Common use of Economic Adjustments for Off-Label Sales Clause in Contracts

Economic Adjustments for Off-Label Sales. (a) Cutera and Cutera Affiliates each agrees to make payments to (i) Xxxxxxxx and (ii) any other Third Party to which Palomar has granted an exclusive sublicense under the Xxxxxxxx Patents in a field that in whole or in part falls within the Consumer Field (Xxxxxxxx and such other Third Parties, collectively, “Consumer Field Users”), as appropriate, in the manner set forth below, to compensate any of them for certain lost profits, if any, resulting from net off-label purchases during the Sublicense Term of Licensed Products commercialized pursuant to the sublicense to the Xxxxxxxx Patents granted to Cutera and Cutera Affiliates by Palomar under Section 2.1, for use in the Consumer Field. (b) In the event that a Consumer Field User shall suffer Lost Profits (calculated in the manner set forth in Section 3.3(c)) in excess of Five Million Dollars (U.S. $5,000,000) in any calendar year, then such Consumer Field User may submit a written notice to Cutera or any Cutera Affiliates (a “Lost Profits Notice”) specifying its aggregate Lost Profits for such calendar year and enclosing copies of (A) the Independent Study (as defined below) supporting such calculation and (B) this Agreement. Within one hundred and eighty (180) days after receipt thereof, Cutera or Cutera Affiliate, as applicable shall (1) remit payment to such Consumer Field User, to such bank account designated in the Lost Profits Notice, in an amount equal to the difference between such Lost Profits and Five Million Dollars (U.S. $5,000,000) or (2) provide to such Consumer Field User a detailed written critique of such calculation, propose a revised calculation of such Consumer Field User’s Lost Profits based on a new Independent Study, and enclose a copy of such Independent Study. In the event that Cutera or such Cutera Affiliate, as applicable, shall propose a revised calculation, Cutera or such Cutera Affiliate, as applicable, and such Consumer Field User shall meet within thirty (30) days thereafter to attempt in good faith to negotiate an agreed level of Lost Profits, or otherwise settle the dispute. In the event that Cutera or such Cutera Affiliate, as applicable, and such Consumer Field User shall fail to reach agreement at such meeting, either of them may bring a lawsuit in any court of competent jurisdiction to resolve such dispute. (c) The Lost Profits of such Consumer Field User for a calendar year during the Sublicense Term shall be determined as follows. Such Consumer Field User shall retain, at its expense, a nationally-recognized economic consulting firm to determine, for such year, on the basis of accepted accounting, market research, sampling and survey methodology, (A) the sales by Cutera, Cutera Affiliates, Cutera Sublicensees and Cutera’s agents for such year of Licensed Products, commercialized pursuant to the sublicense under the Xxxxxxxx Patents granted to Cutera and Cutera Affiliates by Palomar under Section 2.1, that displaced sales by or on behalf of such Consumer Field User of products, intended for use in the Consumer Field, that use optical radiation for therapeutic or cosmetic effect, and (B) the sales of such products for such year by such Consumer Field User and its affiliates, sublicensees and agents that displaced sales of such Licensed Products by or on behalf of Cutera or Cutera Affiliates, (C) the average net profit of such Consumer Field User for each unit of product sold (on a country-by-country basis, as relevant), (D) the loss of sales resulting from net off-label sales, calculated on the basis of (A) and (B), and (E) the lost profits attributable to such net off-label sales, calculated on the basis of (C) and (D) (the “Lost Profits”). Such determinations shall be summarized and documented in a report prepared by such nationally-recognized economic consulting firm (the “Independent Study”). (d) All Consumer Field Users are hereby granted third-party beneficiary rights with respect to the provisions of this Section 3.3 provided that Palomar has granted such Consumer Field Users such rights in writing.

