Failure to Supply Clause Samples
The "Failure to Supply" clause defines the consequences and procedures that apply if one party does not deliver goods or services as agreed in a contract. Typically, this clause outlines what constitutes a failure, such as missing delivery deadlines or providing insufficient quantities, and may specify remedies like penalties, the right to source from alternative suppliers, or even contract termination. Its core function is to protect the receiving party from disruptions or losses caused by non-performance, ensuring accountability and providing clear recourse if supply obligations are not met.
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Failure to Supply. 4.2.1 If Company becomes aware that a Supply Interruption is reasonably likely to occur, Company shall promptly notify AbbVie by telephone or by written notification and shall provide AbbVie with the opportunity to meet in person or by teleconference to discuss the details to the extent they are known by Company.
4.2.2 In the event that Company is unable, or notifies AbbVie that it is unable or otherwise receives notice from its CMO that it will be unable to supply, for any reason, except for a Force Majeure Event, to supply Product in accordance with the quantities and/or delivery dates specified by AbbVie for such Product via Purchase Orders, Company shall have a period of *** days or such longer time as necessary so long as Company is using commercially reasonable efforts to cure such interruption to supply, during which time Company will prioritize AbbVie Purchase Orders of Product over Company or other customer orders. If such interruption to supply continues after such sixty (60) day period, AbbVie may, in its sole discretion: (a) cancel outstanding Purchase Orders with Company; (b) require Company to supply the undelivered Product at a future date agreed upon by the Parties; or (c) at Company’s sole expense, manufacture or have manufactured by a Third Party designated and qualified by AbbVie such quantity of ribavirin as AbbVie may reasonably determine with notice to Company as will meet AbbVie’s worldwide requirements in light of such interruption to supply. AbbVie shall be entitled to receive from Company *** % of AbbVie’s cover damages, comprising cost differences between the Product’s cost and the replacement product’s cost, and reasonable costs associated with procuring replacements for the Product, until such time as Company is capable of resuming its supply obligations under this Agreement. Upon Company’s resolution of the interruption to supply to the reasonable satisfaction of AbbVie, AbbVie shall be required to resume purchasing the Applicable Percentage of AbbVie Product Requirements from Company but shall be excused from purchasing that portion attributable to the permitted purchases from the Third Party manufacturer under Section 4.2.2(c).
Failure to Supply. Subject to Section 14.1, if NEKTAR cannot supply at least [**] percent ([**]%) of the amount of the REAGENT consistent with and at the times specified by Sections 4.3 and 4.4 and does not cure the deficiency within [**] days after OPHTHOTECH so notifies NEKTAR in writing that a portion of the REAGENT due for delivery has not been delivered, after using all reasonable efforts, then NEKTAR will be considered as being unable to manufacture and sell to OPHTHOTECH the REAGENT under this AGREEMENT (“FAILURE”). In the case of a FAILURE for any reason, NEKTAR shall, subject to this Section 4.7, immediately work with OPHTHOTECH and grant to one THIRD PARTY contract manufacturer (the “CONTRACT MANUFACTURER” such CONTRACT MANUFACTURER being subject to approval by both OPHTHOTECH and NEKTAR, such approval to not be unreasonably withheld by either party) a personal, non-assignable, non-exclusive right and license under the LICENSED TECHNOLOGY to make the amount of REAGENT, for the sole purpose of OPHTHOTECH producing the PRODUCT, in accordance with OPHTHOTECH’s order for the relevant CALENDAR QUARTER as well as during the following [**] CALENDAR QUARTERS [**]. Such FAILURE by NEKTAR to supply OPHTHOTECH with the REAGENT will not be taken as a refusal by NEKTAR to supply OPHTHOTECH with the REAGENT for subsequent CALENDAR QUARTERS unless NEKTAR so indicates. With respect to such subsequent CALENDAR QUARTERS, if NEKTAR has demonstrated that it has the ability to supply all of OPHTHOTECH’s REAGENT requirements hereunder, OPHTHOTECH will resume purchases of the REAGENT from NEKTAR in the manner provided for by this AGREEMENT. Payments made by OPHTHOTECH to the CONTRACT MANUFACTURER for REAGENT supplied during a FAILURE shall be recognized by NEKTAR, and NEKTAR shall not seek payment for such supply. Notwithstanding the foregoing, all of OPHTHOTECH’s milestone and royalty obligations shall remain in effect during the period of any FAILURE. [**].”
