Common use of Disputed Statements Clause in Contracts

Disputed Statements. (a) Purchaser will keep full and accurate books and records relating to the performance required with respect to its obligations to pay royalties under this Agreement and its Net Sales. For one (1) year after receipt of a Lifecycle Products Statement or New Product Statement delivered pursuant to Section 3.2 or Section 3.2(a) (each, a "Net Sales Statement"), as applicable (the "Audit Termination Date"), Sellers shall have the right, during regular business hours and upon reasonable advance notice, to have the books and records of Purchaser relating to such Net Sales and royalty payments audited no more frequently than once per year so as to verify the accuracy of Purchaser's calculation of such Net Sales or royalty payment. If, upon the inspection of the books and records of Purchaser, Sellers disagree with Purchaser's calculation of Net Sales or royalty payments set forth in any Net Sales Statement, Sellers may, prior to the expiration of the Audit Termination Date, deliver written notice to Purchaser disagreeing with such calculation and setting forth Sellers' calculation of such amount. Any such notice of disagreement shall specify those items or amounts as to which Sellers disagree, and Sellers shall be deemed to have agreed with all other items and amounts contained in the Net Sales Statement and the calculation of Net Sales included in such Net Sales Statement. If Sellers do not deliver to Purchaser a written notice of disagreement prior to the expiration of the Audit Termination Date, then Sellers shall be deemed to have agreed to such Net Sales Statement. (b) If a notice of disagreement shall be duly delivered pursuant to Section 3.6(a), Purchaser and Sellers shall, during the ten (10) Business Days following such delivery, use their commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amount of Net Sales of the Lifecycle Products, or New Products, as applicable, and the royalty payments in connection therewith, which amount shall not be less than the amount thereof shown in Purchaser's calculation set forth in the Net Sales Statement nor more than the amount thereof set forth in Sellers' calculation delivered pursuant to Section 3.6(a). If during such period, Purchaser and Sellers are unable to reach such agreement, they shall promptly thereafter cause the Accountant to review this Agreement and the disputed items or amounts for the purpose of calculating Net Sales of the Lifecycle Products, or New Products, as applicable, and the amount of the royalty payments in connection therewith included in such Net Sales Statement (it being understood that in making such calculation, the Accountant shall be functioning as an expert and not as an arbitrator). In making such calculation, the Accountant shall consider only those items or amounts in the Net Sales Statement and Sellers' calculation of Net Sales included in such Net Sales Statement as to which Sellers have disagreed. The Accountant shall deliver to Purchaser and Sellers, as promptly as practicable (but in any case no later than twenty (20) Business Days from the date of engagement of the Accountant), a report setting forth such calculation. Such report shall be final and binding upon Purchaser and Sellers. The cost of such review and report shall be borne equally by Purchaser on one hand and Sellers on the other hand; provided, however, that if the Accountant's report is in agreement with either party's calculations included in the Net Sales Statement, the cost of such review and report shall be borne solely by the other party. (c) Purchaser and Sellers shall, and shall cause their respective representatives to, cooperate and assist in the preparation of the Net Sales Statement and the calculation of the amount of Net Sales of the Lifecycle Products, or New Products, as applicable, and the amount of the royalty payments in connection therewith and in the conduct of the review referred to in this Section 3.6(a), including making available, to the extent necessary, books, records, work papers and personnel. (d) If the amount of Net Sales of the Lifecycle Products, or New Products, as applicable, and the royalty payments in connection therewith, as determined by the Accountant pursuant to Section 3.6(a), is greater than the calculation provided for by Purchaser in the applicable Net Sales Statement, then Purchaser shall promptly pay to Parent an amount equal to the difference between the Accountant's calculation of such royalty payments and Purchaser's calculation of such royalty payments.

