Common use of Books and Records; Audits Clause in Contracts

Books and Records; Audits. 10.1 Licensee shall maintain complete and accurate books of account and records as required under this Agreement (including the originals or copies of documents supporting entries in the books of account) covering all transactions relating to this Agreement and/or the distribution and sale of Articles, including but not limited to invoices, credits and shipping documents. At any reasonable time during the Term and for three (3) years thereafter, Licensor may, upon five (5) days prior written notice to Licensee, cause an audit to be made of Licensee's records and documents relating to this Agreement, but in no event more than twice in any Annual Period. Any such audit performed by Licensor or Licensor's certified public accountant or other auditing professional shall be conducted so as to minimize disruption to Licensee's business operations. All such records and documents shall be kept available for at least five (5) years from the date thereof, including after the end of the Term, but in any event no less than the applicable period required by law. 10.2 If, as a result of any audit of Licensee's books and records, such audit discloses a deficiency in the payment of any amount due hereunder, such deficiency shall become immediately due and payable with interest at the rate provided in Paragraph 13.1 below from the date when such payment should have been made, provided that Licensee may contest in good faith a finding of deficiency, or the amount thereof, which objection shall be resolved by good faith negotiation of the parties or pursuant to the arbitration provisions set forth in Section 18 hereunder. In the event the deficiency for any 12 month period shall be in excess of * (excluding mathematical, clerical, or similar good-faith error) of the amount actually paid for the subject period, Licensee shall pay to Licensor upon demand the cost of such audit as well as all costs associated with two (2) subsequent actual audits. In the event such a deficiency should occur on more than one occasion, or if the deficiency in any 12 month period is in excess of * (excluding mathematical, clerical, or similar good-faith error), then Licensee shall be deemed in default, and Licensor, in addition to all other remedies at law, in equity or otherwise provided herein, shall have the option to terminate this Agreement upon ten (10) days notice.

Books and Records; Audits. 10.1 Licensee (a) LICENSEE shall maintain complete keep and shall cause its Affiliates and sub-licensees to keep full and accurate books of account accounting records related to the Net Sales in sufficient detail and records as required under this Agreement in compliance with internationally recognized accounting standards, provided that if LICENSEE uses accounting standards other than GAAP, it shall provide LICENSOR with sufficient information for LICENSOR to calculate Net Sales in accordance with GAAP accounting records, together with all necessary supporting data, shall be kept for not less than ten (including the originals or copies of documents supporting entries in the books of account10) covering all transactions relating to this Agreement and/or the distribution and sale of Articles, including but not limited to invoices, credits and shipping documents. At any years. (b) Upon reasonable time during the Term and for three (3) years thereafter, Licensor may, upon five (5) days prior written notice to LicenseeLICENSEE, cause LICENSOR shall have the right to have an audit to be made of Licensee's records and documents relating to this Agreement, but in no event more than twice in any Annual Period. Any such audit performed by Licensor or Licensor's independent certified public accountant or other auditing professional selected by LICENSOR and reasonably acceptable to LICENSEE to audit during office hours, on a strictly confidential (even towards LICENSOR) basis, LICENSEE's, its Affiliates’ and sub-licensees’ records pertaining to Net Sales to verify all payments made hereunder; provided, however, that such audit shall not (a) take place more frequently than once in a Calendar Year, nor (b) cover records for more than the preceding [***] ([***]) years. For the avoidance of doubt, each annual record can be audited once only. (c) The final result (but not the details of the audit itself nor LICENSEE’s financial data) of the audit setting forth whether and to what total extent the accounting of Net Sales rendered for the audited period needs corrections shall be conducted so as to minimize disruption to Licensee's business operations. All such records shared with LICENSOR and documents shall be kept available for at least five final and binding on the Parties. Any necessary adjustment in payments (5whether overpayment or underpayment) years from the date thereof, including after the end shall be settled within sixty (60) days of receipt of the Termfinal results of the audit. (d) The fees and expenses of an audit shall be borne by LICENSOR; provided, but in any event no less however, that if an audit reveals that LICENSEE underpaid by more than the applicable period required by law. 10.2 If, as a result lesser of any audit of Licensee's books and records, such audit discloses a deficiency in the payment of any amount due hereunder, such deficiency shall become immediately due and payable with interest at the rate provided in Paragraph 13.1 below from the date when such payment should have been made, provided that Licensee may contest in good faith a finding of deficiency, USD [***] or the amount thereof, which objection shall be resolved by good faith negotiation of the parties or pursuant to the arbitration provisions set forth in Section 18 hereunder. In the event the deficiency for any 12 month period shall be in excess of * [***] percent (excluding mathematical, clerical, or similar good-faith error[***] %) of the amount actually paid that was payable for the subject periodperiod of the audit, Licensee shall pay then LICENSEE shall, in addition to Licensor upon demand paying immediately to LICENSOR any such shortfall, reimburse LICENSOR for the cost of such audit as well as all costs associated with two (2) subsequent actual audits. In the event such a deficiency should occur on more than one occasion, or if the deficiency in any 12 month period is in excess of * (excluding mathematical, clerical, or similar good-faith error), then Licensee shall be deemed in default, and Licensor, in addition to all other remedies at law, in equity or otherwise provided herein, shall have the option to terminate this Agreement upon ten (10) days noticeaudit.

