Common use of Sales and Supply Forecasts; Accounts Clause in Contracts

Sales and Supply Forecasts; Accounts. (a) Exhibit D, which shall be supplied by the Distributor within [ *** ] of the Distributor's receipt of notice from Biomatrix of [ *** ] shall set forth a sales forecast of units of the Agreement Product in the Territory for the first Agreement Year. ***Confidential portions have been omitted and filed separately with the Securities and Exchange Commission. (b) Within [ *** ] after the end of each month of each Agreement Year in the Territory, the Distributor shall provide to Biomatrix an updated rolling twelve (12) month monthly supply forecast for all unit sizes of the Agreement Product. Each such supply forecast described in this subsection (b) is referred to herein as a "Supply Forecast"; provided, that updated Supply Forecasts shall not vary (whether up or down) from the immediately preceding Supply Forecast by more than [ *** ] with respect to each month covered by such preceding Supply Forecast. (c) The Distributor shall maintain books of account with respect to its sales of the Agreement Product in the Territory. Biomatrix shall have the right, not more than once during each calendar year, to have an independent accountant selected and retained by Biomatrix (reasonably acceptable to Distributor, provided that any "big six" accounting firm shall be deemed reasonable) to inspect and examine such books of the Distributor during regular business hours for the purpose of verifying the statements of the aggregate Net Retail Sales of all Dermal Tissue Augmentation Products for all purposes hereunder, including verification of Formula Price and the royalties described in Section 8. The cost of each such audit shall be borne by Biomatrix unless a material error is discovered in the course of such audit, in which case the cost shall be borne by the Distributor. For purposes of this Section 7.3(d), a material error shall be defined as an understatement of five percent (5%) or more of the aggregate amount owed to Biomatrix with respect to sales of Dermal Tissue Augmentation Products in the Territory. Any additional payments required as a result of such inspection and examination shall be immediately paid to Biomatrix and shall bear interest from the date such amount would otherwise have been paid until the date of actual payment at the rate per annum set forth in Section 20. Such independent accounting firm shall conduct such inspections and examinations under conditions of confidentiality.

Sales and Supply Forecasts; Accounts. (a) Exhibit D, which shall be supplied by the Distributor within [ *** ] of the Distributor's receipt of notice from Biomatrix of [ *** ] shall set Effective Date, sets forth a sales forecast of units of the Agreement Product in the Territory for the first Agreement Year. ***Confidential portions have been omitted and filed separately with year after the Securities and Exchange CommissionEffective Date. (b) Within [ *** ] after the end of each month of each Agreement Year in the Territorymonth, the Distributor shall provide to Biomatrix an updated rolling twelve (12) month monthly supply forecast for all unit sizes of the Agreement ProductProduct in the Territory. Each such supply forecast described in this subsection (b) is referred to herein as a "Supply Forecast"; provided, that updated Supply Forecasts shall not vary (whether up or down) from the immediately preceding Supply Forecast by more than [ *** ] with respect to each month covered by such preceding Supply Forecast. (c) The Distributor shall maintain maintain, and shall require its Affiliates and Subdistributors to maintain, books of account with respect to its sales of the Agreement Product in the TerritoryTerritory by it and its Affiliates and Subdistributors. Biomatrix shall have the right, not more than once during each calendar year, to have an independent accountant selected and retained by Biomatrix (reasonably acceptable to the Distributor, provided that any "big six" accounting firm shall be deemed reasonable) to inspect and examine such books of the Distributor Distributor, its Affiliates and Subdistributors during regular business hours for the purpose of verifying the statements of the aggregate Net Retail Sales of all Dermal Tissue Augmentation Products for all purposes hereunder, including verification of Formula Price and the royalties described in Section 8. The cost of each such audit shall be borne by Biomatrix unless a material error is discovered in the course of such audit, in which case the cost shall be borne by the Distributor. For purposes of this Section 7.3(d), a material error shall be defined as an understatement of five percent (5%) or more of the aggregate amount owed to Biomatrix with respect to sales of Dermal Tissue Augmentation Products in a country in the Territory. Any additional payments required as a result of such inspection and examination shall be immediately paid to Biomatrix and shall bear interest from the date such amount would otherwise have been paid until the date of actual payment at the rate per annum set forth in Section 20. Such independent accounting firm shall conduct such inspections and examinations under conditions of confidentiality.

Sales and Supply Forecasts; Accounts. (a) Exhibit D, which shall be supplied by the Distributor within [ [*** *] of the Distributor's receipt of notice from Biomatrix of [ [*** ] *], shall set forth a sales forecast of units of the Agreement Product in the Territory for the first Agreement Year. ***Confidential portions have been omitted and filed separately with the Securities and Exchange Commission. (b) Within [ [*** *] after the end of each month of each Agreement Year in the Territory, the Distributor shall provide to Biomatrix an updated rolling twelve (12) month monthly supply forecast for all unit sizes of the Agreement Product. Each such supply forecast described in this subsection (b) is referred to herein as a "Supply Forecast"; provided, that updated Supply Forecasts shall not vary (whether up or down) from the immediately preceding Supply Forecast by more than [ [*** *] with respect to each month covered by such preceding Supply Forecast. (c) The Distributor shall maintain books of account with respect to its sales of the Agreement Product in the Territory. Biomatrix shall have the right, not more than once during each calendar year, to have an independent accountant selected and retained by Biomatrix (reasonably acceptable to Distributor, provided that any "big six" accounting firm shall be deemed reasonable) to inspect and examine such books of the Distributor during regular business hours for the purpose of verifying the statements of the aggregate Net Retail Sales of all Dermal Tissue Augmentation Products for all purposes hereunder, including verification of Formula Price and the royalties described in Section 8. The cost of each such audit shall be borne by Biomatrix unless a material error is discovered in the course of such audit, in which case the cost shall be borne by the Distributor. For purposes of this Section 7.3(d), a material error shall be defined as an understatement of five percent (5%) or more of the aggregate amount owed to Biomatrix with respect to sales of Dermal Tissue Augmentation Products in the Territory. Any additional payments required as a result of such inspection and examination shall be immediately paid to Biomatrix and shall bear interest from the date such amount would otherwise have been paid until the date of actual payment at the rate per annum set forth in Section 20. Such independent accounting firm shall conduct such inspections and examinations under conditions of confidentiality.

