Common use of Fees Royalties and Payments Clause in Contracts

Fees Royalties and Payments. 5.1 Fees and royalties due on Net Sales of Licensed Products or Licensed Services will be as specified in this Article 5, Exhibit C (FEES AND ROYALTIES), and Article 7 (ROYALTY AND PROGRESS REPORTS) of this Agreement. CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION. 5.2 As partial consideration for the rights granted to LICENSEE, LICENSEE will pay to LLNS the License Issue Fee as set forth in Exhibit C. 5.3 As partial consideration for all the rights granted to LICENSEE, LICENSEE will pay LLNS minimum annual royalties as set forth in Exhibit C. 5.4 As partial consideration for all the rights granted to LICENSEE, LICENSEE will pay to LLNS earned royalties at the rate set forth in Exhibit C. 5.5 Earned royalties shall accrue when Licensed Products or Licensed Services are invoiced, or if not invoiced, when delivered in a manner constituting a Net Sale as defined in Article 2 (DEFINITIONS), Paragraph 2.12. 5.6 Payment for earned royalties will include all royalties accrued up to the last day of the most recently completed [****]. 5.7 All consideration due LLNS shall be payable in United States dollars. When Licensed Products or Licensed Services are sold for monies other than United States dollars, earned royalties will first be determined in the foreign currency of the country in which such Licensed Products or Licensed Services were Sold and then converted into equivalent United States dollars. The exchange rate will be the average exchange rate quoted in the Wall Street Journal during the last thirty (30) days of the reporting period. 5.8 Earned royalties on Sales of Licensed Products or Licensed Services occurring in any country outside the United States shall not be reduced by any taxes, fees, or other charges imposed by the government of such country except those taxes, fees, and charges allowed under the provisions of Paragraph 2.12 (Net Sales). LICENSEE also will be responsible for all bank transfer charges. 5.9 Notwithstanding the provisions of Article 26 (FORCE MAJEURE), if at any time legal restrictions prevent prompt remittance of any earned royalties or other consideration owed to LLNS by LICENSEE with respect to any country where a sublicense is issued or a Licensed Product or Licensed Service is Sold, then LICENSEE will convert the amount owed to LLNS into United States dollars and will pay LLNS directly from another source of funds in order to remit the entire amount owed to LLNS. CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION. 5.10 No earned royalties will be collected or paid hereunder to LLNS on Licensed Products or Licensed Services Sold to the account of the U.S. Government. LICENSEE and its sublicensee will reduce the amount charged for Licensed Products or Licensed Services Sold to the U.S. Government by an amount equal to the royalty for such Licensed Products or Licensed Services otherwise due LLNS. LICENSEE will provide LLNS with U.S. Government contract numbers and a written statement by LICENSEE’s contracting officer that Sale of Licensed Products to the U.S. Government were reduced by the amount of royalty due LLNS. 5.11 If LLNS must pursue legal means to obtain payments owed by LICENSEE, LICENSEE will pay LLNS for all legal costs and any other related costs expended by LLNS to collect payments owed by LICENSEE. 5.12 In the event that any patent or any claim thereof included within the Patent Rights is held invalid in a final decision by a court of competent jurisdiction and last resort and from which no appeal has or can be taken, all obligation to pay royalties based on such patent or claim or any claim patentably indistinct therefrom will cease as of the date of such final decision. LICENSEE will not, however, be relieved from paying any royalties that accrued before such final decision and LICENSEE will be obligated to pay the full amount of royalties due hereunder to the extent that LLNS licenses one or more Valid Claims within the Patent Rights to LICENSEE with respect to Licensed Products or Licensed Services.

