Forecasts and Orders. 2.2.1 As of the Execution Date of this Agreement, a provisional non-binding forecast of the monthly quantity of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product which PURCHASER will order on behalf of itself and its Affiliates for delivery hereunder for the period from the Execution Date until March 31, 2009 shall be established using the average monthly quantities of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product ordered by PURCHASER in the six (6) calendar months prior to the Execution Date (the “Initial Forecast). Thereafter, not later than December 1 and June 1 of each calendar year during the Term of this Agreement, PURCHASER shall submit to SELLER a non-binding forecast of the quantity and expected delivery dates of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product that PURCHASER estimates in good faith that it will order on behalf of itself and its Affiliates for delivery under this Agreement during the four (4) quarters commencing on the immediately succeeding January 1 and July 1, respectively (each such forecast, a “Rolling Forecast”). The Initial Forecast and the Rolling Forecasts will be good-faith, best estimates of requirements and shall not be considered a firm commitment. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission. 2.2.2 Except for Purchase Orders submitted by PURCHASER but not fulfilled as of the Execution Date, purchase orders (each a “Purchase Order”) for each order of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product shall be placed by PURCHASER to SELLER at least sixty (60) days but no more than one hundred twenty (120) days prior to the required date of delivery of such Martek Product to PURCHASER. Each Purchase Order shall specify the shipping destination (which shall be in the Territory), and required delivery date, for the Martek Product ordered therein. SELLER shall accept each Purchase Order from PURCHASER placed in accordance with this Section 2.2.2 for up to * of the relevant volumes specified for the applicable month in the Initial Forecast or, if a Rolling Forecast has been provided, the most recent Rolling Forecast provided by PURCHASER as of the time of the placement of such Purchase Order. SELLER shall acknowledge all Purchase Orders submitted in accordance with Section 2.2.2 within ten (10) business days of SELLER’s receipt of such Purchase Orders. Purchase Orders submitted by PURCHASER in accordance with this Agreement which have been acknowledged in writing by SELLER shall be considered as firm and binding orders (subject to the terms of this Agreement) and shall only be canceled or amended by mutual written agreement of the Parties. For the avoidance of doubt, SELLER shall not reject any Purchase Order submitted by PURCHASER in accordance with Section 2.2.2. 2.2.3 SELLER shall fulfill by the required delivery date set forth therein each Purchase Order acknowledged pursuant to Section 2.2.2; provided that SELLER shall have no liability for any breach of this Section 2.2.3 unless and until SELLER fails to deliver in accordance with Section 2.4 *as relevant, ordered by PURCHASER for delivery *for a particular shipping destination (which aggregate amount for such location for * by * In the event that SELLER fails to fulfill any Purchase Order acknowledged pursuant to Section 2.2.2 by the required delivery date, PURCHASER shall provide notice thereof to SELLER and shall use reasonable efforts to do so within *; provided, however, that any failure by PURCHASER to provide such notice within such time period shall not be a breach of this Agreement or operate or be deemed to limit any remedies available to PURCHASER hereunder. 2.2.4 Purchase Orders for amounts in addition to * of the relevant volumes specified for the applicable calendar month in the Initial Forecast or the most recent Rolling Forecast, as applicable, shall be accepted and fulfilled by SELLER as is commercially reasonable. 2.2.5 In the event of any conflict between the provisions of this Agreement and any Purchase Order, acknowledgement or invoice, or any additional terms included in any Purchase Order, acknowledgement or invoice, the provisions of this Agreement shall control. All preprinted terms and conditions contained on any Purchase Order, acknowledgement or invoice, or similar document, shall be disregarded. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission. 2.2.6 In the event that SELLER, at any time during the Term, shall have reason to believe that it will be unable to supply PURCHASER with its requirements of Martek Products, SELLER shall use reasonable efforts to communicate with PURCHASER in a timely manner so as to help PURCHASER ensure there is no interruption in supply to PURCHASER, and the Parties shall thereafter discuss how such shortfall will be resolved. SELLER shall * provide a written notice to PURCHASER (a “Shortfall Notice”) if (a) SELLER will be unable to supply PURCHASER with the amount ordered by PURCHASER in a Purchase Order by the required delivery date set forth therein (whether by reason of a force majeure event or otherwise), or (b) SELLER concludes that it will be unable to supply PURCHASER *set forth in the Initial Forecast or a Rolling Forecast, as relevant, for any period for which Purchase Orders may still be placed (i.e., more than sixty (60) days ahead) (whether by reason of a force majeure event or otherwise). Any such Shortfall Notice shall expressly identify itself as a Shortfall Notice and shall include*. Any notices pursuant to this Section 2.2.6 shall be for information purposes only and shall not, by themselves, be used to claim a breach of this Agreement.
Appears in 1 contract
Forecasts and Orders. 2.2.1 As 2.3.1 Not less than twelve (12) months prior to its first purchase of Ingredient for use in the manufacture of Products to be sold to Third Parties, Wyeth-Ayerst shall provide GalaGen with a written forecast (by Calendar Quarter) of the Execution Date of this Agreement, a provisional non-binding forecast of the monthly quantity of DHA Martek Ingredient that Wyeth-Ayerst desires to have delivered to it during the first twelve (12) month period of Product and ▇▇▇ ▇▇▇▇▇▇ Product which PURCHASER will order on behalf of itself and its Affiliates for delivery hereunder for the period from the Execution Date until March 31, 2009 shall be established using the average monthly quantities of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product ordered by PURCHASER in the sales. Within six (6) calendar months prior to its first purchase of Ingredient, Wyeth-Ayerst shall provide GalaGen with an updated forecast for the first twelve (12) month period (by Calendar Quarter), and by the beginning of such twelve (12) month period shall provide GalaGen with an updated forecast for the last three (3) Calendar Quarters of such twelve (12) month period and for the Calendar Quarter following immediately thereafter. Thereafter, at least ninety (90) days before the end of each subsequent Calendar Quarter, Wyeth-Ayerst shall provide a written updated forecast (by Calendar Quarter) in accordance with the provisions of Section 2.3.2 hereof.
