Catastrophic Defects. “Catastrophic Defects” means conditions under which the Product is inoperative and BTE’s inability to use the Product creates an emergency situation with respect to BTE’s business operations. This condition generally is characterized by a loss of network connectivity or service affecting a major customer or multiple other customers due to Product failure and requires immediate restoration or correction.
Catastrophic Defects. Seller shall, within 30 days of Buyer’s demand, indemnify Buyer or its designated third party service provider for all costs and expenses of parts, labor, administrative costs, shipping costs, replacement product costs and other expenses (including reasonable attorneys’ fees and expenses) related to or arising from a Catastrophic Defect, Product recall or Product field fix. “Catastrophic Defect” will be deemed to occur when: (a) the representations and warranties set forth in Section 6 are breached with respect to (i) 3% or more of the Products shipped within any three-month period, or (ii) 1% of the Products shipped within the first six months of the initial agreement between Seller and Buyer; (b) the return and exchange rate of the Product sold by Seller to Buyer is in excess of the category average for the Product, as determined by Buyer’s records; (c) a single or single group of defects in a Product (any manufacturing defect that affects the Product cosmetically or functionally) is determined by Buyer to impact more than 10% of such Products; (d) a Product (including any service parts, replacement parts, spare parts, assemblies and tools required for servicing Products) recall is necessary in the reasonable opinion of Buyer or Seller; or (e) the Product should be pulled from the marketplace to comply with applicable law as determined by Buyer in its sole discretion (including but not limited to, cases of a voluntary or mandatory consumer product safety recall); provided, however, that no Catastrophic Defect will be deemed to occur if the applicable defect results solely from an act or omission of Buyer.
Catastrophic Defects. Without prejudice to the application of Section 8, Seller shall, within 30 calendar days of Buyer's demand, indemnify Buyer or its designated third party service provider for all costs and expenses of parts, labor, administrative costs, shipping costs, replacement product costs and other expenses (including reasonable attorneys’ fees and expenses) related to or arising from a Catastrophic Defect, Product recall or Product field fix. “Catastrophic Defect” will be deemed to occur when Buyer determines that: (a) the representations and warranties set forth in Section 6 are breached with respect to (i) 3% or more of the Products shipped within any three-month period, or (ii) 1% of the Products shipped within the first six months of the initial agreement between Seller and Buyer; (b) the return and exchange rate of the Product sold by Seller to Buyer is in excess of the category average for the Product, as determined by Buyer’s records; (c) a single or single group of defects in a Product (any manufacturing defect that affects the Product cosmetically or functionally) is determined by Buyer to impact more than 10% of such Products; (d) a Product (including any service parts, replacement parts, spare parts, assemblies and tools required for servicing Products) recall is necessary in the reasonable opinion of Buyer or Seller; or (e) the Product should be pulled from the marketplace to comply with applicable law as determined by Buyer in its sole discretion (including but not limited to, cases of a voluntary or mandatory consumer product safety recall); provided, however, that no Catastrophic Defect will be deemed to occur if the applicable defect results solely from an act or omission of Buyer.
Catastrophic Defects. Without prejudice to the application of Section 8, Seller shall, within 30 calendar days of Buyer's demand, indemnify Buyer or its designated third party service provider for all costs and expenses of parts, labor, administrative costs, shipping costs, replacement product costs and other expenses (including reasonable attorneys’ fees and expenses) related to or arising from a Catastrophic Defect, Product recall or Product field fix. “Catastrophic Defect” will be deemed to occur when Buyer determines that: (a) the representations and warranties set forth in Section 6 are breached with respect to (i) 3% or more of the Products shipped within any three-month period, or (ii) 1% of the Products shipped within the first six months of the initial agreement between Seller and Buyer;
Catastrophic Defects. Seller shall, within 10 days of Buyers Demand, indemnify Buyer for all cost and expenses of parts, labor, administrative costs, shipping costs, replacement product costs and other expenses (including reasonable attorneys’ fees and expenses) related to or arising from Catastrophic Defect, Product recall or Product field fix. “Catastrophic Defect” will be deemed to occur when: (i) the representations and warranties are breached with respect to 3% or more of the Products shipped within any three-month period; or 1% of the Products shipped within the first six months of the initial agreement between Seller and Buyer, (II) the return and exchange rate of the Product sold by the Seller to Buyer is in excess of the category average for the Product as determined by Buyer’s records; (iii) a single or single group of defects in a Product (any manufacturing defect that affects the Product cosmetically or functionally) is determined by Buyer to impact more than 10% of such Products; (iv) a Product (including any service part, replacement parts, spare parts, assemblies and tools required for servicing Products) recall is necessary in the reasonable opinion of Buyer or Seller; or (v) the Product should be pulled from the marketplace to comply with applicable law as determined by Buyer in its sole discretion (including but not limited to, cases of voluntary or mandatory consumer product safety recall); provided, however, that no Catastrophic Defect will be deemed to occur if the applicable defect results solely from an act or omission of Buyer.
Catastrophic Defects. (a) In the event that (i) within * * * of the first commercial shipment of the Products to Sprint Spectrum, * * * of any lot, batch or other separately distinguishable manufacturing run of Products delivered to Sprint Spectrum is found to be Defective within such * * * or (ii), at any time after such * * * but during the Term, in excess of * * * of any lot, batch or other separately distinguishable manufacturing run of Products shipped to Sprint Spectrum is found to be Defective within any consecutive * * * (any such defect, a "Catastrophic Defect"), Sprint Spectrum will notify NeoPoint thereof. Upon ------------------- receipt of such notification, NeoPoint will have * * * in which to determine the cause of and to remedy such Defect (the "Catastrophic Defect Cure Period"). Upon ------------------------------- such remediation, NeoPoint will promptly repair or replace any and all Products that were subject to the same or similar condition(s) causing such Catastrophic Defect (in (x) Sprint Spectrum's inventory, (y) Sprint Spectrum's distributing channels including, without limitation, with Sprint Spectrum's Agents and (z) any such Products sold by Sprint Spectrum to Purchasers) with repaired or otherwise replaced Products at NeoPoint's sole expense (including, without limitation, all freight and duty payments * Certain material (indicated by an asterisk) has been omitted from this document pursuant to a request for confidential treatment. The omitted material has been filed separately with the Securities and Exchange Commission. applicable thereto). In order to accurately determine that any Catastrophic Defect has in fact been cured by NeoPoint in accordance with the terms of this subsection 4.12, Sprint Spectrum will not exercise any of its remedies under this subsection 4.12 against NeoPoint until and unless the Defect percentages for any such lot, batch or other separately distinguishable manufacturing run of Products subject to such a Catastrophic Defect, as *** starting on the date NeoPoint commences any such remediation, has failed to fall below the applicable threshold percentage set forth above. Throughout the Term, Sprint Spectrum will provide NeoPoint with quarterly Defect reports with respect to the Products purchased hereunder.
