MADE WITHIN 60
DAYS AFTER THE DATE OF SUCH STATEMENT, AND IN NO EVENT LATER THAN THE LAST DAY
OF THE CALENDAR QUARTER FOLLOWING THE QUARTER COVERED BY SUCH STATEMENT.
UPON
MEDQUIST'S REQUEST, PHILIPS SHALL SEND AN INVOICE COVERING THE FEES SO STATED.
4.3.
MEDQUIST SHALL MAINTAIN FOR AT LEAST THREE (3)
YEARS ITS RECORDS, CONTRACTS AND ACCOUNTS RELATING TO LICENSED PRODUCT AND ITS
USE THEREOF, AND WILL PERMIT EXAMINATION THEREOF AS WELL AS ACCESS TO THE
LICENSED PRODUCT UPON REASONABLE REQUEST AND DURING NORMAL BUSINESS HOURS BY
AUTHORIZED REPRESENTATIVES OF PHILIPS.
IN ADDITION, PHILIPS MAY AT ITS OWN
EXPENSE AUDIT THE BOOKS OF ACCOUNT OF MEDQUIST RELATING TO THIS AGREEMENT AT THE
PLACE WHERE SUCH BOOKS ARE KEPT, IN ORDER TO INVESTIGATE COMPLIANCE WITH THE
PAYMENT OBLIGATIONS HEREUNDER; SUCH AUDITS MAY NOT TAKE PLACE MORE THAN TWICE A
YEAR, UNLESS AN AUDIT HAS REVEALED UNDERPAYMENTS TO PHILIPS.
ANY SUCH AUDIT
SHALL BE CONDUCTED BY AN INDEPENDENT PROFESSIONAL AUDITOR REASONABLY ACCEPTABLE
TO BOTH PARTIES, ON AT LEAST TEN (10) WORKING DAYS PRIOR WRITTEN NOTICE AND
DURING NORMAL BUSINESS HOURS.
A COPY OF THE REPORT MADE BY SUCH AUDITOR SHALL
BE PROVIDED TO BOTH PARTIES AT THE SAME TIME.
IF DURING THE COURSE OF SUCH
AUDIT, IT IS DISCOVERED THAT ANY PAYMENT OWED TO PHILIPS HEREUNDER WAS NOT MADE
OR WAS MISCALCULATED AND THE DISCREPANCY IN MEDQUIST'S FAVOR IS FIVE PERCENT
(5%) OR MORE IN ANY GIVEN PERIOD OF 3 MONTHS OR MORE (A "PAYMENT DEFAULT"), THE
COST OF SUCH AUDIT SHALL BE BORNE BY MEDQUIST.
FURTHERMORE, MEDQUIST SHALL
IMMEDIATELY REMEDY SUCH PAYMENT DEFAULT, TOGETHER WITH INTEREST AT THE RATE OF
10% PER ANNUM (OR SUCH LOWER RATE AS MAY BE THE MAXIMUM ALLOWABLE BY LAW)
CALCULATED FROM THE DATE SUCH PAYMENT WAS DUE UNTIL SUCH PAYMENT IS ACTUALLY
MADE.
4.4.
MEDQUIST SHALL SUBMIT TO PHILIPS, ONCE PER
CALENDAR YEAR, A WRITTEN STATEMENT BY ITS EXTERNAL AUDITORS, WHO SHALL BE
INDEPENDENT CERTIFIED ACCOUNTANTS, CONFIRMING THAT THE QUARTERLY STATEMENTS
SUBMITTED BY MEDQUIST TO PHILIPS FOR THE PRECEDING CALENDAR YEAR,
6
WERE TRUE, COMPLETE AND ACCURATE IN EVERY RESPECT.
MEDQUIST SHALL USE ALL
COMMERCIALLY REASONABLE EFFORTS TO CAUSE SUCH STATEMENT TO BE SUBMITTED WITHIN
120 DAYS FOLLOWING THE END OF THE FISCAL YEAR.
4.5.
FOR LEVEL 2 AND LEVEL 3 SUPPORT SERVICES
RENDERED BY PHILIPS IN ACCORDANCE WITH SCHEDULE E, MEDQUIST WILL PAY PHILIPS
FEES AS SET FORTH ON SCHEDULE D.
SECTION 5.
WARRANTIES, INDEMNITY AND LIABILITY LIMITATIONS
5.1.
SCHEDULE C SETS FORTH THE WARRANTIES AND
INDEMNIFICATION OBLIGATIONS OF MEDQUIST AND PHILIPS IN CONNECTION WITH THIS
AGREEMENT.
SECTION 6.
FURTHER OBLIGATIONS OF THE PARTIES
6.1.
IN ORDER THAT THE RELATIONSHIP CONTEMPLATED BY
THIS AGREEMENT SHALL BE MUTUALLY ADVANTAGEOUS, AND IN RECOGNITION OF THE
PARTICULAR EXPERTISE AND COMMITMENT NECESSARY TO PROPERLY USE AND SUPPORT THE
LICENSED PRODUCT, MEDQUIST AGREES DURING THE TERM TO COMPLY WITH THE FOLLOWING
REQUIREMENTS:
MEDQUIST SHALL (I) CONDUCT BUSINESS IN A MANNER THAT DOES NOT
REFLECT NEGATIVELY AT ANY TIME ON THE GOOD NAME, GOODWILL AND REPUTATION OF
PHILIPS;