AND REPORT ONLY ON MATTERS WHICH
BEAR ON WHETHER THE ROYALTIES PAID OR DUE TO BE PAID BY THE LICENSEE WERE
DETERMINED AND ACCURATELY CALCULATED IN ACCORDANCE WITH THIS DEED. THE REPORT
SHALL BE ADDRESSED TO BOTH VEL AND THE LICENSEE;
(C)
THESE RIGHTS WITH RESPECT TO ANY QUARTER OR ANY
FINANCIAL YEAR SHALL TERMINATE TWELVE (12) MONTHS AFTER THE END OF SUCH QUARTER
OR FINANCIAL YEAR;
(D)
IF, AFTER CONSULTATION WITH THE PARTIES, SUCH
ACCOUNTING FIRM CONCLUDES THAT THERE WAS AN OVERPAYMENT OR UNDERPAYMENT, THE
LICENSEE SHALL PAY THE ADDITIONAL ROYALTIES DUE TO VEL OR VEL SHALL RETURN TO
THE LICENSEE ANY EXCESS ROYALTIES PAID, AS THE CASE MAY BE, AND IN EACH CASE
TOGETHER WITH INTEREST THEREON, WITHIN THIRTY (30) DAYS AFTER THE ACCOUNTING
FIRM'S WRITTEN REPORT IS DELIVERED TO BOTH VEL AND THE LICENSEE. THE FEES AND
DISBURSEMENTS CHARGED BY SUCH ACCOUNTING FIRM SHALL BE PAID BY VEL UNLESS THE
ACCOUNTING FIRM CONCLUDES THAT THERE HAS BEEN AN UNDERPAYMENT BY MORE THAN FIVE
PERCENT (5%) OF THE ROYALTIES DUE, IN WHICH CASE THE LICENSEE SHALL PAY ITS
REASONABLE FEES AND DISBURSEMENTS. NEITHER VEL NOR THE LICENSEE SHALL CONSULT
WITH SUCH ACCOUNTING FIRM IN PERSON OR ORALLY UNLESS THE OTHER PARTIES ARE GIVEN
REASONABLE ADVANCE NOTICE OF AND THE OPPORTUNITY TO PARTICIPATE IN SUCH
CONSULTATION; ALL COMMUNICATIONS MADE IN WRITING SHALL BE COPIED TO THE OTHER
PARTY WHO MAY RESPOND TO THE ACCOUNTING FIRM IN QUESTION WITH A COPY TO THE
OTHER PARTIES; AND
(E)
THE DECISION OF THE ACCOUNTING FIRM, ACTING AS
EXPERT AND NOT AS ARBITRATOR, SHALL BE FINAL AND BINDING UPON THE PARTIES (SAVE
IN THE CASE OF FRAUD OR A MATERIAL ERROR), AND NOT SUBJECT TO DISPUTE RESOLUTION
PROCEDURES UNDER CLAUSE 14.6 OR OTHERWISE. SHOULD EITHER PARTY FAIL TO COMPLY
WITH THE DECISION, THE COST OF ANY PROCEEDINGS BROUGHT TO ENFORCE SAME SHALL BE
AT THE SOLE EXPENSE OF THE
32
NON-COMPLYING PARTY, WHO SHALL REIMBURSE THE COMPLYING PARTY FOR ITS REASONABLE
ATTORNEYS' FEES AND REASONABLE DISBURSEMENTS.
4.11
VEL AND THE LICENSEE SHALL TREAT ALL
INFORMATION SUBJECT TO REVIEW UNDER THIS CLAUSE 4 IN ACCORDANCE WITH THE
CONFIDENTIALITY PROVISIONS OF THIS DEED.
4.12
VEL ACCEPTS THAT THE LICENSEE MAY NOT BE ABLE
TO PROVIDE THE COMMUNICATIONS SERVICES BY REFERENCE TO THE MARKS (OTHER THAN THE
SERVICES FORMERLY LICENSED PURSUANT TO THE VIRGIN NET LICENCE AND THE SERVICES
LICENSED PURSUANT TO THE VIRGIN MOBILE LICENCE) FOR A PERIOD OF TIME AFTER THE
COMMENCEMENT DATE. SUBJECT TO CLAUSE 6.9 AND CLAUSE 4.13, DURING THAT TIME THE
LICENSEE AGREES TO PAY TO VEL A ROYALTY EQUAL TO THE GREATER OF:
(A)
ONE QUARTER OF ONE PER CENT (0.25%) OF THE
CONSUMER REVENUES, TOGETHER WITH, TO THE EXTENT NOT ALREADY INCLUDED IN CONSUMER
REVENUES, ANY OTHER REVENUES ACCRUING TO THE NTL GROUP FROM ACTIVITIES CARRIED
OUT PURSUANT TO THE MARKS, LESS BAD DEBT EXPENSE IN ACCORDANCE WITH ACCOUNTING
STANDARDS (SAVE THAT SUCH DEDUCTION IN RESPECT OF SUCH BAD DEBT EXPENSE SHALL
NOT EXCEED FOUR PER CENT (4%)