc)
Right to Audit. Upon written request of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy If Tenant disputes Landlord’s determination of the royalty reports hereunder in respect actual amount of Operating Expenses for any calendar year ending and Tenant delivers to Landlord written notice of the dispute (the “Audit Notice”) within ninety (90) days after Landlord’s delivery of the Operating Expense Statement, then Tenant, upon prior written notice and during regular business hours at a time (not more later than thirtyforty-six five (3645) months prior days following timely delivery of the applicable Audit Notice) and place reasonably acceptable to Landlord (which may be the location where Landlord maintains the applicable records), may at Tenant’s sole cost cause a certified public accountant reasonably acceptable to Landlord and not compensated on a contingency basis to audit Landlord’s records relating to the date disputed amounts contained in the applicable Operating Expense Statement and produce a report detailing the results of such requestthe audit. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring If the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period report shows that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference Estimated Additional Rent actually paid by Tenant to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor Landlord during the relevant Operating Year was greater than the actual amount of Operating Expenses owed by Tenant for such underpayment Operating Year then Landlord will refund the excess amount to Tenant, within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) Landlord receives a copy of the royalty dueaudit report. If the audit report shows that the amount of Estimated Additional Rent actually paid by Tenant to Landlord during the relevant Operating Year was less than the actual amount of Operating Expenses owed by Tenant for such Operating Year then Tenant will pay the deficiency to Landlord, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two within thirty (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (12030) days after Landlord receives a copy of the date audit report. If it is ultimately determined that Tenant’s Estimated Additional Rent payments during any Operating Year exceeded the actual amount of Operating Expenses owed by Tenant for such termination Operating Year by more than [*], Landlord shall reimburse Tenant for the actual out of pocket costs incurred by Tenant for the preparation of the audit report, not to exceed [*] with respect to any single audit. Tenant agrees that the results of any audit shall be kept strictly confidential by Tenant and shall not be disclosed to any other person or expirationentity. 4.
Appears in 1 contract
Samples: Disturbance Agreement (Seagen Inc.)
Right to Audit. Upon written request Landlord agrees to maintain accurate books and records -------------- of Licensor, but not more than once in the Operating Costs for each calendar year nor more than once in respect to any given (or partial Operating year) throughout the Term and for a period of three (3) years thereafter. Once per calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after LicenseeTenant's receipt of such reportinformation regarding actual Operating Costs for the prior calendar year, Landlord shall provide a written response to any questions that Tenant may have concerning the calculation of the actual Operating Costs for the immediately preceding calendar year. Within thirty (30) days of receipt of information from Landlord, in the event of any reasonable good faith dispute or uncertainty as to said amounts, Tenant shall, upon reasonable prior written notice, and if such underpayment exceeds five percent (5%) during normal business hours, have the right, at its own expense, to conduct an audit of Landlord's books and records relating to the determination of Operating Costs, for the immediately preceding calendar year of the royalty dueTerm. Tenant agrees to conduct such audit in a reasonably diligent manner and in no event will Tenant allow any such audit to continue for longer than forty-five (45) days from the date Tenant commences such audit. Upon request, Licensee Tenant and Tenant's auditor agree to execute Landlord's standard form confidentiality agreement regarding such audit. Notwithstanding any such dispute or uncertainty, Tenant shall reimburse Licensor for its reasonable out-of-pocket expenses pay Base Rent and all additional rent in accordance with the terms of this Lease. If Tenant, reasonably and in good faith, challenges Landlord's computations of the actual Operating Costs for the immediately preceding calendar year, Tenant shall notify Landlord in writing of its objections. If Tenant's audit indicates that Tenant has been overcharged for the actual Operating Costs, Landlord shall revise its records and xxxxxxxx accordingly; provided, however, that if Landlord disputes the findings of Tenant's audit, then Landlord and Tenant shall mutually agree upon submission a nationally recognized firm of supporting documentation. Any overpayment certified public accountants which shall conduct an independent audit (and which shall not be compensated on a contingency fee basis), and the findings of royalties such firm shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over binding on the next-following two parties hereto. Within thirty (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (12030) days after the date resolution of such termination dispute, the party which owes money to the other shall remit the sum owed. Subject to the following, Tenant shall be responsible for the cost of its own audit and also for the cost of any audit by an independent accounting firm; provided, however, that notwithstanding the foregoing, if Tenant's audit, or expirationif an audit was conducted by an independent accounting firm then the independent audit, determines that Tenant has been overcharged by seven percent (7%) or more for the actual Operating Costs for the immediately preceding calendar year of the Term, then Landlord shall pay for or reimburse Tenant for one-half the reasonable cost of Tenant's audit, and, if an audit by an independent accounting firm was also conducted in accordance with the foregoing provisions of this Section5.f, Landlord shall also pay for the cost of such independent audit. If the audit determines that Tenant has been overcharged by an amount less than seven percent (7%), Landlord and Tenant will each pay for its own auditor and shall split the cost of any independent auditor making such determination.
