Common use of Non-Conforming Product Clause in Contracts

Non-Conforming Product. 14.1 Diaxonhit shall be deemed to have waived all claims for damage, defects and shortage relating to the Product supplied by XDx or the Designee unless such claims are notified to XDx in writing within fifteen (15) Working Days after delivery to Diaxonhit of the relevant shipment of Product; provided that in the event of a defect in the Product that could not reasonably have been detected by a customary inspection on delivery, Diaxonhit shall be deemed to have waived all claims for damage, defects and shortage related thereto unless such claims are notified to XDx within fifteen (15) Working Days of discovering such defect but not later than six (6) months from the date of delivery. 14.2 In the event of a dispute between the Parties as to any claimed shortage, damage or defect in the Product (including whether any such shortage, damage or defect occurred before or after delivery) that cannot be resolved within thirty (30) days of the claim being notified to XDx pursuant to clause 14.1, Diaxonhit and XDx shall within a further seven (7) days submit the batch of Product concerned to an independent expert to be mutually agreed between the Parties (the “Independent Expert”) who shall examine the Product concerned. The decision of the Independent Expert shall be binding upon the Parties and the costs of the Independent Expert shall be borne wholly by the Party against whom the Independent Expert decides. 14.3 Following a claim from Diaxonhit pursuant to clause 14.1, XDx shall, in the event that XDx accepts Diaxonhit’s claim as valid or in the event that the Independent Expert supports Diaxonhit’s claim, at XDx’s sole option, replace free of charge any damaged or defective Product or to give Diaxonhit credit for such Product. Any Product which is agreed or determined to be damaged or defective shall (at XDx’s option) be either returned to XDx or destroyed as specified by XDx, at XDx’s reasonable expense. 14.4 Subject to clause 22.1, in respect of claims for damage, defects or shortage referred to in clause 14.1, the remedies set out in clause 14.3 shall be Diaxonhit’s sole remedy; provided that this clause 14.4 shall not limit XDx’s obligations pursuant to clause 19.2(C) and 19.2 (D). Notwithstanding anything herein to the contrary, XDx shall have no liability for damage or defects to Product occurring after delivery thereof pursuant to clause 10.

Non-Conforming Product. 14.1 Diaxonhit (a) Each batch or lot of Product delivered to Pulse Technologies hereunder shall be accompanied by a Certificate of Analysis. Pulse Technologies shall have 30 days from the date of receipt of Product to inspect and reject acceptance by written notice to Ikaria; provided, however, that any such notice shall set forth Pulse Technologies’ reasons for rejection in reasonable detail and provided, further, that Pulse Technologies may reject Product only if: (i) Pulse Technologies claims a material breach of Ikaria’s representations and warranties in Section 7.2 of this Agreement with respect to such Product; or (ii) Ikaria has failed to deliver a Certificate of Analysis for such Product. If Ikaria does not receive Pulse Technologies’ written notice of rejection within such 30 day period, Pulse Technologies shall be deemed to have waived all claims for damageaccepted such Product. (b) If Pulse Technologies provides Ikaria with a timely notice of rejection as set forth in Section 5(a), defects and shortage relating Pulse Technologies shall return the rejected Product to the Product supplied by XDx or the Designee unless such claims are notified to XDx in writing within fifteen (15) Working Days after delivery to Diaxonhit Ikaria at Ikaria’s expense. Ikaria shall have 30 days following receipt of the relevant shipment rejected Product in which to test such Product. If Ikaria does not dispute a rejection, Ikaria shall rework or replace the rejected Product, at Ikaria’s expense and such rework or replacement shall constitute Pulse Technologies’ exclusive remedy and Ikaria’s sole liability with respect to such rejection. If Ikaria disputes a rejection, Ikaria shall provide Pulse Technologies with written notice of such dispute within 30 days after receiving the returned Product; provided that in , and the event Parties shall use commercially reasonable efforts to resolve the dispute amicably and promptly. If the Parties are unable to reach a resolution within 30 days after Pulse Technologies’ notice of a defect in rejection, the returned Product that could not reasonably have been detected by a customary inspection on delivery, Diaxonhit shall be deemed to have waived all claims for damage, defects and shortage related thereto unless such claims are notified to XDx within fifteen (15) Working Days of discovering such defect but not later than six (6) months from the date of delivery. 14.2 In the event of a dispute between the Parties as to any claimed shortage, damage or defect in the Product (including whether any such shortage, damage or defect occurred before or after delivery) that cannot be resolved within thirty (30) days of the claim being notified to XDx pursuant to clause 14.1, Diaxonhit and XDx shall within a further seven (7) days submit the batch of Product concerned submitted to an independent expert laboratory or consultant mutually acceptable to the Parties, whose decision as to the conformity of such Product with the applicable Specification shall be mutually agreed between the Parties (the “Independent Expert”) who shall examine the Product concernedfinal and binding. The decision of the Independent Expert shall be binding upon the Parties and the costs of the Independent Expert shall be borne wholly by the Party against whom the Independent Expert decides. 