ライセンス契約のNet Sales Price/Net Sales Amountの意味とは?

英文のライセンス契約書によくみられるNet Sales PriceやNet Sales Amount等は日本語では正味販売額・正味販売売上高等と呼ばれるのだが、基本的に与えられたライセンス(例:技術やノウハウ)を使用して、作ったもの、又は付加価値を付けたものの第三者への純売上高を指している。

通常のライセンス契約では以下のような定義となる:
Net sales = gross invoice price as packed for shipment, except
a) sales, excise, purchase, stamp, consumption and turnover taxes on sales invoices;
b) transportation charges and insurance charges on shipments to customers;
c) trade and quantity discounts (but not cash discounts allowed to customers and not agents’ commissions); and
d) credits allowed for Products returned or not accepted by customers.
上記例ではProductsが供与した技術でライセンシー(ライセンスを受ける側)が製造・販売したものを指す。
ライセンシーがライセンサー(ライセンスを供与する側)にライセンス製品を販売する場合はロイヤルティを不要とするのが一般的。

 

以下は更に様々な例を記載:
(カッコ内は業種/付与ライセンスについて記載)

1. (包装技術・ノウハウ)
The term “Gross Sales Price” shall mean the gross invoice price charged by Sublicensee in the sale of a Product to a non-Affiliate reduced by (i) any credit allowed by Sublicensee for the return of Product; (ii) customary trade, quantity and cash discounts allowed by Sublicensee; (iii) excise, value added and sales taxes actually paid by Sublicensee on the Product; (iv) freight charges actually paid by Sublicensee for the shipment and delivery of the Product; and (v) bad debts or uncollected accounts. In the case of non-cash consideration, “Gross Sales Price” shall be the fair market value of all
non-cash consideration actually received by Sublicensee or its Affiliate for such Product. The “Gross Sales Price” of Products sold or transferred to an Affiliate shall be deemed to be the price then charged to unrelated parties in arms-length transactions for such Products in similar quantities and under similar terms of sale.

2. (テレビゲーム関連のノウハウ・コンテンツ)
“Net Receipts” shall mean with respect to a particular Product all monies actually received by Gizmondo from the license, sale or other exploitation of such Product, after deducting the following: (1) any amounts payable to any Wireless Network Operator, Platform owner, including deductions made by the Wireless Network Operator or Device manufacturer; (2) the actual returns attributable to such Product; and (3) taxes and other governmental charges actually paid or incurred in connection with the sale of such Product (other than the income tax of Gizmondo). For the avoidance of doubt, Gizmondo Net Receipts shall not be deemed to include monies derived or collected from the distribution of the Product to End-Users by any third parties, but shall refer only to those monies actually received by Gizmondo from such third parties after such third parties have retained or withheld any markups, revenue share amounts, or license or other fees due to them pursuant to the terms of Gizmondo’s agreements with such third parties.

3. (薬品の製造や販売等の権利)
“Net Sales” means the gross amounts invoiced by Endo, any of its Affiliates and/or any of its sublicensees on account of sales of Licensed Products to Third Parties (including without limitation Third Party distributors and wholesalers), less the total of the following deductions from such gross amounts which are actually incurred, allowed, accrued or specifically allocated:
(a) Trade, cash and/or quantity discounts actually allowed or accrued which are not already reflected in the amount invoiced;
(b) Excise, sales and other consumption taxes and custom duties to the extent included in the invoice price and to the extent such taxes are remitted to the applicable taxing authority;
(c) Freight, insurance and other transportation charges to the extent included in the invoice price and separately identified on the invoice or other documentation maintained in the ordinary course of business;
(d) Amounts repaid, credited or accrued by reason of returns, rejections, defects or recalls or because of chargebacks, retroactive price reductions, refunds or billing errors;
(e) ***(非開示)
(f) Payments and rebates directly related to the sale of Licensed Products accrued, paid or deducted in a manner consistent with GAAP, pursuant to agreements (including, but not limited to, managed care agreements) with Third Parties or any Governmental or Regulatory Authority; and
(g) Any other similar and customary deductions taken in accordance with GAAP consistently applied.

No deductions shall be made for commissions paid to any Person who is regularly employed by the seller of a Licensed Product on its payroll. Use of Licensed Products for promotional, sampling or compassionate use purposes or for use in clinical trials contemplated under this Agreement shall not be considered in determining Net Sales. In the case of any sale of a Licensed Product between the Parties and their respective Affiliates or sublicensees for resale, Net Sales shall be calculated as above only on the first arm’s length sale thereafter to a Third Party.

4. (療法のノウハウ)
Net Sales: The term “Net Sales” means gross sales of the Products invoiced by EpiCept or any of its Affiliates to a third party, but not to an Affiliate, and accepted by the third party, less shipping costs, returns, allowances, and taxes.