2.3.2 Each successive forecast shall update the forecast previously given for the last three (3) Calendar Quarters covered and add a forecast for the Calendar Quarter following immediately thereafter, to enable GalaGen to have sufficient information to schedule its or its sub-contractors' manufacturing operations to meet Wyeth-Ayerst's forecasted requirements of the Ingredient. GalaGen acknowledges that such forecasts are only estimates of Wyeth-Ayerst's purchase requirements of the Ingredient and that Wyeth-Ayerst shall not be bound by any such estimate, except that after Regulatory Approval the first Calendar Quarter of each successive forecast so provided shall represent a binding commitment of Wyeth-Ayerst to purchase and of GalaGen to supply such forecasted quantity of Ingredient in a timely manner, subject to adjustment within the limits set forth in Section 2.3.4 hereof.
2.3.3 Wyeth-Ayerst shall order and maintain reasonable inventories of the Ingredient, having due regard to its current and forecasted sales volumes for the Products. Wyeth-Ayerst shall issue to GalaGen firm purchase orders for each delivery not later than two (2) months prior to the Execution Date (the “Initial Forecast)requested delivery date. Thereafter, not later than December 1 and June 1 of each calendar year during the Term of this Agreement, PURCHASER shall submit to SELLER a non-binding forecast of the quantity and expected delivery dates of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product that PURCHASER estimates in good faith that it will order on behalf of itself and its Affiliates for delivery under this Agreement during the four (4) quarters commencing on the immediately succeeding January 1 and July 1, respectively (each such forecast, a “Rolling Forecast”). The Initial Forecast and the Rolling Forecasts will be good-faith, best estimates of requirements and shall not be considered a firm commitment. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.2 Except for Purchase Orders submitted by PURCHASER but not fulfilled as of the Execution Date, Such purchase orders (each a “Purchase Order”) for each order of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product shall be placed by PURCHASER to SELLER at least sixty (60) days but no more than one hundred twenty (120) days prior to the required date of delivery of such Martek Product to PURCHASER. Each Purchase Order shall specify the shipping destination (which shall be in the Territory)quantity of Ingredient desired, and required the place(s) to which and the manner and dates by which delivery date, for is to be made. To the Martek Product ordered therein. SELLER shall accept each Purchase Order from PURCHASER placed in accordance extent the terms of any purchase order or acknowledgment thereof are inconsistent with this Section 2.2.2 for up to * of the relevant volumes specified for the applicable month in the Initial Forecast or, if a Rolling Forecast has been provided, the most recent Rolling Forecast provided by PURCHASER as of the time of the placement of such Purchase Order. SELLER shall acknowledge all Purchase Orders submitted in accordance with Section 2.2.2 within ten (10) business days of SELLER’s receipt of such Purchase Orders. Purchase Orders submitted by PURCHASER in accordance with this Agreement which have been acknowledged in writing by SELLER shall be considered as firm and binding orders (subject to the terms of this Agreement) and shall only be canceled or amended by mutual written agreement of the Parties. For the avoidance of doubt, SELLER shall not reject any Purchase Order submitted by PURCHASER in accordance with Section 2.2.2.
2.2.3 SELLER shall fulfill by the required delivery date set forth therein each Purchase Order acknowledged pursuant to Section 2.2.2; provided that SELLER shall have no liability for any breach of this Section 2.2.3 unless and until SELLER fails to deliver in accordance with Section 2.4 *as relevant, ordered by PURCHASER for delivery *for a particular shipping destination (which aggregate amount for such location for * by * In the event that SELLER fails to fulfill any Purchase Order acknowledged pursuant to Section 2.2.2 by the required delivery date, PURCHASER shall provide notice thereof to SELLER and shall use reasonable efforts to do so within *; provided, however, that any failure by PURCHASER to provide such notice within such time period shall not be a breach of this Agreement or operate or be deemed to limit any remedies available to PURCHASER hereunder.
2.2.4 Purchase Orders for amounts in addition to * of the relevant volumes specified for the applicable calendar month in the Initial Forecast or the most recent Rolling Forecast, as applicable, shall be accepted and fulfilled by SELLER as is commercially reasonable.
2.2.5 In the event of any conflict between the provisions of this Agreement and any Purchase Order, acknowledgement or invoice, or any additional terms included in any Purchase Order, acknowledgement or invoice, the provisions terms of this Agreement shall control.
2.3.4 The quantity of Ingredient ordered by Wyeth-Ayerst in any Calendar Quarter shall not be less than seventy-five percent (75%) of the quantity specified in the last binding forecast provided by Wyeth-Ayerst for such Calendar Quarter. Additionally, GalaGen shall not be obligated to supply that quantity of Ingredient in any Calendar Quarter that is more than one hundred and twenty-five percent (125%) of the last binding forecast provided by Wyeth-Ayerst for the Calendar Quarter in question; PROVIDED, HOWEVER, that GalaGen shall endeavor to take all reasonable steps to fill purchase orders for the Ingredient in excess of such amount.
2.3.5 All preprinted terms and conditions contained on any Purchase Order, acknowledgement or invoice, or similar document, estimates shall be disregarded. * The asterisk denotes that confidential portions prepared in good faith in order to facilitate GalaGen's efficient manufacture and shipment of the Ingredient in compliance with this Agreement, and except as set forth in Section 2.3.2 will not be binding upon Wyeth-Ayerst or GalaGen in any way and Wyeth-Ayerst shall not be responsible for any loss or expense of GalaGen's arising from the forecast.