14.3 Following a claim from Diaxonhit pursuant to clause 14.1, XDx shall, in dispute is decided shall pay any charges for such laboratory or consultant. If the event that XDx accepts Diaxonhit’s claim as valid laboratory or in the event consultant determines that the Independent Expert supports Diaxonhit’s claimreturned Product did not conform to the Specification, Ikaria shall rework or replace the rejected Product at XDxno charge to Pulse Technologies, and such replacement shall constitute Pulse Technologies’ exclusive remedy and Ikaria’s sole option, replace free of charge any damaged or defective Product or liability with respect to give Diaxonhit credit for such rejected Product. Any Product which is agreed or determined to be damaged or defective shall (at XDx’s option) be either returned to XDx or destroyed as specified by XDx, at XDx’s reasonable expense. 14.4 Subject to clause 22.1, in respect of claims for damage, defects or shortage referred to in clause 14.1, the remedies set out in clause 14.3 shall be Diaxonhit’s sole remedy; provided that this clause 14.4 shall not limit XDx’s obligations pursuant to clause 19.2(C) and 19.2 (D). Notwithstanding anything herein to the contrary, XDx shall have no liability for damage or defects to Product occurring after delivery thereof pursuant to clause 10.

Non-Conforming Product. 14.1 Diaxonhit shall be deemed to SPA will have waived all claims for damage, defects and shortage relating to the Product supplied by XDx or the Designee unless such claims are notified to XDx in writing within fifteen a period of ten (1510) Working Business Days after delivery to Diaxonhit of the relevant shipment of Product; provided that in the event of a defect in the Product that could not reasonably have been detected by a customary inspection on delivery, Diaxonhit shall be deemed to have waived all claims for damage, defects and shortage related thereto unless such claims are notified to XDx within fifteen (15) Working Days of discovering such defect but not later than six (6) months from the date of delivery. 14.2 its receipt of a shipment of Drug Substance and Drug Product to inspect and reject such shipment for non-conformance with the obligations under this Section 2.3.2 and the warranties of RTU pursuant to Section 9.7 including the Specifications based on SPA’s (or SPA designee’s) normal incoming-goods inspections procedures, by providing RTU with written notice of rejection for any Product Defect within such period of ten (10) Business Days together with samples of the non-conforming or Drug Substance and Drug Products in the relevant shipment for testing. In the case of Product with Latent Defects, SPA will promptly, and in no event more than ten (10) Business Days of a dispute between SPA knowing of any such Latent Defect, notify RTU of such Latent Defect; provided however, that any Latent Defect must be notified no later than one (1) month following the expiry date of the applicable Drug Substance and Drug Product, together with samples of the non-conforming Drug Substance and Drug Products in the relevant shipment for testing. If RTU determines that such shipment did conform to the warranties of RTU for product pursuant to Section 9.7, the Parties will submit samples of such shipment to a mutually acceptable independent laboratory for testing. If such independent laboratory determines that the shipment conformed to the warranties of RTU for Drug Substance and Drug Product pursuant to Section 9.7 including the Specifications and was not affected by a Product or Latent Defect, SPA will bear all expenses of shipping and testing by such independent laboratory of such shipment samples. If RTU or such independent laboratory confirms that such shipment did not meet the warranties of RTU for product pursuant to Section 9.7 including the Specifications, RTU will, as soon as practicable, give SPA a credit for any amount paid with respect to any claimed shortage, damage or defect in the Product (including whether any such shortage, damage or defect occurred before or after delivery) that cannot be resolved within thirty (30) days portion of the claim being notified Drug Substance or Drug Product which does not conform and will bear all of SPA’s expenses of returning such Drug Substance or Drug Product to XDx pursuant to clause 14.1RTU or its nominee. RTU or SPA, Diaxonhit and XDx shall within a further seven (7) days submit the batch as directed by RTU, will dispose of Product concerned to an independent expert to be mutually agreed between the Parties (the “Independent Expert”) who shall examine the Product concernedany non-conforming portion of any shipment, at RTU’s expense. The decision of the Independent Expert shall be binding upon the Parties and the costs of the Independent Expert shall activities of any such independent laboratory will be borne wholly by the Party against whom the Independent Expert decidesin error. 14.3 Following a claim from Diaxonhit pursuant to clause 14.1, XDx shall, in the event that XDx accepts Diaxonhit’s claim as valid or in the event that the Independent Expert supports Diaxonhit’s claim, at XDx’s sole option, replace free of charge any damaged or defective Product or to give Diaxonhit credit for such Product. Any Product which is agreed or determined to be damaged or defective shall (at XDx’s option) be either returned to XDx or destroyed as specified by XDx, at XDx’s reasonable expense. 14.4 Subject to clause 22.1, in respect of claims for damage, defects or shortage referred to in clause 14.1, the remedies set out in clause 14.3 shall be Diaxonhit’s sole remedy; provided that this clause 14.4 shall not limit XDx’s obligations pursuant to clause 19.2(C) and 19.2 (D). Notwithstanding anything herein to the contrary, XDx shall have no liability for damage or defects to Product occurring after delivery thereof pursuant to clause 10.

