AUDIT RELEASE AND SETTLEMENT AGREEMENT (THIS “AGREEMENT”)
Effective Date of this Agreement: ____________, 200_ Licensor: [LICENSOR NAME AND ADDRESS] COMPANY: [COMPANY NAME AND ADDRESS] Audit Agreement: License Agreement between COMPANY and Licensor dated as of ____________, 200_, (Licensor Contract Number ______________ ) and related amendments (collectively, “Audit Agreement”). Audit Period: ____________, 200_ through ____________, 200_. Settlement Sum: $_______ In order to resolve all disputes and differences between them concerning various audit claims (“Audit Claims”) relating to accountings for sales, pricing, royalties and/or statements rendered by COMPANY during and under the Audit Agreement for the Audit Period, the parties agree as follows: 1. This Agreement relates to the Audit Claims derived from the Audited Agreements during the Audit Period and does not cover any other agreement which may exist between the parties; 2. COMPANY shall pay Licensor the Settlement Sum, and Licensor accept the Settlement Sum to settle all claims Licensor may have against COMPANY arising from the above audit upon full execution by both parties of this Agreement, which full execution and Settlement Sum shall be sent within five (5) business days of COMPANY receipt of Licensor’s return of partially-executed Agreement; 3. Licensor shall extend the Sell-Off Period for an additional six (6) months following the expiration of the current Sell-Off for a Sell-Off expiration date of _____________, 200_. 4. Licensor, its officers, directors, employees, attorneys, agents, representatives, predecessors, successors, heirs and assigns, and for each of them or for other who may claim through them, hereby release and forever discharge COMPANY, its officers, directors, employees, attorneys, agents, representatives, predecessors, successors, heirs and assigns, and for each of them of and from all manner of actions, suits, liens, debts, notes, contracts, dues, damages, claims, judgments, bonds, executions, or demands of any nature, kind or description whatsoever, whether known or unknown, based on arising out of or in connection with anything whatsoever done, omitted or suffered to be done at any time arising from accountings, manner of accountings, royalties and/or other payments during the Audit Period including but not limited to the Audit Claims; 5. Each of the parties hereto expressly recognizes and agrees that the terms and conditions of this Agreement constitute an offer and acceptance to compromise contested matters by notation, and that neither the offer nor the acceptance of the terms and conditions hereof, represents an admission of liability or responsibility on the part of any party hereto, with each party hereto expressly disclaiming any such liability or responsibility. 6. With respect to the subject matter of this Agreement, the parties expressly waive all rights under Section 1542 of the Civil Code of California and similar laws of any state or territory of the United States or other jurisdictions, Section 1542 of the Civil Code provides as follows:
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“A general release does not extend to claims which the creditor does not know or suspect to exist in his flavor at the time of executing this release, which if known by him must have materially affected his settlement which the debtor.” 7. This Agreement is contractual in nature, conditioned on Licensor’s receipt of the Settlement Sum, and contains all the terms and conditions of the agreement between the parties hereto. No amendment, modification, waiver, termination or discharge of this Agreement or any provision hereof shall be binding on either party unless confirmed by a writing specifically referring to this Agreement and signed by an authorized representative of each party. No other agreements, direct or collateral, written or oral, exist between the parties related to the subject matter of this Agreement, except to the extent that there are continuing obligations (such as confidentiality) which are inherent or otherwise apparent by their terms. The failure of either party at any time to require performance by the other party of any provision hereof shall in no way affect the full right to require such performance at any time thereafter. Nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. 8. This Agreement shall inure to the benefit of, and be binding upon, the respective assigns, successors-ininterests, and heirs to each party hereto. 9. Each party represents, warrants, and covenants that it is the sole and absolute owner of each and every claim asserted by it in this Agreement and it has the sole, full, and lawful authority to release and forever discharge such claim. 10. This Agreement may be signed, delivered, and/or stored by facsimile or electronic means and in counterparts, each of which is deemed an original and all of which are this one Agreement. Because each party had the opportunity to consult its own legal counsel to participate in preparation of this Agreement, the rule of construction that ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement to favor any party against the other. Section headings are for convenience only and shall have no effect in interpreting this Agreement. If any provision hereof is held invalid, the remaining provisions shall remain in effect, and the parties will renegotiate in good faith any invalid term and be mutually bound by substitute provision. 11. California law shall govern the interpretation and enforcement of this Agreement. By signing below, the parties hereto have executed this Agreement as of the day and year first written above. ___________________________ (“LICENSOR”) By: ______________________ COMPANY (“COMPANY”) By: ______________________
Print: ______________________ Title: ______________________
Print: ______________________ Title: ______________________
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