Common use of Records; Audit Rights Clause in Contracts

Records; Audit Rights. (a) Seller will, and will cause its Affiliates to, consistent with their respective internal financial control and reporting practices and procedures, keep and maintain, for a period of *** from the end of an applicable ***, accounts and records of all data reasonably required to verify payments of Scheduled Quarterly Amounts and Quarterly Reports, to verify and calculate the amounts to be paid to Purchaser under this Agreement. (b) During the Term and for *** thereafter, during normal business hours and upon at least *** prior written notice to Seller, but no more frequently than ***, and no more than *** during the Payment Period, Purchaser has the right to audit, through a nationally recognized “Big 4” accounting firm (which firm shall be independent of Seller and Purchaser and their respective Affiliates) mutually acceptable to the Parties (the “Accounting Firm”), those accounts and records of Seller and Seller’s Affiliates as may be reasonably necessary to verify the accuracy of the Quarterly Reports and the amounts received by Purchaser (provided, however, that, prior to conducting any such audit, the Accounting Firm will have entered into a confidentiality agreement in form and substance reasonably satisfactory to Seller). The Accounting Firm will keep confidential all information obtained during such audit and will issue a written report to Purchaser and to Seller with only: (i) the actual amount of Net Sales made during the *** in question, (ii) the resulting over- or under-payment of Scheduled Quarterly Amounts to Purchaser that occurred during the *** in question; and (iii) the details of any discrepancies between the Scheduled Quarterly Amounts that were paid and the Scheduled Quarterly Amounts that should have been paid. The determination of the actual amount of Scheduled Quarterly Amounts to be paid to Purchaser under this Agreement with respect to any *** will be binding and conclusive on the Parties upon the expiration of *** following the end of such ***, unless an audit of such *** has been initiated before the expiration of such *** period and is on-going, in which case, such determination will be binding and conclusive on the Parties upon completion of such audit. Without limiting the generality of the preceding sentence, absent a substantive error, the report from the Accounting Firm will be final and non-appealable. In the event that either Party identifies a substantive error in the report from the Accounting Firm, the Parties agree to cooperate in good faith with each other and the Accounting Firm to resolve the error and the related report within *** of such Party notifying the Accounting Firm of the substantive error. If the Parties and the Accounting Firm cannot resolve the error to the mutual satisfaction of the Parties within such *** period, then the original determination of the Accounting Firm shall be final and non-appealable. (c) Purchaser is solely responsible for all the expenses of the Accounting Firm, unless the Accounting Firm’s report shows any underpayment by Seller exceeding *** of the payment it owed Purchaser for any of the *** then-being reviewed. If the Accounting Firm’s report shows that Seller underpaid by more than ***, Seller is responsible for the reasonable expenses incurred by Purchaser for the Accounting Firm’s services. Any payment owed by one Party to another as a result of the audit shall be made within *** of the date that the audit report is deemed to be final and non-appealable, free and clear of any and all Encumbrances. In addition, any payment under this Section 2.3 shall bear interest in accordance with Section 2.5.

Records; Audit Rights. (a) Seller will, 7.1 During the Term of this Agreement and will cause its Affiliates to, consistent with their respective internal financial control and reporting practices and procedures, keep and maintain, for a period of three (3) years after the termination or expiration hereof, (a) Supplier shall keep proper documentation of all transactions related to this Agreement including keeping books of record and account in accordance with Sections 4, 5 and 6 and generally accepted accounting practices consistently applied; and (b) upon **** from notice, Supplier shall permit Sun or an independent accounting firm or other representatives selected by Sun and agreed to by Supplier (agreement not to be unreasonably withheld), to examine and inspect, at Supplier’s facility and during normal business hours, the end of an applicable ***, accounts books and financial records of Supplier and to make copies therefrom for the purpose of determining Supplier’s compliance with the terms of this Agreement and the correctness of any bills or invoices for costs and expenses for which Supplier has sought reimbursement or payment under this Agreement. The foregoing will include Sun’s access to all data reasonably required records and documentation of transactions, processes and controls performed for Sun or as, of this Agreement. In addition, upon request by Sun, Supplier shall certify to verify payments of Scheduled Quarterly Amounts and Quarterly Reports, to verify and calculate the amounts to be paid to Purchaser Sun in writing Supplier’s compliance with its obligations under this Agreement. (b) During 7.2 Sun will pay for the Term and for *** thereafter, during normal business hours and upon at least *** prior written notice to Seller, but no more frequently than ***, and no more than *** during the Payment Period, Purchaser has the right to audit, through a nationally recognized “Big 4” accounting firm (which firm shall be independent of Seller and Purchaser and their respective Affiliates) mutually acceptable to the Parties (the “Accounting Firm”), those accounts and records of Seller and Seller’s Affiliates as may be reasonably necessary to verify the accuracy costs of the Quarterly Reports and the amounts received by Purchaser (provided, however, that, prior to conducting any such audit, the Accounting Firm will have entered into a confidentiality agreement in form and substance reasonably satisfactory to Seller). The Accounting Firm will keep confidential all information obtained during such audit and will issue a written report to Purchaser and to Seller with only: (i) the actual amount of Net Sales made during the *** in question, (ii) the resulting over- or under-payment of Scheduled Quarterly Amounts to Purchaser that occurred during the *** in question; and (iii) the details of any discrepancies between the Scheduled Quarterly Amounts that were paid and the Scheduled Quarterly Amounts that should have been paid. The determination of the actual amount of Scheduled Quarterly Amounts to be paid to Purchaser under this Agreement with respect to any *** will be binding and conclusive on the Parties upon the expiration of *** following the end of such ***, unless an audit of such *** has been initiated before the expiration of such *** period and is on-going, in which case, such determination will be binding and conclusive on the Parties upon completion of such audit. Without limiting the generality of the preceding sentence, absent a substantive error, the report from the Accounting Firm will be final and non-appealable. In the event that either Party identifies a substantive error in the report from the Accounting Firm, the Parties agree to cooperate in good faith with each other and the Accounting Firm to resolve the error and the related report within *** of such Party notifying the Accounting Firm of the substantive error. If the Parties and the Accounting Firm cannot resolve the error to the mutual satisfaction of the Parties within such *** period, then the original determination of the Accounting Firm shall be final and non-appealable. (c) Purchaser is solely responsible for all the expenses of the Accounting Firm, unless the Accounting Firm’s report shows any underpayment by Seller exceeding *** results of the payment it owed Purchaser for any of the *** then-being reviewed. If the Accounting Firm’s report shows audit show that Seller underpaid Supplier has overcharged Sun by more than **** (an “Overcharge”), Seller is responsible in which case Supplier shall reimburse Sun for the reasonable expenses incurred by Purchaser for the Accounting Firm’s services. Any payment owed by one Party to another as a result full cost of the audit and at Sun’s election, Sun shall either be made credited for such overpayment on any outstanding or future invoice **** Any underpayment will be paid to Supplier within **** of receipt of written notification thereof as part of the date procedures set forth in Section 4. 7.3 Sun may exercise its audit right pursuant to this Section ****, provided however that if Sun discovers an Overcharge or a material default by Supplier of its obligations pursuant to this Agreement then Sun may **** The remedies provided in this Section in the audit report is deemed to be final and non-appealable, free and clear event of Sun’s discovery of any breach by Supplier of this Agreement are in addition to all rights and all Encumbrances. In addition, any payment under this Section 2.3 shall bear interest in accordance remedies Sun may have with Section 2.5respect to such breach.