Common use of Profit Sharing Clause in Contracts

Profit Sharing. 10.1 The Publisher shall pay the Developer the following share of profits as follows: 10.1.1 The Publisher shall retain one hundred percent (100%) of all cash received from any sources until the Publisher has recovered all of Publisher’s reasonable out of pocket costs, including payments made to Developer related to the Product, plus $300,000. Publisher will provide Developer with a detailed accounting of all out of pocket expenses charged to the project. 10.1.2 Once the Publisher has recovered the costs in 10.1.1, the Publisher shall retain sixty five percent (65%) of any remaining monies and pay to Developer thirty five percent (35%). 10.2 Within forty-five (45) days of the Quarter End following the date on which the Publisher first commercially releases a Version of the Product and of every subsequent Quarter End the Publisher shall provide the Developer with a written Profit Statement specifying in sufficient detail (i) amounts spent in satisfaction of the Marketing Guarantee (as defined below) in respect of that quarter; and (ii) the calculations of Cash Receipts and Expenses, and the Profit (if any) due to the Developer in respect of that quarter. Each Profit Statement shall be accompanied by a wire transfer for any monies due, save that if the Publisher is prevented by the law of any country from making payments outside that country it shall be entities to pay the relevant sums to the Developer in that country. All sums payable to Developer pursuant to this Agreement (including the Development Advances and Profits) shall be made in U.S. Dollars. At each Quarter End the Publisher may retain from Profits payable a reserve against returns or other credits in respect of Units sold by the Publisher hereunder in the manner set out in paragraph 10.2.1. 10.2.1 The Publisher will withhold a general reserve against rebates, deductions, price protection, discounts, allowances or refunds for returned, defective or discounted units, exchanges, credits and the like (the “General Reserve”) either: 10.2.1.1 where Publisher is responsible for the above described items, a reserve not to exceed Twenty percent (20%) of Gross Wholesale Sales (“Gross Wholesale Sales” is defined as gross amounts received by Publisher from the sale, distribution or ancillary exploitation attributable to the Product), or 10.2.1.2 where publisher is not responsible for the above described items, in a pro rata amount of any such reserve withheld by Publisher’s Co-Publishers or sub-licensees of the product. Such pro-rata amount shall be based on the applicable Royalty Rate in paragraph 10.1. (For example, should a Co-Publisher withhold from Publisher $1,000 in payments which would fall under paragraph 10.1.1 above, Publisher would withhold $350 from Developer in a reserve. When Co-Publisher releases Publisher’s reserve, Publisher will promptly release Developer’s reserve.) 10.2.2 In either case under paragraph 10.2.1, such reserve shall be liquidated on a twelve month rolling basis. 10.3 Publisher will maintain accurate accounts, books and records that report the marketing, distribution and sales and other commercial exploitation of each Version of the Product which has been commercially released by the Publisher and any sub-licensing by the Publisher. Developer shall have the right to designate a certified public accountant (“the Auditor”) on Developer’s behalf to examine those accounts, books and records solely for the purpose of verifying the expenditures of the Marketing Guarantee and verifying the accuracy of the Royalty Statements under paragraph 10.2 and the Royalty payable under this Agreement. Developer’s Auditor may only make such examination during regular business hours and upon reasonable notice and in manner that is at the Publisher’s reasonable convenience and not disruptive to the Publisher’s business. Each examination will take place at the place the Publisher normally keeps the accounts, books and records to be examined, which is presently in Sausalito, California. Developer shall be limited to one such examination each 12 months while the Product is being commercially exploited and for 3 years thereafter. Publisher’s accounts, books and records relating to the Marketing Guarantee and to a particular Profitability Statement may be examined only within 36 months after the date the Statement was rendered. Developer shall not have the right to examine Publisher’s accounts, books or records relating to a particular Profitability Statement more than once. Prior to the commencement of any examination of the Publisher’s accounts, books and records under this Agreement, Developer shall cause the Auditor to sign a letter and/or agreement which acknowledges the confidentiality of the Publisher’s accounts, books and records in the form set out in Schedule 3. The fees of the Auditor shall be at the sole expense of Developer unless such audit discovers previously undiscovered errors in favor of Publisher exceeding both 5% and $2,500 for the entire time period covered by that audit, in which case the Publisher shall reimburse actual and reasonable Auditor’s fees for that audit to Developer in addition to make good the amounts of such errors and pay interest on such unpaid sums at the statutory rate of interest under California law. 10.4 Each Profitability Statement shall be final and binding on Developer unless Developer has given Publisher written notice of objection stating the matters to which it disagrees within 3 years of the issue of the Profitability Statements, and (if the Publisher does not accept any of those objections), unless the Developer has issued and served legal proceedings within 2 years of the date of the Developer’s relevant notice of objection.

