Common use of Forecasts Orders and Shipment Clause in Contracts

Forecasts Orders and Shipment. As of the date hereof, it is the Parties' expectation that NeoMedia will purchase most of its and Jinche's Products requirements in the PRC from DuPont and its affiliates. NeoMedia shall send DuPont rolling forecasts of its Products requirements for eighteen (18) months and shall update those forecasts every calendar month, except for the current calendar month and the two (2) following one (1) month periods which shall remain unchanged and for which NeoMedia shall issue firm orders. The deviation between the ordered quantities of any Product grade for the third (3rd) calendar month after the current month and the forecasted quantities for such third (3rd) calendar month shall be comprised between one hundred and twenty-five percent (125%) and seventy-five percent (75%) of the forecasted quantities. The deviation between the ordered quantities of all Product grades for the third (3rd) calendar month after the current month and the forecasted quantities for such third (3rd) calendar month shall be comprised between one hundred and ten percent (110%) and ninety percent (90%) of the forecasted quantities. NeoMedia shall provide DuPont with its schedule for shipment of Product at least sixty (60) days in advance of the requested delivery date. DuPont and its affiliates will confirm the expected delivery date in writing. The Parties will endeavour to order and deliver the contracted quantities of the Product as evenly as possible over the months of the year and NeoMedia's estimates and DuPont and its affiliates' deliveries shall be drawn up to maintain this principle. DuPont or its affiliates shall within an appropriate period after receiving each firm order confirm its ability to supply the binding quantities. Acceptance by DuPont or its affiliates of the firm orders shall constitute a binding contract to supply and purchase. In the event DuPont or its affiliates face capacity limitations despite its production lines operating under normal conditions at full capacity, such that it is unable to satisfy the needs of NeoMedia hereunder as they result from firm agreements entered into prior to such production constraint, then, for so long as such insufficiency shall continue, DuPont and its affiliates shall apportion in a fair and equitable manner its actual available capacity pro rata as between its own customers and NeoMedia. Such pro rata apportionment shall take into account the recent historical supply of Product by DuPont and its affiliates to such customers and to NeoMedia.

Forecasts Orders and Shipment. As 3.1. Ninety (90) days before the commencement of each calendar year (other than the first calendar year, with respect to which the timing shall be as separately agreed by the Parties), the Distributor shall submit to Common Sense a non-binding quarterly forecast of its projected requirements for the Components for the following year (the “Projected Requirements”). 3.2. Other than for the first calendar year (with respect to which the timing shall be as separately agreed by the Parties), Distributor will provide Common Sense with a firm written order for the Components (the “Order”) within not more than one hundred fifty (150) days and not less than one hundred twenty (120) days prior to the desired delivery date and each Order shall specify desired delivery date and the quantities of the date hereofComponents ordered. However, it is quantities ordered by the Parties' expectation Distributor that NeoMedia will purchase most of its and Jinche's Products requirements in exceed the PRC from DuPont and its affiliates. NeoMedia shall send DuPont rolling forecasts of its Products requirements for eighteen (18) months and shall update those forecasts every calendar month, except for the current calendar month and the two (2) following one (1) month periods which shall remain unchanged and for which NeoMedia shall issue firm orders. The deviation between the ordered quantities of any Product grade for the third (3rd) calendar month after the current month and the forecasted quantities for such third (3rd) calendar month shall be comprised between one hundred and twenty-five percent (125%) and seventy-five percent (75%) of the forecasted quantities. The deviation between the ordered quantities of all Product grades for the third (3rd) calendar month after the current month and the forecasted quantities for such third (3rd) calendar month shall be comprised between one hundred and Projected Requirements by more than ten percent (11010%) for the relevant Component and ninety percent time period shall be delivered within timetable to be mutually agreed upon by the Parties. 3.3. All Orders placed by the Distributor shall become part of this continuing Agreement, and shall be subject to the terms and conditions of this Agreement. Unless otherwise agreed by the Parties, in the event of inconsistencies between the terms and conditions in this Agreement and terms and conditions in any Order, this Agreement shall prevail. Any cancellation and/or modification of any term of an issued Order shall require both Parties’ prior written approval. 3.4. Simultaneously with the signature of this Agreement, the Distributor will issue an order for the first four (90%4) deliveries of Components identified in Annex B (that is: the forecasted quantitiesInitial order for [XXXX] Sets of Components to be delivered by March 31, 2006; order for [XXXX] Sets of Components to be delivered by June 30, 2006; order for [XXXX] Sets of Components to be delivered by September 30, 2006; order for [XXXX] Sets of Components to be delivered by December 31, 2006), in the form attached hereto as Annex D, provided that, without derogating from any other right to which Common Sense may be entitled to under this Agreement and/or applicable law, Common Sense is not required to make delivery until Distributor has paid the $[XXXX] down payment pursuant to Section 4.3. 3.5. NeoMedia All orders shall provide DuPont with its schedule for shipment be supplied and delivered DDU (Distributor’s warehouse in the U.S. or the U.S. one warehouse of Product Distributor’s designee (“Delivery Destination”)) (incoterms 2000). The minimum quantity of each order shall be [XXXX] Sets of Components. All Components supplied to the Distributor shall have an expiration date of at least sixty forty (6040) days in advance months after the date of delivery of such Components to the requested delivery date. DuPont Distributor, unless otherwise agreed upon by Common Sense and its affiliates will confirm the expected delivery date Distributor in writing. 3.6. The Parties will endeavour Common Sense shall supply all confirmed Orders for Components submitted by the Distributor (or Orders that Common Sense is required under this Agreement to order and deliver the contracted quantities of the Product as evenly as possible over the months of the year and NeoMedia's estimates and DuPont and its affiliates' deliveries confirm), in accordance with such Orders. Each Order supplied by Common Sense shall be drawn up to maintain this principle. DuPont or its affiliates shall within an appropriate period after receiving each firm order confirm its ability to supply the binding quantities. Acceptance accompanied by DuPont or its affiliates of the firm orders shall constitute a binding contract to supply and purchase. In the event DuPont or its affiliates face capacity limitations despite its production lines operating under normal conditions at full capacity, such that it is unable to satisfy the needs of NeoMedia hereunder as they result from firm agreements entered into prior to such production constraint, then, for so long as such insufficiency shall continue, DuPont and its affiliates shall apportion in a fair and equitable manner its actual available capacity pro rata as between its own customers and NeoMedia. Such pro rata apportionment shall take into account the recent historical supply of Product by DuPont and its affiliates to such customers and to NeoMediabatch quality control report.

