Common use of Payment Audits Clause in Contracts

Payment Audits. (a) Either party (herein, the "Auditing Party") may demand, no more than once during any calendar year from the KING Product Initiation Date until two (2) years following the end of 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 the matters addressed in this Agreement. Upon no less than fifteen (15) days' prior written notice to the Audited Party, the Audited Party shall grant access to members of a nationally recognized independent public accounting firm selected by the Auditing Party to the relevant books and records of the Audited Party in order to conduct a review or audit thereof. Such access shall be available during normal business hours. The accountants shall report their conclusions and calculations to the Auditing Party and the Audited Party; provided, that in no event shall the accountants disclose any information of the Audited Party except to the extent necessary to verify the Audited Party's reporting and other compliance with the terms of this Agreement and, at the request of the Audited Party, such accountants will execute appropriate non-disclosure agreements. Except as hereinafter set forth, the Auditing Party shall bear the full cost of the performance of any such audit. Any information obtained from an audit under this Section 10.2 shall be deemed Confidential and Proprietary Information of the Audited Party. (b) If, as a result of any audit of the books and records of the Audited Party, it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited were less than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Audited Party shall pay to the Auditing Party the amount of such shortfall within thirty (30) days after the Auditing Party's demand therefor. If, as a result of any audit of the books and records of Audited Party, it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited were

Payment Audits. (a) a. Either party (herein, the "Auditing Party") may demand, no more than once during for any calendar year from the KING Product Initiation Date until two (2) years following the end of 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 the matters addressed in this Agreement. Upon no less than fifteen thirty (1530) days' prior written notice to the Audited Party, the Audited Party shall grant reasonable access to members of a nationally nationally-recognized independent public accounting firm selected by the Auditing Party to the relevant books and records of the Audited Party in order to conduct a review or audit thereof. Such access shall be available permitted during normal business hours. The accountants accounting firm shall report their its conclusions and calculations to the Auditing Party and the Audited Party; provided, that in no event shall the accountants accounting firm disclose any information of the Audited Party except to the extent necessary to verify the Audited Party's reporting and other compliance with the terms of this Agreement and, at the request of the Audited Party, such accountants accounting firm will execute appropriate non-disclosure agreements. Except as hereinafter set forth, the Auditing Party shall bear the full cost of the performance of any such audit. Any information obtained from an audit under this Section 10.2 shall be deemed Confidential and Proprietary Information of the Audited Party. (b) If, b. If as a result of any audit of the books and records of the Audited Party, Party it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited were less than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Audited Party shall pay to the Auditing Party the amount of such shortfall within thirty (30) days after the Auditing Party's demand therefor. If, If as a result of any audit of the books and records of Audited Party, Party it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited werewere more than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Auditing Party shall pay to the Audited Party the amount of such overpayment within thirty (30) days after the Audited Party's demand therefor. In addition, if any amount of underpayment by the Audited Party is more than *** of the amount which should have been paid to the Auditing Party pursuant to this Agreement with respect to the period in question, then the Audited Party shall also reimburse the Auditing Party for its documented, reasonable, out-of-pocket costs and expenses incurred in connection with the audit. c. In the event that the parties do not agree on the amount of overpayment or underpayment, within ten (10) business days, each party shall select an independent public accounting firm which shall meet and discuss the amount in dispute and other related matters within ten (10) business days thereafter. If such independent public accounting firms cannot agree on a resolution mutually agreeable to the parties, such independent public accounting firms shall, within ten (10) business days thereafter, appoint a third independent public accounting firm which shall resolve the issue within ten (10) business days after its selection. The recommendation of the third independent public accounting firm shall be final and binding upon the parties. A judgment on such firm's disposition may be entered in any court having jurisdiction over the parties.