Profit Sharing. 10.1 The Publisher shall pay the Developer the following share of profits as follows: 10.1.1 The Publisher shall retain one hundred percent (100%) of all cash received from any sources until the Publisher has recovered all of Publisher’s reasonable out of pocket costs, including payments made to Developer related to the Product, plus $300,000. xxxxxx Publisher will provide Developer with a detailed accounting of all out of pocket expenses charged to the project. 10.1.2 Once the Publisher has recovered the costs in 10.1.1, the Publisher shall retain sixty five xxxxxx percent (65%xxxx) of any remaining monies and pay to Developer thirty five xxxxxxxx percent (35%xxxxx%). 10.2 Within forty-five (45) days of the Quarter End following the date on which the Publisher first commercially releases a Version of the Product and of every subsequent Quarter End the Publisher shall provide the Developer with a written Profit Statement specifying in sufficient detail (i) amounts spent in satisfaction of the Marketing Guarantee (as defined below) in respect of that quarter; and (ii) the calculations of Cash Receipts and Expenses, and the Profit (if any) due to the Developer in respect of that quarter. Each Profit Statement shall be accompanied by a wire transfer for any monies due, save that if the Publisher is prevented by the law of any country from making payments outside that country it shall be entities to pay the relevant sums to the Developer in that country. All sums payable to Developer pursuant to this Agreement (including the Development Advances and Profits) shall be made in U.S. Dollars. At each Quarter End the Publisher may retain from Profits payable a reserve against returns or other credits in respect of Units sold by the Publisher hereunder in the manner set out in paragraph 10.2.1. 10.2.1 The Publisher will withhold a general reserve against rebates, deductions, price protection, discounts, allowances or refunds for returned, defective or discounted units, exchanges, credits and the like (the “General Reserve”) either: 10.2.1.1 where Publisher is responsible for the above described items, a reserve not to exceed Twenty percent (20%) of Gross Wholesale Sales (“Gross Wholesale Sales” is defined as gross amounts received by Publisher from the sale, distribution or ancillary exploitation attributable to the Product), or 10.2.1.2 where publisher is not responsible for the above described items, in a pro rata amount of any such reserve withheld by Publisher’s Co-Publishers or sub-licensees of the product. Such pro-rata amount shall be based on the applicable Royalty Rate in paragraph 10.1. (For example, should a Co-Publisher withhold from Publisher $1,000 in payments which would fall under paragraph 10.1.1 above, Publisher would withhold $350 from Developer in a reserve. When Co-Publisher releases Publisher’s reserve, Publisher will promptly release Developer’s reserve.) 10.2.2 In either case under paragraph 10.2.1, such reserve shall be liquidated on a twelve month rolling basis. 10.3 Publisher will maintain accurate accounts, books and records that report the marketing, distribution and sales and other commercial exploitation of each Version of the Product which has been commercially released by the Publisher and any sub-licensing by the Publisher. Developer shall have the right to designate a certified public accountant (“the Auditor”) on Developer’s behalf to examine those accounts, books and records solely for the purpose of verifying the expenditures of the Marketing Guarantee and verifying the accuracy of the Royalty Statements under paragraph 10.2 and the Royalty payable under this Agreement. Developer’s Auditor may only make such examination during regular business hours and upon reasonable notice and in manner that is at the Publisher’s reasonable convenience and not disruptive to the Publisher’s business. Each examination will take place at the place the Publisher normally keeps the accounts, books and records to be examined, which is presently in Sausalito, California. Developer shall be limited to one such examination each 12 months while the Product is being commercially exploited and for 3 years thereafter. Publisher’s accounts, books and records relating to the Marketing Guarantee and to a particular Profitability Statement may