Economic Adjustments for Off-Label Sales. (a) Cutera Laserscope and Cutera Laserscope Affiliates each agrees to make payments to (i) Xxxxxxxx and Xxxxxxxx, (ii) any other Third Party to which Palomar has granted an exclusive sublicense under the Xxxxxxxx Patents in a field that in whole or in part falls within the Consumer Field Field, and (Xxxxxxxx and such other Third Parties, iii) Palomar (collectively, “Consumer Field Users”), as appropriate, in the manner set forth below, to compensate any of them for certain lost profits, if any, resulting from net off-label purchases during the Sublicense Term of Licensed Products commercialized pursuant to the sublicense to the Xxxxxxxx Patents granted to Cutera Laserscope and Cutera Laserscope Affiliates by Palomar under Section 2.1, for use in the Consumer Field. (b) In the event that a Consumer Field User shall suffer Lost Profits (calculated in the manner set forth in Section 3.3(c)) in excess of Five Million Dollars (U.S. $5,000,000) in any calendar year, then such Consumer Field User may submit a written notice to Cutera Laserscope or any Cutera Affiliates Laserscope Affiliate (a “Lost Profits Notice”) specifying its aggregate Lost Profits for such calendar year and enclosing copies of (A) the Independent Study (as defined below) supporting such calculation and (B) this Agreement. Within one hundred and eighty (180) days after receipt thereof, Cutera Laserscope or Cutera the Laserscope Affiliate, as applicable applicable, shall (1) remit payment to such Consumer Field User, to such bank account designated in the Lost Profits Notice, in an amount equal to the difference between such Lost Profits and Five Million Dollars (U.S. $5,000,000) or (2) provide to such Consumer Field User a detailed written critique of such calculation, propose a revised calculation of such Consumer Field User’s Lost Profits based on a new Independent Study, and enclose a copy of such Independent Study. In the event that Cutera Laserscope or such Cutera Laserscope Affiliate, as applicable, shall propose a revised calculation, Cutera Laserscope or such Cutera Laserscope Affiliate, as applicable, and such Consumer Field User shall meet within thirty (30) days thereafter to attempt in good faith to negotiate an agreed level of Lost Profits, or otherwise settle the dispute. In the event that Cutera Laserscope or such Cutera Laserscope Affiliate, as applicable, and such Consumer Field User shall fail to reach agreement at such meeting, either of them may bring a lawsuit in any court of competent jurisdiction to resolve such dispute. (c) The Lost Profits of such Consumer Field User for a calendar year during the Sublicense Term shall be determined as follows. Such Consumer Field User shall retain, at its expense, a nationally-recognized economic consulting firm to determine, for such year, on the basis of accepted accounting, market research, sampling and survey methodology, (A) the sales by CuteraLaserscope, Cutera Laserscope Affiliates, Cutera Laserscope Sublicensees and CuteraLaserscope’s agents for such year of Licensed Products, commercialized pursuant to the sublicense under the Xxxxxxxx Patents granted to Cutera Laserscope and Cutera Laserscope Affiliates by Palomar under Section 2.1, that displaced sales by or on behalf of such Consumer Field User of products, intended for use in the Consumer Field, that use optical radiation for therapeutic or cosmetic effect, and (B) the sales of such products for such year by such Consumer Field User and its affiliates, sublicensees and agents that displaced sales of such Licensed Products by or on behalf of Cutera Laserscope or Cutera Laserscope Affiliates, (C) the average net profit of such Consumer Field User for each unit of product sold (on a country-by-country basis, as relevant), (D) the loss of sales resulting from net off-label sales, calculated on the basis of (A) and (B), and (E) the lost profits attributable to such net off-label sales, calculated on the basis of (C) and (D) (the “Lost Profits”). Such determinations shall be summarized and documented in a report prepared by such nationally-recognized economic consulting firm (the “Independent Study”). (d) All Consumer Field Users Users, other than Palomar, are hereby granted third-party beneficiary rights with respect to the provisions of this Section 3.3 provided that Palomar has granted such Consumer Field Users such rights in writing.

