(OTHER THAN TAXES IMPOSED ON OR MEASURED BY NET INCOME) OR
SIMILAR GOVERNMENTAL CHARGE IMPOSED BY A JURISDICTION OTHER THAN THE UNITED
STATES ("WITHHOLDING TAXES").
AT THE RECEIVING PARTY'S REQUEST, THE PAYING
PARTY SHALL PROVIDE THE RECEIVING PARTY A CERTIFICATE EVIDENCING PAYMENT OF ANY
WITHHOLDING TAXES HEREUNDER AND SHALL REASONABLY ASSIST THE RECEIVING PARTY, AT
THE RECEIVING PARTY'S EXPENSE, TO OBTAIN THE BENEFIT OF ANY APPLICABLE TAX
TREATY.
5.4
RECORDS RETENTION; AUDIT.
5.4.1
RECORD RETENTION.
EACH PARTY SHALL MAINTAIN (AND SHALL ENSURE THAT
ITS AFFILIATES AND SUBLICENSEES SHALL MAINTAIN) COMPLETE AND ACCURATE BOOKS,
RECORDS AND ACCOUNTS THAT FAIRLY REFLECT THEIR RESPECTIVE: (A) DEVELOPMENT COSTS
REIMBURSABLE OR OTHERWISE SHARED BY THE PARTIES HEREUNDER AND (B) ROYALTIES
PAYABLE HEREUNDER BY ONE PARTY TO THE OTHER PARTY WITH RESPECT TO [***] PRODUCTS
IN EACH CASE IN SUFFICIENT DETAIL TO CONFIRM THE ACCURACY OF ANY PAYMENTS
REQUIRED HEREUNDER AND IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES, WHICH BOOKS, RECORDS AND ACCOUNTS SHALL BE RETAINED BY SUCH PARTY
[***] AFTER THE END OF THE PERIOD TO WHICH SUCH BOOKS, RECORDS AND ACCOUNTS
PERTAIN.
5.4.2
AUDIT.
EACH PARTY SHALL HAVE THE RIGHT TO HAVE AN INDEPENDENT
CERTIFIED PUBLIC ACCOUNTING FIRM OF NATIONALLY RECOGNIZED STANDING, REASONABLY
ACCEPTABLE TO THE AUDITED PARTY, TO HAVE ACCESS DURING NORMAL BUSINESS HOURS,
AND UPON REASONABLE PRIOR WRITTEN NOTICE, TO SUCH OF THE RECORDS OF THE OTHER
PARTY (AND ITS AFFILIATES AND SUBLICENSEES) AS MAY BE REASONABLY NECESSARY TO
VERIFY THE ACCURACY OF SUCH DEVELOPMENT COSTS AND ROYALTIES, AS APPLICABLE, FOR
ANY [***] ENDING NOT MORE THAN [***] PRIOR TO THE DATE OF SUCH REQUEST;
PROVIDED, HOWEVER, THAT NEITHER PARTY SHALL HAVE THE RIGHT TO CONDUCT MORE THAN
ONE SUCH AUDIT IN ANY [***] PERIOD.
THE ACCOUNTING FIRM SHALL ONLY DISCLOSE TO
EACH PARTY WHETHER SUCH DEVELOPMENT COSTS OR ROYALTIES, AS APPLICABLE, ARE
CORRECT OR INCORRECT AND THE SPECIFIC DETAILS CONCERNING ANY DISCREPANCIES.
NO
OTHER INFORMATION SHALL BE PROVIDED TO THE REQUESTING PARTY.
THE REQUESTING
PARTY SHALL BEAR THE COST OF SUCH AUDIT UNLESS THE AUDIT REVEALS A VARIANCE OF
MORE THAN [***] PERCENT ([***]%) FROM THE REPORTED RESULTS, IN WHICH CASE THE
AUDITED PARTY SHALL BEAR THE COST OF THE AUDIT.
THE RESULTS OF SUCH ACCOUNTING
FIRM SHALL BE FINAL, ABSENT MANIFEST ERROR.
5.4.3
PAYMENT OF ADDITIONAL AMOUNTS.
IF, BASED ON THE RESULTS OF SUCH
AUDIT, ADDITIONAL PAYMENTS ARE OWED BY A PARTY UNDER THIS AGREEMENT, SUCH PARTY
SHALL MAKE SUCH ADDITIONAL PAYMENTS, WITH INTEREST FROM THE DATE ORIGINALLY DUE
AT THE RATE OF [***] PERCENT ([***]%) PER MONTH, WITHIN [***] AFTER THE DATE ON
WHICH SUCH ACCOUNTING FIRM'S WRITTEN REPORT IS DELIVERED TO SUCH PARTY.
17
5.4.4
CONFIDENTIALITY.
THE AUDITING PARTY SHALL TREAT ALL INFORMATION
SUBJECT TO REVIEW UNDER THIS SECTION 5.4 IN ACCORDANCE WITH THE CONFIDENTIALITY
PROVISIONS OF ARTICLE 9 AND SHALL CAUSE ITS ACCOUNTING FIRM TO ENTER INTO A
REASONABLY ACCEPTABLE CONFIDENTIALITY AGREEMENT WITH THE AUDITED PARTY
OBLIGATING SUCH FIRM TO MAINTAIN ALL SUCH FINANCIAL INFORMATION IN CONFIDENCE
PURSUANT TO SUCH CONFIDENTIALITY AGREEMENT.
5.5
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