Forecasts and Orders 7.7.1. Not less than [*] prior to the first day of each Calendar Quarter (commencing with the first Calendar Quarter in which IMMEDICA orders Product from the LICENSOR hereunder), IMMEDICA shall prepare and provide the LICENSOR with a written forecast of its good faith estimated requirements for Product for each of [*] (each a “Forecast”). IMMEDICA shall not increase or decrease the quantity estimated for [*] of each Forecast from the quantity estimated for such periods in the previous Forecast. The quantities estimated for all subsequent Calendar Quarters of each Forecast shall be non-binding, and for planning purposes only. By way of example, if IMMEDICA issues a forecast on [*], [*] shall be binding on the Parties and the forecasts for [*] shall not be binding on the Parties. In addition, IMMEDICA will provide on a country-by-country basis its good faith estimated number of patients to be treated in the Forecast for the purposes of LICENSOR providing dosimetric doses of the Product. LICENSOR will supply dosimetric doses based on such Forecast of the Product in a manner it reasonably believes most efficient, provided however, it will ensure that dosimetric doses are supplied to all identified patients in accordance with the terms of this Agreement. Therapeutic doses of the Product will be supplied on a per patient basis pursuant to the terms of this Agreement.
7.7.2. The LICENSOR shall be required to supply the quantity of Product ordered by IMMEDICA under this Section 7.7 in any Calendar Quarter up to the quantity forecasted for the [*] of the most recent Forecast in a manner that is reasonably practical given the nature of the Product. If IMMEDICA’s orders in any Calendar Quarter exceed the quantity forecasted for the [*] of the most recent Forecast, the LICENSOR shall use commercially reasonable efforts to supply such excess. The LICENSOR shall use commercially reasonable efforts to meet IMMEDICA’s delivery requirements specified in accordance with Section 7.7.3. In the event of a shortfall, the LICENSOR shall promptly inform IMMEDICA and use Commercially Reasonable Efforts to apportion Product among IMMEDICA, the LICENSOR, and its other customers on a [*] according to their respective forecasts for the relevant period provided always that such forecasts were proposed in good faith. The LICENSOR shall not give priority of supply to its requirements or its licensees requirements for the Product outside the Territory.
7.7.3. IMMEDICA shall make all purchases under this Section 7.7 by submitting firm purchase orders to the LICENSOR. On a [*] basis, IMMEDICA shall submit such purchase order in writing in a form reasonably acceptable to the LICENSOR, and shall specify the quantity of Product ordered, the place of delivery and the required delivery date therefor, which shall not be less than [*] from after the date of such purchase order. On a continual basis, IMMEDICA shall inform LICENSOR as soon as practical of identified potential patient and when a dosimetric dose of Product has been administered. Except as otherwise expressly provided in this Agreement, the LICENSOR shall be paid for its supply of the Product via the royalty paid by IMMEDICA under Section 6.1.3.
7.7.4. During the Term of this Agreement, to the extent that IMMEDICA orders a quantity of Product that is less than the quantity specified in the binding [*] of the Forecasts provided under Section 7.7.1, IMMEDICA shall refund LICENSOR’s wasted out-of pocket costs of buying iodine 131 and/or reserving non- cancellable manufacturing slots to manufacture Product that was not subsequently ordered, subject to the provision by LICENSOR of appropoirate evidence of such costs and to the extent that such iodine 131 or such manufacturing slots cannot be reused or cancelled by LICENSOR.
Product Orders All Product orders shall be submitted by the Operators to DISTRIBUTOR and shall specify the location of the Operator’s Stores, the type of Product, and the quantity desired. Operators may place orders electronically (“Electronic Orders”) or by faxing DISTRIBUTOR’s customer service center in accordance with the guidelines detailed below. DISTRIBUTOR will also accept telephone orders on a very limited exception basis for those Operators approved in writing by the COMPANY. All shipment expenses from DISTRIBUTOR’s distribution center to the Operator’s location shall be at DISTRIBUTOR’s expense unless otherwise noted elsewhere in this Agreement. Product order guides will be provided by DISTRIBUTOR to the Operators monthly via DISTRIBUTOR’s website or email if so requested by Operator and, on a limited exception basis approved in writing by the COMPANY, with a hard copy mailed to the affected Store, with availability of such order guides to be made prior to the beginning of the month, but only after review and approval of the order guide by COMPANY. The order guides will be organized by Product categories and will include, among other things, the Product Sell Price (as defined herein), Product units and new Products. DISTRIBUTOR will assign one product code number to each stock-keeping unit (“SKU”) of each Product, which will be common throughout its entire distribution system and will be used on all documents such as order guides, invoices, monthly reports, etc. SKU’s, and, accordingly, the assigned product code number, must differ for equivalent Products supplied by different suppliers. Only Products approved for sale to its Operators by the COMPANY will be listed on this order guide. Electronic Orders will be placed via telephone modem or internet using DISTRIBUTOR’s automated order entry system. All orders are subject to the standard order cut-off time of 4:00 p.m. Pacific time, two (2) days prior to their scheduled delivery day, with the exception of Stores located in the States of Oregon, Washington, and Idaho, which must be submitted three (3) days prior to their scheduled delivery day. Operators will be notified prior to the time of final order cut-off if a product is expected to be out of stock so that an alternative may be ordered, subject to the provisions of Section 3.02. Operators will have until 5:00 p.m, one (1) day before their order shipping day to modify or add-on to their order (Saturday at 5:00 p.m. for Stores whose deliveries will leave DISTRIBUTOR’s facility on Monday). Where reasonably possible, DISTRIBUTOR will schedule ordering days and delivery days that are mutually agreed upon by and between DISTRIBUTOR and each Operator and will provide notice to the affected Operator of at least fourteen (14) days before routing changes. Except for deliveries to the states of Washington, Oregonand Idaho, wherever reasonably possible and unless approved in advance by the COMPANY, DISTRIBUTOR will include no more than one “skip day” between the date of order and date of delivery (Sunday is not counted as a skip day). For example, orders scheduled for delivery on Wednesday will be placed no earlier than Monday. Orders scheduled for delivery on Monday will be placed on Friday. In the event DISTRIBUTOR must include more than one “skip day” between the date of order and date of delivery it will notify COMPANY in advance and obtain COMPANY’s approval. In no event will there ever be more than two “skip days” permitted. DISTRIBUTOR may schedule deliveries on any day of the week. On an exception basis, DISTRIBUTOR will consider shortening the permissible time frames for scheduled deliveries for those Operators that, given unique and compelling business needs, require the same. Operator will be notified of any Product shortages at the time of order placement or, in the case of an Electronic Order, one (1) day prior to the loading of the delivery truck.