Payment Audits. DePuy Synthes shall have the right, upon thirty (a30) Either party (hereindays’ prior written notice, the "Auditing Party") may demand, periodically but no more than once during any calendar year from per Year, to review and examine or have an independent third party expert review and examine the KING Product Initiation Date until two (2) years following the end of the Term, an audit of the relevant appropriate books and records of the other party (hereinPacira related to, for a particular Year, the "Audited Party"(i) invoiced sales of Product in order the Territory, (ii) Deductions, (iii) calculation of Net Sales, (iv) calculation of Baseline Sales, and (v) calculation of the Commission Payments. The purpose of such examination shall be to verify the Audited Party's reports on the matters addressed in confirm Pacira’s compliance with its obligations under Article 5 of this Agreement. Upon no less Each such examination may only be conducted within twenty-four (24) months of the conclusion of the relevant Year. The right granted under this Section 12.2 may only be exercised during the normal business hours of Pacira. During the course of the examination, DePuy Synthes and its accountants shall use commercially reasonable efforts not disrupt or otherwise interfere with the business of Pacira. DePuy Synthes shall maintain the confidentiality of all documents and records reviewed, and any third party expert shall execute a confidentiality agreement satisfactory to Pacira prior to such examination. The costs and expenses of any such examination, including any independent third party expert, shall be the responsibility of DePuy Synthes, except that if any examination discloses that an amount due to DePuy Synthes or charged to DePuy Synthes was in error for the reviewed period by more than fifteen five percent (155%) in Pacira’s favor (after Pacira has had the opportunity to review and has not disputed the results of such examination), the portion of any such direct costs and expenses of any independent third party expert allocable to such examination shall be the responsibility of Pacira. DePuy Synthes shall share the results of any examination with Pacira promptly and each Party shall, within thirty (30) days of any adjustment in the other Party’s favor, pay the appropriate amount to such other Party. In the event of a dispute over the results of any examination conducted pursuant to this Section 12.2, DePuy Synthes and Pacira shall work in good faith to resolve such dispute. Notwithstanding Section 15.6, if the Parties are unable to reach a mutually acceptable resolution of any such dispute within thirty (30) days' prior written notice to the Audited Party, the Audited Party dispute shall grant access be submitted for arbitration to members of a nationally recognized independent certified public accounting firm selected by the Auditing Party Parties or to such other Person as the relevant books and records Parties shall mutually agree (the “Accountant”). The decision of the Audited Party in order to conduct a review or audit thereof. Such access Accountant shall be available during normal business hours. The accountants shall report their conclusions and calculations to the Auditing Party final and the Audited Party; provided, that in no event shall costs of such arbitration as well as the accountants disclose any information of the Audited Party except to the extent necessary to verify the Audited Party's reporting and other compliance with the terms of this Agreement and, at the request of the Audited Party, such accountants will execute appropriate non-disclosure agreements. Except as hereinafter set forth, the Auditing Party shall bear the full cost of the performance of any such audit. Any information obtained from an audit under this Section 10.2 initial examination shall be deemed Confidential and Proprietary Information of borne between the Audited PartyParties in such manner as the Accountant shall determine. (b) If, as a result of any audit of the books and records of the Audited Party, it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited were less than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Audited Party shall pay to the Auditing Party the amount of such shortfall within thirty (30) days after the Auditing Party's demand therefor. If, as a result of any audit of the books and records of Audited Party, it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited were

Payment Audits. (a) Either party (herein, the "“Auditing Party"”) may demand, no more than once during any calendar year Calendar Year from the KING Product Initiation Effective Date until two (2) years following the end of 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 with respect to Collaboration Costs and any payments required under the matters addressed in this AgreementCollaboration Documents. Upon no less than fifteen (15) days' prior written notice to the Audited Party, the Audited Party shall will grant access to the relevant books and records of the Audited Party to members of a nationally recognized independent public accounting firm selected by the Auditing Party to the relevant books and records of the Audited Party in order to conduct a review or audit thereof. Such access shall will be available during normal business hours. The accountants shall will report their conclusions and calculations to the Auditing Party and the Audited Party; provided, provided that in no event shall will the accountants disclose any information of the Audited Party except to the extent necessary to verify the Audited Party's reporting and other compliance with the terms of this Agreement Agreement, and, at the request of the Audited Party, such accountants will execute appropriate non-disclosure agreements. Except as hereinafter set forth, the Auditing Party shall will bear the full cost of the performance of any such audit. Any information obtained from an audit under this Section 10.2 shall be deemed Confidential and Proprietary Information of the Audited Party. (b) If, as a result of any audit of the books and records of the Audited Party, it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited were less than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Audited Party shall pay to the Auditing Party the amount of such shortfall within thirty (30) days after the Auditing Party's demand therefor. If, as a result of any audit of the books and records of Audited Party, it is shown that the Audited Party's payments from one party to the Auditing Party other under this Agreement with respect to the period of time audited werewere less than or more than the amount that should have been paid, or it is shown that the Collaboration Costs claimed by the Audited Party were overstated, then the parties will reconcile the amounts owed by each party to the other. In addition, if such audit demonstrates that Collaboration Costs were overstated or revenue underreported by more than *** for the period audited, then the Audited Party will also reimburse the Auditing Party for its documented reasonable out-of-pocket costs and expenses incurred in connection with the audit.

