Extract to table

Absent an audit, BCS must rely entirely on Vantage's self-reported figures to verify the accuracy of quarterly royalty payments

The MAC of $5,000,000 per contract year, and the associated shortfall mechanism (under which Vantage must pay BCS any difference between the MAC and actual purchases within 45 days of each contract-year-end), similarly depends on accurate record-keeping by Vantage

If Vantage pushes back strongly on the call and seeks a compromise, we have identified one potential fallback position that we believe would be acceptable to BCS while providing Vantage with some additional comfort: Potential Compromise (offer only if necessary): BCS would agree to (i) cap the duration of each annual audit at five (5) business days on-site, and (ii) confirm in the agreement text that BCS shall conduct no more than one (1) audit per contract year

All three carve-outs — breach of confidentiality, IP indemnity, and willful misconduct — must remain

Delaware courts have generally held that contractual provisions requiring payment of a fixed sum upon termination must bear a reasonable relationship to the anticipated harm caused by the termination; otherwise, they may be struck down as penalties

3): All three carve-outs (breach of confidentiality, IP indemnity, willful misconduct) must remain