Books and Records; Audits. 10.1 Licensee (a) Jansxxx xxxll keep and maintain, and shall cause its Permitted Sublicensees and assigns to keep and maintain, complete and accurate records and books of account (including without limitation customer call reports and other information required to confirm the accuracy of Jansxxx'x xxxhodology for allocating the time of its sales staff between selling the Rx Product in the United States and such staff's other responsibilities) in sufficient detail and form so as to enable amounts payable under Sections 6.3 and 6.4 above to be determined. Such records and books of account shall be maintained for a period of no less than two (2) years following the calendar year to which they pertain. Jansxxx xxxll permit such records and books of account to be examined by Sepracor or Sepracor's duly appointed agent(s) no more than once each calendar year, to the extent necessary for Sepracor to verify such amounts. Such examination shall be during normal business hours, upon twenty (20) days' prior written notice to Jansxxx, xxd at Sepracor's expense unless the examination should establish that Jansxxx'x xxxment of such royalties (and payment of Sepracor's share of Operating Income, in the case of Section 6.5 above) for the period examined were less than ninety-five percent (95%) of the -38- 39 royalties and share which should have been paid, in which case Jansxxx xxxll be responsible for the reasonable expenses of such examination. Audits related to Products sold as part of a bundle shall be conducted by an independent accounting firm which shall disclose to Sepracor only whether the calculated invoice price for such Products is consistent with the terms of this Agreement and Jansxxx'x xxxmal business practices for pharmaceutical products not licensed from a third party and the specific details concerning any discrepancies. (b) If Jansxxx xxxrcises its option described in Section 2.3 above, then Sepracor shall keep and maintain complete and accurate records and books of account and records as required under this Agreement (including without limitation customer call reports and other information required to confirm the originals or copies accuracy of documents supporting entries Sepracor's methodology for allocating the time of its sales staff between selling the Rx Product in the United Stated and such staff's other responsibilities) in sufficient detail and form so as to enable the amounts of Marketing and Technology Costs incurred by Sepracor with respect to Rx Products sold in United States to be determined. Such records and books of account) covering all transactions relating to this Agreement and/or the distribution and sale account shall be maintained for a period of Articles, including but not limited to invoices, credits and shipping documents. At any reasonable time during the Term and for three no less than two (32) years thereafterfollowing the calendar year to which they pertain. Sepracor shall permit such records and books of account to be examined by Jansxxx xx Jansxxx'x xxxy appointed agent(s) no more than once each calendar year, Licensor mayto the extent necessary for Jansxxx xx verify such amounts. Such examination shall be during normal business hours, upon five twenty (520) days days' prior written notice to LicenseeSepracor, cause an audit and at Jansxxx'x xxxense unless the examination should establish that Sepracor's claims with respect to such Marketing and Technology Costs for the period examined were more than one hundred five percent (105%) of the Marketing and Technology Costs which were actually incurred for such period, in which case Sepracor shall be responsible for the reasonable expenses of such examination. (c) Prompt adjustment shall be made by the proper Party to compensate for any errors or omissions disclosed by such examinations. Information obtained during the course of Licensee's records and documents relating to this Agreement, but in no event more than twice in any Annual Period. Any such audit performed by Licensor or Licensor's certified public accountant or other auditing professional shall be conducted so as to minimize disruption to Licensee's business operations. All such records and documents an examination shall be kept available for at least five (5) years from confidential by the date thereofexamining Party and its agents, including after the end of the Term, but in any event no less than the applicable period required by law. 10.2 If, as a result of any audit of Licensee's books and records, such audit discloses a deficiency in the payment of any amount due hereunder, such deficiency shall become immediately due and payable with interest at the rate provided in Paragraph 13.1 below from the date when such payment should have been made, provided that Licensee may contest in good faith a finding of deficiency, or the amount thereof, which objection shall be resolved by good faith negotiation of the parties or pursuant except to the arbitration provisions set forth in Section 18 extent necessary to enforce the examining Party's rights hereunder. In the event the deficiency for any 12 month period shall be in excess of * (excluding mathematical, clerical, or similar good-faith error) of the amount actually paid for the subject period, Licensee shall pay to Licensor upon demand the cost of such audit as well as all costs associated with two (2) subsequent actual audits. In the event such a deficiency should occur on more than one occasion, or if the deficiency in any 12 month period is in excess of * (excluding mathematical, clerical, or similar good-faith error), then Licensee shall be deemed in default, and Licensor, in addition to all other remedies at law, in equity or otherwise provided herein, shall have the option to terminate this Agreement upon ten (10) days notice.