2.3.6 Notwithstanding any other provision of this exhibit have been omitted Agreement, GalaGen in reliance on Rule 24b-2 no event shall be obligated to supply Wyeth-Ayerst with an amount of Ingredient that exceeds seventy percent (70%) of GalaGen's total capacity for the Securities Exchange Act manufacture of 1934Ingredient and all other products. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.6 In the event Wyeth-Ayerst provides GalaGen with good faith forecasts that SELLERexceed such capacity, at any time during the Term, shall have reason to believe GalaGen agrees that it will be unable use its Commercially Reasonable Efforts to supply PURCHASER with its requirements of Martek Products, SELLER shall use reasonable efforts to communicate with PURCHASER in a timely manner so as to help PURCHASER ensure there is no interruption in supply to PURCHASER, seek and the Parties shall thereafter discuss how such shortfall will be resolved. SELLER shall * provide a written notice to PURCHASER (a “Shortfall Notice”) if (a) SELLER will be unable to supply PURCHASER with the amount ordered by PURCHASER in a Purchase Order by the required delivery date set forth therein (whether by reason of a force majeure event or otherwise), or (b) SELLER concludes that it will be unable to supply PURCHASER *set forth in the Initial Forecast or a Rolling Forecastemploy subcontractors, as relevantpermitted under Section 2.1 hereof, for any period for which Purchase Orders may still be placed (i.e., more than sixty (60) days ahead) (whether by reason to manufacture such excess amounts of a force majeure event or otherwise). Any such Shortfall Notice shall expressly identify itself as a Shortfall Notice and shall include*. Any notices pursuant to this Section 2.2.6 shall be for information purposes only and shall not, by themselves, be used to claim a breach of this AgreementIngredient on commercially reasonable terms.
Appears in 1 contract
Forecasts and Orders. 2.2.1 As of On the Execution Effective Date of this Agreement, a provisional non-binding forecast PURCHASER shall give SELLER written notice of the monthly quantity of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product which Products that PURCHASER estimates in good faith it will order on behalf or direct the Designees to order from SELLER during the remainder of itself and its Affiliates for delivery hereunder for the period from the Execution Date until March 31, 2009 shall be established using the average monthly quantities of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product ordered by PURCHASER in the six (6) current calendar months prior to the Execution Date (the “Initial Forecast)year. Thereafter, not Not later than December 1 and June 1 September 30 of each calendar year during the Term of this AgreementTerm, PURCHASER shall submit to give SELLER a non-binding forecast written notice of the quantity and expected delivery dates of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product Products that PURCHASER estimates in good faith that it will order on behalf of itself and its Affiliates for delivery under this Agreement or direct the Designees to order from SELLER during the four next calendar year. In addition to the foregoing, one (41) quarters commencing on month before the immediately succeeding January 1 and July 1commencement of each calendar quarter during the Term, respectively PURCHASER shall provide SELLER with a forecast (each such forecast, a “Rolling Forecast”)) of PURCHASER’s requirements for the Martek Products for each of the succeeding four (4) quarters, specifying quantities and requested delivery dates. The Initial Forecast and the Rolling Forecasts These forecasts will be PURCHASER’s good-faith, best estimates faith estimate of requirements and shall not be considered a commitment or other obligation of PURCHASER or its Designees to purchase such Martek Products.
2.2.2 PURCHASER and/or its Designees shall issue formal purchase orders (“Purchase Orders”) at least sixty (60) but no more than ninety (90) days in advance of the date on which PURCHASER or the Designee requests that SELLER deliver the Martek Products pursuant to Section 2.4.1 below. SELLER shall accept and fulfill Purchase Orders from PURCHASER and its Designees made in accordance with the terms of this Agreement for up to * of the relevant volumes specified in the Rolling Forecasts provided by PURCHASER pursuant to Section 2.2.1 above. Purchase Orders for additional amounts shall be accepted and filled by SELLER as is commercially reasonable.
2.2.3 Purchase Orders submitted in accordance with this Agreement, which have been acknowledged in writing by SELLER, shall be considered as firm commitment. and binding orders (subject to the provisions of this Agreement) and shall only be canceled or amended by mutual written agreement of -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.2 Except for Purchase Orders submitted by PURCHASER but not fulfilled as of . the Execution Date, purchase orders (each a “Purchase Order”) for each order of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product shall be placed by PURCHASER to SELLER at least sixty (60) days but no more than one hundred twenty (120) days prior to the required date of delivery of such Martek Product to PURCHASER. Each Purchase Order shall specify the shipping destination (which shall be in the Territory), and required delivery date, for the Martek Product ordered therein. SELLER shall accept each Purchase Order from PURCHASER placed in accordance with this Section 2.2.2 for up to * of the relevant volumes specified for the applicable month in the Initial Forecast or, if a Rolling Forecast has been provided, the most recent Rolling Forecast provided by PURCHASER as of the time of the placement of such Purchase Orderparties. SELLER shall acknowledge all Purchase Orders submitted in accordance with Section 2.2.2 this Agreement within ten five (105) business days of SELLER’s receipt of such Purchase Orders. Purchase Orders submitted by PURCHASER in accordance with this Agreement which have been acknowledged in writing by SELLER shall be considered as firm and binding orders (subject to the terms of this Agreement) and shall only be canceled or amended by mutual written agreement of the Parties. For the avoidance of doubt, SELLER shall not reject any Purchase Order submitted by PURCHASER in accordance with Section 2.2.2.
2.2.3 SELLER shall fulfill by the required delivery date set forth therein each Purchase Order acknowledged pursuant to Section 2.2.2; provided that SELLER shall have no liability for any breach of this Section 2.2.3 unless and until SELLER fails to deliver in accordance with Section 2.4 *as relevant, ordered by PURCHASER for delivery *for a particular shipping destination (which aggregate amount for such location for * by * In the event that SELLER fails to fulfill any Purchase Order acknowledged pursuant to Section 2.2.2 by the required delivery date, PURCHASER shall provide notice thereof to SELLER and shall use reasonable efforts to do so within *; provided, however, that any failure by PURCHASER to provide such notice within such time period shall not be a breach of this Agreement or operate or be deemed to limit any remedies available to PURCHASER hereunder.