Economic Adjustments for Off-Label Sales. (a) Cutera Cynosure and Cutera Cynosure Affiliates each agrees to make payments to (i) Xxxxxxxx and Gxxxxxxx, (ii) any other Third Party to which Palomar has granted an exclusive sublicense under the Xxxxxxxx Axxxxxxx Patents in a field that in whole or in part falls within the Consumer Field Field, and (Xxxxxxxx and such other Third Parties, iii) Palomar (collectively, “Consumer Field Users”), as appropriate, in the manner set forth below, to compensate any of them for certain lost profits, if any, resulting from net off-label purchases during the Sublicense Term of Licensed Products commercialized pursuant to the sublicense to the Xxxxxxxx Axxxxxxx Patents granted to Cutera Cynosure and Cutera Cynosure Affiliates by Palomar under Section 2.12.1(a), for use in the Consumer Field. (b) In the event that a Consumer Field User shall suffer Lost Profits (calculated in the manner set forth in Section 3.3(c)) in excess of Five Million Dollars (U.S. $5,000,000) in any calendar year, then such Consumer Field User may submit a written notice to Cutera Cynosure or any Cutera Affiliates Cynosure Affiliate (a “Lost Profits Notice”) specifying its aggregate Lost Profits for such calendar year and enclosing copies of (A) the Independent Study (as defined below) supporting such calculation and (B) this Agreement. Within one hundred and eighty (180) days after receipt thereof, Cutera Cynosure or Cutera the Cynosure Affiliate, as applicable applicable, shall (1) remit payment to such Consumer Field User, to such bank account designated in the Lost Profits Notice, in an amount equal to the difference between such Lost Profits and Five Million Dollars (U.S. $5,000,000) or (2) provide to such Consumer Field User a detailed written critique of such calculation, propose a revised calculation of such Consumer Field User’s Lost Profits based on a new Independent Study, and enclose a copy of such Independent Study. In the event that Cutera Cynosure or such Cutera Cynosure Affiliate, as applicable, shall propose a revised calculation, Cutera Cynosure or such Cutera Cynosure Affiliate, as applicable, and such Consumer Field User shall meet within thirty (30) days thereafter to attempt in good faith to negotiate an agreed level of Lost Profits, or otherwise settle the dispute. In the event that Cutera Cynosure or such Cutera Cynosure Affiliate, as applicable, and such Consumer Field User shall fail to reach agreement at such meeting, either of them may bring a lawsuit in any court of competent jurisdiction to resolve such dispute. (c) The Lost Profits of such Consumer Field User for a calendar year during the Sublicense Term shall be determined as follows. Such Consumer Field User shall retain, at its expense, a nationally-recognized economic consulting firm to determine, for such year, on the basis of accepted accounting, market research, sampling and survey methodology, (A) the sales by CuteraCynosure, Cutera Cynosure Affiliates, Cutera Cynosure Sublicensees and CuteraCynosure’s agents for such year of Licensed Products, commercialized pursuant to the sublicense under the Xxxxxxxx Axxxxxxx Patents granted to Cutera Cynosure and Cutera Cynosure Affiliates by Palomar under Section 2.12.1(a), that displaced sales by or on behalf of such Consumer Field User of products, intended for use in the Consumer Field, that use optical radiation for therapeutic or cosmetic effect, and (B) the sales of such products for such year by such Consumer Field User and its affiliates, sublicensees and agents that displaced sales of such Licensed Products by or on behalf of Cutera Cynosure or Cutera Cynosure Affiliates, (C) the average net profit of such Consumer Field User for each unit of product sold (on a country-by-country basis, as relevant), (D) the loss of sales resulting from net off-label sales, calculated on the basis of (A) and (B), and (E) the lost profits attributable to such net off-label sales, calculated on the basis of (C) and (D) (the “Lost Profits”). Such determinations shall be summarized and documented in a report prepared by such nationally-recognized economic consulting firm (the “Independent Study”). (d) All Consumer Field Users Users, other than Palomar, are hereby granted third-party beneficiary rights with respect to the provisions of this Section 3.3 provided that Palomar has granted such Consumer Field Users such rights in writing.