Books and Records; Audits. 10.1 Licensee Notwithstanding Section 6.1 to the contrary, Buyer and its Affiliates shall maintain complete keep full, true and accurate books of account sufficient to determine the amounts payable pursuant to this Section 2.4. Seller shall have the right to have the books and records as required of Buyer and its Affiliates audited by a qualified independent certified public accounting firm selected by Seller, subject to Buyer’s approval, which approval shall not be unreasonably withheld or delayed, under appropriate confidentiality provisions, to ascertain the accuracy of the reports and payments under this Agreement (including the originals or copies of documents supporting entries in the books of account) covering all transactions relating to this Agreement and/or the distribution and sale of Articles, including but Section 2.4 for any year ending not limited to invoices, credits and shipping documents. At any reasonable time during the Term and for three (3) years thereafter, Licensor may, upon five (5) days prior written notice to Licensee, cause an audit to be made of Licensee's records and documents relating to this Agreement, but in no event more than twice thirty-six (36) months prior to the date of such request. For the avoidance of doubt, Seller’s audit right shall extend to ascertaining the accuracy of Development Costs and reimbursed costs and expenses which have been excluded in any Annual Perioddetermining Buyer Licensed Party Consideration. Any such Such audit performed by Licensor or Licensor's certified public accountant or other auditing professional shall be conducted so as to minimize disruption to Licensee's business operations. All such records and documents shall be kept available for upon at least five ten (510) years from days’ advance written notice during normal business hours, not more than once in each year, and in a manner that does not interfere unreasonably with the date thereof, including after the end business of the Termaudited entity. The accounting firm shall disclose to Seller only whether such reports are correct or incorrect and the specific details concerning any discrepancies. Subject to Buyer’s right to dispute such amounts, but in any event no less than the applicable period required underpayment determined by law. 10.2 If, as a result of any audit of Licensee's books and records, such audit discloses a deficiency in the payment of any amount due hereunder, such deficiency shall become immediately due and payable with interest at the rate provided in Paragraph 13.1 below from the date when such payment should have been made, provided that Licensee may contest in good faith a finding of deficiency, or the amount thereof, which objection shall promptly be resolved paid by good faith negotiation of the parties or pursuant Buyer after delivery to the arbitration provisions set forth in Section 18 hereunder. In the event the deficiency for any 12 month period shall be in excess of * (excluding mathematical, clerical, or similar good-faith error) of the amount actually paid for the subject period, Licensee shall pay to Licensor upon demand the cost Buyer of such audit as well as all costs associated with two (2) subsequent actual auditsaccounting firm’s report so concluding. In the event such accounting firm concludes that amounts were overpaid by Buyer during such period, subject to Seller’s right to dispute such amounts, Seller shall promptly repay Buyer the amount of such overpayment after delivery to Buyer and Seller of such accounting firm’s written report so concluding. Seller and Buyer shall treat all financial information subject to review under this Section 2.4(e) in accordance with the confidentiality provisions of this Agreement and shall cause the accounting firm selected by it to enter into a deficiency should occur on customary and mutually satisfactory confidentiality agreement with Buyer obligating such firm to retain all such financial information in confidence pursuant to such confidentiality agreement. If Buyer has underpaid an amount due under this Section 2.4 by more than one occasionten percent (10%) of the Royalties due hereunder for the period being reviewed, or if Buyer shall reimburse Seller for the deficiency reasonable fees and costs charged by such accounting firm (with all fees and costs of the audit to be borne by Seller in any 12 month period is in excess of * (excluding mathematical, clerical, or similar good-faith error), then Licensee shall be deemed in default, and Licensor, in addition to all other remedies at law, in equity or otherwise provided herein, shall have the option to terminate this Agreement upon ten (10) days noticecases).