be examined only within 36 months after the date the Statement was rendered. Developer shall not have the right to examine Publisher’s accounts, books or records relating to a particular Profitability Statement more than once. Prior to the commencement of any examination of the Publisher’s accounts, books and records under this Agreement, Developer shall cause the Auditor to sign a letter and/or agreement which acknowledges the confidentiality of the Publisher’s accounts, books and records in the form set out in Schedule 3. The fees of the Auditor shall be at the sole expense of Developer unless such audit discovers previously undiscovered errors in favor of Publisher exceeding both 5% and $2,500 for the entire time period covered by that audit, in which case the Publisher shall reimburse actual and reasonable Auditor’s fees for that audit to Developer in addition to make good the amounts of such errors and pay interest on such unpaid sums at the statutory rate of interest under California law. 10.4 Each Profitability Statement shall be final and binding on Developer unless Developer has given Publisher written notice of objection stating the matters to which it disagrees within 3 years of the issue of the Profitability Statements, and (if the Publisher does not accept any of those objections), unless the Developer has issued and served legal proceedings within 2 years of the date of the Developer’s relevant notice of objection.

Profit Sharing. 10.1 The Publisher shall pay the Developer the following share of profits as follows: 10.1.1 The Publisher shall retain one hundred percent (100%) of all cash received from any sources until the Publisher has recovered all of Publisher’s reasonable out of pocket costs, including payments made to Developer related to the Product, plus $300,000xxxxxx. Publisher will provide Developer with a detailed accounting of all out of pocket expenses charged to the project. 10.1.2 Once the Publisher has recovered the costs in 10.1.1, the Publisher shall retain sixty five xxxxxx percent (65xxxxxx %) of any remaining monies and pay to Developer thirty five xxxxxx percent (35xxxxxx %). 10.2 Within forty-five (45) days of the Quarter End following the date on which the Publisher first commercially releases a Version of the Product and of every subsequent Quarter End the Publisher shall provide the Developer with a written Profit Statement specifying in sufficient detail (i) amounts spent in satisfaction of the Marketing Guarantee (as defined below) in respect of that quarter; and (ii) the calculations of Cash Receipts and Expenses, and the Profit (if any) due to the Developer in respect of that quarter. Each Profit Statement shall be accompanied by a wire transfer for any monies due, save that if the Publisher is prevented by the law of any country from making payments outside that country it shall be entities to pay the relevant sums to the Developer in that country. All sums payable to Developer pursuant to this Agreement (including the Development Advances and Profits) shall be made in U.S. Dollars. At each Quarter End the Publisher may retain from Profits payable a reserve against returns or other credits in respect of Units sold by the Publisher hereunder in the manner set out in paragraph 10.2.1. 10.2.1 The Publisher will withhold a general reserve against rebates, deductions, price protection, discounts, allowances or refunds for returned, defective or discounted units, exchanges, credits and the like (the “General Reserve”) either: 10.2.1.1 where Publisher is responsible for the above described items, a reserve not to exceed Twenty percent (20%) of Gross Wholesale Sales (“Gross Wholesale Sales” is defined as gross amounts received by Publisher from the sale, distribution or ancillary exploitation attributable to the Product), or 10.2.1.2 where publisher is not responsible for the above described items, in a pro rata amount of any such reserve withheld by Publisher’s Co-Publishers or sub-licensees of the product. Such pro-rata amount shall be based on the applicable Royalty Rate in paragraph 10.1. (For example, should a Co-Publisher withhold from Publisher $1,000 in payments which would fall under paragraph 10.1.1 above, Publisher would withhold $350 from Developer in a reserve. When Co-Publisher releases Publisher’s reserve, Publisher will promptly release Developer’s reserve.) 