Common use of Failure to Supply Clause in Contracts

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. In the event that NDD SMSI is unable, or notifies CMS that it is unable, for any reason (including an event of force majeure) to supply the ASICs Oxygen Sensors (other than the prototype Oxygen Sensors referred to in Section 13.2) in accordance with the quantities and/or delivery dates specified by CMS pursuant to Section 13.313.2, NDD SMSI 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 SMSI to supply the undelivered ASICs Oxygen Sensors 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 designated by CMS that quantity of Oxygen Sensors as set forth in subparagraphs (B) CMS may determine or (C) abovepartially terminate the Agreement as to the purchase of Oxygen Sensors without further liability as to any firm purchase orders tendered to SMSI. If CMS determines to manufacture or have the Oxygen Sensors manufactured by a Third Party, NDD SMSI shall provide to CMS or such Third Party all necessary information, documentation, technical assistance and cooperation by appropriate employees of NDD SMSI at SMSI's expense on an expedited basis to enable CMS or such Third Party to manufacture the ASICs Oxygen Sensors 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 Without liability or breach of this information. In this eventAgreement, CMS shall continue to purchase ASICS from NDD and NDD shall continue to purchase ASICs from said may enter into a Third Party supplier until manufacturing contract that specifies a term of such contract that runs beyond the time as NDD that SMSI may or is able to resume supply of the ASICsOxygen Sensors to CMS. In The disclosure of any SMSI Confidential Information to a Third Party manufacturer shall be governed by Section 12 of this Agreement. Notwithstanding the event of failure to deliver ASICs due to insolvency on the part of NDDforegoing, CMS this paragraph shall have the right no applicability if SMSI is able to purchase ASICs directly from said Third Party suppliersupply during an Agreement Year at least ninety percent (90%) of CMS's annual estimate for that Agreement Year.