Forecasts and Orders. 2.2.1 On the Effective Date of this Agreement, PURCHASER shall give SELLER written notice of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the remainder of the current calendar year. Not later than September 30 of each calendar year during the Term, PURCHASER shall give SELLER written notice of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the next calendar year. In addition to the foregoing, one (1) month before the commencement of each calendar quarter during the Term, PURCHASER shall provide SELLER with a forecast (a “Rolling Forecast”) of PURCHASER’s requirements for the Martek Products for each of the succeeding four (4) quarters, specifying quantities and requested delivery dates. These forecasts will be PURCHASER’s good-faith estimate of requirements and shall not be considered a commitment or other obligation of PURCHASER or its Designees to purchase such Martek Products. 2.2.2 PURCHASER and/or its Designees shall issue formal purchase orders (“Purchase Orders”) at least sixty (60) but no more than ninety (90) days in advance of the date on which PURCHASER or the Designee requests that SELLER deliver the Martek Products pursuant to Section 2.4.1 below. SELLER shall accept and fulfill Purchase Orders from PURCHASER and its Designees made in accordance with the terms of this Agreement for up to * of the relevant volumes specified in the Rolling Forecasts provided by PURCHASER pursuant to Section 2.2.1 above. Purchase Orders for additional amounts shall be accepted and filled by SELLER as is commercially reasonable. 2.2.3 Purchase Orders submitted in accordance with this Agreement, which have been acknowledged in writing by SELLER, shall be considered as firm and binding orders (subject to the provisions of this Agreement) and shall only be canceled or amended by mutual written agreement of -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission. the parties. SELLER shall acknowledge all Purchase Orders submitted in accordance with this Agreement within five (5) business days of SELLER’s receipt of such Purchase Orders.
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Forecasts and Orders. 2.2.1 On As of the Effective Execution Date of this Agreement, a provisional non-binding forecast of the monthly quantity of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product which PURCHASER will order on behalf of itself and its Affiliates for delivery hereunder for the period from the Execution Date until March 31, 2009 shall be established using the average monthly quantities of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product ordered by PURCHASER in the six (6) calendar months prior to the Execution Date (the “Initial Forecast). Thereafter, not later than December 1 and June 1 of each calendar year during the Term of this Agreement, PURCHASER shall give submit to SELLER written notice a non-binding forecast of the quantity and expected delivery dates of DHA Martek Products Product and ▇▇▇ ▇▇▇▇▇▇ Product that PURCHASER estimates in good faith that it will order or direct the Designees to order from SELLER on behalf of itself and its Affiliates for delivery under this Agreement during the remainder of four (4) quarters commencing on the current calendar year. Not later than September 30 of immediately succeeding January 1 and July 1, respectively (each calendar year during the Termsuch forecast, PURCHASER shall give SELLER written notice of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the next calendar year. In addition to the foregoing, one (1) month before the commencement of each calendar quarter during the Term, PURCHASER shall provide SELLER with a forecast (a “Rolling Forecast”) of PURCHASER’s requirements for ). The Initial Forecast and the Martek Products for each of the succeeding four (4) quarters, specifying quantities and requested delivery dates. These forecasts Rolling Forecasts will be PURCHASER’s good-faith estimate faith, best estimates of requirements and shall not be considered a commitment or other obligation of PURCHASER or its Designees to purchase such Martek Products.
2.2.2 PURCHASER and/or its Designees shall issue formal purchase orders (“Purchase Orders”) at least sixty (60) but no more than ninety (90) days in advance of the date on which PURCHASER or the Designee requests that SELLER deliver the Martek Products pursuant to Section 2.4.1 belowfirm commitment. SELLER shall accept and fulfill Purchase Orders from PURCHASER and its Designees made in accordance with the terms of this Agreement for up to * of the relevant volumes specified in the Rolling Forecasts provided by PURCHASER pursuant to Section 2.2.1 above. Purchase Orders for additional amounts shall be accepted and filled by SELLER as is commercially reasonable.