Sales and Supply Forecasts; Accounts. (a) Exhibit D, which shall be supplied by the Distributor within [ [*** *] of the Distributor's receipt of notice from Biomatrix of [ *** ] shall set Effective Date, sets forth a sales forecast of units of the Agreement Product in the Territory for the first Agreement Year. ***Confidential portions have been omitted and filed separately with year after the Securities and Exchange CommissionEffective Date. (b) Within [ [*** *] after the end of each month of each Agreement Year in the Territorymonth, the Distributor shall provide to Biomatrix an updated rolling twelve (12) month monthly supply forecast for all unit sizes of the Agreement ProductProduct in the Territory. Each such supply forecast described in this subsection (b) is referred to herein as a "Supply Forecast"; provided, that updated Supply Forecasts shall not vary (whether up or down) from the immediately preceding Supply Forecast by more than [ [*** *] with respect to each month covered by such preceding Supply Forecast. (c) The Distributor shall maintain maintain, and shall require its Affiliates and Subdistributors to maintain, books of account with respect to its sales of the Agreement Product in the TerritoryTerritory by it and its Affiliates and Subdistributors. Biomatrix shall have the right, not more than once during each calendar year, to have an independent accountant selected and retained by Biomatrix (reasonably acceptable to the Distributor, provided that any "big six" accounting firm shall be deemed reasonable) to inspect and examine such books of the Distributor Distributor, its Affiliates and Subdistributors during regular business hours for the purpose of verifying the statements of the aggregate Net Retail Sales of all Dermal Tissue Augmentation Products for all purposes hereunder, including verification of Formula Price and the royalties described in Section 8. The cost of each such audit shall be borne by Biomatrix unless a material error is discovered in the course of such audit, in which case the cost shall be borne by the Distributor. For purposes of this Section 7.3(d), a material error shall be defined as an understatement of five percent (5%) or more of the aggregate amount owed to Biomatrix with respect to sales of Dermal Tissue Augmentation Products in a country in the Territory. Any additional payments required as a result of such inspection and examination shall be immediately paid to Biomatrix and shall bear interest from the date such amount would otherwise have been paid until the date of actual payment at the rate per annum set forth in Section 20. Such independent accounting firm shall conduct such inspections and examinations under conditions of confidentiality.

Sales and Supply Forecasts; Accounts. (a) Exhibit D, which shall be supplied by the Distributor within [ At least *** ] of the Distributor's receipt of notice from Biomatrix of [ *** ] shall set forth a sales forecast of units of the Agreement Product in the Territory for the first Agreement Year. ***Confidential portions have been omitted and filed separately with the Securities and Exchange Commission. (b) Within [ *** ] after prior the end of each month of each Agreement Year in the TerritoryContract Quarter, the Distributor shall provide to Biomatrix Genzyme an updated rolling twelve (12) month monthly *** supply forecast for of units of all unit sizes of each Agreement Product and any Improved Agreement Product(s) in the Agreement Product. Each such supply forecast described in this subsection Territory to be obtained by the Distributor for resale (b) is referred to herein as a "“Supply Forecast"”). The first *** *** of each Supply Forecast shall constitute a binding commitment by the Distributor to purchase such quantity of Agreement Products and any Improved Agreement Product(s) (“Binding Forecast”) and the remaining *** shall be based on the Distributor’s good faith estimate as of the date thereof and shall not bind Distributor in any way (“Non- *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the commission. Binding Forecast”). Any Binding Forecast for any *** may differ from the Non-Binding Forecast for such *** previously provided by the Distributor; provided, that updated Supply Forecasts Binding Forecast for any *** shall not vary (whether up or down) from the immediately preceding Supply Non-Binding Forecast for such *** by more than [ *** ] *** with respect to each month covered by such preceding Supply Forecastmonth. (cb) The Distributor shall maintain books of account with respect to its sales of the Agreement Product Products and any Improved Agreement Product(s) in the Territory. Biomatrix Genzyme shall have the right, not more than once during each calendar year, to have an independent accountant selected and retained by Biomatrix Genzyme (reasonably acceptable to Distributor, provided that any "“big six" four” accounting firm shall be deemed reasonable) to inspect and examine such books of the Distributor during regular business hours for the purpose of verifying the statements of the aggregate Net Retail Sales of all Dermal Tissue Augmentation Products for all purposes hereunder, including verification of applicable Formula Price and the royalties described in Section 8. The cost of each such audit shall be borne by Biomatrix Genzyme unless a material error is discovered in the course of such audit, in which case the cost shall be borne by the Distributor. For purposes of this Section 7.3(d7.3(b), a material error shall be defined as an understatement of five percent (5%) *** or more of the aggregate amount owed to Biomatrix Genzyme with respect to sales of Dermal Tissue Augmentation Products in the Territory. Any additional payments required as a result of such inspection and examination shall be immediately paid to Biomatrix Genzyme and shall bear interest from the date such amount would otherwise have been paid until the date of actual payment at the rate per annum set forth in Section 20. Such independent accounting firm shall conduct such inspections and examinations under conditions of confidentiality.