Common use of Delivery Default Clause in Contracts

Delivery Default. (a) Capricorn shall notify Primus immediately upon becoming aware of an event of force majeure or any other event that could reasonably be expected to render Capricorn unable timely to supply Primus with the quantity of Product specified in any outstanding purchase order or purchase forecast. Capricorn shall inform Primus, in reasonable detail, as to (i) the nature of the event in question, (ii) the steps that Capricorn is taking or intends to take to address such event, and (iii) the anticipated impact upon Capricorn’s ability to perform timely its obligations under this Agreement. Capricorn shall take all reasonable measures address such events as quickly as practicable (b) In the event Capricorn fails timely to deliver the quantities of Product ordered by Primus hereunder, or (B) any units of Product delivered hereunder do not meet the Specifications or otherwise fail to conform to the requirements of this Agreement (a “Delivery Default”), then (i) within five (5) Business Days of the first such occurrence the Parties shall convene a meeting of the Joint Steering Committee to review the causes for the Delivery Default, (ii) Capricorn shall provide to the Joint Steering Committee a plan, specifying the measures to be taken to address the causes of the Delivery Default, and the timetable for implementing such measures, and (iii) Capricorn shall thereafter exercise diligent efforts to resume production or correct problems in its Manufacturing Facility or processes as quickly as possible. Capricorn shall notify Primus in writing upon resumption of production and of its timetable for delivering the Product pursuant to any outstanding purchase orders. (c) In the event of any Delivery Default, and following a meeting of the Joint Steering Committee as set forth in paragraph (a), Primus may, cancel, without charge or penalty, all or any unfulfilled portion of any outstanding purchase orders. (d) Without limiting Sections 8.4 and 8.5 of this Agreement (and subject thereto), the sole remedy of Primus in connection with a Delivery Default shall be (i) replacement of non-conforming Product, if able and applicable, and (ii) consistent with and subject to Article VIII, indemnification of Primus with respect to either third party claims for product liability (e.g. consumer is physically harmed) and costs of recall, in each case to the extent such product liability or recall costs and expenses are caused by such Delivery Default. Without limiting Sections 8.4 and 8.5 of this Agreement (and subject thereto), other than a termination right in accordance with Section 5 of this Agreement and its right under Section 3.1(c) to contract for the manufacture of the Product by one or more third parties subject to the conditions specified in said Section 3.1(c), Primus shall not be entitled to remedy for a Delivery Default other than contemplated by (i) and (ii) of the previous sentence,