Fees Royalties and Payments. 5.1 Fees and royalties due on Net Sales of Licensed Products or Licensed Services will be as specified in this Article 5, Exhibit C (FEES AND ROYALTIES), and Article 7 (ROYALTY AND PROGRESS REPORTS) of this Agreement. CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION. 5.2 As partial consideration for the rights granted to LICENSEEXXXX, LICENSEE XXXX will pay to LLNS the License Issue Fee TomoTherapy milestone payments as set forth in Exhibit C. 5.3 As partial consideration for all the rights granted to LICENSEEXXXX, LICENSEE XXXX will pay LLNS TomoTherapy minimum annual royalties as set forth in Exhibit C. 5.4 As partial consideration for all the rights granted to LICENSEEXXXX, LICENSEE XXXX will pay to LLNS TomoTherapy earned royalties at the rate set forth in Exhibit C. 5.5 Earned royalties shall accrue when XXXX receives payment for Licensed Products or Licensed Services, or if no such payment is to be received, when such Licensed Products or Licensed Services are invoiced, or if not invoiced, when delivered in a manner constituting a Net Sale as defined in Article 2 (DEFINITIONS), Paragraph 2.122.24, and no further deliverables are due to the customer by XXXX or sublicensee. 5.6 Payments on earned royalties pursuant to Exhibit C, Paragraphs C.2.1.2 and C.2.2.2, for the sale of the first five DWA units shall be deferred until the second anniversary of the date of the first sale. Payment for other earned royalties will include all royalties accrued up to the last day of the most recently completed [****]calendar quarter, and such payment shall be made on the dates specified below: February 28 for the calendar quarter ending December 31; May 31 for the calendar quarter ending March 31; August 31 for the calendar quarter ending June 30; and November 30 for the calendar quarter ending September 30. 5.7 All consideration due LLNS TomoTherapy shall be payable in United States dollars. When Licensed Products or Licensed Services are sold for monies other than United States dollars, earned royalties will first be determined in the foreign currency of the country in which such Licensed Products or Licensed Services were Sold and then converted into equivalent United States dollars. The exchange rate will be the average exchange rate quoted in the Wall Street Journal during the last thirty (30) days of the reporting periodone actually used by XXXX to record such sale on its financial statements. 5.8 Earned royalties on Sales of Licensed Products or Licensed Services occurring in any country outside the United States shall not be reduced by any taxes, fees, or other charges imposed by the government of such country except those taxes, fees, and charges allowed under the provisions of Paragraph 2.12 2.25 (Net SalesInvoice Price). LICENSEE XXXX also will be responsible for all bank transfer charges. 5.9 Notwithstanding the provisions of Article 26 (FORCE MAJEURE), if at any time legal restrictions prevent prompt remittance of any earned royalties or other consideration owed to LLNS TomoTherapy by LICENSEE XXXX with respect to any country where a sublicense is issued or a Licensed Product or Licensed Service is Sold, then LICENSEE XXXX will convert the amount owed to LLNS TomoTherapy into United States dollars and will pay LLNS TomoTherapy directly from another source of funds in order to remit the entire amount owed to LLNSTomoTherapy. CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4)Notwithstanding the previous sentence, 200.83 AND 230.406if XXXX is prohibited itself by such legal restrictions from collecting the Net Invoice Price for the sale of any Licensed Product or Licensed Service or any royalty or fee from a sublicense, XXXX shall not be obligated to convert such amount owed, but rather will send written notice to TomoTherapy of such legal restrictions and of the amount owed. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSIONUpon removal of such legal restrictions, XXXX will convert said amount owed to TomoTherapy into United States dollars and will remit the entire amount owed to TomoTherapy. 5.10 No earned royalties will be collected or paid hereunder to LLNS TomoTherapy on Licensed Products or Licensed Services Sold to the account of the U.S. Government. LICENSEE XXXX and its sublicensee will reduce the amount charged for Licensed Products or Licensed Services Sold to the U.S. Government by an amount equal to the royalty for such Licensed Products or Licensed Services otherwise due LLNSTomoTherapy. LICENSEE XXXX will provide LLNS TomoTherapy with U.S. Government contract numbers and a written statement by LICENSEE’s XXXX’x contracting officer that Sale of Licensed Products to the U.S. Government were reduced by the amount of royalty due LLNSTomoTherapy. 5.11 If LLNS TomoTherapy must pursue legal means to obtain payments owed by LICENSEEXXXX, LICENSEE XXXX will pay LLNS TomoTherapy for all reasonable legal costs and any other related costs expended by LLNS TomoTherapy to collect payments owed by LICENSEEXXXX. 5.12 In the event that any patent or any claim thereof included within the Patent Rights is held invalid in a final decision by a court of competent jurisdiction and last resort and from which no appeal has or can be taken, all obligation to pay royalties based on such patent or claim or any claim patentably indistinct therefrom there from will cease as of the date of such final decision. LICENSEE XXXX will not, however, be relieved from paying any royalties that accrued before such final decision and LICENSEE XXXX will be obligated to pay the full amount of royalties due hereunder to the extent that LLNS TomoTherapy licenses one or more Valid Claims within the Patent Rights to LICENSEE XXXX with respect to Licensed Products or Licensed Services.