2.2.3 Purchase Orders submitted in accordance with this Agreement, which have been acknowledged in writing by SELLER, shall be considered as firm and binding orders (subject to the provisions of this Agreement) and shall only be canceled or amended by mutual written agreement of -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.2 Except for Purchase Orders submitted by PURCHASER but not fulfilled as of the Execution Date, purchase orders (each a “Purchase Order”) for each order of DHA Martek Product and ▇▇▇ ▇▇▇▇▇▇ Product shall be placed by PURCHASER to SELLER at least sixty (60) days but no more than one hundred twenty (120) days prior to the required date of delivery of such Martek Product to PURCHASER. Each Purchase Order shall specify the partiesshipping destination (which shall be in the Territory), and required delivery date, for the Martek Product ordered therein. SELLER shall accept each Purchase Order from PURCHASER placed in accordance with this Section 2.2.2 for up to * of the relevant volumes specified for the applicable month in the Initial Forecast or, if a Rolling Forecast has been provided, the most recent Rolling Forecast provided by PURCHASER as of the time of the placement of such Purchase Order. SELLER shall acknowledge all Purchase Orders submitted in accordance with this Agreement Section 2.2.2 within five ten (510) business days of SELLER’s receipt of such Purchase Orders. Purchase Orders submitted by PURCHASER in accordance with this Agreement which have been acknowledged in writing by SELLER shall be considered as firm and binding orders (subject to the terms of this Agreement) and shall only be canceled or amended by mutual written agreement of the Parties. For the avoidance of doubt, SELLER shall not reject any Purchase Order submitted by PURCHASER in accordance with Section 2.2.2.
2.2.3 SELLER shall fulfill by the required delivery date set forth therein each Purchase Order acknowledged pursuant to Section 2.2.2; provided that SELLER shall have no liability for any breach of this Section 2.2.3 unless and until SELLER fails to deliver in accordance with Section 2.4 *as relevant, ordered by PURCHASER for delivery *for a particular shipping destination (which aggregate amount for such location for * by * In the event that SELLER fails to fulfill any Purchase Order acknowledged pursuant to Section 2.2.2 by the required delivery date, PURCHASER shall provide notice thereof to SELLER and shall use reasonable efforts to do so within *; provided, however, that any failure by PURCHASER to provide such notice within such time period shall not be a breach of this Agreement or operate or be deemed to limit any remedies available to PURCHASER hereunder.
2.2.4 Purchase Orders for amounts in addition to * of the relevant volumes specified for the applicable calendar month in the Initial Forecast or the most recent Rolling Forecast, as applicable, shall be accepted and fulfilled by SELLER as is commercially reasonable.
2.2.5 In the event of any conflict between the provisions of this Agreement and any Purchase Order, acknowledgement or invoice, or any additional terms included in any Purchase Order, acknowledgement or invoice, the provisions of this Agreement shall control. All preprinted terms and conditions contained on any Purchase Order, acknowledgement or invoice, or similar document, shall be disregarded. * The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission.
2.2.6 In the event that SELLER, at any time during the Term, shall have reason to believe that it will be unable to supply PURCHASER with its requirements of Martek Products, SELLER shall use reasonable efforts to communicate with PURCHASER in a timely manner so as to help PURCHASER ensure there is no interruption in supply to PURCHASER, and the Parties shall thereafter discuss how such shortfall will be resolved. SELLER shall * provide a written notice to PURCHASER (a “Shortfall Notice”) if (a) SELLER will be unable to supply PURCHASER with the amount ordered by PURCHASER in a Purchase Order by the required delivery date set forth therein (whether by reason of a force majeure event or otherwise), or (b) SELLER concludes that it will be unable to supply PURCHASER *set forth in the Initial Forecast or a Rolling Forecast, as relevant, for any period for which Purchase Orders may still be placed (i.e., more than sixty (60) days ahead) (whether by reason of a force majeure event or otherwise). Any such Shortfall Notice shall expressly identify itself as a Shortfall Notice and shall include*. Any notices pursuant to this Section 2.2.6 shall be for information purposes only and shall not, by themselves, be used to claim a breach of this Agreement.
