Common use of Failure to Supply Clause in Contracts

Failure to Supply. 7.1 If, in any Period during the Term, Seller fails to supply Containers required by Buyer in accordance with the Annual Forecast or the Revised Forecast, as the case may be, whether due to force majeure, as defined in Section 16.1 hereof, or otherwise, Seller shall immediately notify Buyer in writing of the nature, extent and estimated duration of such failure. Upon receipt of such notice, Buyer shall be entitled to purchase suitable beverage Containers from another source (a “Third Party Supplier”) during such period without thereby terminating or breaching this Agreement. 7.2 With the exception of a failure to supply caused by Force Majeure, and with the further exception of a failure to supply in excess of [***]of orders the timing and quantities of which are consistent with the latest Annual Forecast or Revised Forecast, as the case maybe, which has been mutually agreed upon and committed to by both Buyer and Seller, Seller shall indemnify and hold harmless Buyer from and against all reasonable and substantiated costs and expenses incurred by Buyer arising out of Seller’s inability to supply Containers including but not limited to Buyer’s cost in purchasing replacement Containers at prices including freight which are in excess of those set forth herein. These expenses shall not include lost profits of Buyer. 7.3 Buyer shall take all reasonable steps to minimize the damages and expenses it incurs as a result of Seller’s failure to supply Containers. 7.4 Seller covenants and agrees to utilize its best efforts to assist Buyer in purchasing suitable beverage Containers in the event that Seller is unable to supply the quantity of Containers required in accordance with the Annual Forecast or Revised Forecast, as the case may be, or if Seller is unable to supply Buyer with its requirements if in excess of [***] of the Annual Forecast or Revised Forecast. 7.5 In the event of any interruption of Seller’s ability to meet purchase orders placed by Buyer, Seller shall notify Buyer in writing when it is able to resume supply of Containers in accordance with the Annual Forecast or Revised Forecast, as the case may be. Upon receipt of such notice, Buyer shall, subject to its remaining contractual obligations with any Third Party Seller and [***] Confidential treatment requested subject to Section 7.6 hereof, resume purchasing its requirements for Containers from Seller in accordance with the terms of this Agreement. 7.6 In the event that Seller is unable to supply Containers required by Buyer in accordance with this Agreement for a period which exceeds [***] consecutive days excluding all supply interruptions due to Force Majeure events, Buyer shall be entitled to terminate this Agreement upon [***] days’ written notice without further penalty or damages being payable by Buyer. 7.7 Any Containers secured from alternate sources shall be credited against the Annual Forecast or the Revised Forecast requirements. The parties shall use their best efforts to minimize the volume and duration of any such shortfall, and any commitment to other suppliers necessary to cover such shortfall.

Failure to Supply. 7.1 If, in any Period during the Term, Seller fails to supply Containers PET Products required by Buyer the Buyers in accordance with the Annual Forecast or the a mutually agreed Revised Forecast, as the case may be, whether due to force majeureForce Majeure, as defined in Section 16.1 15.1 hereof, or otherwise, Seller shall immediately notify Buyer PCAM in writing of the nature, extent and estimated duration of such failure. Upon receipt of such notice, Buyer Buyers shall be entitled to purchase suitable beverage Containers PET Products to replace the PET Products not being supplied by Seller from another source (a “Third Party Supplier”) during such period without thereby terminating or breaching this AgreementAgreement 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 with the further exception of a failure to supply (b) Container volume in excess of [***][ * * * ] and/or Preform volume in excess of orders [ * * * ] of the timing and quantities of which are consistent with the latest Annual Forecast or Revised Forecast, as the case maybe, which has been mutually agreed upon and committed to applicable forecast confirmed by both Buyer and Seller, Seller shall indemnify and hold harmless Buyer the Buyers from and against all reasonable and substantiated costs and expenses incurred by Buyer arising out of Seller’s inability to supply Containers PET Products including but not limited to Buyer’s Buyers’ cost in purchasing replacement Containers 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 Buyerthe 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 ContainersPET Products. 7.4 Seller covenants and agrees to utilize its best commercially reasonable efforts to assist Buyer Buyers in purchasing suitable beverage Containers PET Products in the event that Seller is unable to supply the quantity of Containers PET Products required in accordance with the Annual Forecast or Revised [ * * * ] Confidential treatment requested. Supply Agreement CONFIDENTIAL Forecast, as the case may be, ; or if Container volume in excess of [ * * * ] and/or Preform volume in excess of [ * * * ] of the applicable forecast that Seller is unable to supply Buyer with its requirements if in excess of [***] of the Annual Forecast or Revised Forecastsupply. 7.5 In the event of any interruption of Seller’s ability to meet purchase orders placed by Buyer, Seller shall notify Buyer in writing when it is able to resume supply of Containers in accordance with the Annual Forecast or Revised Forecast, as the case may be. Upon receipt of such notice, Buyer shall, subject to its remaining contractual obligations with any Third Party Seller and [***] Confidential treatment requested subject to Section 7.6 hereof, resume purchasing its requirements for Containers from Seller in accordance with the terms of this Agreement. 7.6 In the event that Seller is unable to supply Containers PET Products required by a Buyer in accordance with this Agreement for a period which exceeds [***[ * * * ] consecutive days days, excluding all supply interruptions due to Force Majeure events, Buyer 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 penalty financial obligation or damages being payable by BuyerBuyers. 7.7 7.6 Any Containers PET Products secured from alternate sources when permitted by this Section 7 shall be credited against the then Annual Forecast or the mutually agreed Revised Forecast requirementsand considered as PET Products supplied by Seller for the purpose of volume [ * * * ] reconciliations. The parties shall use their best commercially reasonable efforts to minimize the volume and duration of any such shortfall, and any commitment to other suppliers necessary to cover such shortfall.