Economic Adjustments for Off-Label Sales. (a) Cutera Cynosure and Cutera Cynosure Affiliates each agrees to make payments to (i) Xxxxxxxx and Xxxxxxxx, (ii) any other Third Party to which Palomar has granted an exclusive sublicense under the Xxxxxxxx Patents in a field that in whole or in part falls within the Consumer Field Field, and (Xxxxxxxx and such other Third Parties, iii) Palomar (collectively, “Consumer Field Users”), as appropriate, in the manner set forth below, to compensate any of them for certain lost profits, if any, resulting from net off-label purchases during the Sublicense Term of Licensed Products commercialized pursuant to the sublicense to the Xxxxxxxx Patents granted to Cutera Cynosure and Cutera Cynosure Affiliates by Palomar under Section 2.12.1(a), for use in the Consumer Field. (b) In the event that a Consumer Field User shall suffer Lost Profits (calculated in the manner set forth in Section 3.3(c)) in excess of Five Million Dollars (U.S. $5,000,000) in any calendar year, then such Consumer Field User may submit a written notice to Cutera Cynosure or any Cutera Affiliates Cynosure Affiliate (a “Lost Profits Notice”) specifying its aggregate Lost Profits for such calendar year and enclosing copies of (A) the Independent Study (as defined below) supporting such calculation and (B) this Agreement. Within one hundred and eighty (180) days after receipt thereof, Cutera Cynosure or Cutera the Cynosure Affiliate, as applicable applicable, shall (1) remit payment to such Consumer Field User, to such bank account designated in the Lost Profits Notice, in an amount equal to the difference between such Lost Profits and Five Million Dollars (U.S. $5,000,000) or (2) provide to such Consumer Field User a detailed written critique of such calculation, propose a revised calculation of such Consumer Field User’s Lost Profits based on a new Independent Study, and enclose a copy of such Independent Study. In the event that Cutera Cynosure or such Cutera Cynosure Affiliate, as applicable, shall propose a revised calculation, Cutera Cynosure or such Cutera Cynosure Affiliate, as applicable, and such Consumer Field User shall meet within thirty (30) days thereafter to attempt in good faith to negotiate an agreed level of Lost Profits, or otherwise settle the dispute. In the event that Cutera Cynosure or such Cutera Cynosure Affiliate, as applicable, and such Consumer Field User shall fail to reach agreement at such meeting, either of them may bring a lawsuit in any court of competent jurisdiction to resolve such dispute. (c) The Lost Profits of such Consumer Field User for a calendar year during the Sublicense Term shall be determined as follows. Such Consumer Field User shall retain, at its expense, a nationally-recognized economic consulting firm to determine, for such year, on the basis of accepted accounting, market research, sampling and survey methodology, (A) the sales by CuteraCynosure, Cutera Cynosure Affiliates, Cutera Cynosure Sublicensees and CuteraCynosure’s agents for such year of Licensed Products, commercialized pursuant to the sublicense under the Xxxxxxxx Patents granted to Cutera Cynosure and Cutera Cynosure Affiliates by Palomar under Section 2.12.1(a), that displaced sales by or on behalf of such Consumer Field User of products, intended for use in the Consumer Field, that use optical radiation for therapeutic or cosmetic effect, and (B) the sales of such products for such year by such Consumer Field User and its affiliates, sublicensees and agents that displaced sales of such Licensed Products by or on behalf of Cutera Cynosure or Cutera Cynosure Affiliates, (C) the average net profit of such Consumer Field User for each unit of product sold (on a country-by-country basis, as relevant), (D) the loss of sales resulting from net off-label sales, calculated on the basis of (A) and (B), and (E) the lost profits attributable to such net off-label sales, calculated on the basis of (C) and (D) (the “Lost Profits”). Such determinations shall be summarized and documented in a report prepared by such nationally-recognized economic consulting firm (the “Independent Study”). (d) All Consumer Field Users Users, other than Palomar, are hereby granted third-party beneficiary rights with respect to the provisions of this Section 3.3 provided that Palomar has granted such Consumer Field Users such rights in writing.