Books and Records; Audits. 10.1 Licensee (a) Lilly shall maintain keep and maintain, and shall cause Permitted Sublicensees and assigns to keep and maintain, complete and accurate records and books of account in sufficient detail and records form so as required to enable amounts payable under this Agreement (including the originals or copies of documents supporting entries in the books of account) covering all transactions relating Article 3 to this Agreement and/or the distribution and sale of Articles, including but not limited to invoices, credits and shipping documentsbe determined. At any reasonable time during the Term and for three (3) years thereafter, Licensor may, upon five (5) days Upon [**] prior written notice from Sepracor, Lilly shall permit an independent certified public accounting firm of nationally recognized standing selected by Sepracor, at Sepracor's expense, to Licenseehave access during normal business hours to audit pertinent books and records of Lilly, cause its Permitted Sublicensees and assigns as may be reasonably necessary to verify the accuracy of the royalty reports hereunder. The audit shall be limited to pertinent books and records for any year ending not more than [**] prior to the date of such request. Such audit shall be at Sepracor's expense unless the examination should establish that Lilly's payment of such royalties for the period examined were in error by [**] or more of the royalties which should have been paid, in which case Lilly shall be responsible for the reasonable expenses of such audit. An audit under this Section 3.11 shall not occur more than once in any calendar year. Lilly may designate competitively sensitive information, which such auditor may not disclose to Sepracor, provided, however, Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. that such designation shall not encompass the auditor's conclusions, whether the royalty reports are correct or incorrect, or the specific details concerning any discrepancies. (b) Prompt adjustment shall be made by Lilly or Sepracor, as appropriate, to compensate the other for any errors or omissions revealed by an audit to be made under this Section 3.11. Information obtained during the course of Licensee's records and documents relating to this Agreement, but in no event more than twice in any Annual Period. Any such an audit performed by Licensor or Licensor's certified public accountant or other auditing professional shall be conducted so as to minimize disruption to Licensee's business operations. All such records and documents shall be kept available for at least five (5) years from the date thereofconfidential by Sepracor and its agents, including after the end of the Term, but in any event no less than the applicable period required by law. 10.2 If, as a result of any audit of Licensee's books and records, such audit discloses a deficiency in the payment of any amount due hereunder, such deficiency shall become immediately due and payable with interest at the rate provided in Paragraph 13.1 below from the date when such payment should have been made, provided that Licensee may contest in good faith a finding of deficiency, or the amount thereof, which objection shall be resolved by good faith negotiation of the parties or pursuant except to the arbitration provisions set forth in Section 18 extent necessary to enforce Sepracor's rights hereunder. In the event the deficiency for any 12 month period shall be in excess of * (excluding mathematical, clerical, or similar good-faith error) of the amount actually paid for the subject period, Licensee shall pay to Licensor upon demand the cost of such audit as well as all costs associated with two (2) subsequent actual audits. In the event such a deficiency should occur on more than one occasion, or if the deficiency in any 12 month period is in excess of * (excluding mathematical, clerical, or similar good-faith error), then Licensee shall be deemed in default, and Licensor, in addition to all other remedies at law, in equity or otherwise provided herein, shall have the option to terminate this Agreement upon ten (10) days notice.