10.2.2 In either case under paragraph 10.2.1, such reserve shall be liquidated on a twelve month rolling basis. 10.3 Publisher will maintain accurate accounts, books and records that report the marketing, distribution and sales and other commercial exploitation of each Version of the Product which has been commercially released by the Publisher and any sub-licensing by the Publisher. Developer shall have the right to designate a certified public accountant (“the Auditor”) on Developer’s behalf to examine those accounts, books and records solely for the purpose of verifying the expenditures of the Marketing Guarantee and verifying the accuracy of the Royalty Statements under paragraph 10.2 and the Royalty payable under this Agreement. Developer’s Auditor may only make such examination during regular business hours and upon reasonable notice and in manner that is at the Publisher’s reasonable convenience and not disruptive to the Publisher’s business. Each examination will take place at the place the Publisher normally keeps the accounts, books and records to be examined, which is presently in Sausalito, California. Developer shall be limited to one such examination each 12 months while the Product is being commercially exploited and for 3 years thereafter. Publisher’s accounts, books and records relating to the Marketing Guarantee and to a particular Profitability Statement may be examined only within 36 months after the date the Statement was rendered. Developer shall not have the right to examine Publisher’s accounts, books or records relating to a particular Profitability Statement more than once. Prior to the commencement of any examination of the Publisher’s accounts, books and records under this Agreement, Developer shall cause the Auditor to sign a letter and/or agreement which acknowledges the confidentiality of the Publisher’s accounts, books and records in the form set out in Schedule 3. The fees of the Auditor shall be at the sole expense of Developer unless such audit discovers previously undiscovered errors in favor of Publisher exceeding both 5% and $2,500 for the entire time period covered by that audit, in which case the Publisher shall reimburse actual and reasonable Auditor’s fees for that audit to Developer in addition to make good the amounts of such errors and pay interest on such unpaid sums at the statutory rate of interest under California law. 10.4 Each Profitability Statement shall be final and binding on Developer unless Developer has given Publisher written notice of objection stating the matters to which it disagrees within 3 years of the issue of the Profitability Statements, and (if the Publisher does not accept any of those objections), unless the Developer has issued and served legal proceedings within 2 years of the date of the Developer’s relevant notice of objection.

Profit Sharing. 10.1 The Publisher shall pay the Developer the following share of profits as follows: 10.1.1 The Publisher shall retain one hundred percent (100%) of all cash received from any sources until the Publisher has recovered all of Publisher’s reasonable out of pocket costs, including payments made to Developer related to the Product, plus $300,000. 300,000 Publisher will provide Developer with a detailed accounting of all out of pocket expenses charged to the project. 10.1.2 Once the Publisher has recovered the costs in 10.1.1, the Publisher shall retain sixty five percent (65%) of any remaining monies and pay to Developer thirty five percent (35%). 10.2 Within forty-five (45) days of the Quarter End following the date on which the Publisher first commercially releases a Version of the Product and of every subsequent Quarter End the Publisher shall provide the Developer with a written Profit Statement specifying in sufficient detail (i) amounts spent in satisfaction of the Marketing Guarantee (as defined below) in respect of that quarter; and (ii) the calculations of Cash Receipts and Expenses, and the Profit (if any) due to the Developer in respect of that quarter. Each Profit Statement shall be accompanied by a wire transfer for any monies due, save that if the Publisher is prevented by the law of any country from making payments outside that country it shall be entities to pay the relevant sums to the Developer in that country. All sums payable to Developer pursuant to this Agreement (including the Development Advances and Profits) shall be made in U.S. Dollars. At each Quarter End the Publisher may retain from Profits payable a reserve against returns or other credits in respect of Units sold by the Publisher hereunder in the manner set out in paragraph 10.2.1. 