Fees Royalties and Payments. 5.1 Fees and royalties due on Net Sales of Licensed Products or Licensed Services will be as specified in this Article 5, Exhibit C (FEES AND ROYALTIES), and Article 7 (ROYALTY AND PROGRESS REPORTS) of this Agreement. CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION. 5.2 As partial consideration for the rights granted to LICENSEE, LICENSEE will pay to LLNS the License Issue Fee THE REGENTS a license issue fee as set forth in Exhibit C. 5.3 As partial consideration for all the rights granted to LICENSEE, LICENSEE will pay LLNS minimum annual royalties to THE REGENTS milestone payments as set forth in Exhibit C. 5.4 As partial consideration for all the rights granted to LICENSEE, LICENSEE will pay THE REGENTS minimum annual royalties as set forth in Exhibit C. 5.5 As partial consideration for all the rights granted to LLNS LICENSEE, LICENSEE will pay to THE REGENTS earned royalties at the rate set forth in Exhibit C. 5.5 5.6 Earned royalties shall accrue when LICENSEE receives payment for Licensed Products or Licensed Services, or if no such payment is to be received, when such Licensed Products or Licensed Services are invoiced, or if not invoiced, when delivered in a manner constituting a Net Sale as defined in Article 2 (DEFINITIONS), Paragraph 2.122.10, and no further deliverables are due to the customer by LICENSEE or sublicensee. 5.6 5.7 Payment for earned royalties will include all royalties accrued up to the last day of the most recently completed [****]calendar quarter, and such payment shall be made on the dates specified below: February 28 for the calendar quarter ending December 31; May 31 for the calendar quarter ending March 31; August 31 for the calendar quarter ending June 30; and November 30 for the calendar quarter ending September 30. 5.7 5.8 All consideration due LLNS THE REGENTS shall be payable in United States dollars. When Licensed Products or Licensed Services are sold for monies other than United States dollars, earned royalties will first be determined in the foreign currency of the country in which such Licensed Products or Licensed Services were Sold and then converted into equivalent United States dollars. The exchange rate will be the average exchange rate quoted in the Wall Street Journal during the last thirty (30) days of the reporting periodone actually used by LICENSEE to record such sale on its financial statements. 5.8 5.9 Earned royalties on Sales of Licensed Products or Licensed Services occurring in any country outside the United States shall not be reduced by any taxes, fees, or other charges imposed by the government of such country except those taxes, fees, and charges allowed under the provisions of Paragraph 2.12 2.9 (Net SalesInvoice Price). LICENSEE also will be responsible for all bank transfer charges. 5.9 5.10 Notwithstanding the provisions of Article 26 (FORCE MAJEURE), if at any time legal restrictions prevent prompt remittance of any earned royalties or other consideration owed to LLNS THE REGENTS by LICENSEE with respect to any country where a sublicense is issued or a Licensed Product or Licensed Service is Sold, then LICENSEE will convert the amount owed to LLNS THE REGENTS into United States dollars and will pay LLNS THE REGENTS directly from another source of funds in order to remit the entire amount owed to LLNSTHE REGENTS. CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4)Notwithstanding the previous sentence, 200.83 AND 230.406if LICENSEE is prohibited itself by such legal restrictions from collecting the Net Invoice Price for the sale of any Licensed Product or Licensed Service or any royalty or fee from a sublicense, LICENSEE shall not be obligated to convert such amount owed, but rather will send written notice to THE REGENTS of such legal restrictions and of the amount owed. [****] INDICATES OMITTED MATERIAL THAT IS Upon removal of such legal restrictions, LICENSEE will convert said amount owed to THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH REGENTS into United States dollars and will remit the entire amount owed to THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSIONREGENTS. 5.10 5.11 No earned royalties will be collected or paid hereunder to LLNS THE REGENTS on Licensed Products or Licensed Services Sold to the account of the U.S. Government. LICENSEE and its sublicensee will reduce the amount charged for Licensed Products or Licensed Services Sold to the U.S. Government by an amount equal to the royalty for such Licensed Products or Licensed Services otherwise due LLNSTHE REGENTS. LICENSEE will provide LLNS THE REGENTS with U.S. Government contract numbers and a written statement by LICENSEE’s contracting officer that Sale of Licensed Products to the U.S. Government were reduced by the amount of royalty due LLNSTHE REGENTS. 5.11 5.12 If LLNS THE REGENTS must pursue legal means to obtain payments owed by LICENSEE, LICENSEE will pay LLNS THE REGENTS for all reasonable legal costs and any other related costs expended by LLNS THE REGENTS to collect payments owed by LICENSEE. 5.12 5.13 In the event that any patent or any claim thereof included within the Patent Rights is held invalid in a final decision by a court of competent jurisdiction and last resort and from which no appeal has or can be taken, all obligation to pay royalties based on such patent or claim or any claim patentably indistinct therefrom there from will cease as of the date of such final decision. LICENSEE will not, however, be relieved from paying any royalties that accrued before such final decision and LICENSEE will be obligated to pay the full amount of royalties due hereunder to the extent that LLNS THE REGENTS licenses one or more Valid Claims within the Patent Rights to LICENSEE with respect to Licensed Products or Licensed Services.