Appears in 1 contract
Samples: I Lease (American Ecology Corp)
Right to Audit. Upon written request of LicensorNo more frequently than once per calendar quarter during the Term, but not and no more than once in each calendar the two (2) year nor more than once in respect period following the end of the Term, LICENSOR shall have the right to any given calendar year, Licensee shall permit review or to appoint an independent public accountantthird-party auditor, selected by Licensor at LICENSOR’ s sole cost and acceptable expense (except as set forth below), to Licenseeaudit the books, records and other files and materials of LICENSEE (including, without limitation, accounting records, written financial policies and procedures, receipts, invoices, ledgers, cancelled checks, deposit slips, bank statements, journals, fmancial statements, filings with governmental agencies and filings or submissions made in connection with loan applications) to confirm LICENSEE’s calculation of the fees due to LICENSOR under this Agreement (including, without limitation, the Monthly License Payments), which acceptance materials LICENSEE shall not be unreasonable withheldmaintain during the Term and for a period of three (3) years thereafter. LICENSOR shall keep confidential and, if applicable, cause its independent third-party auditor to have access keep confidential, any such materials and information reviewed, including the results of its review of such materials, except as required by law, legal proceeding or to enforce its rights under this Agreement. LICENSOR may exercise such right of audit during normal business hours upon three (3) business days’ prior written notice to those LICENSEE. LICENSEE shall cooperate with LICENSOR and its auditor and shall make its books, records and other materials referenced in this Paragraph available in the performance of Licensee as may be reasonably necessary any audit. If an audit identifies underpayment by LICENSEE to verify the accuracy LICENSOR in excess of one-half of one percent (.5%) of the royalty reports hereunder in respect total amount of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant Monthly License Payment or any other payment subject to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar yearaudit, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless then: (a) LICENSEE shall reimburse LICENSOR within five (5) days of notification thereof in an audit requested by Licensor prior amount equal to expiration of such thirty-six (36) months period has not yet been completed, or underpayment; (b) Licensor has notified Licensee prior to LICENSEE shall reimburse LICENSOR for the expiration total costs of the audit; and (c) following such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountantevent, a copy the frequency limits for the audits in the first sentence of which promptly this Paragraph shall be provided eliminated, and LICENSOR (or an independent third-party auditor) may conduct audits at any reasonable time, upon prior notice to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentationLICENSEE. If such independent accountant's report shows any an audit discovers substantive findings related to fraud or misrepresentation on the part of LICENSEE, or an underpayment to LICENSOR in excess of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the total amount of Monthly License Payments subject to such audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable then in subsequent royalty periodsaddition to the remedies in the previous sentence, allocated evenly over the next-following two (2) royalty periods. In the event LICENSOR may immediately terminate this Agreement is terminated and pursue any other remedies available to it hereunder or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination in law or expiration.equity
Appears in 1 contract
Samples: Master Facility License Agreement (Omnia Wellness Inc.)