Failure to Supply. In the event that NDD is unable, or notifies CMS that it is unable, for any reason (including an event of force majeure) to supply the ASICs in accordance with the quantities and/or delivery dates specified by CMS pursuant to Section 13.3, NDD shall promptly notify CMS. If such failure to supply will continue or does continue for a period of thirty (30) consecutive days, CMS may at its discretion (A) require NDD to supply the undelivered ASICs at a future date agreed upon by the parties; or (B) request that NDD transfer manufacture of ASICs to a Third Party vendor mutually agreed upon by NDD and CMS (the "Transfer Request"); or (C) if within 30 days from the date of CMS's Transfer Request, NDD and CMS have failed to agree upon a mutually acceptable Third Party vendor as set forth in subparagraph (B), then CMS may choose the third party vendor. If CMS and/or NDD determines to have the ASICs manufactured by a Third Party as set forth in subparagraphs (B) or (C) above, NDD shall provide to such Third Party all necessary information, documentation, technical assistance and cooperation by appropriate employees of NDD on an expedited basis to enable such Third Party to manufacture the ASICs in accordance with the appropriate specifications. Said production know-how and documentation shall remain proprietary to NDD and said third party vendor shall be required to sign a non-disclosure agreement to protect this information. In this event, CMS shall continue to purchase ASICS from NDD and NDD shall continue to purchase ASICs from said Third Party supplier until such time as NDD is able to resume supply of the ASICs. In the event of failure to deliver ASICs due to insolvency on the part of NDD, CMS shall have the right to purchase ASICs directly from said Third Party supplier.
Failure to Supply. 8.1 The Supplier shall deliver the exact quantity of Goods specified in an Order Form within fourteen (14) days of receipt by the Supplier of the Order Form, or within such other time period as may have been agreed in writing between the Parties in accordance with Clause 2 of Schedule 2 of these Call-Off Terms and Conditions ("Delivery Time") to the location address specified by the Authority. Time shall be of the essence in relation to such Delivery Time.
8.2 If the Supplier is unable to supply the Goods in accordance with Clause 8.1 of this Schedule 1 of these Call-Off Terms and Conditions due to circumstances beyond its reasonable control, the Supplier shall be entitled to provide essentially similar goods to the Authority provided that:
8.2.1 the Supplier notifies the Authority without delay and within the Delivery Time when it becomes aware that it will not be able to supply the Goods in accordance Clause 8.1 of this Schedule 1 of these Call-Off Terms and Conditions;
8.2.2 the notice referred to in Clause 8.2.1 of this Schedule 1 of these Call- Off Terms and Conditions stipulates the reason for the Supplier’s inability to supply the Goods so ordered;
8.2.3 the Supplier supplies to the regional quality control pharmacist or the Authority all information set out on PharmaQC or any drug quality assurance database that replaces PharmaQC in respect of the essentially similar goods;
8.2.4 the essentially similar goods are approved in writing by the regional quality control pharmacist or the Authority; and
8.2.5 the Supplier provides such quantities of alternative essentially similar goods as are necessary to make up any shortfall in the Goods to the Authority prior to expiry of the Delivery Time.
8.3 If the Supplier fails to deliver the exact quantity of Goods or essentially similar goods within the Delivery Time in accordance with Clauses 8.1 and/or 8.2 of this Schedule 1 of these Call-Off Terms and Conditions, then the Authority shall be entitled to:
8.3.1 terminate this Contract with immediate effect on giving written notice to the Supplier; and/or
8.3.2 the Authority shall be entitled to purchase other goods to make good such default and recover from the Supplier:
(i) the amount by which the cost of purchasing other goods from a third party exceeds the amount that would have been payable to the Supplier in respect of the Goods replaced by such purchase provided that the Authority uses all reasonable endeavours to mitigate its losses. If the Supplier has...
Failure to Supply. Notwithstanding any provision herein to the contrary, in the event that PRONOVA for any reason (including a Force Majeure event) shall not have delivered the total amount of API ordered by RELIANT in accordance with this Section 5 within sixty (60) days of the date specified in RELIANT’s order (a “Failure to Supply”), then the provisions of this Section 5.12 shall apply. In no event shall PRONOVA have any liability under this Agreement for a Failure to Supply occurring prior to July 1, 2005 or for failure to supply RELIANT with API in excess of 250,000 kilograms in total during calendar year 2005.
