Common use of Failure to Supply for Reasons Other Than Force Majeure Clause in Contracts

Failure to Supply for Reasons Other Than Force Majeure. In the event PRONOVA is unable to supply to RELIANT its total requirements of the API for the Product and any Additional Products ordered in accordance with this Section 5 for a reason other than a Force Majeure (a “Non-Force Majeure Failure to Supply”), then PRONOVA shall use commercially reasonable efforts to ensure deliveries of the API to RELIANT from third parties and at no increased cost to RELIANT; provided, however, that to the extent, in the exercise of such commercially reasonable efforts, PRONOVA is required to pay more than the then applicable Base Supply Price for Trade Product applicable under Section 7.1 of this Agreement for any such API procured from a third party, RELIANT will (in addition to payment of the Base Supply Price) bear fifty percent (50%) of the incremental cost of such API above then applicable Base Supply Price for Trade Product applicable under Section 7.1 of this Agreement, so long as PRONOVA’s inability to deliver API is not due to the gross negligence or intentional misconduct of PRONOVA. If during the term if this Agreement PRONOVA, for a period of at least four (4) consecutive months has been unable to supply to RELIANT as a result of a Non-Force Majeure Failure to Supply (or otherwise obtain for RELIANT pursuant to this Section 5.12(d)), RELIANT’s total requirements of the API for the Product and any Additional Products ordered in accordance with this Section 5, then RELIANT shall be free to obtain its requirements for API from a Third Party Manufacturer, in which event PRONOVA shall bear fifty percent (50%) of the incremental cost of such API above then applicable Base Supply Price for Trade Product applicable under Section 7.1 of this Agreement. In addition, PRONOVA shall, free of charge (but subject to reasonable confidentiality undertakings), (i) provide such reasonable technical assistance and (ii) grant such licenses or other rights (at no additional cost to RELIANT or any other party) as are necessary to enable such Third Party Manufacturer to meet RELIANT’s supply requirements for API without infringing patent rights or engaging in any misappropriation of know-how owned or controlled by PRONOVA; provided, however, RELIANT shall (subject to reasonable confidentiality undertakings) be free to communicate with potential Third Party Manufacturers and provide them with information in RELIANT’s possession regarding the API at any time following the occurrence of a failure to supply. As soon as PRONOVA is again able to deliver all of RELIANT’s requirements of the API, PRONOVA shall notify RELIANT and RELIANT shall have 120 days to resume procuring its requirements for the API from PRONOVA and shall discontinue any and all purchases from Third Party Manufacturers; provided, however, that PRONOVA shall reimburse RELIANT for any costs associated with such discontinuation up to an amount which shall not exceed USD one (1) million or, in the event that PRONOVA shall not have qualified an additional manufacturing site as contemplated in Section 5.13 prior to such failure to supply, USD three (3) million. In such event, the Parties shall negotiate in good faith the reinstatement of any minimum purchase requirements under Section 6 of this Agreement, taking into account any purchases of API by RELIANT from other manufacturing sources. RELIANT agrees that PRONOVA’s maximum liability to RELIANT for a Non-Force Majeure Failure to Supply shall be equal to all amounts paid by or on behalf of RELIANT to PRONOVA in connection with the signing of this Agreement pursuant to Section 4.1 (as set out in Schedule 4.1) (i.e., the initial up front payment, excluding any subsequent Approvable Letter or final FDA approval payments paid pursuant such provisions) and that receipt of payment of such amounts shall be RELIANT’s sole remedy for a Non-Force Majeure Failure to Supply; provided, however, that such limitation on liability and remedies shall not apply in the event that such failure to supply is the result of PRONOVA’s gross negligence or intentional misconduct, but shall otherwise be subject to the limitations under Section 16.4.