Payment Audits. (a) Either party Party (herein, the "“Auditing Party"”) may demand, no more than once during any calendar year from the KING Product Initiation Amendment Effective Date until two (2) years following the end of the Term, an audit of the relevant books and records of the other party Party (herein, the "“Audited Party"”) in order to verify the Audited Party's ’s reports on the matters addressed in this Agreement, provided, however, that any audits of Marketing Expenses shall be completed no later than [***] after the final report for Marketing Expenses incurred during the Copromotion Period is received in accordance with Section 9.3 of this Agreement, provided that the Audited Party cooperates and provides access to its books and records in a timely manner as set forth below. All audits performed with respect to activities occurring after the Copromotion Period shall be limited to the reporting of Net Sales figures under section 9 of this Agreement. In no event may a Party audit the Marketing Expenses for any period of time more than one time. Upon no less than fifteen (15) days' [***] prior written notice to the Audited Party, the Audited Party shall grant full access to members of a nationally recognized independent public accounting firm selected by the Auditing Party to the relevant books and records of the Audited Party in order to conduct a review or audit thereof. Such access shall be available during normal business hours. The accountants shall report their its conclusions and calculations to the Auditing Party and the Audited Party; provided, however, that in no event shall the accountants disclose any information of the Audited Party except to the extent necessary to verify the Audited Party's ’s reporting and other compliance with the terms of this Agreement and, at the request of the Audited Party, such accountants will execute appropriate non-disclosure agreements. Except as hereinafter set forth, the Auditing Party shall bear the full cost of the performance of any such audit. Any information obtained from an audit under this Section 10.2 shall be deemed Confidential and Proprietary Information of the Audited Party. (b) If, as a result of any audit of the books and records of the Audited Party, it is shown that the Audited Party's ’s payments to the Auditing Party under this Agreement with respect to the period of time audited were less than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Audited Party shall pay to the Auditing Party the amount of such shortfall within thirty (30) days [***] after the Auditing Party's ’s demand therefor. If, as a result of any audit of the books and records of Audited Party, it is shown that the Audited Party's ’s payments to the Auditing Party under this Agreement with respect to the period of time audited werewere more than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Auditing Party shall pay to the Audited Party the amount of such overpayment within [***] after the Audited Party’s demand therefor. In addition, if any amount payable by the Audited Party pursuant to this Section 10.2 is more than the amount which should have originally been paid pursuant to this Agreement by an amount in excess of [***] percent ([***]%) of the payments actually made with respect to the period in question, then the Audited Party shall also reimburse the Auditing Party for its documented reasonable out-of-pocket costs and expenses incurred in connection with the audit.