Right to Audit. Upon written request (a) Sublicensee shall keep and maintain complete and accurate records concerning all aspects of Licensorthe manufacture and sale of the Products. ECC or its designee (the "Representative") shall have the right, but not more than once in each calendar year nor more than once in respect at ECC's expense, periodically to any given calendar yearreview those records and operations of Sublicensee which deal with the design, Licensee shall permit an independent public accountantmanufacture, selected by Licensor shipment and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access sale of Products. Such reviews may take place only during the normal business hours of Sublicensee and only upon written notice to those records Sublicensee given at least three (3) business days prior to such review. The Representative conducting such review shall be required to execute a confidentiality agreement pursuant to which the Representative shall agree that it will not disclose or use the information obtained pursuant to such review to or for the benefit of Licensee as may any person or entity except ECC unless required to do so in connection with the resolution of any dispute concerning any payment required by this Agreement. (b) If any such review reveals, in the opinion of ECC, that Sublicensee has not paid to ECC the full amount of any payment due hereunder for the period covered by such review, ECC shall give the Sublicensee written notice (the "Review Notice") of such discrepancy. The Review Notice shall be reasonably necessary to verify accompanied by a written report prepared by ECC or the accuracy Representative setting forth, in reasonable detail, the basis of the royalty reports hereunder alleged underpayment. If Sublicensee does not notify ECC that Sublicensee disputes the findings set forth in respect such report, it shall pay to ECC the full amount of any calendar year ending not more than thirty-six (36) months prior to the underpayment in question within 15 days of the date of such requestreceipt of the Review Notice. Licensee All underpaid amounts shall include bear interest from the date upon which the payment in each Sublicense granted by question should have been made until it pursuant to this Agreement a provision requiring is actually paid at the Sublicensee to keep and maintain records lending interest rate of sales made pursuant to such sublicense and to grant prime (as published in the same right of access to such records to Licensor's independent accountantWall Street Journal on the last previous business day). Upon the expiration of thirty-six (36) months following the end of any calendar year, the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royaltiesAdditionally, if anySublicensee agrees to make the underpayment specified in the Review Notice, without disclosure Sublicensee shall also reimburse ECC for the actual costs of the review if the underpayment amount is 5% or reference to supporting documentation. If such independent accountant's report shows any underpayment more of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, Royalty payment due during the period in question and if such underpayment exceeds five percent (5%) $100,000 in amount. In all other cases, ECC shall pay all expenses and fees of the royalty duereview, Licensee shall reimburse Licensor for its reasonable 8 including all out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable actually and reasonably incurred by Sublicensee in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationconnection therewith.
Appears in 1 contract
Right to Audit. Upon written request Tenant shall keep, or cause to be kept, true and complete books of Licensor, but not more than once in each calendar year nor more than once in respect to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor record and acceptable to Licensee, which acceptance shall not be unreasonable withheld, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder accounts in respect of matters that are required by this Lease to be reported by Tenant to Landlord or that are monetary obligations governed by or relating to this Lease and Tenant Obligations hereunder, including monthly records of Adjusted Gross Revenues, Roof Top Garden Adjusted Gross Revenues and Lobby Sublease Space Adjusted Gross Revenues and records and calculations in respect of Theater Surcharge. Tenant shall require, pursuant to the applicable Sublease, each Subtenant of PA Retail Space that is required pursuant to the terms of its Sublease to pay percentage rent to Tenant, to keep true and complete books of record and accounts in respect of such Subtenant’s business that are relevant to such percentage rent payment, in all cases in accordance with Accounting Principles, or if Accounting Principles are inapplicable to any calendar year ending expenditures, in accordance with sound accounting principles consistently applied. Such records shall be located or made available in New York City and shall be maintained as aforesaid for a period of not more less than thirty-six (366) months prior to the date of such request. Licensee shall include in each Sublicense granted by it pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following years after the end of any calendar yearthe applicable Lease Year to which such records relate. Landlord and Landlord’s accountants and other representatives and the Comptroller of the City (the “Comptroller”) shall have the right from time to time to conduct a review of Tenant’s books of record and accounts relating to the relevant matters governed by or relating to this Lease and Tenant Obligations hereunder (including Adjusted Gross Revenues, Roof Top Garden Adjusted Gross Revenues and Lobby Sublease Space Adjusted Gross Revenues) and Tenant shall cooperate with the calculation performance of royalties payable such review. Each Sublease shall provide that Landlord and Landlord’s accountants and other representatives and the Comptroller shall have the right from time to time to conduct a review of such Subtenant’s books of record and accounts relating to Percentage Rent payments, and shall require such Subtenant to cooperate with respect to the performance of such calendar year review. All such reviews shall occur during regular business hours and upon not less than three (3) days’ prior written notice. The cost of such review shall be binding and conclusive upon borne solely by Landlord, except that if the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration results of such thirty-six review determine that Tenant (36or any such Subtenant, as applicable), whether or not inadvertently, has understated the Percentage Rent, payable to Landlord (or percentage rent payments payable to Tenant, as applicable) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds more than five percent (5%) of what is owed, then Tenant (or such Subtenant in the royalty due, Licensee case of such percentage rent payments) shall pay or shall reimburse Licensor Landlord on demand for its payment of the reasonable out-of-pocket costs and expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable involved in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationreview.
