Common use of Supply Failures Clause in Contracts

Supply Failures. After the end of each calendar quarter during the Initial Exclusivity Period, Stryker will send Osiris a report of (i) all cases during such calendar quarter where Osiris fails to ship Allograft to a Customer that conforms to the requirements of this Agreement by the delivery date requested by Stryker (excluding any such cases where Stryker was able to fulfill a Customer request from Allograft inventory held in consignment at such Customer) (each, a “Supply Failure”) and (ii) for each Supply Failure, the amount that the Customer would have paid for the Allograft Services for said order (the “Lost Revenue”). Osiris’s inability to fulfill a Customer request will not constitute a “Supply Failure” (x) to the extent due to (a) Customer or Stryker error (e.g., incorrect shipping information), (b) Force Majeure Events or (c) transportation or shipping errors due to the failure by one or more common carriers or (y) to the extent orders for the pertinent calendar quarter exceed the average of Stryker’s rolling forecasts for the pertinent calendar quarter by 25% or more. For the purposes of Section 6.2(b)(ii) and Section 6.5, a “Supply Failure Trigger” shall be deemed to have occurred if both of the following conditions are met with respect to the Initial Exclusivity Period: (i) the actual cumulative Revenue for the Initial Exclusivity Period (the “Actual Revenue”) is less than [***]; and (ii) the sum of the Actual Revenue and the aggregate Lost Revenue for the Initial Exclusivity Period is greater than [***].