Books and Records; Audits. 10.1 (a) Licensee shall maintain prepare and maintain, in such manner as will allow its accountants to audit same in accordance with generally accepted accounting principles, separate, complete and accurate books of account and records as required under this Agreement (specifically including the originals or copies of documents supporting entries in the books of account) covering all transactions arising out of or relating to this Agreement. Licensor and its duly authorized representatives, may, during regular business hours at times agreed upon by the Parties and with at least thirty (30) days prior written notice, for the duration of this Agreement and/or the distribution and sale of Articles, including but not limited to invoices, credits and shipping documents. At any reasonable time during the Term and for three (3) years thereafter, Licensor may, upon five (5) days prior written notice to Licensee, cause an audit to be made said books of Licensee's account and records and examine all other documents relating and material in the possession or under the control of Licensee as necessary to verify Licensee’s compliance with its obligations under this Agreement; and Licensor shall have free and full access thereto for said purposes and for the purpose of making abstracts therefrom and copies thereof. All copies and information accessed, but produced or obtained in no event more than twice in any Annual Periodconnection with such audit is the Confidential Information of Licensee and shall be protected as such under Section 4 of the Collaboration Agreement. Any such audit performed by Licensor or Licensor's certified public accountant or other auditing professional shall be commenced within such period may continue through completion in the ordinary course; provided, that such audit is conducted so as in a manner designed to minimize disruption to Licensee's business operations’s business. All such books of account, records and documents documents, including computer records, shall be kept available by Licensee for at least five three (53) years from the date thereof, including (or such longer period as required by law) after the end of the Term, but in any event no less than term of this Agreement and through the applicable period required by law. 10.2 If, as a result completion of any audit commenced prior to the end of Licensee's books and records, such period. (b) If any examination or audit discloses that the payments required to be made under this Agreement exceeded the payments actually made (each a deficiency in the payment of any amount due hereunder, such deficiency shall become immediately due and payable with interest at the rate provided in Paragraph 13.1 below from the date when such payment should have been made, provided that Licensee may contest in good faith a finding of deficiency, or the amount thereof, which objection shall be resolved by good faith negotiation of the parties or pursuant to the arbitration provisions set forth in Section 18 hereunder. In the event the deficiency for any 12 month period shall be in excess of * (excluding mathematical, clerical, or similar good-faith error) of the amount actually paid for the subject period“Shortfall”), Licensee shall pay the Shortfall together with interest on the Shortfall at a rate equivalent to Licensor upon demand the applicable Prime Rate (as defined in the Collaboration Agreement) per annum from the date such payment was due (but not more than the maximum rate of interest which legally can be paid). In addition, if any examination or audit discloses that the Shortfall exceeds four percent (4%) for any calendar month, Licensee shall also pay the cost of such examination or audit as well as all costs associated with two (2) subsequent actual audits. In the event such a deficiency should occur on more than one occasion, or if the deficiency in any 12 month period is in excess of * (excluding mathematical, clerical, or similar good-faith error), then Licensee shall be deemed in default, and Licensor, in addition to all other remedies at law, in equity or otherwise provided herein, the Shortfall and interest. All payments due pursuant to this Section 7(b) shall have the option to terminate this Agreement upon ten be made within fifteen (1015) days noticeafter Licensee receives notice thereof.

Books and Records; Audits. 10.1 Licensee (a) Xxxxxxx shall maintain keep and maintain, and shall cause its Affiliates, Permitted Sublicensees and assigns to keep and maintain, complete and accurate records and books of account in sufficient detail and form so as to enable amounts payable under Article 4 to be determined. Such records as required under this Agreement (including the originals or copies of documents supporting entries in the and books of account) covering all transactions relating account shall be maintained for a period of no less than [**] Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. following the calendar year to this Agreement and/or the distribution which they pertain. Xxxxxxx shall permit such records and sale books of Articlesaccount to be examined no more than once each calendar year by an independent certified public accounting form selected by Sepracor and approved by Xxxxxxx, including but which approval shall not limited to invoices, credits and shipping documentsunreasonably be withheld. At any reasonable time Such examination shall be during the Term and for three (3) years thereafter, Licensor maynormal business hours, upon five (5) days [**] prior written notice to LicenseeXxxxxxx, cause an audit and at Sepracor's expense unless the examination should establish that Xxxxxxx'x payment of such royalties for the period examined were less than [**] of the royalties which should have been paid, in which case Xxxxxxx shall be responsible for the reasonable expenses of such examination. Audits related to be made Products sold as part of Licensee's records and documents relating to this Agreement, but in no event more than twice in any Annual Period. Any such audit performed by Licensor or Licensor's certified public accountant or other auditing professional a bundle shall be conducted so as by an independent certified public accounting form selected by Sepracor and approved