Non-Conforming Product. 14.1 Diaxonhit CUSTOMER will have the right to reject any Product that it reasonably believes does not meet all applicable Specifications (“Rejected Product”). 3.6.1 CUSTOMER shall be deemed notify H▇▇▇▇▇ in writing of any such rejection based on nonconformity with Specifications (“Rejection Notice”) within 36 hours after identification. The Rejection Notice shall specify the basis for the rejection. 3.6.2 If requested by H▇▇▇▇▇, CUSTOMER will hold the Product that is the subject of the Rejection Notice for three (3) Business Days after H▇▇▇▇▇’▇ receipt of the Rejection Notice and allow H▇▇▇▇▇ three (3) Business Days to have waived all claims for damage, defects and shortage relating inspect the Product to confirm any nonconformity with the Specifications. 3.6.3 If CUSTOMER has notified H▇▇▇▇▇ that it rejects any Product and: i. ▇▇▇▇▇▇ agrees that the Product subject to the Product supplied Rejection Notice does not meet the Specifications or waives its right to inspect under clause 3.6.2 by XDx or the Designee unless such claims are notified to XDx either an affirmative statement in writing or a failure to act in the timeline under clause 3.6.2, H▇▇▇▇▇ will replace such Rejected Product free of charge. H▇▇▇▇▇ shall cover expenses (including freight, if any) incurred by CUSTOMER in connection with shipment of replacement Product to the same location and, if requested by H▇▇▇▇▇, Rejected Product back to H▇▇▇▇▇. H▇▇▇▇▇ will ship replacement Product (“Replacement Product”) as soon as practical but in any event within fifteen sixty (1560) Working days of its receipt of a Rejection Notice from CUSTOMER under this clause 3.6. H▇▇▇▇▇ will issue an amended invoice within five (5) Business Days after delivery to Diaxonhit of the relevant shipment of Replacement Product; provided . ii. H▇▇▇▇▇, reasonably and in accordance with Best Industry Practices, does not agree that in the event of a defect in the Product that could does not reasonably have been detected by a customary inspection on deliverymeet the Specifications, Diaxonhit H▇▇▇▇▇ shall be deemed to have waived all claims for damage, defects and shortage related thereto unless such claims are notified to XDx within fifteen (15) Working Days of discovering such defect but not later than six (6) months from the date of delivery. 14.2 In the event of a dispute between the Parties provide CUSTOMER with written notice as to any claimed shortage, damage or defect in the reasons why the Product meets the Specifications. At CUSTOMER’S written election and expense, and subject to H▇▇▇▇▇ having sufficient Product, H▇▇▇▇▇ will supply additional Product (including whether “Additional Product”) to CUSTOMER as soon as practical but in any such shortage, damage or defect occurred before or after delivery) that cannot be resolved event within thirty sixty (3060) days of the claim being notified to XDx pursuant to CUSTOMER’S election under this clause 14.1, Diaxonhit and XDx shall within a further seven (7) days submit the batch of Product concerned to 3.6.3. H▇▇▇▇▇ will issue an independent expert to be mutually agreed between the Parties (the “Independent Expert”) who shall examine the Product concerned. The decision of the Independent Expert shall be binding upon the Parties and the costs of the Independent Expert shall be borne wholly by the Party against whom the Independent Expert decides. 14.3 Following a claim from Diaxonhit pursuant to clause 14.1, XDx shall, in the event that XDx accepts Diaxonhit’s claim as valid or in the event that the Independent Expert supports Diaxonhit’s claim, at XDx’s sole option, replace free of charge any damaged or defective Product or to give Diaxonhit credit for such Product. Any Product which is agreed or determined to be damaged or defective shall (at XDx’s option) be either returned to XDx or destroyed as specified by XDx, at XDx’s reasonable expense. 14.4 Subject to clause 22.1, amended invoice in respect of claims for damage, defects or shortage referred to in clause 14.1, the remedies set out in clause 14.3 shall be Diaxonhit’s sole remedy; provided that this clause 14.4 shall not limit XDx’s obligations pursuant to clause 19.2(CAdditional Product within five (5) and 19.2 (D). Notwithstanding anything herein to the contrary, XDx shall have no liability for damage or defects to Product occurring Business Days after delivery thereof pursuant to clause 10of the Additional Product.