Economic Adjustments for Off-Label Sales. (a) Cutera Axxx and Cutera Axxx Affiliates each agrees to make payments to (i) Xxxxxxxx and Gxxxxxxx, (ii) any other Third Party to which Palomar has granted an exclusive sublicense under the Xxxxxxxx Axxxxxxx Patents in a field that in whole or in part falls within the Consumer Field Field, and (Xxxxxxxx and such other Third Parties, iii) Palomar (collectively, “Consumer Field Users”), as appropriate, in the manner set forth below, to compensate any of them for certain lost profits, if any, resulting from net off-label purchases during the Sublicense Term of Licensed Products commercialized pursuant to the sublicense to the Xxxxxxxx Axxxxxxx Patents granted to Cutera Axxx and Cutera Axxx Affiliates by Palomar under Section 2.1, for use in the Consumer Field. (b) In the event that a Consumer Field User shall suffer Lost Profits (calculated in the manner set forth in Section 3.3(c)) in excess of Five Million Dollars (U.S. $5,000,000) in any calendar year, then such Consumer Field User may submit a written notice to Cutera Axxx or any Cutera Affiliates Axxx Affiliate (a “Lost Profits Notice”) specifying its aggregate Lost Profits for such calendar year and enclosing copies of (A) the Independent Study (as defined below) supporting such calculation and (B) this Agreement. Within one hundred and eighty (180) days after receipt thereof, Cutera Axxx or Cutera the Axxx Affiliate, as applicable applicable, shall (1) remit payment to such Consumer Field User, to such bank account designated in the Lost Profits Notice, in an amount equal to the difference between such Lost Profits and Five Million Dollars (U.S. $5,000,000) or (2) provide to such Consumer Field User a detailed written critique of such calculation, propose a revised calculation of such Consumer Field User’s Lost Profits based on a new Independent Study, and enclose a copy of such Independent Study. In the event that Cutera Axxx or such Cutera Axxx Affiliate, as applicable, shall propose a revised calculation, Cutera Axxx or such Cutera Axxx Affiliate, as applicable, and such Consumer Field User shall meet within thirty (30) days thereafter to attempt in good faith to negotiate an agreed level of Lost Profits, or otherwise settle the dispute. In the event that Cutera Axxx or such Cutera Axxx Affiliate, as applicable, and such Consumer Field User shall fail to reach agreement at such meeting, either of them may bring a lawsuit in any court of competent jurisdiction to resolve such dispute. (c) The Lost Profits of such Consumer Field User for a calendar year during the Sublicense Term shall be determined as follows. Such Consumer Field User shall retain, at its expense, a nationally-recognized economic consulting firm to determine, for such year, on the basis of accepted accounting, market research, sampling and survey methodology, (A) the sales by CuteraAxxx, Cutera Axxx Affiliates, Cutera Axxx Sublicensees and CuteraAlma’s agents for such year of Licensed Products, commercialized pursuant to the sublicense under the Xxxxxxxx Axxxxxxx Patents granted to Cutera Axxx and Cutera Axxx Affiliates by Palomar under Section 2.1, that displaced sales by or on behalf of such Consumer Field User of products, intended for use in the Consumer Field, that use optical radiation for therapeutic or cosmetic effect, and (B) the sales of such products for such year by such Consumer Field User and its affiliates, sublicensees and agents that displaced sales of such Licensed Products by or on behalf of Cutera Axxx or Cutera Axxx Affiliates, (C) the average net profit of such Consumer Field User for each unit of product sold (on a country-by-country basis, as relevant), (D) the loss of sales resulting from net off-label sales, calculated on the basis of (A) and (B), and (E) the lost profits attributable to such net off-label sales, calculated on the basis of (C) and (D) (the “Lost Profits”). Such determinations shall be summarized and documented in a report prepared by such nationally-recognized economic consulting firm (the “Independent Study”). (d) All Consumer Field Users Users, other than Palomar, are hereby granted third-party beneficiary rights with respect to the provisions of this Section 3.3 provided that Palomar has granted such Consumer Field Users such rights in writing.

