the parameters set forth above.
Newly Created Intellectual
Property which, under the terms of this Section 10.2(b) is deemed to be AVI
Intellectual Property, Eleos Intellectual Property or Jointly Owned Intellectual
Property will automatically be included in the subject matter of the license
grants of Section 2.
11.
BOOKS AND RECORDS.
11.1
EACH PARTY (THE "REPORTING PARTY") SHALL KEEP, AND SHALL CAUSE ITS
AFFILIATES AND SUBLICENSEES TO KEEP, BOOKS AND RECORDS IN ACCORDANCE WITH
GENERALLY ACCEPTABLE ACCOUNTING PRINCIPLES ACCURATELY SHOWING ALL TRANSACTIONS
AND INFORMATION RELATING TO TRANSACTIONS UNDER THIS AGREEMENT.
SUCH BOOKS AND
RECORDS SHALL BE PRESERVED FOR AT LEAST FIVE (5) YEARS FROM THE DATE OF THE
ENTRY TO WHICH THEY PERTAIN AND SHALL BE OPEN AT REASONABLE TIMES UPON
REASONABLE NOTICE NO MORE THAN ONCE PER CALENDAR YEAR FOR INSPECTION BY AN
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT OF NATIONAL STANDING SATISFACTORY TO THE
NON-REPORTING PARTY.
SUCH ACCOUNTANT SHALL HAVE REASONABLE ACCESS TO THE
REPORTING PARTY'S OFFICES AND THE RELEVANT RECORDS, FILES AND BOOKS OF ACCOUNT,
AND SHALL HAVE THE RIGHT TO EXAMINE ANY OTHER RECORDS REASONABLY NECESSARY TO
DETERMINE THE ACCURACY OF THE CALCULATIONS PROVIDED BY THE REPORTING PARTY UNDER
THIS AGREEMENT. THE ACCOUNTANT SHALL BE REQUIRED TO SIGN A SUITABLE
CONFIDENTIALITY AGREEMENT REASONABLY
14
ACCEPTABLE TO THE PARTIES PRIOR TO CONDUCTING SUCH AUDIT, AND THE ONLY
CONFIDENTIAL INFORMATION OF THE REPORTING PARTY (AND ITS AFFILIATES) THAT THE
ACCOUNTANT SHALL BE AUTHORIZED TO DISCLOSE TO THE NON-REPORTING PARTY WILL BE
THE RESULTS OF THE ACCOUNTANT'S CALCULATION OF ROYALTIES PAYABLE HEREUNDER AND
ROYALTIES PAID HEREUNDER.
11.2
THE FEES AND EXPENSES OF THE CERTIFIED PUBLIC ACCOUNTANT PERFORMING
SUCH AN EXAMINATION SHALL BE BORNE BY THE NON-REPORTING PARTY.
HOWEVER, IF AN
ERROR IN PAYABLE ROYALTIES OF MORE THAN FIVE PERCENT (5%) OF THE TOTAL ROYALTIES
DUE FOR ANY YEAR IS DISCOVERED, OR IF AS A RESULT OF THE EXAMINATION IT IS
DETERMINED THAT THE REPORTING PARTY IS IN MATERIAL BREACH OF ITS OTHER
OBLIGATIONS UNDER THIS AGREEMENT, THEN SUCH FEES AND EXPENSES SHALL BE BORNE BY
THE REPORTING PARTY, AND THE REPORTING PARTY SHALL PROMPTLY REIMBURSE THE
NON-REPORTING PARTY FOR REASONABLY DOCUMENTED AUDIT EXPENSES AS WELL AS ALL
OVERDUE ROYALTY AND LATE INTEREST PAYMENTS.
12.
TERM.
12.1
UNLESS OTHERWISE TERMINATED BY OPERATION OF LAW OR BY ONE OR BOTH
OF THE PARTIES IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, THIS
AGREEMENT SHALL BE IN FORCE FROM THE EFFECTIVE DATE AND SHALL REMAIN IN EFFECT
IN EACH COUNTRY UNTIL THE EXPIRATION OF THE LAST-TO-EXPIRE PATENT OF THE ELEOS
INTELLECTUAL PROPERTY OR THE AVI INTELLECTUAL PROPERTY LICENSED HEREUNDER HAVING
CLAIMS COVERING A LICENSED PRODUCT SOLD IN SUCH COUNTRY, OR TEN (10) YEARS FROM
THE DATE OF FIRST COMMERCIAL SALE OF A LICENSED PRODUCT IN SUCH COUNTRY,
WHICHEVER IS LATER.
AFTER SUCH DATE OF EXPIRATION, THE LICENSE HEREUNDER SHALL
BE CONSIDERED FULLY PAID UP AND THE ONLY OBLIGATIONS SHALL BE AS SET FORTH IN
SECTION 12.2.
12.2
ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT SHALL NOT AFFECT
THE RIGHTS AND OBLIGATIONS SET FORTH