Common use of Record Keeping; Audits Clause in Contracts

Record Keeping; Audits. (a) Abbott shall keep full and accurate accounting records of all Tests and Excluded Tests (as defined in Section 6.4) sold in sufficient detail to determine the Product Fees payable by Abbott to BGM. Upon reasonable written notice to Abbott, BGM shall have the right, during normal business hours, to have an independent certified public accountant, selected by BGM and acceptable to Abbott, audit Xxxxxx’x records pertaining to the number of Tests and Excluded Tests sold on a confidential basis to verify the Product Fees payable pursuant to this Agreement; provided, however, that such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records for more than the preceding three (3) years. Such certified public accountant shall enter into a non-disclosure agreement with confidentiality provisions at least as stringent as those set forth in this Agreement, and shall only disclose the conclusion of such audit to BGM and Abbott, and not any of Xxxxxx’x customers, pricing or other Confidential Information. The results of such audit shall be binding on both parties. Any adjustment in payment shall be made upon demonstration of any underpayment. (b) BGM shall keep (i) full and accurate accounting records of its own AUP, in sufficient detail to determine if any of the circumstances set forth in Section 3.2 have occurred. Upon reasonable written notice to BGM, Abbott shall have the right, during normal business hours, to have an independent certified public accountant, selected by Abbott and acceptable to BGM, audit BGM’s records pertaining to the sales of Galectin-3 products on a confidential basis to verify the AUPs of such products for the purposes of this Agreement; provided, however, that such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records for more than the preceding two (2) years. Such certified public accountant shall enter into a non-disclosure agreement with confidentiality provisions at least as stringent as those set forth in this Agreement, and shall only disclose the conclusion of such audit to BGM and Abbott, and not any of BGM’s customers, pricing or other Confidential Information. The results of such audit shall be binding on both parties.

Record Keeping; Audits. (a) Abbott Licensee and its Affiliates shall keep full books and accurate accounting records accounts of all Tests and Excluded Tests (as defined record in Section 6.4) sold connection with Net Sales of the Product in sufficient detail to determine permit accurate determination of all figures necessary for verification of royalties to be paid hereunder. Licensee and its Affiliates shall maintain such records for a period of at least three (3) years after the Product Fees payable by Abbott to BGM. Upon reasonable written notice to Abbott, BGM shall have end of the right, during normal business hours, to have an independent certified public accountant, selected by BGM and acceptable to Abbott, audit Xxxxxx’x records pertaining to the number of Tests and Excluded Tests sold on a confidential basis to verify the Product Fees payable pursuant to this AgreementCalendar Quarter in which they were generated; provided, however, that if any records are in dispute and Licensee has received written notice from Licensor of the records which are in dispute, Licensee and its Affiliates shall keep such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records for more than until the preceding later of three (3) yearsyears or until such dispute is resolved. Such certified No more than once every calendar year, upon reasonable advance written notice to Licensee, Licensor will have the right to engage a nationally recognized public accountant shall accounting firm chosen by Licensor and reasonably acceptable to Licensee (which accounting firm will not be the external auditor of Licensor, will not have been hired or paid on a contingency basis and will have experience auditing pharmaceutical companies) (a “CPA Firm”) to conduct an audit of such books and records of Licensee to determine the correctness of the amount of royalties paid to Licensor under the terms of this Agreement. The CPA Firm will be given access to and will be permitted to examine such books and records of Licensee as it will reasonably request, upon thirty (30) days’ prior written notice having been given by Licensor, during regular business hours, for the sole purpose of determining compliance with the Net Sales royalty provisions of this Agreement. Prior to any such examination taking place, the CPA Firm will enter into a non-disclosure confidentiality agreement reasonably acceptable to Licensee and Licensor with confidentiality provisions at least respect to the Confidential Information to which they are given access and will not contain in its report or otherwise disclose to Licensor or any Third Party any