2.2.4 Purchase Orders for amounts in addition to * of the relevant volumes specified for the applicable calendar month in the Initial Forecast or the most recent Rolling Forecast, as applicable, shall be accepted and fulfilled by SELLER as is commercially reasonable.
2.2.5 In the event of any conflict between the provisions of this Agreement and any Purchase Order, acknowledgement or invoice, or any additional terms included in any Purchase Order, acknowledgement or invoice, the provisions of this Agreement shall control. All preprinted terms and conditions contained on any Purchase Order, acknowledgement or invoice, or similar document, shall be disregarded. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.6 In the event that SELLER, at any time during the Term, shall have reason to believe that it will be unable to supply PURCHASER with its requirements of Martek Products, SELLER shall use reasonable efforts to communicate with PURCHASER in a timely manner so as to help PURCHASER ensure there is no interruption in supply to PURCHASER, and the Parties shall thereafter discuss how such shortfall will be resolved. SELLER shall * provide a written notice to PURCHASER (a “Shortfall Notice”) if (a) SELLER will be unable to supply PURCHASER with the amount ordered by PURCHASER in a Purchase Order by the required delivery date set forth therein (whether by reason of a force majeure event or otherwise), or (b) SELLER concludes that it will be unable to supply PURCHASER *set forth in the Initial Forecast or a Rolling Forecast, as relevant, for any period for which Purchase Orders may still be placed (i.e., more than sixty (60) days ahead) (whether by reason of a force majeure event or otherwise). Any such Shortfall Notice shall expressly identify itself as a Shortfall Notice and shall include*. Any notices pursuant to this Section 2.2.6 shall be for information purposes only and shall not, by themselves, be used to claim a breach of this Agreement.
Appears in 1 contract
Forecasts and Orders. 2.2.1 As 3.3.1 In accordance with the requirements set forth in Exhibit A, at least ten (10) days prior to the first day of each calendar quarter during the Execution Date of this AgreementInitial Term and any renewal term, Tutogen shall provide AlloSource with a provisional written non-binding forecast as to Tutogen’s estimated requirements of Products for each of the following twelve (12) calendar months, the first three (3) months of which shall be binding. On or before the first day of each month, Tutogen shall issue binding orders for such month for the quantities of Products set forth in such forecast. AlloSource shall have five (5) business days to notify Tutogen of rejection of such binding order and reason for such rejection. If no notice of rejection is given within such five (5) business day period, the binding order shall be considered accepted by AlloSource. AlloSource shall make reasonable business efforts to fill such binding orders within thirty (30) days, but no later than ninety (90) days of such binding orders. If AlloSource fails to fill a binding order that was accepted by AlloSource within ninety (90) days of the date of such binding order, then Tutogen may cancel such binding order and may fill such order from another source.
3.3.2 In the event that Tutogen does not place and accept orders for Products in accordance with the minimum monthly requirements specified in Exhibit A, Tutogen shall be required to pay AlloSource the reimbursement fees, in accordance with Section 6 below, for the minimum monthly requirements less the number of Products which are ordered and accepted by Tutogen.
3.3.3 AlloSource may supply and Tutogen shall accept from AlloSource Tissues, Processed Tissues and Allografts in an amount equal to or up to ten percent (10%) greater than the quantities set forth in Exhibit A hereto and set forth in each binding order (or such higher quantity of DHA Martek Product and if mutually agreed in writing).
3.3.4 AlloSource shall ship Products to Tutogen at the following address: Tutogen Medical, Inc. 13709 Progress Blvd., Box 19 South Wing ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ Product which PURCHASER will order on behalf of itself and its Affiliates for delivery hereunder for the period from the Execution Date until March 31, 2009
3.3.5 Tutogen shall be established using responsible for expenses associated with the average monthly quantities shipment of DHA Martek Product Products from AlloSource to Tutogen. Risk of loss and ▇▇▇ ▇▇▇▇▇▇ Product ordered by PURCHASER in the six (6) calendar months prior title to the Execution Date (the “Initial Forecast). Thereafter, not later than December 1 and June 1 of each calendar year during the Term of this Agreement, PURCHASER such Products shall submit pass to SELLER a non-binding forecast of the quantity and expected delivery dates of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product that PURCHASER estimates in good faith that it will order on behalf of itself and its Affiliates for delivery under this Agreement during the four (4) quarters commencing on the immediately succeeding January 1 and July 1, respectively (each such forecast, a “Rolling Forecast”). The Initial Forecast and the Rolling Forecasts will be good-faith, best estimates of requirements and shall not be considered a firm commitment. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange CommissionTutogen upon shipment.
2.2.2 Except for Purchase Orders submitted by PURCHASER but not fulfilled as of the Execution Date3.3.6 EXCEPT AS SET FORTH HEREIN, purchase orders (each a “Purchase Order”) for each order of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product shall be placed by PURCHASER to SELLER at least sixty (60) days but no more than one hundred twenty (120) days prior to the required date of delivery of such Martek Product to PURCHASER. Each Purchase Order shall specify the shipping destination (which shall be in the Territory)ALLOSOURCE MAKES NO WARRANTIES, and required delivery dateEXPRESS OR IMPLIED, for the Martek Product ordered therein. SELLER shall accept each Purchase Order from PURCHASER placed in accordance with this Section 2.2.2 for up to * of the relevant volumes specified for the applicable month in the Initial Forecast orWITH RESPECT TO THE PRODUCTS INCLUDING, if a Rolling Forecast has been providedWITHOUT LIMITATION, the most recent Rolling Forecast provided by PURCHASER as of the time of the placement of such Purchase Order. SELLER shall acknowledge all Purchase Orders submitted in accordance with Section 2.2.2 within ten (10) business days of SELLER’s receipt of such Purchase Orders. Purchase Orders submitted by PURCHASER in accordance with this Agreement which have been acknowledged in writing by SELLER shall be considered as firm and binding orders (subject to the terms of this Agreement) and shall only be canceled or amended by mutual written agreement of the Parties. For the avoidance of doubt, SELLER shall not reject any Purchase Order submitted by PURCHASER in accordance with Section 2.2.2ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
2.2.3 SELLER shall fulfill by the required delivery date set forth therein each Purchase Order acknowledged pursuant to Section 2.2.2; provided that SELLER shall have no liability for any breach of this Section 2.2.3 unless and until SELLER fails to deliver in accordance with Section 2.4 *as relevant, ordered by PURCHASER for delivery *for a particular shipping destination (which aggregate amount for such location for * by * In the event that SELLER fails to fulfill any Purchase Order acknowledged pursuant to Section 2.2.2 by the required delivery date, PURCHASER shall provide notice thereof to SELLER and shall use reasonable efforts to do so within *; provided, however, that any failure by PURCHASER to provide such notice within such time period shall not be a breach of this Agreement or operate or be deemed to limit any remedies available to PURCHASER hereunder.