Failure to Supply. (a) In the event that it becomes apparent to uniQure that it will be unable to fulfill any Confirmed Firm Order for the Product (“Failure to Supply”), uniQure shall, immediately after learning of such event or circumstances, notify Chiesi in writing of uniQure’s Failure to Supply, along with a reasonable explanation of the reason, to the extent then known to uniQure, for uniQure’s Failure to Supply and with a specific indication of the quantity of Product affected by such Failure to Supply and anticipated timing of delivery of the Product. Promptly after Chiesi’s receipt of any such notice, the Parties shall agree upon mutually acceptable revised quantities and delivery dates with respect to the Product subject to such Confirmed Firm Order or, to the extent this is not possible in light of the specific or then unknown reason for uniQure’s Failure to Supply, shall discuss in good faith measures to further investigate the root cause and, as the case may be, appropriate steps to overcome such Failure to Supply.
(b) Notwithstanding paragraph (a), in the event that Chiesi cannot fulfill any firm orders for the Product received from any Third Parties as a consequence of uniQure’s Failure to Supply, except if such Failure to Supply is caused as a result of any Force Majeure Event, then Chiesi shall be entitled to an indemnification payment equal to Chiesi’s Lost Profit for the period during which Chiesi has been affected by the Failure to Supply. Any indemnification payment made to Chiesi under this paragraph for Failure to Supply shall be reimbursed in full to uniQure, in case any patient who suffered from the Failure to Supply is then subsequently treated. Such indemnification payments and reimbursements, if any, shall be calculated on a calendar year basis, such calculation to be made within [**] days after the end of the corresponding calendar year and any resulting amount to be paid within [**] days after such calculation has been made. uniQure, in relying on the above Force Majeure Event exceptions, shall provide reasonably detailed particulars of the reasons underlying any such Force Majeure Event to Chiesi and shall allocate its existing stocks of the Product between uniQure, its Affiliates, Chiesi and other distributors of the Product, on a pro-rata basis, based upon order volumes for the Product for the prior [**]month period.
(c) For the purpose of this Section 2.6, “Profit” shall be calculated, on a per Product basis, as the difference between (a) the...
Failure to Supply. The SA will include remedies and other consequences for supply failure (to be defined in the SA) including: (i) rights for AstraZeneca to access relevant information in the possession of FibroGen and its affiliates relating to the manufacturing processes for the Product; and (ii) rights for AstraZeneca to contact FibroGen’s suppliers (including suppliers of the active pharmaceutical ingredient for the Product), both (i) and (ii) to assess the feasibility of (including contracting with) such suppliers manufacturing and supplying the Product to AstraZeneca, solely in the event of a supply failure by FibroGen.
Failure to Supply. If NANOCOMPOSIX [***] of the Materials ordered pursuant to the terms of this Agreement, NANOCOMPOSIX will promptly notify SIENNA . If at any time during the term (a) such notice is received by SIENNA from NANOCOMPOSIX with respect to [***] of Materials ordered by SIENNA [***], (b) NANOCOMPOSIX makes any delivery of [***] Materials more than [***] ([***]) days later that the required delivery date, (c) NANOCOMPOSIX’s deliveries of [***] Materials ordered by SIENNA are late in aggregate by [***] ([***]) days or more in any [***] ([***]) day period, (d) upon [***] request by SIENNA [***], NANOCOMPOSIX fails to provide [***] of [***] to [***] to [***] as [***] of [***], or (e) NANOCOMPOSIX supplies [***] Materials and fails to provide [***] replacement Materials within [***] ([***]) days from notification of the defect, then, SIENNA in its sole discretion shall have the right to cancel [***] existing orders for the Materials [***] and/or to exercise SIENNA right on a going forward basis to obtain the Materials from third parties and/or manufacture the Materials itself. In this instance, NANOCOMPOSIX will provide the [***] and transfer [***] technology necessary for the manufacture of the Materials at a [***] purchase price to be agreed by the parties, such purchase price not to exceed of [***] Dollars ($[***]), [***], and NANOCOMPOSIX will grant to SIENNA and its Affiliates, and hereby grants to SIENNA and its Affiliates, effective immediately upon such payment, [***], a royalty-free, fully-paid up, exclusive license, with the right to sublicense pursuant to Section 3.2 of the Agreement, under NANOCOMPOSIX’S rights to the Materials, to make, have made, use, have used, sell, have sold, offer to sell, have offered for sale, import and have imported Licensed Products in the Field in the Territory.