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Forecasts and Orders. 2.2.1 On (a) Within ninety (90) days of the Effective Date date of this Agreement, PURCHASER Jubilant shall give SELLER provide Trinity with a written notice list of all APIs manufactured by Jubilant and its Affiliates and that are available for supply by Jubilant to Trigen as Jubilant Products pursuant to this Agreement. Within one hundred twenty (120) days after the date of this Agreement, (i) Jubilant and Trigen shall agree upon the initial Jubilant Products to be supplied by Jubilant to Trigen pursuant to this Agreement, which Jubilant Products shall be set forth on Schedule A attached hereto and signed by each of the quantity parties, and (ii) Trigen shall place a binding purchase order for such Jubilant Products for the third calendar quarter of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the remainder of the current calendar year. Not 2005.
(b) Thereafter, not later than September 30 of each calendar year during the Term, PURCHASER shall give SELLER written notice of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the next calendar year. In addition thirty (30) business days prior to the foregoing, one (1) month before the commencement start of each calendar quarter during the Term, PURCHASER Trigen shall provide SELLER with to Jubilant a rolling forecast (that estimates the quantity of each Jubilant Product to be purchased by Trigen during the upcoming four calendar quarters. The first calendar quarter of each such forecast will constitute a “Rolling Forecast”) purchase order from Trigen binding on both parties hereto for the amounts forecasted for each Jubilant Product for such calendar quarter. Except for the first calendar quarter of PURCHASEReach such rolling forecast, which constitutes a binding purchase order, such forecast will constitute an estimate of Trigen’s requirements for each Jubilant Product, which is supplied for the Martek Products for each convenience of the succeeding four (4) quartersJubilant, specifying quantities is non-binding on Trigen, and requested delivery dates. These forecasts will be PURCHASER’s good-faith estimate of requirements and shall not be considered a commitment or other obligation constitute an order of PURCHASER or its Designees to purchase such Martek ProductsJubilant Product.
2.2.2 PURCHASER and/or its Designees (c) Trigen shall issue formal place orders for the Jubilant Products on Trigen’s standard form purchase orders order on a calendar quarter basis. Each such purchase order must specify each Jubilant Product ordered, the quantity of each Jubilant Product ordered, the place of delivery and the delivery date(s) and the date of shipment which must not be less than thirty (“Purchase Orders”) at least sixty (60) but no more than ninety (9030) days in advance of after the date on which PURCHASER or of such purchase order. In the Designee requests that SELLER deliver the Martek Products pursuant to Section 2.4.1 below. SELLER shall accept and fulfill Purchase Orders from PURCHASER and its Designees made in accordance with event of a conflict between the terms and conditions of any purchase order and this Agreement, the terms and conditions of this Agreement for up to * of the relevant volumes specified in the Rolling Forecasts provided by PURCHASER pursuant to Section 2.2.1 above. Purchase Orders for additional amounts shall be accepted and filled by SELLER as is commercially reasonablewill prevail.
2.2.3 Purchase Orders submitted in accordance with this Agreement, which have been acknowledged in writing by SELLER, shall be considered as firm and binding orders (subject to the provisions of this Agreement) and shall only be canceled or amended by mutual written agreement of -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately to the Securities and Exchange Commission. the parties. SELLER shall acknowledge all Purchase Orders submitted in accordance with this Agreement within five (5) business days of SELLER’s receipt of such Purchase Orders.
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Forecasts and Orders. 2.2.1 On 3.3.1 In accordance with the Effective Date of this Agreementrequirements set forth in Exhibit A, PURCHASER shall give SELLER written notice of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the remainder of the current calendar year. Not later than September 30 of each calendar year during the Term, PURCHASER shall give SELLER written notice of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the next calendar year. In addition at least ten (10) days prior to the foregoing, one (1) month before the commencement first day of each calendar quarter during the TermInitial Term and any renewal term, PURCHASER Tutogen shall provide SELLER AlloSource with a written non-binding forecast (a “Rolling Forecast”) as to Tutogen’s estimated requirements of PURCHASER’s requirements for the Martek Products for each of the succeeding four following twelve (412) quarterscalendar months, specifying the first three (3) months of which shall be binding. On or before the first day of each month, Tutogen shall issue binding orders for such month for the quantities of Products set forth in such forecast. AlloSource shall have five (5) business days to notify Tutogen of rejection of such binding order and requested delivery datesreason for such rejection. These forecasts will be PURCHASER’s good-faith estimate If no notice of requirements and rejection is given within such five (5) business day period, the binding order shall not be considered a commitment or other obligation of PURCHASER or its Designees accepted by AlloSource. AlloSource shall make reasonable business efforts to purchase fill such Martek Products.
