Common use of Order Acknowledgment Clause in Contracts

Order Acknowledgment. An Order will be deemed to have been placed and shall be automatically binding upon and enforceable against Agilent as of the date of receipt of the Order by Agilent, but only to the extent that the Order is within the scheduled percentage flexibility of the Forecast related to that particular month as determined in accordance with EXHIBIT D and as modified by the provisions of Section 3.3(b), if applicable. Agilent shall reply to the Order within three (3) days of receipt thereof, providing an acknowledgement confirming (i) part numbers and oligo set identification numbers, (ii) the oligo set design file, (iii) volume of each item, (iv) Delivery Dates and (v) prices per Array Product and total invoice amount for the Order. For Orders exceeding Forecasts by more than the scheduled percentage for any particular month, Agilent will have five days in which to confirm the Order with respect to the excess. If an Order exceeds the Forecast for any particular month by more than the scheduled percentage set forth on EXHIBIT D, Agilent shall fabricate and deliver on or prior to the Delivery Date that portion of the Order that does not exceed the Forecast by more than such scheduled percentage, and as an accommodation to Rosetta, use reasonable commercial efforts to fabricate and deliver on or prior to the Delivery Date and thereafter the remainder of such Order. An Order may not be amended except by a written amendment executed according to Section 15.10 below. Agilent will notify Rosetta within three (3) days if it determines that it will not be able to meet any of the terms of a Order, including, but not limited to, Delivery Dates. In addition, Agilent will notify Rosetta promptly of any supply constraints (e.g., materials, vendor contracts, facilities, capacity, or failure of the [***] of which it becomes aware or significant commercial relationships with third-party purchasers of Array Products that in any case may affect its ability to fabricate and deliver the Array Products in *MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC. accordance with the terms of any Order. Subject to Section 3.3(b), no such notification by Agilent or acknowledgement of such notification by Rosetta shall relieve Agilent of any liability for a breach of this Agreement or an Order.

Order Acknowledgment. An Each Order issued by Simtek to Cypress under this Agreement will be deemed to have been placed acknowledged and shall be automatically binding upon accepted by Cypress, and enforceable against Agilent as of Cypress will fulfill the date of receipt terms of the Order by Agilent, but only to the extent that the Order is within the scheduled percentage flexibility of the Forecast related to that particular month as determined in accordance with EXHIBIT D and as modified by the provisions of Section 3.3(b), if applicable. Agilent shall reply to the Order within three (3) days of receipt thereof, providing an acknowledgement confirming (i) part numbers and oligo set identification numbers, (ii) the oligo set design file, (iii) volume of each item, (iv) Delivery Dates and (v) prices per Array Product and total invoice amount for the Order. For Orders exceeding Forecasts by more than the scheduled percentage for any particular month, Agilent will have five days in which to confirm the Order with respect to the excess. If an Order exceeds the Forecast for any particular month by more than the scheduled percentage set forth on EXHIBIT D, Agilent shall fabricate and deliver on or prior to the Delivery Date that portion of the Order that does not exceed the Forecast by more than such scheduled percentage, and as an accommodation to Rosetta, use reasonable commercial efforts to fabricate and deliver on or prior to the Delivery Date and thereafter the remainder of such Order. An Order may not be amended except by a written amendment executed according to Section 15.10 below. Agilent will notify Rosetta within three (3) days if it determines that it will not be able to meet any of the terms of a Order, including, but not limited to, Delivery Dates. In addition, Agilent will notify Rosetta promptly of any supply constraints (e.g., materials, vendor contracts, facilities, capacity, or failure of the [***] of which it becomes aware or significant commercial relationships with third-party purchasers of Array Products that in any case may affect its ability to fabricate produce and deliver the Array Simtek Products ordered under the Order in *MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT, AND SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC. accordance with the terms of any the Order and the terms and conditions of this Agreement, unless Cypress provides notice to Simtek within 10 days of receipt of such Order indicating that such Order: (a) causes the number of Weekly Starts to exceed the maximum number of Weekly Starts set forth in Exhibit 4.2; or (b) includes a delivery date for the applicable Simtek Product that is less than 90 days from the date of the Order. Subject to Section 3.3(b), no Any such notification notice by Agilent or acknowledgement Cypress will be accompanied by an amendment revising such Order so that the Order is in compliance with (a) and (b) above. Upon receipt of such notification by Rosetta shall relieve Agilent notice from Cypress, Simtek may either: (i) accept such the amendment to the Order, in which case Cypress will fulfill the terms of any liability for a breach the amended Order and produce and deliver the Simtek Products ordered under the amended Order in accordance with the terms of the amended Order and the terms and conditions of this Agreement Agreement; or (ii) cancel such amended Order without penalty to Simtek. If Simtek does not provide an Orderacceptance or rejection of an amendment to an Order within 10 business days of Simtek's receipt of notice of such amended Order from Cypress, the amended Order will be deemed accepted by Simtek. Changes to Orders accepted by Cypress that decrease or increase the quantity of Simtek Products may be made only with written consent of Cypress. Cypress will meet the agreed delivery date(s) as set forth in Orders accepted by Cypress. If Cypress cannot meet the agreed upon delivery date, Cypress will immediately notify Simtek.