Common use of Failure to Supply Clause in Contracts

Failure to Supply. If NANOCOMPOSIX [***] of the Materials ordered pursuant to the terms of this Agreement, NANOCOMPOSIX will promptly notify SIENNA . If at any time during the term (a) such notice is received by SIENNA from NANOCOMPOSIX with respect to [***] of Materials ordered by SIENNA [***], (b) NANOCOMPOSIX makes any delivery of [***] Materials more than [***] ([***]) days later that the required delivery date, (c) NANOCOMPOSIX’s deliveries of [***] Materials ordered by SIENNA are late in aggregate by [***] ([***]) days or more in any [***] ([***]) day period, (d) upon [***] request by SIENNA [***], NANOCOMPOSIX fails to provide [***] of [***] to [***] to [***] as [***] of [***], or (e) NANOCOMPOSIX supplies [***] Materials and fails to provide [***] replacement Materials within [***] ([***]) days from notification of the defect, then, SIENNA in its sole discretion shall have the right to cancel [***] existing orders for the Materials [***] and/or to exercise SIENNA right on a going forward basis to obtain the Materials from third parties and/or manufacture the Materials itself. In this instance, NANOCOMPOSIX will provide the [***] and transfer [***] technology necessary for the manufacture of the Materials at a [***] purchase price to be agreed by the parties, such purchase price not to exceed of [***] Dollars ($[***]), [***], and NANOCOMPOSIX will grant to SIENNA and its Affiliates, and hereby grants to SIENNA and its Affiliates, effective immediately upon such payment, [***], a royalty-free, fully-paid up, exclusive license, with the right to sublicense pursuant to Section 3.2 of the Agreement, under NANOCOMPOSIX’S rights to the Materials, to make, have made, use, have used, sell, have sold, offer to sell, have offered for sale, import and have imported Licensed Products in the Field in the Territory.

Failure to Supply. If NANOCOMPOSIX In the event that it becomes apparent to Kamada that it will be unable to fulfill any purchase order for the Product placed by Chiesi hereunder and approved by Kamada in accordance with Sections 4.2(b) or 4.2(c) above, then Kamada shall, promptly after learning of such event or circumstances, notify Chiesi in writing of Kamada’s inability to meet such requirements for the Product, along with a reasonable explanation of the reason for Kamada’s failure to supply the Product and with a specific indication of the amount of such shortfall in manufacture of the Product and anticipated timing of delivery. Promptly after Chiesi’s receipt of any such notice, the Parties shall agree upon mutually acceptable revised quantities and delivery dates with respect to the Product subject to such purchase order. Notwithstanding the foregoing, in the event that (i) Chiesi runs out of stock of the Product as a consequence of any shortage, failure or delay in the supply by Kamada of purchase orders placed by Chiesi and approved by Kamada in accordance with Sections 4.2(b) or 4.2(c) above, except if such shortage, failure or delay is caused as a result of any events of Force Majeure), and (ii) such shortfall exceeds more than [*****] of the Materials ordered pursuant aggregate approved purchase orders in the previous [*****] months period (provided however that Kamada supplies Chiesi at least the Minimum Purchase Levels in each relevant calendar year), than Chiesi shall be entitled to the terms of this Agreement, NANOCOMPOSIX will promptly notify SIENNA . If at any time during the term (a) such notice is received by SIENNA from NANOCOMPOSIX with respect an indemnification payment equal to [*****] of Materials ordered by SIENNA provided such [***], (b) NANOCOMPOSIX makes any delivery of [***] Materials more than [***] ([***]) days later that can be proven by written evidence. Kamada, in relying on the required delivery dateabove Force Majeure exceptions, (c) NANOCOMPOSIX’s deliveries of [***] Materials ordered by SIENNA are late in aggregate by [***] ([***]) days or more in any [***] ([***]) day period, (d) upon [***] request by SIENNA [***], NANOCOMPOSIX fails to shall provide [***] of [***] to [***] to [***] as [***] of [***], or (e) NANOCOMPOSIX supplies [***] Materials and fails to provide [***] replacement Materials within [***] ([***]) days from notification reasonably detailed particulars of the defectreasons underlying any such Force Majeure events to Chiesi and shall allocate its existing stocks of the Product between Chiesi and other Kamada’s distributors, thenon a pro-rata basis, SIENNA in its sole discretion shall have the right to cancel [***] existing orders based upon market share and order volumes for the Materials [***] and/or to exercise SIENNA right on a going forward basis to obtain prior twelve-month period. For the Materials from third parties and/or manufacture the Materials itself. In purpose of this instance, NANOCOMPOSIX will provide the [***] and transfer [***] technology necessary for the manufacture of the Materials at a [***] purchase price to be agreed by the parties, such purchase price not to exceed of [***] Dollars ($[***]Section 4.2(e), [***], **] shall be calculated as the [*****] (a) the relevant [*****] and NANOCOMPOSIX will grant (b) the applicable [*****] calculated as [*****] and [*****] is the [*****] is unable to SIENNA and its Affiliates, and hereby grants to SIENNA and its Affiliates, effective immediately upon such payment, [*****] a result of [*****], a royalty-free, fully-paid up, exclusive license, in accordance with the right [*****] Kamada in accordance with [*****] above. Without prejudice to sublicense the foregoing, Chiesi may elect to treat Kamada’s inability to supply the Product in the circumstances set forth above as a material breach of this Agreement pursuant to Section 3.2 14.2 below, unless Kamada supplied Chiesi at least the Minimum Purchase Levels for such year. [*****] Confidential portions of this document have been redacted and filed separately with the Agreement, under NANOCOMPOSIX’S rights to the Materials, to make, have made, use, have used, sell, have sold, offer to sell, have offered for sale, import Securities and have imported Licensed Products in the Field in the TerritoryExchange Commission.