Common use of Product Replacement Clause in Contracts

Product Replacement. Notwithstanding the foregoing, Metsera shall be entitled to require Amneal to promptly replace or procure the replacement of any allegedly Defective Product that Metsera rejects pursuant to this Agreement or the Quality Agreement at no additional charge to Metsera, irrespective of whether it has been finally settled that the Product was Defective; provided that if such Product is later found not to be Defective pursuant to Section 12.2, Metsera shall pay Amneal an additional amount equal to [***] of the then-current (as of the time of replacement) Supply Price of the replacement Product delivered to Metsera in accordance with this Section 12.3. Without prejudice to the right of Metsera to require replacement of Defective Product in the immediately preceding sentence, if Product is found to be Defective pursuant to Section 12.2, Amneal or its Permitted Subcontractor shall promptly (a) unless the Defective Products have previously been replaced pursuant to the immediately preceding sentence, supply Metsera with the applicable quantity of Product free of Defects, at Amneal’s or its Permitted Subcontractor’s expense, and (b) either collect, at the expense of Amneal, any damaged or Defective Product from Metsera or its designee or reimburse Metsera for any direct costs reasonably and actually incurred in its disposal of such Product following invoice from Metsera; provided, however, that in the event the Defect was, or was determined by the Independent Expert to have been, caused by Metsera, Metsera or its designee shall be responsible for all expenses and direct costs reasonably and actually incurred pursuant to subclause (a) or (b). WITHOUT LIMITING THE PARTIES’ RIGHTS AND OBLIGATIONS UNDER SECTIONS 3.3, 6.2, 13, 17, 24 OR 27 (solely with resect to Metsera’s right to terminate), THIS SECTION 12.3 STATES METSERA’S AND ITS AFFILIATE’S SOLE AND EXCLUSIVE RIGHT AND REMEDY FOR REPLACEMENT OF DEFECTIVE PRODUCT. Notwithstanding the foregoing, nothing in this 12.3 is intended to or shall limit or restrict any rights or remedies of Metsera or its Affiliates resulting from Amneal’s or its Affiliate’s gross negligence, willful misconduct or fraud. The limitations of liability in Section 24.4(B) shall not apply to this Section 13.