UNDER THIS
AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF NUVASIVE, WHICH CONSENT MAY BE
GRANTED OR WITHHELD IN NUVASIVE'S SOLE DISCRETION.
SUCH SUBCONTRACTORS SHALL BE
SUBJECT TO CONFIDENTIALITY OBLIGATIONS AT LEAST AS STRINGENT, WHEN TAKEN AS A
WHOLE, AS PROVIDED IN THIS AGREEMENT.
NO SUBCONTRACTOR MAY FURTHER SUBCONTRACT
ANY RESPONSIBILITIES UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF
NUVASIVE, WHICH CONSENT MAY BE GRANTED OR WITHHELD IN NUVASIVE'S SOLE
DISCRETION.
ANY APPROVED SUBCONTRACTOR SHALL BE SUBJECT TO ALL OF THE TERMS AND
CONDITIONS APPLICABLE TO OSIRIS UNDER THIS AGREEMENT.
OSIRIS SHALL BE
RESPONSIBLE, AND SHALL REMAIN LIABLE, FOR THE PERFORMANCE OF ALL OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND FOR ANY BREACH BY ANY SUBCONTRACTOR
THEREOF.
NUVASIVE SHALL HAVE THE RIGHT TO AUDIT
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AND INSPECT ALL SUBCONTRACTORS WITH WHOM OSIRIS MAY ENTER INTO AGREEMENTS IN THE
PERFORMANCE OF ITS RESPONSIBILITIES UNDER THIS AGREEMENT.
SUCH AUDIT AND
INSPECTION RIGHTS SHALL BE SUBSTANTIALLY SIMILAR TO THE RIGHTS OF NUVASIVE TO
AUDIT AND INSPECT OSIRIS UNDER THIS AGREEMENT.
ARTICLE 4
FEES
4.1.
PRODUCT FEES.
NUVASIVE SHALL PAY TO OSIRIS $
PER CUBIC
CENTIMETER OF PRODUCT ("PRODUCT FEES") DELIVERED TO NUVASIVE AND THAT IS NOT
TIMELY REJECTED BY NUVASIVE PURSUANT TO SECTION 3.6 ABOVE.
ALL PAYMENTS DUE
HEREUNDER SHALL BE MADE IN U.S. DOLLARS, WITHOUT SET-OFF OR COUNTERCLAIM. FOR
THE AVOIDANCE OF DOUBT, NUVASIVE SHALL BE RESPONSIBLE FOR PAYING TO OSIRIS THE
PRODUCT FEE FOR ALL CONFORMING PRODUCT THAT IS DELIVERED TO NUVASIVE AS A
REPLACEMENT OF PRODUCT REJECTED IN ACCORDANCE WITH SECTION 3.6 TO THE EXTENT
THAT PAYMENT FOR SUCH PRODUCT WAS NOT PREVIOUSLY MADE.
4.2.
ADJUSTMENTS TO PRODUCT FEES.
THE PRODUCT FEES SHALL BE ESCALATED
ON JANUARY 1, 2009 BY THE THEN CURRENT INCREASE IN CPI. ADJUSTMENTS TO PRODUCT
FEES SHALL BE EFFECTIVE JANUARY 1ST AND SHALL APPLY TO ALL SHIPMENTS OF PRODUCT
MADE ON OR AFTER JANUARY 1ST.
4.3.
BILLING.
NUVASIVE SHALL PAY TO OSIRIS THE PRODUCT FEES WITHIN
THIRTY (30) DAYS OF DELIVERY OF THE CONFORMING PRODUCT.
IN THE EVENT NUVASIVE
FAILS TO PAY IN ACCORDANCE WITH THIS SECTION 4.3, OSIRIS MAY, IN ADDITION TO ANY
OTHER REMEDIES AVAILABLE TO IT, ASSESS INTEREST AT A RATE OF ONE AND ONE-HALF
PERCENT (1.5%) PER MONTH ON ALL UNPAID AMOUNTS.
4.4.
TAXES.
ALL PAYMENTS REQUIRED UNDER THIS AGREEMENT ARE EXCLUSIVE
OF ANY APPLICABLE FEDERAL, STATE AND LOCAL TAXES.
EACH OF THE PARTIES SHALL BE
RESPONSIBLE FOR THE PAYMENT OF TAXES AND OTHER ASSESSMENTS FOR WHICH IT IS
LIABLE UNDER LAWS.
ARTICLE 5
ADDITIONAL OBLIGATIONS
5.1.
INSPECTIONS. UPON REASONABLE PRIOR WRITTEN NOTICE, NUVASIVE MAY,
AT ITS EXPENSE, AUDIT OSIRIS DURING NORMAL BUSINESS HOURS FOR QUALITY CONTROL
AND ASSURANCE, COMPLIANCE WITH LAWS, CGTP, AND OTHER APPLICABLE REGULATIONS OR
STANDARDS, AND THE TERMS HEREOF, AND OTHERWISE INSPECT FACILITIES AND RECORDS,
EACH AS RELATED TO THE PROCESSING OF PRODUCT HEREUNDER; PROVIDED, HOWEVER, THAT
SUCH AUDITS AND INSPECTIONS MAY BE CONDUCTED NO MORE THAN TWICE DURING THE TERM
HEREOF, OTHER THAN "FOR CAUSE" AUDITS, WHICH NUVASIVE SHALL BE ENTITLED TO
CONDUCT AS NECESSARY TO