NON-CONFORMING GOODS. SUPPLIER acknowledges and agrees that Mobileye is not required to perform incoming inspection of any goods, and SUPPLIER waives any right to require Mobileye to conduct any such inspections. SUPPLIER will not substitute any goods for the goods covered by this Agreement unless Mobileye consents in writing. If Mobileye rejects any Products as non-conforming, Mobileye may, at its option, (a) reduce the quantities of Products ordered under such Order By the quantity of non-conforming Products, (b) require SUPPLIER to replace the non-conforming Products, and/or (c) exercise any other applicable rights or remedies. If SUPPLIER fails to inform Mobileye in writing of the manner in which SUPPLIER desires that Mobileye dispose of non-conforming Products within 2 working days of notice of Mobileye’s rejection of non-conforming Products (or such shorter period as is reasonable under the circumstances), Mobileye will be entitled to dispose of the non-conforming Products without liability to SUPPLIER; provided, however, that in any event Mobileye may elect to arrange for the shipment of any non-conforming Products back to SUPPLIER al SUPPLIER’s expense. Mobileye has the sole discretion to decide which are non-conforming Products. Mobileye’s payment for any non-conforming Products will not constitute acceptance by Mobileye, limit or impair Mobileye’s right to exercise any rights or remedies, or relieve SUPPLIER of responsibility for the non-conforming Products. If the product fails the incoming inspection or are discovered to contain a material defect or non-conformance to Products by the authorized installer/distributor at the time of installation, SUPPLIER shall, upon Mobileye’s request, issue a Return Material Authorization (RMA) number within 48 hours of the RMA request. An issuance of RMA by SUPPLIER does not constitute an admission of fault by SUPPLIER. Acceptance criteria are defined solely by Mobileye in the Manufacturing File.
Appears in 3 contracts
Samples: Manufacturing Agreement, Manufacturing Agreement (Mobileye N.V.), Manufacturing Agreement (Mobileye N.V.)
NON-CONFORMING GOODS. SUPPLIER acknowledges SECTION 5.1.1. No later than fifteen (15) business days from the date of arrival of a Product shipment at NitroMed's facility, NitroMed shall examine such shipment for patent damage, defects or shortage and agrees may, at NitroMed's option, analyze the Product using the methods of analysis set forth in the Quality Agreement. If NitroMed determines within such 15-business-day period that Mobileye any portion of a Product shipment is not required to perform incoming inspection in conformity with the Product Specifications, it shall promptly (and in no event more than ten (10) business days following such determination) notify Xxxxxxx of such determination, furnish a sample of each allegedly non-conforming Product lot and provide reasonable supporting evidence that the alleged damage, defect or shortage resulted from processing and/or packaging of the Product by Xxxxxxx and not from any mishandling during shipment or as a result of non-conforming API supplied by NitroMed. If, within ten (10) business days of Xxxxxxx'x receipt of any goodssuch notice, Product sample(s) and SUPPLIER waives any right to require Mobileye to conduct any reasonable supporting evidence, Xxxxxxx does not agree with NitroMed that such inspections. SUPPLIER will not substitute any goods for the goods covered by this Agreement unless Mobileye consents in writing. If Mobileye rejects any Products as Product is non-conforming, Mobileye maythe Parties will arrange for the lot or lots in question to be tested by a mutually acceptable independent laboratory for conformity with the Product Specifications, and the determination of such laboratory will be final and binding upon the Parties. The cost of any such testing by an independent laboratory shall be borne by the Party whose judgment as to the conformity of any lot of the Product with the Product Specifications proves to be incorrect. Any lots of the Product that are not in conformity with the Specifications shall, at its the request of Schwarz, be destroyed by NitroMed or returned to Xxxxxxx for destruction or reprocessing. The cost of destroying non-conforming Product or returning non-conforming Product to Xxxxxxx shall be borne by Schwarz if such non-conformity is determined to be the result of processing and/or packaging of such Product by Xxxxxxx. For the avoidance of doubt, NitroMed shall be obligated to pay in full for any rejected shipment of Product that is subsequently found to be in conformity with the Product Specifications.
SECTION 5.1.2. With respect to any Product determined to be not in conformity with the Product Specifications at the time of shipment as a result of processing and/or packaging by Xxxxxxx, Xxxxxxx shall, at Xxxxxxx'x option, either (a) reduce the quantities of Products ordered under give NitroMed full credit or, at NitroMed's request, a full refund, for such Order By the quantity of non-conforming Products, Product or (b) require SUPPLIER furnish conforming replacement Product in substitution of any Product which did not conform to replace the Product Specifications, as soon as reasonably practicable and at no additional cost to NitroMed. Except to the extent Xxxxxxx may otherwise have an indemnification obligation pursuant to SECTION 10.3 in respect of any Liability attributable to damages incurred by third parties as a result of the use or ingestion of Product not in conformity with the Product Specifications, Xxxxxxx'x sole obligation regarding Product determined to be not in conformity with the Product Specifications as a result of processing and/or packaging by Xxxxxxx shall be the credit, refund or replacement contemplated by the foregoing sentence and such credit, refund or replacement shall be NitroMed's sole remedy in respect of such non-conforming Products, and/or (c) exercise Product and any other applicable rights or remedieslost profits attributable thereto.