Economic Adjustments for Off-Label Sales. (a) Cutera and Cutera Affiliates each Lumenis agrees to make payments to Xxxxxxxx or Palomar (i) Xxxxxxxx and (ii) any other Third Party to which Palomar has granted an exclusive sublicense under the Xxxxxxxx Patents in a field that in whole or in part falls within the Consumer Field (Xxxxxxxx and such other Third Parties, collectively, “Consumer Field Users”), as appropriate, in the manner set forth belowin Section 3.3(c), to compensate any of them for certain lost profits, if any, resulting from net off-label purchases during the Sublicense Term of Licensed Lumenis Products and Lumenis Modules developed and/or commercialized pursuant to the sublicense sublicenses to the Xxxxxxxx Patents granted to Cutera and Cutera Affiliates Lumenis by Palomar under Section 2.1, for use 2.1 by end-users in the Consumer Field. (b) In the event that a Consumer Field User shall suffer Lost Profits (calculated in the manner set forth in Section 3.3(c)) in excess of Five Million Dollars (U.S. US $5,000,000) in any calendar year, then such Consumer Field User may submit a written notice to Cutera or any Cutera Affiliates Lumenis (a “Lost Profits Notice”) specifying its aggregate Lost Profits for such calendar year and enclosing copies of (A) the Independent Study (as defined below) supporting such calculation and (B) this Agreement. Within one hundred and eighty (180) days after receipt thereof, Cutera or Cutera Affiliate, as applicable Lumenis shall (1) remit payment to such Consumer Field User, to such bank account designated in the Lost Profits Notice, in an amount equal to the difference between such Lost Profits and Five Million Dollars (U.S. $5,000,000) or (2) provide to such Consumer Field User a detailed written critique of such calculation, propose a revised calculation of such Consumer Field User’s Lost Profits based on a new Independent Study, and enclose a copy of such Independent Study. In the event that Cutera or such Cutera Affiliate, as applicable, Lumenis shall propose a revised calculation, Cutera or such Cutera Affiliate, as applicable, Lumenis and such Consumer Field User shall meet within thirty (30) days thereafter to attempt in good faith to negotiate an agreed level of Lost Profits, or otherwise settle the dispute. In the event that Cutera or such Cutera Affiliate, as applicable, Lumenis and such Consumer Field User shall fail to reach agreement at such meeting, either of them may bring a lawsuit in any court of competent jurisdiction to resolve such dispute. (c) The Lost Profits of such Consumer Field User for a calendar year during the Sublicense Term shall be determined as follows. Such Consumer Field User shall retain, at its expense, a nationally-recognized economic consulting firm to determine, for such year, on the basis of accepted accounting, market research, sampling and survey methodology, (A) the sales by Cutera, Cutera Affiliates, Cutera Sublicensees of Lumenis Products and Cutera’s agents for such year of Licensed Products, Lumenis Modules developed and/or commercialized pursuant to the sublicense under sublicenses to the Xxxxxxxx Patents granted to Cutera and Cutera Affiliates Lumenis by Palomar under Section 2.1, 2.1 for such year by Lumenis and its sublicensees or agents that displaced sales of products or systems in the Consumer Field by or on behalf of such Consumer Field User of products, intended for use in the Consumer Field, that use optical radiation for therapeutic or cosmetic effectUser, and (B) the sales of such products for such year by such Consumer Field User and its affiliates, or their sublicensees and or agents that displaced sales of such Licensed Lumenis Products or Lumenis Modules by or on behalf of Cutera or Cutera Affiliates, Lumenis; (C) the average net profit of such Consumer Field User for each unit of product sold (on a country-by-country basis, as relevant), ; (D) the loss of sales resulting from net off-label sales, calculated on the basis of (A) and (B), ; and (E) the lost profits attributable to such net off-label sales, calculated on the basis of (C) and (D) (the “Lost Profits”). Such determinations shall be summarized and documented in a report prepared by such nationally-recognized economic consulting firm (the “Independent Study”). (d) All Consumer Field Users are Xxxxxxxx is hereby granted third-third party beneficiary rights with respect to the provisions of this Section 3.3 provided that Palomar has granted such Consumer Field Users such rights in writing3.3.