Non-Conforming Product. 14.1 Diaxonhit (a) Each batch or lot of Product delivered to Pulse Technologies hereunder shall be accompanied by a Certificate of Analysis. Pulse Technologies shall have 30 days from the date of receipt of Product to inspect and reject acceptance by written notice to ▇▇▇▇▇▇; provided, however, that any such notice shall set forth Pulse Technologies’ reasons for rejection in reasonable detail and provided, further, 5 that Pulse Technologies may reject Product only if: (i) Pulse Technologies claims a material breach of ▇▇▇▇▇▇’s representations and warranties in Section 7.2 of this Agreement with respect to such Product; or (ii) Ikaria has failed to deliver a Certificate of Analysis for such Product. If ▇▇▇▇▇▇ does not receive Pulse Technologies’ written notice of rejection within such 30 day period, Pulse Technologies shall be deemed to have waived all claims for damageaccepted such Product. (b) If Pulse Technologies provides Ikaria with a timely notice of rejection as set forth in Section 5(a), defects and shortage relating Pulse Technologies shall return the rejected Product to the Product supplied by XDx or the Designee unless such claims are notified to XDx in writing within fifteen (15) Working Days after delivery to Diaxonhit Ikaria at Ikaria’s expense. ▇▇▇▇▇▇ shall have 30 days following receipt of the relevant shipment rejected Product in which to test such Product. If ▇▇▇▇▇▇ does not dispute a rejection, ▇▇▇▇▇▇ shall rework or replace the rejected Product, at ▇▇▇▇▇▇’s expense and such rework or replacement shall constitute Pulse Technologies’ exclusive remedy and ▇▇▇▇▇▇’s sole liability with respect to such rejection. If ▇▇▇▇▇▇ disputes a rejection, ▇▇▇▇▇▇ shall provide Pulse Technologies with written notice of such dispute within 30 days after receiving the returned Product; provided that in , and the event Parties shall use commercially reasonable efforts to resolve the dispute amicably and promptly. If the Parties are unable to reach a resolution within 30 days after Pulse Technologies’ notice of a defect in rejection, the returned Product that could not reasonably have been detected by a customary inspection on delivery, Diaxonhit shall be deemed to have waived all claims for damage, defects and shortage related thereto unless such claims are notified to XDx within fifteen (15) Working Days of discovering such defect but not later than six (6) months from the date of delivery. 14.2 In the event of a dispute between the Parties as to any claimed shortage, damage or defect in the Product (including whether any such shortage, damage or defect occurred before or after delivery) that cannot be resolved within thirty (30) days of the claim being notified to XDx pursuant to clause 14.1, Diaxonhit and XDx shall within a further seven (7) days submit the batch of Product concerned submitted to an independent expert laboratory or consultant mutually acceptable to the Parties, whose decision as to the conformity of such Product with the applicable Specification shall be mutually agreed between the Parties (the “Independent Expert”) who shall examine the Product concernedfinal and binding. The decision of the Independent Expert shall be binding upon the Parties and the costs of the Independent Expert shall be borne wholly by the Party against whom the Independent Expert decides. 14.3 Following a claim from Diaxonhit pursuant to clause 14.1, XDx shall, in dispute is decided shall pay any charges for such laboratory or consultant. If the event that XDx accepts Diaxonhit’s claim as valid laboratory or in the event consultant determines that the Independent Expert supports Diaxonhit’s claimreturned Product did not conform to the Specification, ▇▇▇▇▇▇ shall rework or replace the rejected Product at XDxno charge to Pulse Technologies, and such replacement shall constitute Pulse Technologies’ exclusive remedy and ▇▇▇▇▇▇’s sole option, replace free of charge any damaged or defective Product or liability with respect to give Diaxonhit credit for such rejected Product. Any Product which is agreed or determined to be damaged or defective shall (at XDx’s option) be either returned to XDx or destroyed as specified by XDx, at XDx’s reasonable expense. 14.4 Subject to clause 22.1, in respect of claims for damage, defects or shortage referred to in clause 14.1, the remedies set out in clause 14.3 shall be Diaxonhit’s sole remedy; provided that this clause 14.4 shall not limit XDx’s obligations pursuant to clause 19.2(C) and 19.2 (D). Notwithstanding anything herein to the contrary, XDx shall have no liability for damage or defects to Product occurring after delivery thereof pursuant to clause 10.