Fees Royalties and Payments. 5.1 Fees and royalties due on Net Sales of Licensed Products or Licensed Services will be as specified in this Article 5, Exhibit C (FEES AND ROYALTIES), and Article 7 (ROYALTY AND PROGRESS REPORTS) of this Agreement. CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION. 5.2 As partial consideration for the rights granted to LICENSEE, LICENSEE will pay to LLNS the License Issue Fee TomoTherapy milestone payments as set forth in Exhibit C. 5.3 As partial consideration for all the rights granted to LICENSEE, LICENSEE will pay LLNS TomoTherapy minimum annual royalties as set forth in Exhibit C. 5.4 As partial consideration for all the rights granted to LICENSEE, LICENSEE will pay to LLNS TomoTherapy earned royalties at the rate set forth in Exhibit C. 5.5 Earned royalties shall accrue when LICENSEE receives payment for Licensed Products or Licensed Services, or if no such payment is to be received, when such Licensed Products or Licensed Services are invoiced, or if not invoiced, when delivered in a manner constituting a Net Sale as defined in Article 2 (DEFINITIONS), Paragraph 2.122.9, and no further deliverables are due to the customer by LICENSEE or sublicensee. 5.6 Payment for earned royalties will include all royalties accrued up to the last day of the most recently completed [****]calendar quarter, and such payment shall be made on the dates specified below: February 28 for the calendar quarter ending December 31; May 31 for the calendar quarter ending March 31; August 31 for the calendar quarter ending June 30; and November 30 for the calendar quarter ending September 30. 5.7 All consideration due LLNS TomoTherapy shall be payable in United States dollars. When Licensed Products or Licensed Services are sold for monies other than United States dollars, earned royalties will first be determined in the foreign currency of the country in which such Licensed Products or Licensed Services were Sold and then converted into equivalent United States dollars. The exchange rate will be the average exchange rate quoted in the Wall Street Journal during the last thirty (30) days of the reporting periodone actually used by LICENSEE to record such sale on its financial statements. 5.8 Earned royalties on Sales of Licensed Products or Licensed Services occurring in any country outside the United States shall not be reduced by any taxes, fees, or other charges imposed by the government of such country except those taxes, fees, and charges allowed under the provisions of Paragraph 2.12 2.9 (Net SalesInvoice Price). LICENSEE also will be responsible for all bank transfer charges. 5.9 Notwithstanding the provisions of Article 26 (FORCE MAJEURE), if at any time legal restrictions prevent prompt remittance of any earned royalties or other consideration owed to LLNS TomoTherapy by LICENSEE with respect to any country where a sublicense is issued or a Licensed Product or Licensed Service is Sold, then LICENSEE will convert the amount owed to LLNS TomoTherapy into United States dollars and will pay LLNS TomoTherapy directly from another source of funds in order to remit the entire amount owed to LLNSTomoTherapy. CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4)Notwithstanding the previous sentence, 200.83 AND 230.406if LICENSEE is prohibited itself by such legal restrictions from collecting the Net Invoice Price for the sale of any Licensed Product or Licensed Service or any royalty or fee from a sublicense, LICENSEE shall not be obligated to convert such amount owed, but rather will send written notice to TomoTherapy of such legal restrictions and of the amount owed. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSIONUpon removal of such legal restrictions, LICENSEE will convert said amount owed to TomoTherapy into United States dollars and will remit the entire amount owed to TomoTherapy. 5.10 No earned royalties will be collected or paid hereunder to LLNS TomoTherapy on Licensed Products or Licensed Services Sold to the account of the U.S. Government. LICENSEE and its sublicensee will reduce the amount charged for Licensed Products or Licensed Services Sold to the U.S. Government by an amount equal to the royalty for such Licensed Products or Licensed Services otherwise due LLNSTomoTherapy. LICENSEE will provide LLNS TomoTherapy with U.S. Government contract numbers and a written statement by LICENSEE’s contracting officer that Sale of Licensed Products to the U.S. Government were reduced by the amount of royalty due LLNSTomoTherapy. 5.11 If LLNS TomoTherapy must pursue legal means to obtain payments owed by LICENSEE, LICENSEE will pay LLNS TomoTherapy for all reasonable legal costs and any other related costs expended by LLNS TomoTherapy to collect payments owed by LICENSEE. 5.12 In the event that any patent or any claim thereof included within the Patent Rights is held invalid in a final decision by a court of competent jurisdiction and last resort and from which no appeal has or can be taken, all obligation to pay royalties based on such patent or claim or any claim patentably indistinct therefrom there from will cease as of the date of such final decision. LICENSEE will not, however, be relieved from paying any royalties that accrued before such final decision and LICENSEE will be obligated to pay the full amount of royalties due hereunder to the extent that LLNS TomoTherapy licenses one or more Valid Claims within the Patent Rights to LICENSEE with respect to Licensed Products or Licensed Services.