Common use of Issuance and Acceptance Clause in Contracts

Issuance and Acceptance. Seller shall notify 3Com of acceptance of purchase order by telephone or facsimile (and promptly confirm in writing) within five (5) business days after receipt of 3Com's purchase order. Failure of Seller to confirm or respond to 3Com's purchase order within five (5) business days shall constitute acceptance. The parties anticipate approximately a six (6) to eight (8) week delivery cycle from purchase order to fulfillment. All orders are subject to acceptance in writing by Seller and shall not be binding until acceptance. If orders for the Product units exceed Seller's inventory, Seller shall allocate available inventory on a basis Seller, in its reasonable discretion, deems equitable. In such event, Seller will use good faith efforts to allocate supply of Products to 3Com on a pro-rata basis, taking into account 3Com's current and historical purchase history for the Product compared against Seller's total current and historical sales of Products. If Seller cannot allocate to 3Com such pro-rata share in such circumstances, the parties shall discuss in good faith a mutually acceptable course of action. Seller shall use reasonable efforts to fill orders promptly, but shall not be liable for any damage to 3Com or any third party for failure to fill any orders, or for any delay in delivery or error in filling any orders. Notwithstanding any prior acceptance by Seller of a purchase order for Product units, Seller shall not be obligated to ship Product units if 3Com is in breach of this Agreement at the time of scheduled shipment.