Required Service Levels. For all Supplied Products to be delivered on a date on or after January 12, 1998 and continuing thereafter until midnight of the last day of the Term, Supplier shall use its best efforts to provide the same level of service and quality of products that it has provided to Herbalife and Herbalife's Affiliates, taken as a whole, under the Dynamic Initial Agreement (the "INITIAL SERVICE LEVEL"). However, in the event of a Change in Control (as defined in Section 13(d) below) of Supplier and this Agreement has not been terminated by Herbalife, Supplier shall for each Supplied Product meet an industry standards service level (the "SUBSEQUENT SERVICE LEVEL"), calculated in reference to the ratio of the number of cases of Supplied Products delivered which meet the Quality Standards to the number of cases ordered, based on Herbalife's and Herbalife's Affiliates, taken as a whole, eight (8) week ordering volume; provided however, that the determination of any Subsequent Service Level shall take into account, and give Supplier a credit for, the extent to which Supplier shall have timely satisfied any modification to any shipping schedule which accelerates a delivery date or substitutes Supplied Products to be delivered, which modification shall have been made by Herbalife or any Affiliate less than eight (8) weeks prior to the scheduled shipping date. If Supplier fails to meet the Initial Service Level or the Subsequent Service Level (on a rolling average) for any Supplied Product for any sixteen (16) week period and, after receipt of notice of such failure, also fails to meet the Initial Service Level or Subsequent Service Level (on a rolling average) for any Supplied Product for the eight (8) week period subsequent to receipt of the notice, Supplier shall be deemed to be in breach of this Agreement, and Herbalife may, without prejudice to any other remedy available to Herbalife hereunder, terminate this Agreement under Section 13(b), or alternatively terminate this Agreement only with respect to such Supplied Product and Herbalife or the Affiliate concerned shall be able to enter into agreements with third party suppliers with respect to all such Supplied Products as may no longer be covered by this Agreement.
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Required Service Levels. For all Supplied Products to be delivered on a date on or after January 12, 1998 and continuing thereafter until midnight of the last day of the Term, Supplier shall use its best efforts to provide the same level of service and quality of products that it has provided to Herbalife and Herbalife's Affiliates, taken as a whole, under the Dynamic D&F Initial Agreement (the "INITIAL SERVICE LEVEL"). However, in the event of a Change in Control (as defined in Section 13(d) below) of Supplier and this Agreement has not been terminated by Herbalife, Supplier shall for each Supplied Product Product, meet an industry standards service level (the "SUBSEQUENT SERVICE LEVEL"), calculated in reference to the ratio of the number of cases of Supplied Products delivered which meet the Quality Standards to the number of cases ordered, based on Herbalife's and Herbalife's Affiliates, taken as a whole, eight (8) week ordering volume; provided however, that the determination of any Subsequent Service Level shall take into account, and give Supplier a credit for, the extent to which Supplier shall have timely satisfied any modification to any shipping schedule which accelerates a delivery date or substitutes Supplied Products to be delivered, which modification shall have been made by Herbalife or any Affiliate less than eight (8) weeks prior to the scheduled shipping date. If Supplier fails to meet the Initial Service Level or the Subsequent Service Level (on a rolling average) for any Supplied Product for any sixteen (16) week period and, after receipt of notice of such failure, also fails to meet the Initial Service Level or Subsequent Service Level (on a rolling average) for any Supplied Product for the eight (8) week period subsequent to receipt of the notice, Supplier shall be deemed to be in breach of this Agreement, and Herbalife may, without prejudice to any other remedy available to Herbalife hereunder, terminate this Agreement under Section 13(b), or alternatively terminate this Agreement only with respect to such Supplied Product and Herbalife or the Affiliate concerned shall be able to enter into agreements with third party suppliers with respect to all such Supplied Products Product as may no longer be covered by this Agreement, and the Minimum Purchase Order Amount shall be correspondingly reduced by the dollar amount of orders of such Supplied Product that Herbalife or the Affiliate concerned could reasonably have purchased from Supplier but for such failure.
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