2.2.2 PURCHASER and/or its Designees shall issue formal purchase binding orders within thirty (“Purchase Orders”30) at least sixty (60) days, but no more later than ninety (90) days in advance of such binding orders. If AlloSource fails to fill a binding order that was accepted by AlloSource within ninety (90) days of the date on which PURCHASER or of such binding order, then Tutogen may cancel such binding order and may fill such order from another source.
3.3.2 In the Designee requests event that SELLER deliver the Martek Tutogen does not place and accept orders for Products pursuant to Section 2.4.1 below. SELLER shall accept and fulfill Purchase Orders from PURCHASER and its Designees made in accordance with the terms of this Agreement for up to * of the relevant volumes minimum monthly requirements specified in the Rolling Forecasts provided by PURCHASER pursuant to Section 2.2.1 above. Purchase Orders for additional amounts Exhibit A, Tutogen shall be accepted and filled by SELLER as is commercially reasonable.
2.2.3 Purchase Orders submitted required to pay AlloSource the reimbursement fees, in accordance with this AgreementSection 6 below, for the minimum monthly requirements less the number of Products which have been acknowledged are ordered and accepted by Tutogen.
3.3.3 AlloSource may supply and Tutogen shall accept from AlloSource Tissues, Processed Tissues and Allografts in writing by SELLERan amount equal to or up to ten percent (10%) greater than the quantities set forth in Exhibit A hereto and set forth in each binding order (or such higher quantity if mutually agreed in writing).
3.3.4 AlloSource shall ship Products to Tutogen at the following address: Tutogen Medical, Inc. 13709 Progress Blvd., Box 19 South Wing ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3.3.5 Tutogen shall be considered as firm responsible for expenses associated with the shipment of Products from AlloSource to Tutogen. Risk of loss and binding orders (subject title to the provisions of this Agreement) and such Products shall only be canceled or amended by mutual written agreement of -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. The confidential portions have been submitted separately pass to the Securities and Exchange Commission. the parties. SELLER shall acknowledge all Purchase Orders submitted in accordance with this Agreement within five (5) business days of SELLER’s receipt of such Purchase OrdersTutogen upon shipment.
3.3.6 EXCEPT AS SET FORTH HEREIN, ALLOSOURCE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
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Sources: Tissue Procurement, Processing and Supply Agreement (Tutogen Medical Inc)
Forecasts and Orders. 2.2.1 On the Effective Date of this Agreement, PURCHASER shall give SELLER written notice of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the remainder of the current calendar year. Not later than September 30 of each calendar year during the Term, PURCHASER shall give SELLER written notice of the quantity of Martek Products that PURCHASER estimates in good faith it will order or direct the Designees to order from SELLER during the next calendar year. In addition to the foregoing, one (1) month before the commencement of each calendar quarter during the Term, PURCHASER Forecasts:
4.1 GENTIUM shall provide SELLER SIRTON with a written forecast (a “Rolling Forecast”) of PURCHASER’s its Product requirements for the Martek Products for each following 12 (twelve) months (the “Forecast”), and SIRTON shall plan all its activities in relation to Manufacturing of the succeeding four products against said forecast. Said Forecasts shall contain the requirements in terms of number of pieces per month. SIRTON shall provide GENTIUM with a written reply within 10 (4ten) quartersdays of receipt of said Forecast, specifying quantities and requested delivery datesinforming GENTIUM of the overall feasibility of the same. These forecasts will If, within 10 (ten) days, GENTIUM does not receive any response from SIRTON regarding the Forecast, feasibility of the latter shall be PURCHASER’s good-faith estimate deemed confirmed by SIRTON.