Failure to Supply. 7.1 If, in any Period during the Term, Seller fails to supply Containers required by Buyer in accordance with the Annual Forecast or the Revised Forecast, as the case may be, whether due to force majeure, as defined in Section 16.1 hereof, or otherwise, Seller shall immediately notify Buyer in writing of the nature, extent and estimated duration of such failure. Upon receipt of such notice, Buyer shall be entitled to purchase suitable beverage Containers from another source (a “Third Party Supplier”) during such period without thereby terminating or breaching this Agreement. 7.2 With the exception of a failure to supply caused by Force Majeure, and with the further exception of a failure to supply in excess of [***][ * * * ] of orders the timing and quantities of which are consistent with the latest Annual Forecast or Revised Forecast, as the case maybe, which has been mutually agreed upon and committed to by both Buyer and Seller, Seller shall indemnify and hold harmless Buyer from and against all reasonable and substantiated costs and expenses incurred by Buyer arising out of Seller’s inability to supply Containers including but not limited to Buyer’s cost in purchasing replacement Containers at prices including freight which are in excess of those set forth herein. These expenses shall not include lost profits of Buyer. 7.3 Buyer shall take all reasonable steps to minimize the damages and expenses it incurs as a result of Seller’s failure to supply Containers. 7.4 Seller covenants and agrees to utilize its best efforts to assist Buyer in purchasing suitable beverage Containers in the event that Seller is unable to supply the quantity of Containers required in accordance with the Annual Forecast or Revised Forecast, as the case may be, or if Seller is unable to supply Buyer with its requirements if in excess of [***[ * * * ] of the Annual Forecast or Revised Forecast. 7.5 In the event of any interruption of Seller’s ability to meet purchase orders placed by Buyer, Seller shall notify Buyer in writing when it is able to resume supply of Containers in accordance with the Annual Forecast or Revised Forecast, as the case may be. Upon receipt of such notice, Buyer shall, subject to its remaining contractual obligations with any Third Party Seller and [***] Confidential treatment requested subject to Section 7.6 hereof, resume purchasing its requirements for Containers from Seller in accordance with the terms of this Agreement. 7.6 In the event that Seller is unable to supply Containers required by Buyer in accordance with this Agreement for a period which exceeds [***] [ * * * ]consecutive days excluding all supply interruptions due to Force Majeure events, Buyer shall be entitled to terminate this Agreement upon [***[ * * * ] days’ written notice without further penalty or damages being payable by Buyer. [ * * * ] Confidential treatment requested. 7.7 Any Containers secured from alternate sources shall be credited against the Annual Forecast or the Revised Forecast requirements. The parties shall use their best efforts to minimize the volume and duration of any such shortfall, and any commitment to other suppliers necessary to cover such shortfall.

