Common use of Right to Setoff Clause in Contracts

Right to Setoff. Upon notice to the Sellers, Buyer shall have a claim and right of setoff as to any amount to which any Indemnified Party is entitled under this Article V against amounts otherwise payable to Sellers under any provision of this Agreement, including its payment of any portion of the Earn-Out. The exercise of such right of setoff by Buyer in good faith, whether or not ultimately determined to be justified, will not constitute a breach of Buyer’s obligation to pay the Earn-Out or any other amounts due under this Agreement. Neither the exercise of nor the failure to exercise such right of setoff will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it, including Buyer’s right to recover the amount by which any amount due to Buyer exceeds the Earn-Out. To the extent that liability for or the amount of indemnifiable Losses in respect of an Action or Claim against a Seller has not yet been finally determined in accordance with this Agreement, Buyer shall be entitled to withhold payment of any portion of the Earn-Out otherwise due and payable to such Seller (up to the amount of indemnifiable Losses that Buyer in good faith reasonably determines are likely to be incurred upon the advice of counsel) and place such amounts in escrow with an escrow agent mutually acceptable to the Parties until such liability or the amount of indemnifiable Losses has been finally determined.