4.2 The quantity of requirements and Products required for the first 3 (three) months of the Forecast shall constitute a confirmed order. The remaining 9 (nine) months of the Forecast shall not be considered a commitment deemed binding on either SIRTON or other obligation of PURCHASER or its Designees to purchase such Martek ProductsGENTIUM.
2.2.2 PURCHASER and/or its Designees 4.3 GENTIUM shall issue formal notify SIRTON, as soon as possible, of anything that could alter the Forecasts it had provided.
4.4 While everything governing SIRTON’s responsibility still holds, the latter shall immediately notify GENTIUM of anything it becomes aware of that could hinder feasibility of the Forecasts.
4.5 SIRTON is responsible for storing the Components (with the exception of the Active Principle). It ensues that GENTIUM shall pay exclusively for the Components purchased according to the confirmed orders and the forecasts for the first 3 months.
4.6 GENTIUM shall send SIRTON a purchase orders (“Purchase Orders”) order for Products at least sixty three (603) but no more than ninety months prior to the date of delivery for said order.
4.7 SIRTON shall send GENTIUM a written order confirmation confirming the quantities and delivery date indicated in the purchase order within 10 (90ten) days in advance of receipt thereof. Once confirmed, the order shall be deemed binding for SIRTON. If GENTIUM does not receive any response from SIRTON within 10 (ten) days, the order shall be deemed confirmed.
4.8 SIRTON shall meet the delivery date indicated on the corresponding purchase order. Upon thirty (30) days prior notice, SIRTON shall guarantee the availability of an addition-extra batch above and beyond the amount for the order confirmed.
4.9 For the entire duration of the date present Contract, SIRTON shall have on hand an adequate stock of Components able to fill the orders confirmed as indicated in Paragraph 4.8 and adequate for an additional production batch as reported in Paragraph 4.8.
4.10 If the variation in the packaging materials is required due to changes in the reference standards or decided at the discretion of GENTIUM, the latter shall bear any additional costs. Nevertheless, GENTIUM shall not bear the costs for the packaging materials if they do not comply with the specifications defined and forwarded by GENTIUM as indicated in Paragraph 6.4.
4.11 In the case in which PURCHASER or the Designee requests that SELLER (i) SIRTON does not deliver the Martek Products pursuant at the deadline indicated in the purchase order, and (ii) if SIRTON itself is responsible for said delay, SIRTON shall pay GENTIUM, as penalty, the following sums:
(a) If the delay falls between 1 (one) and 2 (two) weeks, a sum equal to Section 2.4.1 below. SELLER shall accept and fulfill Purchase Orders from PURCHASER and its Designees made in accordance with the terms of this Agreement for up to * 5.00% of the relevant volumes specified amount due it from GENTIUM as outlined in Attachment 2;
(b) If the delay exceeds 2 (due) weeks, a sum equal to 10.00% of the amount due it from GENTIUM as outlined in Attachment 2. In both the above cases, it remains understood that the amount to be paid by SIRTON as penalty shall be automatically compensated and detracted from the amount due to be paid by GENTIUM in compliance with Article 5 below.
4.12 SIRTON shall guarantee that the number of Products per Active Principle meets the minimum quantities that can be obtained, for concentrates and standard batches, as better defined in the Rolling Forecasts provided by PURCHASER pursuant to Section 2.2.1 aboveTechnical Agreement. Purchase Orders If the minimum quantities are not met, SIRTON shall reimburse GENTIUM the costs for additional amounts shall be accepted and filled by SELLER as is commercially reasonable.
2.2.3 Purchase Orders submitted in accordance with this Agreement, which have been acknowledged in writing by SELLER, shall be considered as firm and binding orders (subject to the provisions of this Agreement) and shall only be canceled or amended by mutual written agreement of -* The asterisk denotes that confidential portions of this exhibit have been omitted in reliance on Rule 24b-2 production of the Securities Exchange Act of 1934. The confidential portions have been submitted separately extra Active Principle used, as determined according to the Securities and Exchange Commission. the parties. SELLER shall acknowledge all Purchase Orders submitted what is indicated in accordance with this Agreement within five (5) business days of SELLER’s receipt of such Purchase OrdersAttachment 2.
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