Disputed Statements. Within twenty (a20) Purchaser will keep full calendar days following the delivery of a National Mortgage Business Settlement Statement, the Holder’s Representative may deliver to Parent a notice of objection, but only on the basis that such National Mortgage Business Settlement Statement (x) was not prepared in accordance with this Agreement or (y) contains mathematical error, signed by the Holder’s Representative (an “Objection Notice”) or a notice of acceptance signed by the Holder’s Representative (an “Acceptance Notice”) with respect to such National Mortgage Business Settlement Statement. Parent shall provide the Holder’s Representative and accurate books its accountants and other representatives, upon five (5) calendar days advance notice, access to accounting records relating to the performance required with respect to its obligations to pay royalties under this Agreement and its Net Sales. For one (1) year after receipt of a Lifecycle Products National Mortgage Business Settlement Statement or New Product Statement delivered pursuant to Section 3.2 or Section 3.2(a) (each, a "Net Sales Statement"), as applicable (the "Audit Termination Date"), Sellers shall have the right, during regular business hours and upon reasonable advance notice, to have the books and records of Purchaser relating to such Net Sales and royalty payments audited no more frequently than once per year so as to verify the accuracy of Purchaser's calculation of such Net Sales or royalty payment. If, upon the inspection of the books and records of Purchaser, Sellers disagree with Purchaser's calculation of Net Sales or royalty payments set forth in any Net Sales Statement, Sellers may, prior to the expiration of extent reasonably requested by the Audit Termination DateHolder’s Representative. Parent’s National Mortgage Business Settlement Statement shall be final and binding on the Holder’s Representative and the Holders if an Acceptance Notice is delivered to Parent, deliver written notice or if no Objection Notice is delivered to Purchaser disagreeing with Parent within such calculation and setting forth Sellers' calculation of such amounttwenty (20) calendar day period. Any such notice of disagreement Objection Notice shall specify those the items or amounts as disputed, shall describe the reasons for the objection thereof. If an Objection Notice is delivered to which Sellers disagreeParent, the Holder’s Representative and Sellers Parent shall be deemed consult with each other during the fifteen (15) calendar days following the delivery of an Objection Notice and use commercially reasonable efforts to have agreed with all other items and amounts contained in the Net Sales Statement resolve such dispute. If Parent and the calculation of Net Sales included in Holder’s Representative are unable to reach agreement within such Net Sales Statement. If Sellers do not deliver to Purchaser a written notice of disagreement prior to fifteen (15) day period after an Objection Notice has been given, the expiration of the Audit Termination Date, then Sellers shall be deemed to have agreed to such Net Sales Statement. (b) If a notice of disagreement shall be duly delivered pursuant to Section 3.6(a), Purchaser and Sellers shall, during the Holder’s Representative may within ten (10) days thereafter (unless such period is extended in writing by Parent) refer such dispute to a nationally or regionally recognized accounting firm mutually agreed to by Parent and the Holder’s Representative which does not provide accounting or other services to the Holder’s Representative or Parent or their respective affiliates (the “Unrelated Accounting Firm”) and if Holders’ Representative does not refer such dispute to the Unrelated Accounting Firm within such ten (10)-day period then the National Mortgage Business Days following such delivery, use their commercially reasonable efforts Settlement Statement delivered by Parent shall become final and binding as if no Objection Notice related thereto had been delivered. The Unrelated Accounting Firm shall be directed to reach agreement render a written report on the unresolved disputed items or amounts in order to determine, as may be required, the amount of Net Sales of the Lifecycle Products, or New Products, as applicable, and the royalty payments in connection therewith, which amount shall not be less than the amount thereof shown in Purchaser's calculation set forth in the Net Sales Statement nor more than the amount thereof set forth in Sellers' calculation delivered pursuant to Section 3.6(a). If during such period, Purchaser and Sellers are unable to reach such agreement, they shall promptly thereafter cause the Accountant to review this Agreement and the disputed items or amounts for the purpose of calculating Net Sales of the Lifecycle Products, or New Products, as applicable, and the amount of the royalty payments in connection therewith included in such Net Sales Statement (it being understood that in making such calculation, the Accountant shall be functioning as an expert and not as an arbitrator). In making such calculation, the Accountant shall consider only those items or amounts in the Net Sales Statement and Sellers' calculation of Net Sales included in such Net Sales Statement as to which Sellers have disagreed. The Accountant shall deliver to Purchaser and Sellers, issues as promptly as practicable (but in any case no event later than twenty forty-five (2045) Business Days from the date of engagement days following submission of the Accountant), a report setting matter to the Unrelated Accounting Firm) and to resolve the issues of dispute set forth such calculationin the Objection Notice. Such report The resolution of the dispute by the Unrelated Accounting Firm shall be within the range of the positions submitted by Parent and the Holders’ Representative and shall be final and binding upon Purchaser and Sellerson the Parties with respect to such dispute. The cost fees and expenses of such review and report the Unrelated Accounting Firm shall be borne equally by Purchaser on one hand and Sellers on the other hand; provided, however, that if the Accountant's report is in agreement with either party's calculations included in the Net Sales Statement, the cost of such review and report shall be borne solely by the other party. (c) Purchaser and Sellers shall, and shall cause their respective representatives to, cooperate and assist in the preparation of the Net Sales Statement Holders and the calculation of the amount of Net Sales of the Lifecycle Products, or New Products, as applicable, Holder’s Representative. Parent and the amount of Holder’s Representative shall provide the royalty payments in connection therewith and in the conduct of the review referred to in this Section 3.6(a), including making available, to the extent necessary, books, records, work papers and personnel. (d) If the amount of Net Sales of the Lifecycle Products, or New Products, Unrelated Accounting Firm such accounting records as applicable, and the royalty payments in connection therewith, as determined may be reasonably requested by the Accountant pursuant Unrelated Accounting Firm in order for the Unrelated Accounting Firm to Section 3.6(a), is greater than resolve the calculation provided for by Purchaser in the applicable Net Sales Statement, then Purchaser shall promptly pay to Parent an amount equal to the difference between the Accountant's calculation of such royalty payments and Purchaser's calculation of such royalty paymentspending dispute.