Failure to Supply for Reasons Other Than Force Majeure. In the event PRONOVA is unable to supply to RELIANT its total requirements of the API for the Product and any Additional Products ordered in accordance with this Section 5 for a reason other than a Force Majeure (a “Non-Force Majeure Failure to Supply”), then PRONOVA shall use commercially reasonable efforts to ensure deliveries of the API to RELIANT from third third-parties and at no increased cost to RELIANT; provided, however, that to the extent, in the exercise of such commercially reasonable efforts, PRONOVA is required to pay more than the then applicable Base Supply Price for Trade Product applicable under Section 7.1 of this Agreement for any such API procured from a third party, RELIANT will (in addition to payment of the Base Supply Price) bear fifty percent (50%) [***] of the incremental cost of such API above then applicable Base Supply Price for Trade Product applicable under Section 7.1 of this Agreement, so long as PRONOVA’s inability to deliver API is not due to the gross negligence or intentional misconduct of PRONOVA. If during the term if this Agreement PRONOVA, for a period of at least four (4) consecutive months has been unable to supply to RELIANT as a result of a Non-Force Majeure Failure to Supply (or otherwise obtain for RELIANT pursuant to this Section 5.12(d)), RELIANT’s total requirements of the API for the Product and any Additional Products ordered in accordance with this Section 5, then RELIANT shall be free to obtain its requirements for API from a Third Party Manufacturer, in which event PRONOVA shall bear fifty percent (50%) [***] of the incremental cost of such API above then applicable Base Supply Price for Trade Product applicable under Section 7.1 of this Agreement. In addition, PRONOVA shall, free of charge (but subject to reasonable confidentiality undertakings), (i) provide such reasonable technical assistance and (ii) grant such licenses or other rights (at no additional cost to RELIANT or any other party) as are necessary to enable such Third Party Manufacturer to meet RELIANT’s supply requirements for API without infringing patent rights or engaging in any misappropriation of know-how owned or controlled by PRONOVA; provided, however, RELIANT shall (subject to reasonable confidentiality undertakings) be free to communicate with potential Third Party Manufacturers and provide them with information in RELIANT’s possession regarding the API at any time following the occurrence of a failure to supply. As soon as PRONOVA is again able to deliver all of RELIANT’s requirements of the API, PRONOVA shall notify RELIANT and RELIANT shall have 120 days to resume procuring its requirements for the API from PRONOVA and shall discontinue any and all purchases from Third Party Manufacturers; provided, however, that PRONOVA shall reimburse RELIANT for any costs associated with such discontinuation up to an amount which shall not exceed USD one (1) million [***] or, in the event that PRONOVA shall not have qualified an additional manufacturing site as contemplated in Section 5.13 prior to such failure to supply, USD three (3) million[***]. In such event, the Parties shall negotiate in good faith the reinstatement of any minimum purchase requirements under Section 6 of this Agreement, taking into account any purchases of API by RELIANT from other manufacturing sources. RELIANT agrees that PRONOVA’s maximum liability to RELIANT for a Non-Force Majeure Failure to Supply shall be equal to all amounts paid by or on behalf of RELIANT to PRONOVA in connection with the [***]: Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. signing of this Agreement pursuant to Section 4.1 (as set out in Schedule 4.1) (i.e., the initial up front payment, excluding any subsequent Approvable Letter or final FDA approval payments paid pursuant such provisions) and that receipt of payment of such amounts shall be RELIANT’s sole remedy for a Non-Force Majeure Failure to Supply; provided, however, that such limitation on liability and remedies shall not apply in the event that such failure to supply is the result of PRONOVA’s gross negligence or intentional misconduct, but shall otherwise be subject to the limitations under Section 16.4.

Failure to Supply for Reasons Other Than Force Majeure. In the event PRONOVA is unable to supply to RELIANT its total requirements of the API for the Product and any Additional Products ordered in accordance with this Section 5 for a reason other than a Force Majeure (a “Non-Force Majeure Failure to Supply”), then PRONOVA shall use commercially reasonable efforts to ensure deliveries of the API to RELIANT from third third-parties and at no increased cost to RELIANT; provided, however, that to the extent, in the exercise of such commercially reasonable efforts, PRONOVA is required to pay more than the then applicable Base Supply Price for Trade Product applicable under Section 7.1 of this Agreement for any such API procured from a third party, RELIANT will (in addition to payment of the Base Supply Price) bear fifty percent (50%) of the incremental cost of such API above then applicable Base Supply Price for Trade Product applicable under Section 7.1 of this Agreement, so long as PRONOVA’s inability to deliver API is not due to the gross negligence or intentional misconduct of PRONOVA. If during the term if this Agreement PRONOVA, for a period of at least four (4) consecutive months has been unable to supply to RELIANT as a result of a Non-Force Majeure Failure to Supply (or otherwise obtain for RELIANT pursuant to this Section 5.12(d)), RELIANT’s total requirements of the API for the Product and any Additional Products ordered in accordance with this Section 5, then RELIANT shall be free to obtain its requirements for API from a Third Party Manufacturer, in which event PRONOVA shall bear fifty percent (50%) of the incremental cost of such API above then applicable Base Supply Price for Trade Product applicable under Section 7.1 of this Agreement. In addition, PRONOVA shall, free of charge (but subject to reasonable confidentiality undertakings), (i) provide such reasonable technical assistance and (ii) grant such licenses or other rights (at no additional cost to RELIANT or any other party) as are necessary to enable such Third Party Manufacturer to meet RELIANT’s supply requirements for API without infringing patent rights or engaging in any misappropriation of know-how owned or controlled by PRONOVA; provided, however, RELIANT shall (subject to reasonable confidentiality undertakings) be free to communicate with potential Third Party Manufacturers and provide them with information in RELIANT’s possession regarding the API at any time following the occurrence of a failure to supply. As soon as PRONOVA is again able to deliver all of RELIANT’s requirements of the API, PRONOVA shall notify RELIANT and RELIANT shall have 120 days to resume procuring its requirements for the API from PRONOVA and shall discontinue any and all purchases from Third Party Manufacturers; provided, however, that PRONOVA shall reimburse RELIANT for any costs associated with such discontinuation up to an amount which shall not exceed USD one (1) million or, in the event that PRONOVA shall not have qualified an additional manufacturing site as contemplated in Section 5.13 prior to such failure to supply, USD three (3) million. In such event, the Parties shall negotiate in good faith the reinstatement of any minimum purchase requirements under Section 6 of this Agreement, taking into account any purchases of API by RELIANT from other manufacturing sources. RELIANT agrees that PRONOVA’s maximum liability to RELIANT for a Non-Force Majeure Failure to Supply shall be equal to all amounts paid by or on behalf of RELIANT to PRONOVA in connection with the signing of this Agreement pursuant to Section 4.1 (as set out in Schedule 4.1) (i.e., the initial up front payment, excluding any subsequent Approvable Letter or final FDA approval payments paid pursuant such provisions) and that receipt of payment of such amounts shall be RELIANT’s sole remedy for a Non-Force Majeure Failure to Supply; provided, however, that such limitation on liability and remedies shall not apply in the event that such failure to supply is the result of PRONOVA’s gross negligence or intentional misconduct, but shall otherwise be subject to the limitations under Section 16.4.