EACH
SUBLICENSEE AGREE TO RECORD KEEPING AND AUDITS SUBSTANTIALLY THE SAME AS
DESCRIBED IN THIS SECTION 14.
LICENSEE HEREBY AGREES TO CONDUCT PERIODIC AUDITS
OF ITS SUBLICENSEES AS REQUESTED BY QUALCOMM.
THE RESULTS OF SUCH AUDITS
(TOGETHER WITH ALL SUPPORTING INFORMATION) SHALL BE INCLUDED IN THE RECORDS
DESCRIBED HEREIN AND SUBJECT TO AUDIT BY QUALCOMM AS PROVIDED IN THIS SECTION.
QUALCOMM SHALL BE AN INTENDED THIRD PARTY BENEFICIARY OF LICENSEE'S RIGHTS OF
AUDIT WITH RESPECT TO ITS SUBLICENSEES, WITH ALL PROPER AUTHORITY TO ENFORCE
SUCH RIGHTS DIRECTLY AGAINST ANY SUCH SUBLICENSEE.
LICENSEE'S AGREEMENTS WITH
ITS SUBLICENSEES SHALL EXPRESSLY STATE THESE THIRD PARTY BENEFICIARY RIGHTS.
LICENSEE SHALL FURNISH QUALCOMM WITHIN THIRTY (30) DAYS AFTER THE END OF EACH
CALENDAR QUARTER A CERTIFICATE, IN THE FORM ATTACHED HERETO AS EXHIBIT B, SIGNED
BY A RESPONSIBLE OFFICIAL OF LICENSEE SHOWING THE TRANSACTIONS AND CORRESPONDING
AMOUNTS DURING SAID CALENDAR QUARTER AND ANY OTHER INFORMATION AS MAY BE
REASONABLY REQUESTED BY QUALCOMM.
15
14.2
AUDITS.
QUALCOMM MAY, NO MORE THAN ONCE EACH
CALENDAR YEAR, CONDUCT (ITSELF AND/OR THROUGH ITS AGENT) AN AUDIT ON REASONABLE
NOTICE OF LICENSEE'S APPLICABLE BOOKS AND RECORDS TO CONFIRM THAT LICENSEE HAS
NOT UNDERPAID THE ROYALTIES DUE TO QUALCOMM IN FULFILLING LICENSEE'S OBLIGATIONS
UNDER THE TERMS AND CONDITIONS SET FORTH IN SECTION 5.2 ABOVE. QUALCOMM'S
WRITTEN NOTICE TO LICENSEE OF QUALCOMM'S INTENTION TO AUDIT LICENSEE'S BOOKS AND
RECORDS SHALL INCLUDE A PROPOSED COMMENCEMENT DATE FOR SUCH AUDIT, SUCH PROPOSED
COMMENCEMENT DATE TO BE NO EARLIER THAN THIRTY (30) DAYS AFTER THE DATE OF SUCH
NOTICE.
LICENSEE AGREES TO ALLOW THE AUDIT TO COMMENCE NO LATER THAN THIRTY
(30) DAYS AFTER QUALCOMM'S PROPOSED AUDIT COMMENCEMENT DATE.
LICENSEE FURTHER
AGREES TO HAVE ASSEMBLED IN A SINGLE LOCATION THE NECESSARY BOOKS AND RECORDS
FOR SUCH AUDIT TO BE CARRIED OUT AND SHALL MAKE AVAILABLE SUCH PERSONNEL AS ARE
REASONABLY NECESSARY TO INTERPRET AND EXPLAIN SUCH BOOKS AND RECORDS.
THE COST
OF SUCH AUDIT SHALL BE BORNE BY QUALCOMM, OTHER THAN LICENSEE'S COST OF
PROVIDING ITS BOOKS, RECORDS AND PERSONNEL, UNLESS SUCH AUDIT DETERMINES THAT
THE LICENSEE HAS UNDERPAID THE ROYALTIES DUE HEREUNDER BY [***]; IN WHICH CASE,
LICENSEE SHALL, IN ADDITION TO PAYING THE DEFICIENCY PLUS LATE PAYMENT CHARGES,
PAY THE COST OF SUCH AUDIT. LICENSEE SHALL PRESERVE AND MAINTAIN ALL SUCH BOOKS
AND RECORDS REQUIRED FOR AUDIT FOR A PERIOD OF FIVE (5) YEARS AFTER THE CALENDAR
QUARTER FOR WHICH THE BOOKS AND RECORDS APPLY.
15.
ASSIGNMENT.
Except as provided in this clause, LICENSEE shall not assign this Agreement or
any right or interest under this Agreement, nor delegate any work or obligation
to be performed under this Agreement (an "assignment"), without QUALCOMM's prior
written consent, which consent shall be at QUALCOMM's sole discretion.
Any
attempted assignment in contravention of this Section 15 shall be void and
ineffective.
For purposes of this Agreement, an "assignment" by LICENSEE under
this Section shall be deemed to include, without limitation, the following:
(a) a change in the beneficial ownership of LICENSEE of greater than fifty