10.2.1 The Publisher will withhold a general reserve against rebates, deductions, price protection, discounts, allowances or refunds for returned, defective or discounted units, exchanges, credits and the like (the “General Reserve”) either: 10.2.1.1 where Publisher is responsible for the above described items, a reserve not to exceed Twenty percent (20%) of Gross Wholesale Sales (“Gross Wholesale Sales” is defined as gross amounts received by Publisher from the sale, distribution or ancillary exploitation attributable to the Product), or 10.2.1.2 where publisher is not responsible for the above described items, in a pro rata amount of any such reserve withheld by Publisher’s Co-Publishers or sub-licensees of the product. Such pro-rata amount shall be based on the applicable Royalty Rate in paragraph 10.1. (For example, should a Co-Publisher withhold from Publisher $1,000 in payments which would fall under paragraph 10.1.1 above, Publisher would withhold $350 from Developer in a reserve. When Co-Publisher releases Publisher’s reserve, Publisher will promptly release Developer’s reserve.) 10.2.2 In either case under paragraph 10.2.1, such reserve shall be liquidated on a twelve month rolling basis. 10.3 Publisher will maintain accurate accounts, books and records that report the marketing, distribution and sales and other commercial exploitation of each Version of the Product which has been commercially released by the Publisher and any sub-licensing by the Publisher. Developer shall have the right to designate a certified public accountant (“the Auditor”) on Developer’s behalf to examine those accounts, books and records solely for the purpose of verifying the expenditures of the Marketing Guarantee and verifying the accuracy of the Royalty Statements under paragraph 10.2 and the Royalty payable under this Agreement. Developer’s Auditor may only make such examination during regular business hours and upon reasonable notice and in manner that is at the Publisher’s reasonable convenience and not disruptive to the Publisher’s business. Each examination will take place at the place the Publisher normally keeps the accounts, books and records to be examined, which is presently in Sausalito, California. Developer shall be limited to one such examination each 12 months while the Product is being commercially exploited and for 3 years thereafter. Publisher’s accounts, books and records relating to the Marketing Guarantee and to a particular Profitability Statement may be examined only within 36 months after the date the Statement was rendered. Developer shall not have the right to examine Publisher’s accounts, books or records relating to a particular Profitability Statement more than once. Prior to the commencement of any examination of the Publisher’s accounts, books and records under this Agreement, Developer shall cause the Auditor to sign a letter and/or agreement which acknowledges the confidentiality of the Publisher’s accounts, books and records in the form set out in Schedule 3. The fees of the Auditor shall be at the sole expense of Developer unless such audit discovers previously undiscovered errors in favor of Publisher exceeding both 5% and $2,500 for the entire time period covered by that audit, in which case the Publisher shall reimburse actual and reasonable Auditor’s fees for that audit to Developer in addition to make good the amounts of such errors and pay interest on such unpaid sums at the statutory rate of interest under California law. 10.4 Each Profitability Statement shall be final and binding on Developer unless Developer has given Publisher written notice of objection stating the matters to which it disagrees within 3 years of the issue of the Profitability Statements, and (if the Publisher does not accept any of those objections), unless the Developer has issued and served legal proceedings within 2 years of the date of the Developer’s relevant notice of objection.