information labeled by Licensee as stringent as those set forth in this Agreement, and shall only disclose the conclusion of such audit to BGM and Abbott, and not any of Xxxxxx’x customers, being confidential customer information regarding pricing or other Confidential Informationcompetitively sensitive proprietary information. The results Licensor and Licensee will be entitled to receive a full written report of the CPA Firm with respect to its findings and Licensor will provide, without condition or qualification, Licensee with a copy of the report, or other summary of findings, prepared by such CPA Firm promptly following Licensor’s receipt of same. In the event of any dispute between Licensor and Licensee regarding the findings of any such inspection or audit, the Parties will initially attempt in good faith to resolve the dispute amicably between themselves, and if the Parties are unable to resolve such dispute within thirty (30) days after delivery to both Parties of the CPA Firm’s report, each Party will select an internationally recognized independent certified public accounting firm (other than the CPA Firm), and the two firms chosen by the Parties will choose a third internationally recognized independent certified public accounting firm which will resolve the dispute, and such accounting firm’s determination will be binding on both Parties absent manifest error by such accounting firm. All costs and expenses of such auditor incurred in connection with performing any such audit shall be binding on both parties. Any adjustment in payment shall be made upon demonstration paid by Licensor unless such audit discloses an underpayment of any underpayment. at least five percent (b) BGM shall keep (i) full and accurate accounting records of its own AUP5%), in sufficient detail to determine if any of the circumstances set forth in Section 3.2 have occurred. Upon reasonable written notice to BGM, Abbott which case Licensee shall have the right, during normal business hours, to have an independent certified public accountant, selected by Abbott bear such costs and acceptable to BGM, audit BGM’s records pertaining to the sales of Galectin-3 products on a confidential basis to verify the AUPs of such products for the purposes of this Agreement; provided, however, that such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records for more than the preceding two (2) years. Such certified public accountant shall enter into a non-disclosure agreement with confidentiality provisions at least as stringent as those set forth in this Agreement, and shall only disclose the conclusion of such audit to BGM and Abbott, and not any of BGM’s customers, pricing or other Confidential Information. The results of such audit shall be binding on both partiesexpenses.

Record Keeping; Audits. (a) Abbott Licensee and its Affiliates shall keep full books and accurate accounting records accounts of all Tests and Excluded Tests (as defined record in Section 6.4) sold connection with Net Sales of the Product in sufficient detail to determine permit accurate determination of all figures necessary for verification of royalties to be paid hereunder. Licensee and its Affiliates shall maintain such records for a period of at least three (3) years after the Product Fees payable by Abbott to BGM. Upon reasonable written notice to Abbott, BGM shall have end of the right, during normal business hours, to have an independent certified public accountant, selected by BGM and acceptable to Abbott, audit Xxxxxx’x records pertaining to the number of Tests and Excluded Tests sold on a confidential basis to verify the Product Fees payable pursuant to this AgreementCalendar Quarter in which they were generated; provided, however, that if any records are in dispute and Licensee has received written notice from Licensor of the records which are in dispute, Licensee and its Affiliates shall keep such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records for more than until the preceding later of three (3) yearsyears or until such dispute is resolved. Such certified No more than once every calendar year, upon reasonable advance written notice to Licensee, Licensor will have the right to engage a nationally recognized public accountant shall accounting firm chosen by Licensor and reasonably acceptable to Licensee (which accounting firm will not be the external auditor of Licensor, will not have been hired or paid on a contingency basis and will have experience auditing pharmaceutical companies) (a “CPA Firm”) to conduct an audit of such books and records of Licensee to determine the correctness of the amount of royalties paid to Licensor under the terms of this Agreement. The CPA Firm will be given access to and will be permitted to examine such books and records of Licensee as it will reasonably request, upon thirty (30) days’ prior written notice having been given by