Common use of Quantitative Defect Clause in Contracts

Quantitative Defect. Subject to, and without waiver or limitation of OptiNose’s and/or Ximedica’s rights and remedies hereunder, at law and/or in equity, if OptiNose believes that a shipment has a Quantitative Defect, OptiNose shall notify Ximedica within the applicable period. If Ximedica agrees with such Quantitative Defect, Ximedica will promptly, and in no event more than [***] business days, ship sufficient LDSAs at OptiNose’s direction to remedy such Quantitative Defect. If Ximedica does not agree with OptiNose’s determination that such shipment has a Quantitative Defect, then after [***] to resolve the disagreement, and subject to, and without waiver or limitation of OptiNose’s and/or Ximedica’s rights and remedies hereunder, at law and/or in equity, Ximedica may require a mutually agreed upon independent third party to determine whether the shipment had a Quantitative Defect. The independent party’s results shall be final and binding for purposes of determining whether Ximedica is obligated to ship additional LDSAs, and the costs of such independent third party shall be borne by [***]. If such results indicate that the shipment had a Quantitative Defect, then in addition to, and without waiver or limitation of OptiNose’s or Ximedica’s rights and remedies hereunder, at law and/or in equity, OptiNose shall be entitled to [***].