Rejection of Shipment. (i) After notice of rejection is received by Cephalon, it shall cooperate ** Portions of this exhibit have been omitted and filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. with ▇▇▇▇ in determining whether rejection is justified. Cephalon will evaluate reasons for such non-compliance of the Cephalon Supplied Products with applicable specifications. Cephalon shall notify ▇▇▇▇ as promptly as reasonably possible whether it accepts ▇▇▇▇’▇ rejection. (ii) Whether or not Cephalon accepts ▇▇▇▇’▇ rejection, Cephalon shall use Commercially Reasonable Efforts to replace such rejected Cephalon Supplied Products. If the Cephalon Supplied Products rejected by ▇▇▇▇ from such original shipment ultimately is found to be nonconforming (whether pursuant to Section 6.1(h)(iii) or if Cephalon so acknowledges in writing), Cephalon shall bear all expenses for such replacement (including all transportation and/or disposal charges and cost of manufacture for such replacement) to the extent ▇▇▇▇ previously paid for any corresponding nonconforming Cephalon Supplied Products. If it is determined subsequently that such Cephalon Supplied Products were in fact conforming (whether pursuant to Section 6.1(h)(iii) or if ▇▇▇▇ so acknowledges in writing), then ▇▇▇▇ shall be responsible not only for the purchase price of the allegedly nonconforming Cephalon Supplied Products (including all transportation charges), but also, upon receipt and acceptance by ▇▇▇▇ in accordance with the procedures (and at the same price charged in the original shipment) set forth above, the replacement. Replacement shipments shall also be subject to the procedures contained in Section 6.1(g). (iii) If Cephalon disagrees with ▇▇▇▇’▇ rejection, the parties shall submit samples of the rejected Cephalon Supplied Products and the Shipment Sample to a mutually acceptable third party laboratory, which shall determine whether such Cephalon Supplied Products meets the applicable FDA approved specifications. The parties agree that such laboratory’s determination shall be final and determinative. (iv) If the laboratory determines that the Cephalon Supplied Products meet the applicable FDA approved specifications, the rejection by ▇▇▇▇ is deemed to be unjustified, and ▇▇▇▇ shall pay the full invoice price for the shipment which contained the Cephalon Supplied Products subject to the dispute. If the laboratory determines that the Cephalon Supplied Products do not meet the applicable specifications, the parties shall proceed as provided in Section 6.1(h)(ii). The party against whom the third party tester rules shall bear the reasonable costs of the third party testing. (v) ▇▇▇▇ shall destroy the rejected Cephalon Supplied Products promptly upon written instruction of Cephalon as to the lawful disposition of such Cephalon Supplied Products and at Cephalon’s cost and provide Cephalon with certification of such destruction.
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Rejection of Shipment. Unless otherwise specified in the applicable Confirmation, this Clause 5.2 shall apply to all Shipments or any part of a Shipment. In the event the Shipment or part thereof has been loaded by Buyer onto railcars or trucks (whether or not the Shipment has become commingled with other Coal not forming part of the Shipment), Buyer shall be entitled to reject all Coal loaded onto such railcars or trucks.
5.2.1 Where any of the analysis results for a characteristic in the applicable Analysis Certificate is in the Rejection Range, Buyer may issue a notice in writing to Seller within two (2) Business Days of receipt by Buyer of such Analysis Certificate, as applicable (the “Preliminary Rejection Notice”). If Buyer fails to issue such Notice in accordance with this Clause 5.2, Buyer shall waive any rights to reject that Shipment only.
5.2.2 If Buyer has issued a Preliminary Rejection Notice to Seller, the Parties shall endeavor to agree on a fair and reasonable price adjustment for the Shipment (a “Reject Coal Agreement”) which takes account of any reasonable direct costs and expenses incurred by Buyer arising out of or in connection with the analysis results in the applicable Analysis Certificate, as applicable, failing to meet the Specification.
5.2.3 The Preliminary Rejection Notice will be withdrawn where a Reject Coal Agreement has been agreed by the Parties, or the Final Results meet the Specification.