Licensor, during regular business hours, for the sole purpose of determining compliance with the Net Sales royalty provisions of this Agreement. Prior to any such examination taking place, the CPA Firm will enter into a non-disclosure confidentiality agreement reasonably acceptable to Licensee and Licensor with confidentiality provisions at least respect to the Confidential Information to which they are given access and will not contain in its report or otherwise disclose to Licensor or any Third Party any information labeled by Licensee as stringent as those set forth in this Agreement, and shall only disclose the conclusion of such audit to BGM and Abbott, and not any of Xxxxxx’x customers, being confidential customer information regarding pricing or other Confidential Informationcompetitively sensitive proprietary information. The results Licensor and Licensee will be entitled to receive a full written report of the CPA Firm with respect to its findings and Licensor will provide, without condition or qualification, Licensee with a copy of the report, or other summary of findings, prepared by such. CPA Firm promptly following Licensor’s receipt of same. In the event of any dispute between Licensor and Licensee regarding the findings of any such inspection or audit, the Parties will initially attempt in good faith to resolve the dispute amicably between themselves, and if the Parties are unable to resolve such dispute within thirty (30) days after delivery to both Parties of the CPA Firm’s report, each Party will select an internationally recognized independent certified public accounting firm (other than the CPA Firm), and the two firms chosen by the Parties will choose a third internationally recognized independent certified public accounting firm which will resolve the dispute, and such accounting firm’s determination will be binding on both Parties absent manifest error by such accounting firm. All costs and expenses of such auditor incurred in connection with performing any such audit shall be binding on both parties. Any adjustment in payment shall be made upon demonstration paid by Licensor unless such audit discloses an underpayment of any underpayment. at least five percent (b) BGM shall keep (i) full and accurate accounting records of its own AUP5%), in sufficient detail to determine if any of the circumstances set forth in Section 3.2 have occurred. Upon reasonable written notice to BGM, Abbott which case Licensee shall have the right, during normal business hours, to have an independent certified public accountant, selected by Abbott bear such costs and acceptable to BGM, audit BGM’s records pertaining to the sales of Galectin-3 products on a confidential basis to verify the AUPs of such products for the purposes of this Agreement; provided, however, that such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records for more than the preceding two (2) years. Such certified public accountant shall enter into a non-disclosure agreement with confidentiality provisions at least as stringent as those set forth in this Agreement, and shall only disclose the conclusion of such audit to BGM and Abbott, and not any of BGM’s customers, pricing or other Confidential Information. The results of such audit shall be binding on both partiesexpenses.

Record Keeping; Audits. (a) Abbott Sensory Cloud shall, and shall ensure that its Affiliates and Commercialization Partners, keep full and maintain complete and accurate accounting records of all Tests Net Sales of Licensed Products and Excluded Tests (as defined in Section 6.4) sold Royalties calculations in sufficient detail to determine allow Pulmatrix to confirm the Product Fees payable by Abbott to BGM. Upon reasonable written notice to Abbott, BGM shall have the right, during normal business hours, to have an independent certified public accountant, selected by BGM and acceptable to Abbott, audit Xxxxxx’x records pertaining to the number accuracy of Tests and Excluded Tests sold on Royalties paid hereunder for a confidential basis to verify the Product Fees payable pursuant to this Agreement; provided, however, that such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records for more than the preceding period of three (3) yearsyears from the end of the Calendar Quarter or other period covered by such payment. Pulmatrix shall have the right during such three (3) year period to appoint an independent auditor of national standing that is reasonably acceptable to Sensory Cloud to audit the records of Sensory Cloud for the purpose of verifying the accuracy of Royalty Reports. Such certified public accountant audit right shall enter into not be exercised Pulmatrix more than once in a non-disclosure agreement with confidentiality provisions twelve (12) month period. Sensory Cloud shall make its records available for audit by such independent auditor during regular business