Forecasts Orders and Shipment. As 3.1. Ninety (90) days before the commencement of each calendar year (other than the first calendar year, with respect to which the timing shall be as separately agreed by the Parties), the Distributor shall submit to Common Sense a non-binding quarterly forecast of its projected requirements for the Components for the following year (the "PROJECTED REQUIREMENTS"). 3.2. Other than for the first calendar year (with respect to which the timing shall be as separately agreed by the Parties), Distributor will provide Common Sense with a firm written order for the Components (the "ORDER") within not more than one hundred fifty (150) days and not less than one hundred twenty (120) days prior to the desired delivery date and each Order shall specify desired delivery date and the quantities of the date hereofComponents ordered. However, it is quantities ordered by the Parties' expectation Distributor that NeoMedia will purchase most of its and Jinche's Products requirements in exceed the PRC from DuPont and its affiliates. NeoMedia shall send DuPont rolling forecasts of its Products requirements for eighteen (18) months and shall update those forecasts every calendar month, except for the current calendar month and the two (2) following one (1) month periods which shall remain unchanged and for which NeoMedia shall issue firm orders. The deviation between the ordered quantities of any Product grade for the third (3rd) calendar month after the current month and the forecasted quantities for such third (3rd) calendar month shall be comprised between one hundred and twenty-five percent (125%) and seventy-five percent (75%) of the forecasted quantities. The deviation between the ordered quantities of all Product grades for the third (3rd) calendar month after the current month and the forecasted quantities for such third (3rd) calendar month shall be comprised between one hundred and Projected Requirements by more than ten percent (11010%) for the relevant Component and ninety percent time period shall be delivered within timetable to be mutually agreed upon by the Parties. 3.3. All Orders placed by the Distributor shall become part of this continuing Agreement, and shall be subject to the terms and conditions of this Agreement. Unless otherwise agreed by the Parties, in the event of inconsistencies between the terms and conditions in this Agreement and terms and conditions in any Order, this Agreement shall prevail. Any cancellation and/or modification of any term of an issued Order shall require both Parties' prior written approval. 3.4. Simultaneously with the signature of this Agreement, the Distributor will issue an order for the first four (90%4) deliveries of Components identified in Annex B (that is: the forecasted quantitiesInitial order for [XXXX] Sets of Components to be delivered by March 31, 2006; order for [XXXX] Sets of Components to be delivered by June 30, 2006; order for [XXXX] Sets of Components to be delivered by September 30, 2006; order for [XXXX] Sets of Components to be delivered by December 31, 2006), in the form attached hereto as ANNEX D, provided that, without derogating from any other right to which Common Sense may be entitled to under this Agreement and/or applicable law, Common Sense is not required to make delivery until Distributor has paid the $[XXXX] down payment pursuant to Section 4.3. 3.5. NeoMedia All orders shall provide DuPont with its schedule for shipment be supplied and delivered DDU (Distributor's warehouse in the U.S. or the U.S. one warehouse of Product Distributor's designee ("DELIVERY DESTINATION")) (incoterms 2000). The minimum quantity of each order shall be [XXXX] Sets of Components. All Components supplied to the Distributor shall have an expiration date of at least sixty forty (6040) days in advance months after the date of delivery of such Components to the requested delivery date. DuPont Distributor, unless otherwise agreed upon by Common Sense and its affiliates will confirm the expected delivery date Distributor in writing. 3.6. The Parties will endeavour Common Sense shall supply all confirmed Orders for Components submitted by the Distributor (or Orders that Common Sense is required under this Agreement to order and deliver the contracted quantities of the Product as evenly as possible over the months of the year and NeoMedia's estimates and DuPont and its affiliates' deliveries confirm), in accordance with such Orders. Each Order supplied by Common Sense shall be drawn up to maintain this principle. DuPont or its affiliates shall within an appropriate period after receiving each firm order confirm its ability to supply the binding quantities. Acceptance accompanied by DuPont or its affiliates of the firm orders shall constitute a binding contract to supply and purchase. In the event DuPont or its affiliates face capacity limitations despite its production lines operating under normal conditions at full capacity, such that it is unable to satisfy the needs of NeoMedia hereunder as they result from firm agreements entered into prior to such production constraint, then, for so long as such insufficiency shall continue, DuPont and its affiliates shall apportion in a fair and equitable manner its actual available capacity pro rata as between its own customers and NeoMedia. Such pro rata apportionment shall take into account the recent historical supply of Product by DuPont and its affiliates to such customers and to NeoMediabatch quality control report.