FOR THE TIME INVOLVED IN SUCH DELAY.
THE AUDITOR SHALL BE UNDER A DUTY OF CONFIDENTIALITY, AND SHALL SIGN A MUTUALLY
ACCEPTABLE NON-DISCLOSURE OR CONFIDENTIALITY AGREEMENT.
SUCH AGREEMENT SHALL
ENABLE THE AUDITOR TO DISCLOSE THE EXISTENCE AND AMOUNT OF ANY DISCREPANCY.
THE
AUDITORS SHALL HAVE ACCESS TO ALL CORPORATE RECORDS THAT THEY MAY, IN THEIR
REASONABLE DISCRETION, DEEM NECESSARY OR RELEVANT TO THE COMPLETION OF THEIR
MISSION.
HOWEVER, THEY MAY NOT MAKE ANY COPIES OF SUCH INFORMATION OR RETAIN
INFORMATION IN NON-AGGREGATED FORM THAT WOULD REVEAL THE NAMES OF ANY PERSONNEL,
END USERS OR CUSTOMERS, THE PRICE THAT ANY INDIVIDUAL CUSTOMER OR END USER PAID
FOR ANY DELIVERABLES, OR OTHER COMPETITIVE INFORMATION, BUT THEY MAY RETAIN SUCH
INFORMATION IN CODED FORMAT THAT KEYS INTO THE DATABASE SUPPLIED BY A PARTY
HERETO.
18.2
COST OF AUDIT.
THE PARTY INITIATING THE AUDIT (AUDITING PARTY)
SHALL BEAR THE COSTS OF THE AUDIT, UNLESS THE RESULTS OF THE AUDIT SHOW THAT THE
OTHER PARTY (AS THE AUDITED PARTY) HAS OVERCHARGED THE AUDITING PARTY BY MORE
THAN TEN PERCENT (10.0%) IN ANY TWELVE (12) MONTH PERIOD, IN WHICH CASE THE
AUDITED PARTY SHALL REIMBURSE THE AUDITING PARTY FOR THE FULL COST OF THE
AUDIT.
ANY UNDERPAYMENT WILL BE PAID TO THE RELEVANT PARTY UPON WRITTEN
NOTIFICATION THEREOF AS PART OF AN INVOICE PURSUANT TO THE PROCEDURES SET FORTH
IN SECTION 4.2.
18.3
DISPUTED AUDIT RESULTS.
IF THE AUDITED PARTY SHALL DISAGREE WITH
THE CONCLUSIONS OF THE AUDITOR THEN THE AUDITED PARTY SHALL HAVE THE RIGHT TO
APPOINT ITS OWN AUDITOR TO REVIEW THE CONCLUSIONS OF THE FIRST AUDIT.
IF THE
TWO AUDITORS ARE NOT ABLE TO AGREE WITHIN THIRTY (30) DAYS AFTER THE DELIVERY OF
THE REQUESTED INFORMATION TO THE AUDITED PARTY'S OWN INDEPENDENT AUDITOR, THEN
THE DISPUTE SHALL BE RESOLVED PURSUANT TO SECTIONS 23.5 AND 23.6 OF THIS MASTER
SERVICES AGREEMENT.
19.
RIGHTS UNDER BANKRUPTCY CODE.
Each as the Supplying Party acknowledges and agrees that: (i) the licenses and
rights granted in the Agreement to the are licenses and rights to "intellectual
property" within the definition of Section 101(35A) of the U.S. Bankruptcy Code
(the "Code"); (ii) each as the Purchasing Party shall have such rights, pursuant
to the Agreement, as a licensee as
16
set forth in Section 365(n) of the Code; (iii) following an entry for an order
for relief under the Code, the Supplying Party (as debtor in possession) or the
bankruptcy trustee will not interfere with the rights of the Purchasing Party as
provided in the Agreement; and (iv) if the Agreement is rejected whether by
motion or by operation of law, then each as a Purchasing Party may elect under
Section 365(n) of the Code to retain its rights and licenses pursuant to the
Agreement.
20.
EXPORT CONTROL.
THE PARTIES ACKNOWLEDGE AND UNDERSTAND THAT THE DELIVERABLES MAY BE SUBJECT TO
REGULATION BY AGENCIES OF THE U.S. GOVERNMENT, INCLUDING THE DEPARTMENT OF
STATE, DEPARTMENT OF COMMERCE AND THE BUREAU OF EXPORT ADMINISTRATION, WHICH
PROHIBIT EXPORT OR DIVERSION OF CERTAIN