hours at least as stringent as those set forth in this Agreementsuch place or places where such records are customarily kept, and upon sixty (60) days’ prior written notice from Pulmatrix. All records made available for audit by Sensory Cloud shall only disclose be the conclusion Confidential Information of such audit to BGM and Abbott, and not any of Xxxxxx’x customers, pricing or other Confidential InformationSensory Cloud. The results of such audit each audit, if any, shall be binding on both partiesParties absent manifest error or fraud. Any adjustment in payment Sensory Cloud shall be made upon demonstration pay any underpayment of any underpayment. Royalties identified by the auditor following an audit under this Section 5.5 within thirty (b30) BGM shall keep (i) full and accurate accounting records Business Days after receipt of its own AUPan invoice from Pulmatrix for such underpaid amount. If an overpayment has been made, in sufficient detail to determine if any of the circumstances set forth in Section 3.2 have occurred. Upon reasonable written notice to BGM, Abbott then Sensory Cloud shall have the rightright to deduct such amount from the Royalties due in the next Calendar Quarter or if no further payment is due, during normal business hoursthen Pulmatrix shall re-pay such overpayment within thirty (30) Business Days of receipt of invoice from Sensory Cloud. Cost. The cost of the conduct of the audit shall be borne by Pulmatrix provided, to have an independent certified public accountant, selected by Abbott and acceptable to BGM, however¸ that if the audit BGM’s records pertaining to the sales of Galectin-3 products on a confidential basis to verify the AUPs of such products determines that Sensory Cloud has underpaid Pulmatrix for the purposes audited period by an amount equal to five percent (5%) or more of this Agreement; providedthe amount due, however, that such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records then responsibility for more than the preceding two (2) years. Such certified public accountant shall enter into a non-disclosure agreement with confidentiality provisions at least as stringent as those set forth in this Agreement, and shall only disclose the conclusion of such audit to BGM and Abbott, and not any of BGM’s customers, pricing or other Confidential Information. The results cost of such audit shall shift to Sensory Cloud and Sensory Cloud shall be binding on both partiessolely responsible for the cost of the audit.

Record Keeping; Audits. (a) Abbott Xxxxxx shall keep full and accurate accounting records of all Tests and Excluded Tests (as defined in Section 6.4) sold in sufficient detail to determine the Product Fees payable by Abbott Xxxxxx to BGM. Upon reasonable written notice to AbbottXxxxxx, BGM shall have the right, during normal business hours, to have an independent certified public accountant, selected by BGM and acceptable to AbbottXxxxxx, audit Xxxxxx’x records pertaining to the number of Tests and Excluded Tests sold on a confidential basis to Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 406 of the Securities Act of 1933, as amended. verify the Product Fees payable pursuant to this Agreement; provided, however, that such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records for more than the preceding three (3) years. Such certified public accountant shall enter into a non-disclosure agreement with confidentiality provisions at least as stringent as those set forth in this Agreement, and shall only disclose the conclusion of such audit to BGM and AbbottXxxxxx, and not any of Xxxxxx’x customers, pricing or other Confidential Information. The results of such audit shall be binding on both parties. Any adjustment in payment shall be made upon demonstration of any underpayment. (b) BGM shall keep (i) full and accurate accounting records of its own AUP, in sufficient detail to determine if any of the circumstances set forth in Section 3.2 have occurred. Upon reasonable written notice to BGM, Abbott Xxxxxx shall have the right, during normal business hours, to have an independent certified public accountant, selected by Abbott Xxxxxx and acceptable to BGM, audit BGM’s records pertaining to the sales of Galectin-3 products on a confidential basis to verify the AUPs of such products for the purposes of this Agreement; provided, however, that such audit shall not: (a) take place more frequently than once per calendar year; and (b) cover records for more than the preceding two (2) years. Such certified public accountant shall enter into a non-disclosure agreement with confidentiality provisions at least as stringent as those set forth in this Agreement, and shall only disclose the conclusion of such audit to BGM and AbbottXxxxxx, and not any of BGM’s customers, pricing or other Confidential Information. The results of such audit shall be binding on both parties.