2.2.4 Purchase Orders for amounts in addition to * of the relevant volumes specified for the applicable calendar month in the Initial Forecast or the most recent Rolling Forecast, as applicable, shall be accepted and fulfilled by SELLER as is commercially reasonable.
2.2.5 In the event of any conflict between the provisions of this Agreement and any Purchase Order, acknowledgement or invoice, or any additional terms included in any Purchase Order, acknowledgement or invoice, the provisions of this Agreement shall control. All preprinted terms and conditions contained on any Purchase Order, acknowledgement or invoice, or similar document, shall be disregarded. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.6 In the event that SELLER, at any time during the Term, shall have reason to believe that it will be unable to supply PURCHASER with its requirements of Martek Products, SELLER shall use reasonable efforts to communicate with PURCHASER in a timely manner so as to help PURCHASER ensure there is no interruption in supply to PURCHASER, and the Parties shall thereafter discuss how such shortfall will be resolved. SELLER shall * provide a written notice to PURCHASER (a “Shortfall Notice”) if (a) SELLER will be unable to supply PURCHASER with the amount ordered by PURCHASER in a Purchase Order by the required delivery date set forth therein (whether by reason of a force majeure event or otherwise), or (b) SELLER concludes that it will be unable to supply PURCHASER *set forth in the Initial Forecast or a Rolling Forecast, as relevant, for any period for which Purchase Orders may still be placed (i.e., more than sixty (60) days ahead) (whether by reason of a force majeure event or otherwise). Any such Shortfall Notice shall expressly identify itself as a Shortfall Notice and shall include*. Any notices pursuant to this Section 2.2.6 shall be for information purposes only and shall not, by themselves, be used to claim a breach of this Agreement.
Appears in 1 contract
Sources: Tissue Procurement, Processing and Supply Agreement (Tutogen Medical Inc)
Forecasts and Orders. 2.2.1 As (a) Within ninety (90) days of the Execution Date date of this Agreement, Jubilant shall provide Trinity with a provisional non-binding forecast written list of the monthly quantity of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product which PURCHASER will order on behalf of itself all APIs manufactured by Jubilant and its Affiliates and that are available for delivery hereunder for the period from the Execution Date until March 31, 2009 shall be established using the average monthly quantities of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product ordered supply by PURCHASER in the six (6) calendar months prior Jubilant to the Execution Date (the “Initial Forecast). Thereafter, not later than December 1 and June 1 of each calendar year during the Term of Trigen as Jubilant Products pursuant to this Agreement, PURCHASER shall submit to SELLER a non-binding forecast of the quantity and expected delivery dates of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product that PURCHASER estimates in good faith that it will order on behalf of itself and its Affiliates for delivery under this Agreement during the four (4) quarters commencing on the immediately succeeding January 1 and July 1, respectively (each such forecast, a “Rolling Forecast”). The Initial Forecast and the Rolling Forecasts will be good-faith, best estimates of requirements and shall not be considered a firm commitment. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.2 Except for Purchase Orders submitted by PURCHASER but not fulfilled as of the Execution Date, purchase orders (each a “Purchase Order”) for each order of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product shall be placed by PURCHASER to SELLER at least sixty (60) days but no more than Within one hundred twenty (120) days after the date of this Agreement, (i) Jubilant and Trigen shall agree upon the initial Jubilant Products to be supplied by Jubilant to Trigen pursuant to this Agreement, which Jubilant Products shall be set forth on Schedule A attached hereto and signed by each of the parties, and (ii) Trigen shall place a binding purchase order for such Jubilant Products for the third calendar quarter of 2005.
(b) Thereafter, not later than thirty (30) business days prior to the required start of each calendar quarter during the Term, Trigen shall provide to Jubilant a rolling forecast that estimates the quantity of each Jubilant Product to be purchased by Trigen during the upcoming four calendar quarters. The first calendar quarter of each such forecast will constitute a purchase order from Trigen binding on both parties hereto for the amounts forecasted for each Jubilant Product for such calendar quarter. Except for the first calendar quarter of each such rolling forecast, which constitutes a binding purchase order, such forecast will constitute an estimate of Trigen’s requirements for each Jubilant Product, which is supplied for the convenience of Jubilant, is non-binding on Trigen, and will not be constitute an order of Jubilant Product.
(c) Trigen shall place orders for the Jubilant Products on Trigen’s standard form purchase order on a calendar quarter basis. Each such purchase order must specify each Jubilant Product ordered, the quantity of each Jubilant Product ordered, the place of delivery and the delivery date(s) and the date of delivery shipment which must not be less than thirty (30) days after the date of such Martek Product to PURCHASERpurchase order. Each Purchase Order shall specify the shipping destination (which shall be in the Territory), and required delivery date, for the Martek Product ordered therein. SELLER shall accept each Purchase Order from PURCHASER placed in accordance with this Section 2.2.2 for up to * of the relevant volumes specified for the applicable month in the Initial Forecast or, if a Rolling Forecast has been provided, the most recent Rolling Forecast provided by PURCHASER as of the time of the placement of such Purchase Order. SELLER shall acknowledge all Purchase Orders submitted in accordance with Section 2.2.2 within ten (10) business days of SELLER’s receipt of such Purchase Orders. Purchase Orders submitted by PURCHASER in accordance with this Agreement which have been acknowledged in writing by SELLER shall be considered as firm and binding orders (subject to the terms of this Agreement) and shall only be canceled or amended by mutual written agreement of the Parties. For the avoidance of doubt, SELLER shall not reject any Purchase Order submitted by PURCHASER in accordance with Section 2.2.2.
