definiens: shall mean the gross receipts derived in arms - length transactions from the sale of Licensed Products in the Territory by [COMPANY] ( or by its Affiliates, sublicensees, distributors or other authorized third parties holding rights granted by [COMPANY] to market and sell [COMPANY] Licensed Products or Kyowa Licensed Products under this Agreement ) to independent third parties in the Territory, less an amount equal to tIuee percent ( 3 % ) of such gross receipts which amount shall be deducted in lieu of deducting any actual amounts for transportation or insurance charges, taxes and duties, discounts, allowances, rebates and commissions, or any other customary deductions which might otherwise be taken . Sales between or among [COMPANY] and its Affiliates ( or sublicensees, distributors or other authorized third party marketers ) shall be excluded from the computation of gross receipts hereunder except where such Affiliates ( or sublicensees or other authorized third party marketers ) are end users, but gross receipts shall include the subsequent final sales to third parties by such Affiliates ( or sublicensees or other authorized third party marketers ) . Where ( i ) [COMPANY] Licensed Products andJor Kyowa Licensed Products are sold as one of a number of items without a separate price ; or ( ii ) the consideration for the [COMPANY] Licensed Products andJor Kyowa Licensed Products shall include any non - cash element ; or ( iii ) the [COMPANY] Licensed Products andJor Kyowa Licensed Products shall be transferred in any manner other than an invoiced sale, except for [COMPANY] Licensed Products andJor Kyowa Licensed Products transferred as samples or any other similar transfer for promotional purposes usually made in the relevant part of the Territory, the gross receipts applicable to any such transaction shall be deemed to be [COMPANY] 's average gross receipts for the applicable quantity of [COMPANY] Licensed Products andJor Kyowa Licensed Products at that time in the country in which the transaction occurred . If there are no independent gross receipts of [COMPANY] Licens ~d Products andJor Kyowa Licensed Products in the country at that time, then [COMPANY] and [COMPANY] shall mutually agree on a surrogate measure to be used in lieu thereof