5.2.4 Where (i) After the Final Results is in the Rejection Range and a Reject Coal Agreement is not agreed within three (3) Business Days of receipt of the last applicable Umpire Certificate or, alternatively, (ii) if the Shipment cannot be rendered Contamination- Free by use of commercially reasonable endeavors, then Buyer may:
(a) reject the Shipment (provided that Buyer has not lost the right to do so) by giving written notice to Seller (the “Rejection Notice”); or
(b) accept the Shipment by giving written notice to Seller, in which case Clause 5.2.5 and Clause 7.107.10 shall not apply and the adjustment of rejection is received by Cephalon, it the price shall cooperate ** Portions of this exhibit have been omitted and filed separately be submitted for resolution to an independent technical expert (the “Expert”) pursuant to an application for confidential treatment filed Clause 21.
5.2.5 If Buyer rejects the Shipment in accordance with the Securities and Exchange Commission Clause 5.2.4(a), then on rejection:
(a) provided that any payment pursuant to Rule 24b-2 under Clause 7.10 has been made by Seller to Buyer, risk and title to the Securities Exchange Act of 1934Shipment, as amended. with ▇▇▇▇ in determining whether rejection is justified. Cephalon will evaluate reasons if already passed, shall revert to Seller, and Buyer shall arrange for such nonre-compliance endorsement of the Cephalon Supplied Products with applicable specifications. Cephalon shall notify ▇▇▇▇ as promptly as reasonably possible whether it accepts ▇▇▇▇’▇ rejection.(s) of Lading to Seller;
(iib) Whether no invoice shall be raised by Seller for such Shipment or not Cephalon accepts ▇▇▇▇’▇ rejectionany invoice raised prior to such rejection shall be cancelled;
(c) Seller shall provide reasonable and timely instructions to Buyer with regard to the further handling, Cephalon disposal or storage of the Shipment and Buyer shall use Commercially Reasonable Efforts reasonable endeavors to replace such rejected Cephalon Supplied Products. If the Cephalon Supplied Products rejected comply with Seller’s instructions and all costs whatsoever incurred by ▇▇▇▇ from such original shipment ultimately is found to be nonconforming (whether pursuant to Section 6.1(h)(iii) Buyer arising out of or if Cephalon so acknowledges in writing), Cephalon shall bear all expenses for such replacement (including all transportation and/or disposal charges and cost of manufacture for such replacement) to the extent ▇▇▇▇ previously paid for any corresponding nonconforming Cephalon Supplied Products. If it is determined subsequently that such Cephalon Supplied Products were in fact conforming (whether pursuant to Section 6.1(h)(iii) or if ▇▇▇▇ so acknowledges in writing), then ▇▇▇▇ connection with compliance with Seller’s instructions shall be responsible not only for the purchase price of the allegedly nonconforming Cephalon Supplied Products (including all transportation charges), but also, upon receipt and acceptance by ▇▇▇▇ in accordance with the procedures (and at the same price charged in the original shipment) set forth above, the replacement. Replacement shipments shall also be subject to the procedures contained in Section 6.1(g).Seller’s account;
(iiid) If Cephalon disagrees with ▇▇▇▇’▇ rejection, the parties shall submit samples of the rejected Cephalon Supplied Products and the Shipment Sample to a mutually acceptable third party laboratory, which shall determine whether such Cephalon Supplied Products meets the applicable FDA approved specifications. The parties agree that such laboratory’s determination there shall be final and determinative.a Seller’s Deficiency where the provisions of Clause 14.1 apply; and
(ive) If the laboratory determines that the Cephalon Supplied Products meet the applicable FDA approved specifications, the rejection by ▇▇▇▇ is deemed to be unjustified, and ▇▇▇▇ Clause 7.10 shall pay the full invoice price for the shipment which contained the Cephalon Supplied Products subject to the dispute. If the laboratory determines that the Cephalon Supplied Products do not meet the applicable specifications, the parties shall proceed as provided in Section 6.1(h)(ii). The party against whom the third party tester rules shall bear the reasonable costs of the third party testingapply.
(v) ▇▇▇▇ shall destroy the rejected Cephalon Supplied Products promptly upon written instruction of Cephalon as to the lawful disposition of such Cephalon Supplied Products and at Cephalon’s cost and provide Cephalon with certification of such destruction.
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