by Xxxxxxx, which approval shall not unreasonably be withheld which shall disclose to minimize disruption Sepracor only (i) whether the calculated invoice price for such Products is consistent with the terms of this Agreement and Xxxxxxx'x normal business practices for pharmaceutical products not licensed from a third party and (ii) the specific details concerning any discrepancies. (b) Prompt adjustment shall be made by Xxxxxxx to Licensee's business operationscompensate for any errors or omissions disclosed by such examinations. All Information obtained during the course of such records and documents an examination shall be kept available for at least five (5) years from the date thereofconfidential by Sepracor and its agents, including after the end of the Term, but in any event no less than the applicable period required by law. 10.2 If, as a result of any audit of Licensee's books and records, such audit discloses a deficiency in the payment of any amount due hereunder, such deficiency shall become immediately due and payable with interest at the rate provided in Paragraph 13.1 below from the date when such payment should have been made, provided that Licensee may contest in good faith a finding of deficiency, or the amount thereof, which objection shall be resolved by good faith negotiation of the parties or pursuant except to the arbitration provisions set forth in Section 18 extent necessary to enforce Sepracor's rights hereunder. In the event the deficiency for any 12 month period shall be in excess of * (excluding mathematical, clerical, or similar good-faith error) of the amount actually paid for the subject period, Licensee shall pay to Licensor upon demand the cost of such audit as well as all costs associated with two (2) subsequent actual audits. In the event such a deficiency should occur on more than one occasion, or if the deficiency in any 12 month period is in excess of * (excluding mathematical, clerical, or similar good-faith error), then Licensee shall be deemed in default, and Licensor, in addition to all other remedies at law, in equity or otherwise provided herein, shall have the option to terminate this Agreement upon ten (10) days notice.

Books and Records; Audits. 10.1 Licensee (a) Lilly shall maintain keep and maintain, and shall cause Permitted Sublicensees and assigns to keep and maintain, complete and accurate records and books of account in sufficient detail and records form so as required to enable amounts payable under this Agreement (including the originals or copies of documents supporting entries in the books of account) covering all transactions relating Article 3 to this Agreement and/or the distribution and sale of Articles, including but not limited to invoices, credits and shipping documentsbe determined. At any reasonable time during the Term and for three (3) years thereafter, Licensor may, upon five (5) days Upon [**] prior written notice from Sepracor, Lilly shall permit an independent certified public accounting firm of nationally recognized standing selected by Sepracor, at Sepracor's expense, to Licenseehave access during normal business hours to audit pertinent books and records of Lilly, cause its Permitted Sublicensees and assigns as may be reasonably necessary to verify the accuracy of the royalty reports hereunder. The audit shall be limited to pertinent books and records for any year ending not more than [**] prior to the date of such request. Such audit shall be at Sepracor's expense unless the examination should establish that Lilly's payment of such royalties for the period examined were in error by [**] or more of the royalties which should have been paid, in which case Lilly shall be responsible for the reasonable expenses of such audit. An audit under this Section 3.11 shall not occur more than once in any calendar year. Lilly may designate competitively sensitive information, which such auditor may not disclose to Sepracor, provided, however, that such designation shall not encompass the auditor's conclusions, whether the royalty reports are correct or incorrect, or the specific details concerning any discrepancies. (b) Prompt adjustment shall be made by Lilly or Sepracor, as appropriate, to compensate the other for any errors or omissions revealed by an audit to be made under this Section 3.11. Information obtained during the course of Licensee's records and documents relating to this Agreement, but in no event more than twice in any Annual Period. Any such an audit performed by Licensor or Licensor's certified public accountant or other auditing professional shall be conducted so as to minimize disruption to Licensee's business operations. All such records and documents shall be kept available for at least five (5) years from the date thereofconfidential by Sepracor and its agents, including after the end of the Term, but in any event no less than the applicable period required by law. 10.2 If, as a result of any audit of Licensee's books and records, such audit discloses a deficiency in the payment of any amount due hereunder, such deficiency shall become immediately due and payable with interest at the rate provided in Paragraph 13.1 below from the date when such payment should have been made, provided that Licensee may contest in good faith a finding of deficiency, or the amount thereof, which objection shall be resolved by good faith negotiation of the parties or pursuant except to the arbitration provisions set forth in Section 18 extent necessary to enforce Sepracor's rights hereunder. In the event the deficiency for any 12 month period shall be in excess of * (excluding mathematical, clerical, or similar good-faith error) of the amount actually paid for the subject period, Licensee shall pay to Licensor upon demand the cost of such audit as well as all costs associated with two (2) subsequent actual audits. In the event such a deficiency should occur on more than one occasion, or if the deficiency in any 12 month period is in excess of * (excluding mathematical, clerical, or similar good-faith error), then Licensee shall be deemed in default, and Licensor, in addition to all other remedies at law, in equity or otherwise provided herein, shall have the option to terminate this Agreement upon ten (10) days notice.