Payment Audits. (a) Either party (hereinAny Party shall have the right to request that another Party’s independent, the "Auditing Party") may demand, no more than once during any calendar year from the KING Product Initiation Date until two (2) years following the end of the Term, certified accounting firm perform an audit of the relevant books and records or interim review of the other party (herein, the "Audited Party") ’s books in order to verify express an opinion regarding such Party’s compliance with GAAP (in the Audited Party's reports on case of ImClone, BMS and BMKK), and with IFRS (in the matters addressed in this Agreementcase of Merck and MJ). Upon no less than fifteen (15) days' prior written notice to Such audits or review shall be conducted at the Audited Party, the Audited Party shall grant access to members of a nationally recognized independent public accounting firm selected by the Auditing Party to the relevant books and records expense of the Audited Party in order to conduct a review or audit thereof. Such access shall be available during normal business hours. The accountants shall report their conclusions and calculations to the Auditing Party and the Audited Party; provided, that in no event shall the accountants disclose any information of the Audited Party except to the extent necessary to verify the Audited Party's reporting and other compliance with the terms of this Agreement and, at the request of the Audited Party, such accountants will execute appropriate non-disclosure agreements. Except as hereinafter set forth, the Auditing Party shall bear the full cost of the performance of any such audit. Any information obtained from an audit under this Section 10.2 shall be deemed Confidential and Proprietary Information of the Audited requesting Party. (b) IfDuring the term of this Agreement and for a period of three years thereafter, at the request and expense of the requesting Party(ies) (“Auditing Party(ies)”), the other Party(ies) (“Audited Party(ies)”) shall permit an independent, certified public accountant appointed by the Auditing Party(ies) and reasonably acceptable to the Audited Party(ies), at reasonable times and upon reasonable written notice, to examine such records as a result may be Confidential Treatment has been requested by ImClone Systems Incorporated for portions of this document. necessary to determine the correctness of any audit of the books and records of report or payment made under this Agreement; provided, however, that such accountant shall sign a confidentiality agreement in a form reasonably satisfactory to the Audited PartyParty(ies), it is shown and, provided further, that the Audited Party's payments such examination shall not be permitted more than once in any 12-month period. Said accountant shall not disclose to the Auditing Party under this Agreement with respect to the period of time audited were less than the amount which should have been paid to the Auditing Party pursuant to this AgreementParty(ies) or any other person any information, then the Audited Party shall pay except that such accountant may disclose to the Auditing Party the fact of a deficiency, the lack of a deficiency or any overpayment, and the degree thereof, as well as the dollar amount (and the equivalent amount in Japanese Yen). All results of any such shortfall examination shall be made available to the Audited Party(ies). (c) In the event that any audit reveals a deficiency in the amount that should have been paid by one Party to another Party, then the underpaid amount shall be paid within thirty forty-five (3045) days after the Auditing Party's Party(ies) who is owed payment makes a demand therefor, plus interest thereon if such deficiency is in excess of [**] of the amount that actually should have been paid. IfSuch interest shall be calculated from the date such underpaid amount was due until the date such underpaid amount is actually paid, at a simple interest rate equal to the lesser of (x) the three (3) month LIBOR rate of the respective currency in which the payments was due as a published by Citibank, N.A., New York, New York, or any successor thereto, at 12:01 a.m. on the first day of each Quarter in which such payments are overdue, plus [**], and (y) the maximum rate permitted by Applicable Law, calculated on the number of days such payment is delinquent. In addition, if such underpaid amount is in excess of [**] of the amount that actually should have been paid, then the Auditing Party(ies) shall be reimbursed by the Audited Party(ies) for the reasonable cost of such audit unless this [**] underpayment threshold would not have been crossed other than as the result of any audit the misstatement of financial data by another Party. In the books and records event of Audited Partyan overpayment, it such amounts shall be deducted from future amounts due. If such overpaid amounts have not been settled by such future deductions within one (1) year from the date originally overpaid, the Party who is shown that owed such overpayment shall invoice the Audited Party's owing Party for such amounts. Interest payments to shall be made in the Auditing Party under this Agreement with respect to same currency as the period of time audited wereunderlying obligation.

Payment Audits. (a) a. Either party (herein, the "“Auditing Party"”) may demand, no more than once during for any calendar year from the KING Product Initiation Date until two (2) years following the end of 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 ’s reports on the matters addressed in this Agreement. Upon no less than fifteen thirty (1530) days' ’ prior written notice to the Audited Party, the Audited Party shall grant reasonable access to members of a nationally nationally-recognized independent public accounting firm selected by the Auditing Party to the relevant books and records of the Audited Party in order to conduct a review or audit thereof. Such access shall be available permitted during normal business hours. The accountants accounting firm shall report their its conclusions and calculations to the Auditing Party and the Audited Party; provided, that in no event shall the accountants accounting firm disclose any information of the Audited Party except to the extent necessary to verify the Audited Party's ’s reporting and other compliance with the terms of this Agreement and, at the request of the Audited Party, such accountants accounting firm will execute appropriate non-disclosure agreements. Except as hereinafter set forth, the Auditing Party shall bear the full cost of the performance of any such audit. Any information obtained from an audit under this Section 10.2 shall be deemed Confidential and Proprietary Information of the Audited Party. (b) If, b. If as a result of any audit of the books and records of the Audited Party, Party it is shown that the Audited Party's ’s payments to the Auditing Party under this Agreement with respect to the period of time audited were less than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Audited Party shall pay to the Auditing Party the amount of such shortfall within thirty (30) days after the Auditing Party's ’s demand therefor. If, If as a result of any audit of the books and records of Audited Party, Party it is shown that the Audited Party's ’s payments to the Auditing Party under this Agreement with respect to the period of time audited werewere more than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Auditing Party shall pay to the Audited Party the amount of such overpayment within thirty (30) days after the Audited Party’s demand therefor. In addition, if any amount of underpayment by the Audited Party is more than *** of the amount which should have been paid to the Auditing Party pursuant to this Agreement with respect to the period in question, then the Audited Party shall also reimburse the Auditing Party for its documented, reasonable, out-of-pocket costs and expenses incurred in connection with the audit. c. In the event that the parties do not agree on the amount of overpayment or underpayment, within ten (10) business days, each party shall select an independent public accounting firm which shall meet and discuss the amount in dispute and other related matters within ten (10) business days thereafter. If such independent public accounting firms cannot agree on a resolution mutually agreeable to the parties, such independent public accounting firms shall, within ten (10) business days thereafter, appoint a third independent public accounting firm which shall resolve the issue within ten (10) business days after its selection. The recommendation of the third independent public accounting firm shall be final and binding upon the parties. A judgment on such firm’s disposition may be entered in any court having jurisdiction over the parties.