Appears in 1 contract
Right to Audit. Upon written request The COUNTY reserves the right to require the CONSULTANT to submit to an audit, by any auditor of Licensor, but not more than once in each calendar year nor more than once in respect the COUNTY’s choosing. The CONSULTANT shall provide access to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor and acceptable to Licenseeall of its records, which acceptance relate directly or indirectly to this Agreement at its place of business during regular business hours. The CONSULTANT shall not be unreasonable withheld, retain all records pertaining to have access during normal business hours this Agreement and upon request make them available to those records the COUNTY for three (3) complete calendar years following expiration of Licensee the Agreement. The CONSULTANT agrees to provide such assistance as may be reasonably necessary to verify facilitate the accuracy review or audit by the COUNTY to ensure compliance with applicable accounting and financial standards. If the CONSULTANT provides technology services, the CONSULTANT must provide Statement of Standards for Attestations Engagements (SSAE) 16 or 18 and System and Service Organization Control (SOC) reports upon request by the COUNTY. The SOC reports must be full Type II reports that include the CONSULTANT’s description of control processes, and the independent auditor’s evaluation of the royalty design and operating effectiveness of controls. The cost of the reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to will be paid by the date of such requestCONSULTANT. Licensee shall include in each Sublicense granted by it If an audit inspection or examination pursuant to this Agreement a provision requiring the Sublicensee to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end section discloses overpricing or overcharges of any calendar year, nature by the calculation of royalties payable with respect to such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior CONSULTANT to the expiration COUNTY in excess of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five one percent (51%) of the royalty duetotal contract xxxxxxxx, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses in addition to making adjustments for the auditovercharges, upon submission the reasonable actual cost of supporting documentationthe COUNTY’s audit must be reimbursed to the COUNTY by the CONSULTANT. Any overpayment adjustments or payments which must be made as a result of royalties shall any such audit or inspection of the CONSULTANT’s invoices or records must be creditable against future royalties payable made within a reasonable amount of time, but in subsequent royalty periodsno event may the time exceed ninety (90) calendar days, allocated evenly over from presentation of the next-following two (2) royalty periodsCOUNTY’s audit findings to the CONSULTANT. In This provision is hereby considered to be included within, and applicable to, any subcontractor agreement entered into by the event CONSULTANT in performance of any work under this Agreement is terminated or expires before such overpayment is fully credited, Licensor shall pay Licensee the portion of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationAgreement.
Appears in 1 contract
Samples: lakecountyfl.gov
Right to Audit. Upon written If Owners request verification of LicensorContractor’s Costs claimed by Contractor [***] or for any Work performed or provided on a Time and Materials Basis, but not more than once in each calendar year nor more than once in respect Owners or Owners’ independent auditor shall examine and audit Contractor’s records and books related to those costs and provide a report to Owners. Owners’ audit right also shall apply to Contractor’s books and records that pertain to any given calendar year, Licensee shall permit an independent public accountant, selected by Licensor Change Order or to [***]. Such audit will be conducted during business hours and acceptable provide each Owner with a reasonable opportunity to Licensee, which acceptance verify that all costs and charges have been properly invoiced in accordance with the terms of this Agreement. Owners shall not be unreasonable withheld, entitled to have access during normal business hours audit any information that would enable Owners to those records of Licensee as may be reasonably necessary to verify determine the accuracy of the royalty reports hereunder in respect make-up of any calendar year ending not more than thirty-six (36) months prior lump sum, or any fixed or established amounts, rates or multipliers permitted under this Agreement [***]; provided, however that Owners shall be permitted such information for the limited purposes of determining [***]. If an audit by the auditor reveals charges to or paid by Owners as charges or fees which are incorrectly charged, then Owners shall be entitled upon demand for a refund from Contractor of such plus interest since the date of payment of the over-charges at a rate equal to the Prime Rate plus one percent (1%). Likewise, if an audit or if an examination by any state or local taxing agency reveals additional Sales Tax to be imposed upon Contractor for under collection of tax from Owners on a taxable sale, then Contractor shall be entitled, upon demand, for a refund from Owners of all such request. Licensee shall include in each Sublicense granted by it amounts actually paid, subject to the following proviso: Contractor acknowledges and agrees that Owners will remit any and all Sales Tax due to the State of Georgia or any taxing jurisdiction thereof directly to the Georgia Department of Revenue (“DOR”) pursuant to this Agreement a provision requiring “Direct Pay Permit” issued to Owners by the Sublicensee DOR, which Owners shall also provide to keep and maintain records of sales made pursuant to such sublicense and to grant the same right of access to such records to Licensor's independent accountant. Upon the expiration of thirty-six (36) months following the end Contractor, thereby relieving Contractor of any calendar year, the calculation of royalties payable with respect obligation to collect and remit such calendar year shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to the expiration of such thirty-six (36) months period that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of any underpayment or overpayment of royalties, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds five percent (5%) of the royalty due, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable Sales Tax in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periodsGeorgia. In the event this Agreement is terminated that the DOR or expires before such overpayment is fully creditedany other Georgia taxing authority attempts to collect Sales Tax from Contractor with respect to any taxable sale to Owners, Licensor Contractor shall pay Licensee notify Owners of same and Owners shall provide to Contractor and the portion Georgia taxing jurisdiction evidence of payment of such overpayment not credited within one hundred twenty (120) days after Sales Tax pursuant to the date Direct Pay Permit. Should such taxing jurisdiction continue to pursue the collection of such termination Sales Tax from Contractor notwithstanding the receipt of evidence from Owners that such Sales Tax has been paid, Owners shall have right, but not the obligation, to contest Contractor’s liability for such Sales Tax on Contractor’s behalf in any administrative or expirationjudicial proceedings that may arise with respect thereto. Notwithstanding anything in this Section to the contrary, Owners shall not be restricted from any audit rights that they are required to have in order to comply with applicable Laws, including without limitation the requirements of the NRC.