Books and Records; Audits. 10.1 Licensee shall maintain complete and (a) The Purchaser will keep accurate books of account and records as required under this Agreement (including in sufficient detail to permit the originals or copies Seller to confirm the accuracy of documents supporting entries in the calculation of the payment of the Seller Sublicense Income and the issuance of any Common Stock hereunder. The Purchaser will preserve these books of account) covering all transactions relating to this Agreement and/or the distribution and sale of Articles, including but not limited to invoices, credits and shipping documents. At any reasonable time during the Term and for three (3) years thereafter, Licensor may, upon five (5) days prior written notice to Licensee, cause an audit to be made of Licensee's records and documents relating to this Agreement, but in no event more than twice in any Annual Period. Any such audit performed by Licensor or Licensor's certified public accountant or other auditing professional shall be conducted so as to minimize disruption to Licensee's business operations. All such records and documents shall be kept available for at least five (5) years from the later of (i) the date thereofof any Sublicense Income Report to which such payment pertains, including after and (ii) the end date on which the Purchaser was obligated to issue Common Stock to the Seller. (b) Upon reasonable notice, key personnel, books, and records will be made reasonably available and will be open to examination by representatives or agents of the TermSeller during regular office hours to determine their accuracy and assess the Purchaser’s compliance with the terms of this Agreement. Any such inspection may be performed by the Seller’s representatives or, at the Seller’s option, an independent and nationally recognized certified public accounting firm in the United States selected by the Seller and reasonably acceptable to the Purchaser; provided, that upon the request of the Purchaser, such accounting firm shall enter into a confidentiality agreement in a form reasonably acceptable to the Purchaser prior to conducting such audit. Absent good cause, any such inspection will be conducted not more than once per calendar year. Upon completion of the audit, the Seller’s representatives or the accounting firm shall disclose to the Seller, with a copy to the Purchaser, only (i) whether the payments hereunder are correct or incorrect, and (ii) if it believes in good faith that the Purchaser is in compliance with its obligations under Sections 3.1 and 3.2. Any amounts shown to be owed but in unpaid shall be paid within thirty (30) days from the date of the accountant’s report and any event no less than amounts shown to have been overpaid shall be refunded within twenty (20) days from the applicable period required by law. 10.2 If, as a result accountant’s report. The Seller shall bear the cost of any such audit of Licensee's books and records, unless such audit discloses a deficiency in the payment an underpayment of any amount due hereunder, such deficiency shall become immediately due and payable with interest at the rate provided in Paragraph 13.1 below from the date when such payment should have been made, provided that Licensee may contest in good faith a finding of deficiency, or the amount thereof, which objection shall be resolved by good faith negotiation of the parties or pursuant to the arbitration provisions set forth in Section 18 hereunder. In the event the deficiency for any 12 month period shall be in excess of * more than five percent (excluding mathematical, clerical, or similar good-faith error5%) of the amount actually paid for the subject period, Licensee shall pay to Licensor upon demand the cost of such audit as well as all costs associated with two (2) subsequent actual audits. In the event such a deficiency should occur on more than one occasion, or if the deficiency in any 12 month period is in excess of * (excluding mathematical, clerical, or similar good-faith error), then Licensee shall be deemed in default, and Licensorowed, in addition which case the Purchaser shall reimburse the Seller for its out-of-pocket expenses incurred for such audit. The Seller shall hold all information disclosed to all other remedies at law, in equity or otherwise provided herein, shall have it under this Section 3.4 as Confidential Information of the option to terminate this Agreement upon ten (10) days noticePurchaser.