Common use of Firm Purchase Commitment Clause in Contracts

Firm Purchase Commitment. Onyx shall not be bound to any Firm Purchase Commitment (as defined below) until after its receipt of Product Approval. Thereafter, the forecast of the most current six (6) month period of the Monthly Forecast shall constitute a firm purchase commitment (the “Firm Purchase Commitment”) which shall state in detail the quantities of the Product ordered and the required Delivery Dates, and shall be binding on the Parties regarding the Products to be purchased. The forecast for the remaining twelve (12) month period of the Monthly Forecast is for planning purposes only and shall not constitute a commitment to purchase or supply Product. During [*] production, DSM will notify Onyx in writing of the actual start date of production. In the event that Onyx does not ultimately purchase the forecast quantities for (i) the [*] of the Firm Purchase Commitment period ([*]), it shall be obligated to pay to DSM for any deficient quantities on the basis of [*] of the Product Price for those quantities which Onyx failed to purchase during such Firm Purchase Commitment period, and (ii) the [*] of the Firm Purchase Commitment period ([*]), it shall be obligated to pay to DSM for any deficient quantities on the basis of [*] of the Product Price for those quantities which Onyx failed to purchase during such Firm Purchase Commitment period. If DSM is unable for any reason, other than the failure of Onyx’s Designated Vendors timely to provide Excipients as referenced in Section 4.4, to supply the Firm Purchase Commitment to Onyx on a timely basis, (a) Onyx shall not be obligated to pay for any portion of the Firm Purchase Commitment which DSM could not deliver, and (b) DSM will use all reasonable commercial efforts to schedule new manufacturing to fulfill the Firm Purchase Order requirements as soon as possible, subject to its existing obligations and manufacturing schedule for the facility.

Firm Purchase Commitment. Onyx (a) ADMA shall, on or before [***] of each calendar year during the term of this Agreement, provide BPC with a binding purchase order (the “First Purchase Order”) for Product to be manufactured and delivered in the first two calendar quarters of the following calendar year, with an estimated quarterly volume breakdown and Product delivery dates. ADMA shall, on or before [***] of each calendar year during the term of this Agreement, provide BPC with a binding purchase order (the “Second Purchase Order”) for Product to be manufactured and delivered in the last two calendar quarters of such calendar year, with an estimated quarterly volume breakdown and Product delivery dates. Each of the First Purchase Order and the Second Purchase Order is also referred to herein as a “Purchase Order.” All Purchase Orders shall not be bound to any Firm in Lot increments (b) BPC shall confirm its acceptance of each Purchase Commitment Order in writing (as defined belowthe “Confirmation”) until after its within [***] from the receipt of Product Approvalsuch Purchase Order. Thereafter, Such Purchase Order shall thereupon be binding on the forecast of the most current six parties (6) month period of the Monthly Forecast shall constitute a firm purchase commitment (the “Firm Purchase Commitment”). (c) which shall state in detail the quantities of the Product ordered and the required Delivery Dates, and shall be binding on the Parties regarding the Products to be purchased. The forecast for the remaining twelve (12) month period of the Monthly Forecast is for planning purposes only and shall not constitute a commitment to purchase or supply Product. During [*] production, DSM will notify Onyx in writing of the actual start date of production. In the event that Onyx does not ultimately ADMA fails to purchase the forecast quantities for (i) aggregate quantity stated in the [*] two Firm Purchase Commitments during any calendar year, then, at the end of the calendar year to which such Firm Purchase Commitment period ([*])Commitments relate, it BPC shall invoice ADMA and ADMA shall be obligated to pay to DSM for any deficient quantities on BPC the basis of [*] of the difference between ordered Product Price for those quantities which Onyx failed to purchase during and Product committed in such Firm Purchase Commitment periodCommitments to be purchased (“Deficiency”), and (ii) provided, however, that if the total of the two Firm Purchase Commitments during any calendar year is more than [*] of the Firm Purchase Commitment period ([*]), it shall be obligated to pay to DSM for any deficient quantities on the basis of [*] of the Product Price for those quantities which Onyx failed to purchase during such Firm Purchase Commitment period. If DSM is unable for any reason, other than the failure of Onyx’s Designated Vendors timely to provide Excipients as referenced in Section 4.4, to supply the Firm Purchase Commitment to Onyx on a timely basis, (a) Onyx shall ADMA will not be obligated to pay for any portion [***] of such Deficiency. The foregoing will not apply to the extent the parties agree differently in writing. [***] [***] (d) Notwithstanding anything to the contrary, either ADMA or BPC may elect to delay [***] under a Firm Purchase Commitment which DSM could not deliver, and (b) DSM will use all reasonable commercial efforts to schedule new manufacturing to fulfill until the Firm Purchase Order requirements as soon as possible, subject to its existing obligations and manufacturing schedule for the facilitynext calendar year without penalty.