Failure to Supply. 7.1 If, in any Period during the Term, Seller fails to supply PET Products required by the Buyers in the Annual Forecast or a mutually agreed Revised Forecast, as the case may be, whether due to Force Majeure, as defined in Section 15.1 hereof, or otherwise, Seller shall immediately notify PCAM in writing of the nature, extent and estimated duration of such failure. Upon receipt of such notice, Buyers shall be entitled to purchase suitable PET Products to replace the PET Products not being supplied by Seller from another source (a “Third Party Supplier”) without thereby terminating or breaching this Agreement and without any impairment of PCAM’s right of termination under Section 7.5 below.
7.2 With the exception of a failure to supply (a) caused by Force Majeure, and (b) Container volume in excess of [ * * * ] and/or Preform volume in excess of [ * * * ] of the applicable forecast confirmed by Seller, Seller shall indemnify and hold harmless the Buyers from and against all reasonable and substantiated costs and expenses incurred by Buyer arising out of Seller’s inability to supply PET Products including but not limited to Buyers’ cost in purchasing replacement PET Products at prices including freight which are in excess of those set forth herein. These costs and expenses shall not include lost profits of the Buyers.
7.3 Buyer shall take all commercially reasonable steps to minimize the damages and expenses it incurs as a result of Seller’s failure to supply PET Products.
7.4 Seller covenants and agrees to utilize its commercially reasonable efforts to assist Buyers in purchasing suitable PET Products in the event that Seller is unable to supply the quantity of PET Products required in accordance with the Annual Forecast or Revised [ * * * ] Confidential treatment requested. Supply Agreement CONFIDENTIAL Forecast, as the case may be; or Container volume in excess of [ * * * ] and/or Preform volume in excess of [ * * * ] of the applicable forecast that Seller is unable to supply.
7.5 In the event that Seller is unable to supply PET Products required by a Buyer in accordance with this Agreement for a period which exceeds [ * * * ] consecutive days, excluding all supply interruptions due to Force Majeure events, PCAM shall be entitled to terminate this Agreement with respect to any or all Buyer locations impacted by the supply interruption upon [ * * * ] days’ written notice without further financial obligation or damages being payable by Buyers.
7.6 Any PET ...
Failure to Supply. A failure to supply (a "Failure to Supply") shall occur if after the date hereof, (A) there occurs a pre-commercialization audit failure in accordance with Section 3.2 hereof, or (B) there occurs a post-commercialization audit and inspection failure in accordance with Section 3.3 hereof, or (C) the parties are unable or unwilling or have failed for any reason to agree on the initial Specifications 6 months after submission of the Market Requirements in accordance with Section 4.1 hereof, or (D) for a period of or exceeding 60 days Genetronics is unable or unwilling or has failed for any reason (including the occurrence of a Force Majeure Event as defined in Section 11.6, or following commencement of a case by or against Genetronics under the Bankruptcy Code (as defined in Section 11.7)) to supply to Ethicon 85% or more of any Products in compliance with the desired delivery date specified in the purchase orders submitted by Ethicon in accordance with Section 5.3, or (E) there occurs an Event of Default which is caused by Genetronics and Ethicon elects not to terminate this Agreement pursuant to Section 11.5; and thereafter such Failure to Supply is not cured by Genetronics within 30 days after receipt of written notice from Ethicon. After the occurrence of a Failure to Supply, (i) Ethicon may make and have made the Products pursuant to the license granted in Section 7.1 above, (ii) Ethicon shall have no obligation to purchase any further Products from Genetronics hereunder, (iii) Genetronics shall instruct the Escrow Agent to make available to Ethicon or its designee the contents of the Escrow Account, (iv) Genetronics shall provide such assistance, training and other information as shall be necessary in order for Ethicon or its designated supplier to manufacture or have manufactured the Products, and (v) Ethicon