2.2.3 SELLER shall fulfill by the required delivery date set forth therein each Purchase Order acknowledged pursuant to Section 2.2.2; provided that SELLER shall have no liability for any breach of this Section 2.2.3 unless and until SELLER fails to deliver in accordance with Section 2.4 *as relevant, ordered by PURCHASER for delivery *for a particular shipping destination (which aggregate amount for such location for * by * In the event that SELLER fails to fulfill any Purchase Order acknowledged pursuant to Section 2.2.2 by the required delivery date, PURCHASER shall provide notice thereof to SELLER and shall use reasonable efforts to do so within *; provided, however, that any failure by PURCHASER to provide such notice within such time period shall not be a breach of this Agreement or operate or be deemed to limit any remedies available to PURCHASER hereunder.
2.2.4 Purchase Orders for amounts in addition to * of the relevant volumes specified for the applicable calendar month in the Initial Forecast or the most recent Rolling Forecast, as applicable, shall be accepted and fulfilled by SELLER as is commercially reasonable.
2.2.5 In the event of any a conflict between the provisions terms and conditions of any purchase order and this Agreement, the terms and conditions of this Agreement and any Purchase Order, acknowledgement or invoice, or any additional terms included in any Purchase Order, acknowledgement or invoice, the provisions of this Agreement shall control. All preprinted terms and conditions contained on any Purchase Order, acknowledgement or invoice, or similar document, shall be disregarded. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commissionwill prevail.
2.2.6 In the event that SELLER, at any time during the Term, shall have reason to believe that it will be unable to supply PURCHASER with its requirements of Martek Products, SELLER shall use reasonable efforts to communicate with PURCHASER in a timely manner so as to help PURCHASER ensure there is no interruption in supply to PURCHASER, and the Parties shall thereafter discuss how such shortfall will be resolved. SELLER shall * provide a written notice to PURCHASER (a “Shortfall Notice”) if (a) SELLER will be unable to supply PURCHASER with the amount ordered by PURCHASER in a Purchase Order by the required delivery date set forth therein (whether by reason of a force majeure event or otherwise), or (b) SELLER concludes that it will be unable to supply PURCHASER *set forth in the Initial Forecast or a Rolling Forecast, as relevant, for any period for which Purchase Orders may still be placed (i.e., more than sixty (60) days ahead) (whether by reason of a force majeure event or otherwise). Any such Shortfall Notice shall expressly identify itself as a Shortfall Notice and shall include*. Any notices pursuant to this Section 2.2.6 shall be for information purposes only and shall not, by themselves, be used to claim a breach of this Agreement.
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Forecasts and Orders. 2.2.1 As Forecasts:
4.1 GENTIUM shall provide SIRTON with a written forecast of its Product requirements for the following 12 (twelve) months (the “Forecast”), and SIRTON shall plan all its activities in relation to Manufacturing of the Execution Date products against said forecast. Said Forecasts shall contain the requirements in terms of this Agreementnumber of pieces per month. SIRTON shall provide GENTIUM with a written reply within 10 (ten) days of receipt of said Forecast, a provisional non-binding forecast informing GENTIUM of the monthly overall feasibility of the same. If, within 10 (ten) days, GENTIUM does not receive any response from SIRTON regarding the Forecast, feasibility of the latter shall be deemed confirmed by SIRTON.
4.2 The quantity of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product which PURCHASER will order on behalf of itself and its Affiliates for delivery hereunder Products required for the period from first 3 (three) months of the Execution Date until March 31Forecast shall constitute a confirmed order. The remaining 9 (nine) months of the Forecast shall not be deemed binding on either SIRTON or GENTIUM.
4.3 GENTIUM shall notify SIRTON, 2009 as soon as possible, of anything that could alter the Forecasts it had provided.
4.4 While everything governing SIRTON’s responsibility still holds, the latter shall be established using immediately notify GENTIUM of anything it becomes aware of that could hinder feasibility of the average monthly quantities Forecasts.
4.5 SIRTON is responsible for storing the Components (with the exception of DHA Martek Product the Active Principle). It ensues that GENTIUM shall pay exclusively for the Components purchased according to the confirmed orders and ▇▇▇ ▇▇▇▇▇▇ Product ordered by PURCHASER in the six forecasts for the first 3 months.
4.6 GENTIUM shall send SIRTON a purchase order for Products at least three (63) calendar months prior to the Execution Date date of delivery for said order.
4.7 SIRTON shall send GENTIUM a written order confirmation confirming the quantities and delivery date indicated in the purchase order within 10 (ten) days of receipt thereof. Once confirmed, the “Initial Forecast)order shall be deemed binding for SIRTON. ThereafterIf GENTIUM does not receive any response from SIRTON within 10 (ten) days, not later than December 1 and June 1 of each calendar year during the Term of this Agreement, PURCHASER order shall submit to SELLER a non-binding forecast of be deemed confirmed.
4.8 SIRTON shall meet the quantity and expected delivery dates of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product that PURCHASER estimates in good faith that it will order on behalf of itself and its Affiliates for delivery under this Agreement during the four (4) quarters commencing date indicated on the immediately succeeding January 1 and July 1, respectively corresponding purchase order. Upon thirty (each such forecast, a “Rolling Forecast”). The Initial Forecast and the Rolling Forecasts will be good-faith, best estimates of requirements and shall not be considered a firm commitment. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.2 Except for Purchase Orders submitted by PURCHASER but not fulfilled as of the Execution Date, purchase orders (each a “Purchase Order”) for each order of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product shall be placed by PURCHASER to SELLER at least sixty (60) days but no more than one hundred twenty (12030) days prior notice, SIRTON shall guarantee the availability of an addition-extra batch above and beyond the amount for the order confirmed.