5. (乳製品のブランド使用権)
“Net Sales” means YoCream’s invoice price for the Product to the customers, less any applicable variable distribution charges, rebates paid to the customer, any Product related deduction taken by the customer in the course of business, and cash payment term discount applicable to such customers as of the Effective Date of this Agreement as mutually agreed by the Parties on a customer by customer basis. Invoices will be included in the royalty calculation after the invoice has been paid in full, including rebates or other approved Product related deductions.

6. (家電製品の商標使用権)
The term “net sales” with respect to the Licensed Products shall be defined as the total amount invoiced by LICENSEE for sales of the Licensed Products less the total amount of returns of the Licensed Products, as exemplified on Exhibit D attached hereto. LICENSOR and LICENSEE agree that no Royalties shall be paid on sales of products from LICENSEE to LICENSOR.

EXHIBIT D

 

Calculation of Quarterly Royalties Payment (in U.S. Dollars)

 

Products       Total Sales       Returns          Net Sales        Royalty Rate

 

$                   $                    $                      10%

———–      ——–            ———-         ——-

 

ROYALTIES PAYMENT U.S.     $

——–

7. (バイオテック関連の技術・ノウハウ)
The term “Net Sales” shall mean the gross amount received by Licensee upon payment of invoice, or its Affiliates and sublicensees, or any of them, on all sales of Licensed Products, less (i) discounts actually allowed, (ii) credits for claims, allowances, retroactive price reductions or returned goods, (iii) prepaid freight and (iv) sales taxes or other governmental charges actually paid in connection with sales of Licensed Products (but excluding what are commonly known as income taxes and value-added taxes). For purposes of determining Net Sales, a sale shall be deemed to have occurred when an invoice therefor shall be generated and payment received by Licensee, or its Affiliates and Sublicensees or any of them. Sales of Licensed Products by Licensee, or an Affiliate or sublicensee of Licensee to any Affiliate or sublicensee which is a reseller thereof shall be excluded, and only the subsequent sale of such Licensed Products by Affiliates or sublicensees of Licensee to unrelated parties shall be deemed Net Sales hereunder.

8. (デジタルコンテンツを保護する技術)
“Net Factory Sales Price” is defined as the gross retail selling price of each unit of the Products. If Products are made abroad, less usual trade discounts actually allowed, but not including advertising allowances or fees or commissions paid to employees or agents of Licensee. The Net Factory Sales Price shall not include (1) import and export taxes, excise and other sales taxes, and customs duties, and (2) costs of insurance and transportation, if separately billed, from the place of manufacture if in the U.S., or from the place of importation if manufactured abroad, to the customer’s premises or next point of distribution or sale. Subject to the minimum royalty payment described in Section 2(A) below, bona fide returns not to exceed 25% of total sales of Products may be deducted from units of Products shipped in computing the royalty payable after such returns are made.

9. (製薬関連のパテント使用権)
“Net Sales” shall mean the gross invoice or contract price of Licensed Product sold by Licensee or an Affiliate of Licensee or any distributor or reseller on behalf of the Licensee, , less the following items but only insofar as they actually pertain to the sale of such Licensed Products by Licensee or any of its Affiliates and are included in such gross invoice or contract price and to the extent such items (except items (a) and (b)) are separately billed:
(a) normal or customary trade discounts, if any, actually allowed or paid (other than cas discounts, advertising allowances, fees, or commissions to any employee);
(b) credits for returns, allowances, or trades;
(c) import, export, excise and sales tax, plus customs duties;
(d) cost of insurance and transportaiton from the place of manufacture to the customer’s premises or point of installation; and
(e) packing costs.
For Licensed Product sold in combination with one or more active ingredients, Net Sales shall be calculated by multiplying Net Sales of the combination product by the fraction A/(A+B) where A is the sales price of the Licensed Product in the combination when sold separately and B is the total sales price of all other active ingredients in the combination when sold separately. If the Licensed Product and the other active ingredients are not sold separately, Cost of Product shall be substituted for sales price in the above formula for each of the components of the combination product.

10. (バイオテック関連のパテント使用権)
“Net Sale” shall mean revenues on an accrual basis, in accordance with U.S. generally accepted accounting principles, as follows: the invoice price of Licensed Products sold by LICENSEE its affiliates or its sublicensees to third parties, less to the extent included in such invoice price the total of: (1) ordinary and customary trade discounts actually allowed; (2) credits, rebates and returns (including, but not limited to, wholesaler and retailer returns); (3) freight, postage, insurance and duties paid for and separately identified on the invoice or other documentation maintained in the ordinary course of business, and (4) excise or value-added taxes, other consumption taxes, customs duties and compulsory payments to governmental authorities actually paid and separately identified on the invoice or other documentation maintained in the ordinary course of business. Net Sales shall also include the fair market value of all other consideration received by LICENSEE in respect of Licensed Products, whether such consideration is in cash, payment in kind, exchange or another form.

11. (IT/ソフトウェア)
“Gross Net Margin” means the total of the gross invoice prices of Licensed Products and Services sold by Licensee, or an Affiliate, less agents’ commissions and cancellations.

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