Appears in 1 contract
Right to Audit. Upon written request Notwithstanding anything in Paragraph 4(c) above to the contrary, following the delivery by Landlord of Licensoreach Expense Statement, but not more than once in each calendar year nor more than once in respect Tenant shall have a period of ninety (90) days to any given calendar yearreview and audit Landlord's books and records regarding such Expense Statement, Licensee shall permit an independent public accountant, selected by Licensor and acceptable such review or audit to Licensee, which acceptance shall not be unreasonable withheld, to have access take place during normal business hours in Landlord's offices and to those be completed within seven (7) days after the commencement thereof. If Tenant does not so review or audit Landlord's books and records, Landlord's Expense Statement shall be final and binding upon Tenant. In the event that Tenant determines on the basis of its review of Landlord's books and records that the amount of Licensee as may be reasonably necessary to verify the accuracy of the royalty reports hereunder in respect of any calendar year ending not more than thirty-six (36) months prior to the date of such request. Licensee shall include in each Sublicense granted Expenses paid by it Tenant pursuant to this Agreement a provision requiring Paragraph 4 for the Sublicensee period covered by such Expense Statement is less than or greater than the actual amount properly payable by Tenant under the terms of this Lease, Tenant shall promptly pay any deficiency to keep and maintain records Landlord or Landlord shall promptly refund any excess payment to Tenant, as the case may be; provided, however, that if Landlord disagrees with the results of sales made pursuant to such sublicense and to grant the same right of access to such records to LicensorTenant's independent accountant. Upon the expiration of thirty-six (36) months following the end of any calendar yearaudit, the calculation dispute shall be submitted to an independent nationally recognized accounting firm mutually agreed upon by Landlord and Tenant and the determination of royalties payable with respect to such calendar year accounting firm shall be binding and conclusive upon the parties, and Licensee and its Sublicensees shall be released from any liability or accountability with respect to royalties (and Licensor for an overpayment of royalties) for such calendar year, unless (a) an audit requested by Licensor prior to expiration of such thirty-six (36) months period has not yet been completed, or (b) Licensor has notified Licensee prior to . If the expiration of such thirty-six (36) months period independent accounting firm determines that such audit has revealed a discrepancy regarding such calculation. The report prepared by such independent public accountant, a copy of which promptly shall be provided to Licensee, shall disclose only the amount of Tenant's payments of Expenses for such period is less than or greater than the actual amount properly payable by Tenant under the terms of this Lease, Tenant shall promptly pay any underpayment deficiency to Landlord or Landlord shall promptly refund any excess payment to Tenant, as the case may be. Tenant shall pay the cost of its audit of Landlord's books, and records. The costs of any independent accounting firm shall be paid by Tenant unless such firm determines that the overpayment of royaltiesExpenses by Tenant, if any, without disclosure of or reference to supporting documentation. If such independent accountant's report shows any underpayment of royalties, Licensee shall remit or shall cause its Sublicensees to remit to Licensor the amount of such underpayment within thirty (30) days after Licensee's receipt of such report, and if such underpayment exceeds equals five percent (5%) or more of the royalty due, Licensee shall reimburse Licensor actual Expenses payable by Tenant for its reasonable out-of-pocket expenses for the period covered by the audit, upon submission of supporting documentation. Any overpayment of royalties shall be creditable against future royalties payable in subsequent royalty periods, allocated evenly over the next-following two (2) royalty periods. In the event this Agreement is terminated or expires before such overpayment is fully credited, Licensor which case Landlord shall pay Licensee the portion costs of such overpayment not credited within one hundred twenty (120) days after the date of such termination or expirationindependent accounting firm.
Appears in 1 contract