4.9 For the entire duration of the present Contract, SIRTON shall have on hand an adequate stock of Components able to fill the required date of delivery of such Martek Product to PURCHASER. Each Purchase Order shall specify orders confirmed as indicated in Paragraph 4.8 and adequate for an additional production batch as reported in Paragraph 4.8.
4.10 If the shipping destination (which shall be variation in the Territory)packaging materials is required due to changes in the reference standards or decided at the discretion of GENTIUM, the latter shall bear any additional costs. Nevertheless, GENTIUM shall not bear the costs for the packaging materials if they do not comply with the specifications defined and forwarded by GENTIUM as indicated in Paragraph 6.4.
4.11 In the case in which (i) SIRTON does not deliver the Products at the deadline indicated in the purchase order, and required delivery date(ii) if SIRTON itself is responsible for said delay, for the Martek Product ordered therein. SELLER SIRTON shall accept each Purchase Order from PURCHASER placed in accordance with this Section 2.2.2 for up to * of the relevant volumes specified for the applicable month in the Initial Forecast orpay GENTIUM, if a Rolling Forecast has been providedas penalty, the most recent Rolling Forecast provided by PURCHASER as of the time of the placement of such Purchase Order. SELLER shall acknowledge all Purchase Orders submitted in accordance with Section 2.2.2 within ten (10) business days of SELLER’s receipt of such Purchase Orders. Purchase Orders submitted by PURCHASER in accordance with this Agreement which have been acknowledged in writing by SELLER shall be considered as firm and binding orders (subject to the terms of this Agreement) and shall only be canceled or amended by mutual written agreement of the Parties. For the avoidance of doubt, SELLER shall not reject any Purchase Order submitted by PURCHASER in accordance with Section 2.2.2.following sums:
2.2.3 SELLER shall fulfill by the required delivery date set forth therein each Purchase Order acknowledged pursuant to Section 2.2.2; provided that SELLER shall have no liability for any breach of this Section 2.2.3 unless and until SELLER fails to deliver in accordance with Section 2.4 *as relevant, ordered by PURCHASER for delivery *for a particular shipping destination (which aggregate amount for such location for * by * In the event that SELLER fails to fulfill any Purchase Order acknowledged pursuant to Section 2.2.2 by the required delivery date, PURCHASER shall provide notice thereof to SELLER and shall use reasonable efforts to do so within *; provided, however, that any failure by PURCHASER to provide such notice within such time period shall not be a breach of this Agreement or operate or be deemed to limit any remedies available to PURCHASER hereunder.
2.2.4 Purchase Orders for amounts in addition to * of the relevant volumes specified for the applicable calendar month in the Initial Forecast or the most recent Rolling Forecast, as applicable, shall be accepted and fulfilled by SELLER as is commercially reasonable.
2.2.5 In the event of any conflict between the provisions of this Agreement and any Purchase Order, acknowledgement or invoice, or any additional terms included in any Purchase Order, acknowledgement or invoice, the provisions of this Agreement shall control. All preprinted terms and conditions contained on any Purchase Order, acknowledgement or invoice, or similar document, shall be disregarded. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.6 In the event that SELLER, at any time during the Term, shall have reason to believe that it will be unable to supply PURCHASER with its requirements of Martek Products, SELLER shall use reasonable efforts to communicate with PURCHASER in a timely manner so as to help PURCHASER ensure there is no interruption in supply to PURCHASER, and the Parties shall thereafter discuss how such shortfall will be resolved. SELLER shall * provide a written notice to PURCHASER (a “Shortfall Notice”) if (a) SELLER will be unable If the delay falls between 1 (one) and 2 (two) weeks, a sum equal to supply PURCHASER with 5.00% of the amount ordered by PURCHASER due it from GENTIUM as outlined in a Purchase Order by the required delivery date set forth therein (whether by reason of a force majeure event or otherwise), or Attachment 2;
(b) SELLER concludes If the delay exceeds 2 (due) weeks, a sum equal to 10.00% of the amount due it from GENTIUM as outlined in Attachment 2. In both the above cases, it remains understood that it will the amount to be unable paid by SIRTON as penalty shall be automatically compensated and detracted from the amount due to supply PURCHASER *set forth be paid by GENTIUM in compliance with Article 5 below.
4.12 SIRTON shall guarantee that the number of Products per Active Principle meets the minimum quantities that can be obtained, for concentrates and standard batches, as better defined in the Initial Forecast or a Rolling ForecastTechnical Agreement. If the minimum quantities are not met, SIRTON shall reimburse GENTIUM the costs for production of the extra Active Principle used, as relevant, for any period for which Purchase Orders may still be placed (i.e., more than sixty (60) days ahead) (whether by reason of a force majeure event or otherwise). Any such Shortfall Notice shall expressly identify itself as a Shortfall Notice and shall include*. Any notices pursuant determined according to this Section 2.2.6 shall be for information purposes only and shall not, by themselves, be used to claim a breach of this Agreementwhat is indicated in Attachment 2.