Economic Adjustments for Off-Label Sales. (a) Cutera Xxxx and Cutera Xxxx Affiliates each agrees to make payments to (i) Xxxxxxxx and Xxxxxxxx, (ii) any other Third Party to which Palomar has granted an exclusive sublicense under the Xxxxxxxx Patents in a field that in whole or in part falls within the Consumer Field Field, and (Xxxxxxxx and such other Third Parties, iii) Palomar (collectively, “Consumer Field Users”), as appropriate, in the manner set forth below, to compensate any of them for certain lost profits, if any, resulting from net off-label purchases during the Sublicense Term of Licensed Products commercialized pursuant to the sublicense to the Xxxxxxxx Patents granted to Cutera Xxxx and Cutera Xxxx Affiliates by Palomar under Section 2.1, for use in the Consumer Field. (b) In the event that a Consumer Field User shall suffer Lost Profits (calculated in the manner set forth in Section 3.3(c)) in excess of Five Million Dollars (U.S. $5,000,000) in any calendar year, then such Consumer Field User may submit a written notice to Cutera Xxxx or any Cutera Affiliates Xxxx Affiliate (a “Lost Profits Notice”) specifying its aggregate Lost Profits for such calendar year and enclosing copies of (A) the Independent Study (as defined below) supporting such calculation and (B) this Agreement. Within one hundred and eighty (180) days after receipt thereof, Cutera Xxxx or Cutera the Xxxx Affiliate, as applicable applicable, shall (1) remit payment to such Consumer Field User, to such bank account designated in the Lost Profits Notice, in an amount equal to the difference between such Lost Profits and Five Million Dollars (U.S. $5,000,000) or (2) provide to such Consumer Field User a detailed written critique of such calculation, propose a revised calculation of such Consumer Field User’s Lost Profits based on a new Independent Study, and enclose a copy of such Independent Study. In the event that Cutera Xxxx or such Cutera Xxxx Affiliate, as applicable, shall propose a revised calculation, Cutera Xxxx or such Cutera Xxxx Affiliate, as applicable, and such Consumer Field User shall meet within thirty (30) days thereafter to attempt in good faith to negotiate an agreed level of Lost Profits, or otherwise settle the dispute. In the event that Cutera Xxxx or such Cutera Xxxx Affiliate, as applicable, and such Consumer Field User shall fail to reach agreement at such meeting, either of them may bring a lawsuit in any court of competent jurisdiction to resolve such dispute. (c) The Lost Profits of such Consumer Field User for a calendar year during the Sublicense Term shall be determined as follows. Such Consumer Field User shall retain, at its expense, a nationally-recognized economic consulting firm to determine, for such year, on the basis of accepted accounting, market research, sampling and survey methodology, (A) the sales by CuteraXxxx, Cutera Xxxx Affiliates, Cutera Xxxx Sublicensees and CuteraAlma’s agents for such year of Licensed Products, commercialized pursuant to the sublicense under the Xxxxxxxx Patents granted to Cutera Xxxx and Cutera Xxxx Affiliates by Palomar under Section 2.1, that displaced sales by or on behalf of such Consumer Field User of products, intended for use in the Consumer Field, that use optical radiation for therapeutic or cosmetic effect, and (B) the sales of such products for such year by such Consumer Field User and its affiliates, sublicensees and agents that displaced sales of such Licensed Products by or on behalf of Cutera Xxxx or Cutera Xxxx Affiliates, (C) the average net profit of such Consumer Field User for each unit of product sold (on a country-by-country basis, as relevant), (D) the loss of sales resulting from net off-label sales, calculated on the basis of (A) and (B), and (E) the lost profits attributable to such net off-label sales, calculated on the basis of (C) and (D) (the “Lost Profits”). Such determinations shall be summarized and documented in a report prepared by such nationally-recognized economic consulting firm (the “Independent Study”). (d) All Consumer Field Users Users, other than Palomar, are hereby granted third-party beneficiary rights with respect to the provisions of this Section 3.3 provided that Palomar has granted such Consumer Field Users such rights in writing.