Stop Work Orders A. The JBE may, at any time, by Notice to Contractor, require Contractor to stop all or any part of the Services for a period up to ninety (90) days after the Notice is delivered to Contractor, and for any further period to which the parties may agree (“Stop Work Order”). The Stop Work Order shall be specifically identified as such and shall indicate it is issued under this provision. Upon receipt of the Stop Work Order, Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the Services covered by the Stop Work Order during the period of stoppage. Within ninety (90) days after a Stop Work Order is delivered to Contractor, or within any extension of that period to which the parties shall have agreed, the JBE shall either (i) cancel the Stop Work Order; or (ii) terminate the Services covered by the Stop Work Order as provided for in this Agreement.
B. If a Stop Work Order issued under this provision is canceled or the period of the Stop Work Order or any extension thereof expires, Contractor shall resume the performance of Services. The JBE shall make an equitable adjustment in the delivery schedule, the Contract Amount, or both, and the Agreement shall be modified, in writing, accordingly, if:
i. The Stop Work Order results in an increase in the time required for, or in Contractor’s cost properly allocable to the performance of any part of this Agreement; and
ii. Contractor requests an equitable adjustment within thirty (30) days after the end of the period of stoppage; however, if the JBE decides the facts justify the action, the JBE may receive and act upon a proposal submitted at any time before final payment under this Agreement.
C. The JBE shall not be liable to Contractor for loss of profits because of a Stop Work Order issued under this provision.
Business Contracts (a) Schedule 2.13(a) sets forth a true, complete and correct list of the following Contracts (x) to which any of the Companies are a party as of the date of this Agreement or (y) by which any of the Companies are otherwise bound (other than (I) Contracts for commercially available software or any clickwrap, shrinkwrap or other similar standard form electronic Contracts and Company Benefit Plans and (II) the Leases) (the “Business Contracts”):
(i) any Contract providing for aggregate annual payments to or by the Companies in excess of One Hundred Thousand Dollars ($100,000);
(ii) any Contract that relates to the sale of any of the Companies, in whole or in part, directly or indirectly, or a material portion of the Companies’ assets, other than the sale of tangible personal property in the Ordinary Course of Business;
(iii) any property management, leasing, brokerage or similar Contract with respect to the Real Property;
(iv) any Contract relating to indebtedness (including, without limitation, guarantees) of any Company, in each case having an outstanding principal amount in excess of One Hundred Thousand Dollars ($100,000), other than indebtedness that is being paid in full at the Closing;
(v) all collective bargaining agreements or agreements with any labor organization, union or association to which any Company is a party;
(vi) any Contract under which any Company grants any exclusive rights, noncompetition rights, rights of first refusal, rights of first offer or rights of first negotiation to any Person;
(vii) any Contract that contains a covenant not to compete that restricts the Business of the Companies or their Subsidiaries in any geographic location;
(viii) all partnership agreements, limited liability company agreements and joint venture agreements relating to the Companies; and
(ix) any Contract relating to the acquisition or sale of a business (or all or substantially all of the assets thereof) by the Companies.
(b) HoldCo has made available or has caused to be made available to the Buyer Parties, prior to the date hereof, true, correct and complete copies of each Business Contract, together with all amendments or supplements thereto. There exist no defaults under any Business Contract by any of the Companies, or, to HoldCo’s Knowledge, by any other Person that is a party to any Business Contract. To HoldCo’s Knowledge, no party to any Business Contract other than the Companies intends to terminate any Business Contract.
Supply Agreements For a period of three years from the consummation of the IPO, Odetics shall not unilaterally terminate or assign its guarantee obligation with respect to any supply agreement pursuant to which it has guaranteed the performance by ATL of ATL's obligations, unless such suppliers have consented to the termination or assignment of such guarantee.