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Forecasts and Orders. 2.2.1 As 5.1 Neurex will keep Mallinckrodt reasonably informed of the Execution Date regulatory development of SNX-111 including the status of clinical trials and filing of the NDA with the FDA so that Mallinckrodt may anticipate when to prepare for commercial production of an FDA approved SNX- 111. Mallinckrodt shall keep all such information confidential. At the beginning of the Calendar Half-Year starting on April 1, 1997, and at the beginning of each Calendar Half-Year thereafter during the term of this Agreement, Neurex will provide Mallinckrodt with a provisional non-binding written twelve (12) month rolling forecast of the monthly quantity quantities of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product which PURCHASER will order on behalf that Neurex expects to purchase during each of itself and its Affiliates for delivery hereunder the next twelve (12) months. The first six (6) months of each forecast shall constitute firm orders deliverable as provided in Section 5.2, except for the period from the Execution Date until March October 1, 1998 to December 31, 2009 shall 1998 for which the order period will be established using three (3) months. The balance of each twelve month forecast given by Neurex pursuant to this Section 5.1 is not a firm commitment on the average monthly part of Neurex to order the quantities of DHA Martek the Product and ▇▇▇ ▇▇▇▇▇▇ set forth therein, but are given so that Mallinckrodt will have aufficient information upon which to schedule its manufacturing operations so as to be able to meet Neurex's firm orders for the Product ordered by PURCHASER in that may be placed pursuant to Section 5.2.
5.2 At the beginning of each Calendar Half-Year, Neurex shall submit the six (6) calendar month firm orders in writing for the quantity of the Product desired by Neurex at least six (6) months prior to the Execution Date delivery date, except for the period October 1, 1998 to December 31, 1998 for which the order period will be three (3) months, and Mallinckrodt shall supply such quantities of the “Initial Forecast)Product in accordance with Schedule D attached hereto and made a part hereof.
5.3 Mallinckrodt shall ship the Product in a container closure system described in Schedule E attached hereto and made a part hereof at Neurex's expense in accordance with Neurex's instructions, FOB Mallinckrodt's plant. Thereafter, not later than December 1 and June 1 of each calendar year during the Term For purposes of this Agreement, PURCHASER shall submit to SELLER a non-binding forecast of the quantity and expected delivery dates of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product that PURCHASER estimates in good faith that it will order on behalf of itself and its Affiliates for delivery under this Agreement during the four (4) quarters commencing on the immediately succeeding January 1 and July 1, respectively (each such forecast, a “Rolling Forecast”). The Initial Forecast and the Rolling Forecasts will be good-faith, best estimates of requirements and shall not be considered a firm commitment. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.2 Except for Purchase Orders submitted by PURCHASER but not fulfilled as of the Execution Date, purchase orders (each a “Purchase Order”) for each order of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product shall be placed by PURCHASER to SELLER at least sixty (60) days but no more than one hundred twenty (120) days prior to the required date of delivery of such Martek Product by Mallinckrodt to PURCHASER. Each Purchase Order Neurex shall specify the shipping destination (which shall be in the Territory), and required delivery date, for the Martek Product ordered therein. SELLER shall accept each Purchase Order from PURCHASER placed in accordance with this Section 2.2.2 for up to * of the relevant volumes specified for the applicable month in the Initial Forecast or, if a Rolling Forecast has been provided, the most recent Rolling Forecast provided by PURCHASER as of the time of the placement of such Purchase Order. SELLER shall acknowledge all Purchase Orders submitted in accordance with Section 2.2.2 within ten (10) business days of SELLER’s receipt of such Purchase Orders. Purchase Orders submitted by PURCHASER in accordance with this Agreement which have been acknowledged in writing by SELLER shall be considered as firm and binding orders (subject to the terms of this Agreement) and shall only be canceled or amended by mutual written agreement of the Parties. For the avoidance of doubt, SELLER shall not reject any Purchase Order submitted by PURCHASER in accordance with Section 2.2.2.
2.2.3 SELLER shall fulfill by the required delivery date set forth therein each Purchase Order acknowledged pursuant to Section 2.2.2; provided that SELLER shall have no liability for any breach of this Section 2.2.3 unless and until SELLER fails to deliver in accordance with Section 2.4 *as relevant, ordered by PURCHASER for delivery *for a particular shipping destination (which aggregate amount for such location for * by * In the event that SELLER fails to fulfill any Purchase Order acknowledged pursuant to Section 2.2.2 by the required delivery date, PURCHASER shall provide notice thereof to SELLER and shall use reasonable efforts to do so within *; provided, however, that any failure by PURCHASER to provide such notice within such time period shall not be a breach of this Agreement or operate or be deemed to limit any remedies available to PURCHASER hereunderhave taken place upon acceptance of delivery by a Neurex-designated carrier at Mallinckrodt's plant.
2.2.4 Purchase Orders for amounts in addition 5.4 Title to * of the relevant volumes specified for the applicable calendar month in the Initial Forecast or the most recent Rolling Forecast, as applicable, all finished Product shall be accepted and fulfilled by SELLER as is commercially reasonablepass to Neurex on delivery.
2.2.5 In the event of any conflict between the provisions of this Agreement and any Purchase Order, acknowledgement or invoice, or any additional terms included in any Purchase Order, acknowledgement or invoice, the provisions of this Agreement shall control. All preprinted terms and conditions contained on any Purchase Order, acknowledgement or invoice, or similar document, shall be disregarded. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.6 In the event that SELLER, at any time during the Term, shall have reason to believe that it will be unable to supply PURCHASER with its requirements of Martek Products, SELLER shall use reasonable efforts to communicate with PURCHASER in a timely manner so as to help PURCHASER ensure there is no interruption in supply to PURCHASER, and the Parties shall thereafter discuss how such shortfall will be resolved. SELLER shall * provide a written notice to PURCHASER (a “Shortfall Notice”) if (a) SELLER will be unable to supply PURCHASER with the amount ordered by PURCHASER in a Purchase Order by the required delivery date set forth therein (whether by reason of a force majeure event or otherwise), or (b) SELLER concludes that it will be unable to supply PURCHASER *set forth in the Initial Forecast or a Rolling Forecast, as relevant, for any period for which Purchase Orders may still be placed (i.e., more than sixty (60) days ahead) (whether by reason of a force majeure event or otherwise). Any such Shortfall Notice shall expressly identify itself as a Shortfall Notice and shall include*. Any notices pursuant to this Section 2.2.6 shall be for information purposes only and shall not, by themselves, be used to claim a breach of this Agreement.
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