Failure to Supply. 7.1 If, in 2.7.1 Without diminishing any Period during the Term, Seller fails obligation of MannKind to supply Containers required by Buyer in accordance with the Annual Forecast or the Revised Forecast, as the case may be, whether due Supply Product and Semi-Finished Product pursuant to force majeure, as defined in Section 16.1 hereof, or otherwise, Seller shall immediately notify Buyer in writing of the nature, extent and estimated duration of such failure. Upon receipt of such notice, Buyer shall be entitled to purchase suitable beverage Containers from another source (a “Third Party Supplier”) during such period without thereby terminating or breaching this Agreement. 7.2 With the exception of a failure to supply caused by Force Majeure, and with the further exception of a failure to supply in excess of [***]of orders the timing and quantities of which are consistent with the latest Annual Forecast or Revised Forecast, as the case maybe, which has been mutually agreed upon and committed to by both Buyer and Seller, Seller shall indemnify and hold harmless Buyer from and against all reasonable and substantiated costs and expenses incurred by Buyer arising out of Seller’s inability to supply Containers including but not limited to Buyer’s cost in purchasing replacement Containers at prices including freight which are in excess of those set forth herein. These expenses shall not include lost profits of Buyer. 7.3 Buyer shall take all reasonable steps to minimize the damages and expenses it incurs as a result of Seller’s failure to supply Containers. 7.4 Seller covenants and agrees to utilize its best efforts to assist Buyer in purchasing suitable beverage Containers in the event that Seller is unable to supply the quantity of Containers required in accordance with the Annual Forecast or Revised Forecast, as the case may be, or if Seller is unable to supply Buyer with its requirements if in excess of [***] of the Annual Forecast or Revised Forecast. 7.5 In the event of any interruption of Seller’s ability to meet purchase orders placed by Buyer, Seller shall notify Buyer in writing when it is able to resume supply of Containers in accordance with the Annual Forecast or Revised Forecast, as the case may be. Upon receipt of such notice, Buyer shall, subject to its remaining contractual obligations with any Third Party Seller and [***] Confidential treatment requested subject to Section 7.6 hereof, resume purchasing its requirements for Containers from Seller in accordance with the terms of this Agreement, or any right of United Therapeutics to require such Supply, if MannKind anticipates it will be unable to Manufacture or Supply Product or Semi-Finished Product in the quantities specified in a Firm Order, in the Rolling Forecast, or in a Shipment Order, MannKind shall immediately notify United Therapeutics of such anticipated shortfall in writing. Such notice shall describe the reason for the anticipated shortfall and the extent to which MannKind will not meet the requirements of such Rolling Forecast, Firm Order, and/or Shipment Order, and provide United Therapeutics with the expected date of Manufacture or Supply of such Product or Semi-Finished Product. 7.6 In 2.7.2 If it is commercially reasonable for United Therapeutics to accept a new date for delayed Manufacture or Supply of Product or Semi-Finished Product, or if such inability to Manufacture or Supply is not due to a Supply Failure, United Therapeutics shall issue an amended Firm Order or Shipment Order reflecting such new delivery date. 2.7.3 Notwithstanding anything else to the contrary, any Supply Failures, anticipated Supply Failures, or anticipated shortfalls in Supply or Manufacture of Product or Semi-Finished Product, shall be immediately escalated to the MSC. 2.7.4 Without diminishing MannKind’s duty to mitigate any Supply Failure or anticipated Supply Failure, in the event of a Supply Failure or an anticipated Supply Failure that Seller cannot be resolved within 30 days of escalating such Supply Failure or anticipated Supply Failure to the MSC as required hereunder, United Therapeutics may elect to have its own employees or contractors enter the Facility to continue the Manufacturing and Supply operations, or supplement MannKind’s ongoing Manufacturing and Supply operations under the supervision and direction of MannKind’s manufacturing leadership team (“Step-In Right”). Any expenses incurred by United Therapeutics will be used to offset any future payments otherwise due to MannKind under this Agreement. MannKind will provide reasonable assistance and cooperation to United Therapeutics in connection with the foregoing, in order to ensure a stable supply of Product and Semi-Finished Product. Additionally, if MannKind declares a Force Majeure Event, United Therapeutics may exercise its Step-In Right if it is unable possible for United Therapeutics to supply Containers required do so in compliance with Applicable Laws. Upon resolution by Buyer MannKind of the root cause of the Supply Failure or anticipated Supply Failure to the reasonable satisfaction of United Therapeutics, United Therapeutics shall cease to exercise its Step-In Right and MannKind shall resume the Manufacturing and Supply of Product and Semi-Finished Product in accordance with this Agreement for a period which exceeds [***] consecutive days excluding all supply interruptions due to Force Majeure events, Buyer shall be entitled to terminate this Agreement upon [***] days’ written notice without further penalty or damages being payable by BuyerAgreement. 7.7 Any Containers secured from alternate sources shall be credited against the Annual Forecast or the Revised Forecast requirements. The parties shall use their best efforts to minimize the volume and duration of any such shortfall, and any commitment to other suppliers necessary to cover such shortfall.