Common use of Supply Failure Clause in Contracts

Supply Failure. If for any reason, including for an Event of Loss, Amneal fails to supply [***] (each [***], a “Supply Failure”), Metsera may meet the shortfall from any alternate source(s) and shall, to the extent that the amount of the actual supply price paid by Metsera in meeting such shortfall by procuring from alternate source(s) is greater than the Supply Price for the equivalent amount and type of Product, be entitled to credit such greater amount against future orders for Product from Amneal up to an amount equal to [***]. In addition, Metsera shall receive the Construction Rebate against the Supply Price for the amount of such shortfall purchased by Metsera from the alternate source(s) in accordance with Section 7.5, even if Metsera purchases the shortfall from alternate sources for longer than [***]. Moreover, in Metsera’s sole discretion, Metsera may elect to reduce Metsera’s annual Minimum Order Quantity purchase obligation and/or the Supply Threshold by the total shortfall amounts of any Product that is the subject of a Supply Failure. Notwithstanding the foregoing, in the event that any shortfall or failure to supply as described in subclauses (a) or (b) above was attributable to [***], such shortfall or failure to supply shall not be deemed a Supply Failure, provided that with respect to subclause (ii), Amneal is in compliance with its obligations to maintain safety stock in accordance with Section 18. WITHOUT LIMITING THE PARTIES’ RIGHTS AND OBLIGATIONS UNDER SECTIONS 3.3, 6.2, 12.3, 24 OR 27 (solely with resect to Metsera’s right to terminate), THIS SECTION 13.2 STATES METSERA’S AND ITS AFFILIATE’S SOLE AND EXCLUSIVE RIGHT AND REMEDY FOR ANY SUPPLY FAILURE. Notwithstanding the foregoing, nothing in this 12.3 is intended to or shall limit or restrict any rights or remedies of Metsera or its Affiliates resulting from Amneal’s or its Affiliate’s gross negligence, willful misconduct or fraud. The limitations of liability in Section 24.4(B) shall not apply to this Section 13.2.

Supply Failure. If for any reason, including for an Event of Loss, Amneal fails (a) Should Mikart not be able to supply at least [***] of the quantities of Product ordered by Transcept pursuant to Purchase Orders in accordance with Section 3.3 for any (each [***]] period within [***] of the dates specified in such Purchase Orders in compliance with this Agreement for any reason (including due to a force majeure event), then such event shall be deemed a “Supply Failure”.” Notwithstanding the foregoing, such event shall not be deemed a Supply Failure if such event is caused by a force majeure event (as described in Section 6.5), Metsera may meet provided that (i) Mikart notifies Transcept immediately upon the shortfall from any alternate source(s) and shall, to the extent that the amount of the actual supply price paid by Metsera in meeting such shortfall by procuring from alternate source(s) is greater than the Supply Price for the equivalent amount and type of Product, be entitled to credit such greater amount against future orders for Product from Amneal up to an amount equal to [***]. In addition, Metsera shall receive the Construction Rebate against the Supply Price for the amount occurrence of such shortfall purchased by Metsera from the alternate source(sforce majeure event, and (ii) in accordance with Section 7.5, even if Metsera purchases the shortfall from alternate sources for such force majeure event lasts no longer than [***]. Moreover, in Metsera’s sole discretion, Metsera may elect to reduce Metsera’s annual Minimum Order Quantity purchase obligation and/or . (b) In the Supply Threshold by the total shortfall amounts of any Product that is the subject event of a Supply Failure. Notwithstanding , Transcept’s obligation under Section 3.5 to purchase the foregoingMinimum Purchase Requirement of Product from Mikart shall terminate, in subject to the terms of Section 6.4(c) below. (c) In the event that any shortfall or failure a Supply Failure occurs and such Supply Failure is the first Supply Failure to supply as described occur during the Term of this Agreement, at the written request of Mikart, if Mikart has taken the necessary steps to ensure that a Supply Failure will not re-occur, the Parties shall discuss in subclauses (a) or (b) above was attributable good faith reinstating Transcept’s obligation under Section 3.5 to purchase the Minimum Purchase Requirement from Mikart. If the Parties mutually agree in good faith that Mikart has remedied the Supply Failure and has taken all steps necessary to ensure that a Supply Failure will not re-occur, Transcept’s obligation under Section 3.5 to purchase the Minimum Purchase Commitment from Mikart shall be reinstated, effective [***]] following the date of such agreement (such effective date of reinstatement, the “Minimum Purchase Requirement Re-instatement Date”); provided, however, that, (i) for the Contract Year [***] Confidential treatment has been requested for portions of this exhibit. These portions have been omitted from this exhibit and have been filed separately with the Securities and Exchange Commission. that Transcept’s obligation to purchase the Minimum Purchase Requirement is re-instated, the Minimum Purchase Requirement shall be pro-rated for the time remaining in such shortfall or failure to supply shall not be deemed a Supply Failure, provided that with respect to subclause Contract Year following the Minimum Purchase Requirement Re-instatement Date; and (ii)) Transcept’s obligation to purchase the Minimum Purchase Requirement under Section 3.5 shall be subject to, Amneal is and modified to the extent necessary to comply with, any obligations incurred by Transcept between the date of the Supply Failure and the date that the Parties agreed that the Minimum Purchase Requirement should be re-instated. (d) This Section 6.4 shall in compliance with no way limit any of Transcept’s legal, equitable or other remedies for Mikart’s breach of its obligations to maintain safety stock in accordance with Section 18. WITHOUT LIMITING THE PARTIES’ RIGHTS AND OBLIGATIONS UNDER SECTIONS 3.3, 6.2, 12.3, 24 OR 27 (solely with resect supply Product to Metsera’s right to terminate), THIS SECTION 13.2 STATES METSERA’S AND ITS AFFILIATE’S SOLE AND EXCLUSIVE RIGHT AND REMEDY FOR ANY SUPPLY FAILURE. Notwithstanding the foregoing, nothing in this 12.3 is intended to or shall limit or restrict any rights or remedies of Metsera or its Affiliates resulting from Amneal’s or its Affiliate’s gross negligence, willful misconduct or fraud. The limitations of liability in Section 24.4(B) shall not apply to this Section 13.2Transcept under Article 3.