Underpayment; Overpayment; Dispute Clause Samples

Underpayment; Overpayment; Dispute. After reviewing the CPA Firm’s audit report, NewCo shall promptly pay any uncontested, understated amounts due to AFMD. Any overpayment made by NewCo shall be promptly refunded or fully creditable against amounts payable in subsequent payment periods, at NewCo’s election. Any audit under Section 9.8.2 shall be at AFMD’ expense; provided, however, NewCo shall reimburse reasonable audit fees for a given audit if the results of such audit reveal that NewCo underpaid AFMD, as applicable, with respect to the royalty payments, by [*****]or more for the audited Calendar Year(s), provided that such amount exceeds [*****]. Notwithstanding the foregoing, If NewCo disputes the results of any audit conducted by the CPA Firm pursuant to Section 9.8.2, the Parties shall work in good faith to resolve the disagreement. If the Parties are unable to reach a mutually acceptable resolution of any such dispute within thirty (30) days, the dispute shall be submitted for resolution to a certified public accounting firm jointly selected by each Party’s certified public accountants or to such other person as the Parties shall mutually agree (the “Auditor”). The decision of the Auditor shall be final and the costs of such procedure as well as the initial audit shall be borne between the Parties in such manner as the Auditor shall determine. If the Auditor determines that there has been an underpayment by NewCo, NewCo shall pay to AFMD the underpayment within thirty (30) days after the Auditor’s decision. If the Auditor determines that there has been an overpayment by NewCo, then NewCo may offset such overpayment against any future payments due to AFMD (it being understood that if NewCo does not owe any future payments to AFMD, AFMD shall pay to NewCo the overpayment within thirty (30) days after the Auditor’s decision).