Profit Sharing. 10.1 The Publisher shall pay the Developer the following share of profits as follows: 10.1.1 The Publisher shall retain one hundred percent (100%) of all cash received from any sources until the Publisher has recovered all of Publisher’s reasonable out of pocket costs, including payments made to Developer related to the Product, plus $300,000xxxxxx. Publisher will provide Developer with a detailed accounting of all out of pocket expenses charged to the project. 10.1.2 Once the Publisher has recovered the costs in 10.1.1, the Publisher shall retain sixty five xxxxxx percent (65%xxxxxx) of any remaining monies and pay to Developer thirty five xxxxxx percent (35%xxxxxx). 10.2 Within forty-five (45) days of the Quarter End following the date on which the Publisher first commercially releases a Version of the Product and of every subsequent Quarter End the Publisher shall provide the Developer with a written Profit Statement specifying in sufficient detail (i) amounts spent in satisfaction of the Marketing Guarantee (as defined below) in respect of that quarter; and (ii) the calculations of Cash Receipts and Expenses, and the Profit (if any) due to the Developer in respect of that quarter. Each Profit Statement shall be accompanied by a wire transfer for any monies due, save that if the Publisher is prevented by the law of any country from making payments outside that country it shall be entities to pay the relevant sums to the Developer in that country. All sums payable to Developer pursuant to this Agreement (including the Development Advances and Profits) shall be made in U.S. Dollars. At each Quarter End the Publisher may retain from Profits payable a reserve against returns or other credits in respect of Units sold by the Publisher hereunder in the manner set out in paragraph 10.2.1. 10.2.1 The Publisher will withhold a general reserve against rebates, deductions, price protection, discounts, allowances or refunds for returned, defective or discounted units, exchanges, credits and the like (the “General Reserve”) either: 10.2.1.1 where Publisher is responsible for the above described items, a reserve not to exceed Twenty percent (20%) of Gross Wholesale Sales (“Gross Wholesale Sales” is defined as gross amounts received by Publisher from the sale, distribution or ancillary exploitation attributable to the Product), or 10.2.1.2 where publisher is not responsible for the above described items, in a pro rata amount of any such reserve withheld by Publisher’s Co-Publishers or sub-licensees of the product. Such pro-rata amount shall be based on the applicable Royalty Rate in paragraph 10.1. (For example, should a Co-Publisher withhold from Publisher $1,000 in payments which would fall under paragraph 10.1.1 above, Publisher would withhold $350 from Developer in a reserve. When Co-Publisher releases Publisher’s reserve, Publisher will promptly release Developer’s reserve.) 10.2.2 In either case under paragraph 10.2.1, such reserve shall be liquidated on a twelve month rolling basis. 10.3 Publisher will maintain accurate accounts, books and records that report the marketing, distribution and sales and other commercial exploitation of each Version of the Product which has been commercially released by the Publisher and any sub-licensing by the Publisher. Developer shall have the right to designate a certified public accountant (“the Auditor”) on Developer’s behalf to examine those accounts, books and records solely for the purpose of verifying the expenditures of the Marketing Guarantee and verifying the accuracy of the Royalty Statements under paragraph 10.2 and the Royalty payable under this Agreement. Developer’s Auditor may only make such examination during regular business hours and upon reasonable notice and in manner that is at the Publisher’s reasonable convenience and not disruptive to the Publisher’s business. Each examination will take place at the place the Publisher normally keeps the accounts, books and records to be examined, which is presently in Sausalito, California. Developer shall be limited to one such examination each 12 months while the Product is being commercially exploited and for 3 years thereafter. Publisher’s accounts, books and records relating to the Marketing Guarantee and to a particular Profitability Statement may be examined only within 36 months after the date the Statement was rendered. Developer shall not have the right to examine Publisher’s accounts, books or records relating to a particular Profitability Statement more than once. Prior to the commencement of any examination of the Publisher’s accounts, books and records under this Agreement, Developer shall cause the Auditor to sign a letter and/or agreement which acknowledges the confidentiality of the Publisher’s accounts, books and records in the form set out in Schedule 3. The fees of the Auditor shall be at the sole expense of Developer unless such audit discovers previously undiscovered errors in favor of Publisher exceeding both 5% and $2,500 for the entire time period covered by that audit, in which case the Publisher shall reimburse actual and reasonable Auditor’s fees for that audit to Developer in addition to make good the amounts of such errors and pay interest on such unpaid sums at the statutory rate of interest under California law. 10.4 Each Profitability Statement shall be final and binding on Developer unless Developer has given Publisher written notice of objection stating the matters to which it disagrees within 3 years of the issue of the Profitability Statements, and (if the Publisher does not accept any of those objections), unless the Developer has issued and served legal proceedings within 2 years of the date of the Developer’s relevant notice of objection.