Payment Audits. (a) a. Either party (herein, the "Auditing Party") may demand, no more than once [***] during any calendar year from the KING Product Initiation Effective Date until two (2) years [***] following the end of the Termsuch calendar year, 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 the matters addressed in this Agreement. Upon no less than fifteen (15) [***] days' prior written notice to the Audited Party, the Audited Party shall grant reasonable access to members of a nationally recognized independent public accounting firm selected by the Auditing Party to the relevant books and records of the Audited Party in order to conduct a review or audit thereofthereof by members of a nationally recognized independent public accounting firm selected by the Auditing Party and reasonably acceptable to the Audited Party. Such access shall be available permitted during normal business hours. The accountants accounting firm shall report their its conclusions and calculations to the Auditing Party and the Audited Party; provided, that in no event shall the accountants accounting firm disclose any information of the Audited Party except to the extent necessary to verify the Audited Party's reporting and other compliance with the terms of this Agreement and, at the request of the Audited Party, such accountants accounting firm will execute appropriate non-disclosure agreements. Except as hereinafter set forth, the Auditing Party shall bear the full cost of the performance of any such audit. Any information obtained from an audit under this Section 10.2 shall be deemed Confidential and Proprietary Information of the Audited Party. (b) If, b. If as a result of any audit of the books and records of the Audited Party, Party it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited were less than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Audited Party shall pay to the Auditing Party the amount of such shortfall within thirty (30) [***] days after the Auditing Party's demand therefor. If, If as a result of any audit of the books and records of Audited Party, Party it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited werewere more than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Auditing Party shall pay to the Audited Party the amount of such overpayment within [***] days after the Audited Party's demand therefor. In addition, if any amount of underpayment by the Audited Party is more than [***] percent [***] of the amount which should have been paid to the Auditing Party pursuant to this Agreement with respect to the period in question, then the Audited Party shall also reimburse the Auditing Party for its documented reasonable out-of-pocket costs and expenses incurred in connection with the audit.

Payment Audits. (a) Either party (herein, the "Auditing Party") may demand, no more than once during any calendar year from commencing after the KING Product Initiation Date Initial Term (as defined below) and continuing until two (2) years following the end of 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 the matters addressed in this Agreement. Upon no less than fifteen (15) days' prior written notice to the Audited Party, the Audited Party shall grant access to members of a nationally recognized independent public accounting firm selected by the Auditing Party to the relevant books and records of the Audited Party in order to conduct a review or audit thereof. Such access shall be available during normal business hours. The accountants shall report their conclusions and calculations to the Auditing Party and the Audited Party; provided, that in no event shall the accountants disclose any information of the Audited Party except to the extent necessary to verify the Audited Party's reporting and other compliance with the terms of this Agreement and, at the request of the Audited Party, such accountants will execute appropriate non-disclosure agreements. Except as hereinafter set forth, the Auditing Party shall bear the full cost of the performance of any such audit. Any information obtained from an audit under this Section 10.2 8.2 shall be deemed Confidential and Proprietary Information of the Audited Party. (b) If, as a result of any audit of the books and records of the Audited Party, it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited were less than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Audited Party shall pay to the Auditing Party the amount of such shortfall within thirty (30) days after the Auditing Party's demand thereforherefore. If, as a result of any audit of the books and records of Audited Party, it is shown that the Audited Party's payments to the Auditing Party under this Agreement with respect to the period of time audited werewere more than the amount which should have been paid to the Auditing Party pursuant to this Agreement, then the Auditing Party shall pay to the Audited Party the amount of such overpayment within thirty (30) days after the Audited Party's demand therefore. In addition, if any amount payable by the Audited Party pursuant to this Section 8.2 is more than the amount which should have originally been paid pursuant to this Agreement by an amount in excess of ten percent (10%) of the payments actually made with respect to the period in question, then the Audited Party shall also reimburse the Auditing Party for its documented reasonable out-of-pocket costs and expenses incurred in connection with the audit.