SECTION 5.1.3. If SUPPLIER fails All claims against Xxxxxxx with respect to inform Mobileye any shipment of the Product resulting from patent defects shall be deemed waived unless NitroMed timely notifies Xxxxxxx thereof in writing in accordance with SECTION 5.1.1. The waiver contained in the immediately preceding sentence shall not apply to any shipment of Product found not to meet the manner in which SUPPLIER desires that Mobileye dispose Product Specifications at the time of non-conforming Products within 2 working days delivery by virtue of notice of Mobileye’s rejection of non-conforming Products (or such shorter period as is reasonable under the circumstances)a latent defect; PROVIDED, Mobileye will be entitled to dispose of the non-conforming Products without liability to SUPPLIER; provided, howeverHOWEVER, that in any event Mobileye may elect to arrange for the shipment of any non-conforming Products back to SUPPLIER al SUPPLIER’s expense. Mobileye has the sole discretion to decide which are non-conforming Products. Mobileye’s payment Xxxxxxx shall have no liability for any non-conforming Products will not constitute acceptance Product that is reported to Xxxxxxx (i) later than ten (10) business days after the day on which NitroMed discovers or should have discovered such latent defect or (ii) after the expiration date of such Product.
SECTION 5.1.4. Notwithstanding the foregoing, to the extent non-conformity of any Product arises from NitroMed's storage and handling of the Product or the failure of NitroMed to provide API meeting the API Specifications, Xxxxxxx shall have no liability to NitroMed on the basis of this Agreement or otherwise. Without limiting the generality of the foregoing, in the situation described in this SECTION 5.1.4, Xxxxxxx shall have no obligation to replace such Product, refund or credit any amount paid by Mobileye, limit or impair Mobileye’s right to exercise any rights or remediesNitroMed for such Product, or relieve SUPPLIER of responsibility reimburse NitroMed for the cost of the API used in such Product. In the situation described in this SECTION 5.1.4, NitroMed shall replace non-conforming ProductsAPI with API meeting the API Specifications free of charge upon Xxxxxxx'x request. If API becomes unusable based on Xxxxxxx'x negligence, willful misconduct or failure to comply with the product fails the incoming inspection or are discovered to contain a material defect or non-conformance to Products by the authorized installer/distributor terms of this Agreement, Xxxxxxx shall purchase replacement API at the time of installation, SUPPLIER shall, upon Mobileye’s request, issue a Return Material Authorization (RMA) number within 48 hours of the RMA request. An issuance of RMA by SUPPLIER does not constitute an admission of fault by SUPPLIER. Acceptance criteria are defined solely by Mobileye in the Manufacturing FileNitroMed's acquisition price.
Appears in 1 contract
Samples: Supply Agreement (Nitromed Inc)
NON-CONFORMING GOODS. SUPPLIER acknowledges and agrees that Mobileye is not required to perform incoming inspection of any goods, and SUPPLIER waives any right to require Mobileye to conduct any such inspections. SUPPLIER will not substitute any goods for the goods covered by this Agreement unless Mobileye consents in writing. If Mobileye rejects any Products as non-conforming, Mobileye may, at its option, (a) reduce Acceptance by Mannatech of Manapol Powder delivered by Supplier is subject to inspection and applicable testing by Mannatech or a party designated by Mannatech to conduct such inspection or testing (“Testing Designee”). If on such inspection or testing Mannatech or its Testing Designee discovers that any Manapol Powder fails to conform with the quantities Specifications in Exhibit A or otherwise fails to conform to the warranties given by Supplier in Section 8(a) above, Mannatech or such Testing Designee may reject such Manapol Powder, which rejection will be accomplished by giving written notice to Supplier that specifies the manner in which the Manapol Powder fails to meet the foregoing requirements. Upon request from Supplier, Mannatech shall return the rejected Manapol Powder in accordance with Supplier's reasonable instructions at Supplier's expense, provided that such instructions comply with all applicable laws, regulations and regulatory requirements. In the event of Products ordered under a dispute between the parties over the validity of a rejection, Mannatech and Supplier agree to submit a sample of the rejected Manapol Powder to an independent test facility to be agreed by both parties, and to accept the results of the testing performed by that facility as binding with regard to that lot of Manapol Powder. The expense of such Order By testing shall be borne by the quantity losing party. Supplier shall use reasonable commercial efforts to replace rejected Manapol Powder within thirty (30) days after Supplier's receipt of notice.
(b) Upon receipt of notice from Mannatech of non-conforming Productsgoods, Supplier shall, within five (b5) require SUPPLIER to replace the non-conforming Productsbusiness days, and/or (c) exercise any other applicable rights or remedies. If SUPPLIER fails to inform Mobileye in writing provide Mannatech with a delivery schedule representing supplier’s best estimate of the manner in dates by which SUPPLIER desires that Mobileye dispose it can provide conforming goods. Mannatech shall have ten (10) business days following receipt of non-conforming Products within 2 working days such delivery schedule to notify supplier of notice of Mobileye’s rejection of non-conforming Products (its election to either accept the delivery schedule or such shorter period as is reasonable under the circumstances), Mobileye will be entitled elect to dispose receive a refund or credit of the non-conforming Products without liability to SUPPLIER; provided, however, that in any event Mobileye may elect to arrange for the shipment of any non-conforming Products back to SUPPLIER al SUPPLIER’s expense. Mobileye has the sole discretion to decide which are non-conforming Products. Mobileye’s payment for any non-conforming Products will not constitute acceptance by Mobileye, limit or impair Mobileye’s right to exercise any rights or remedies, or relieve SUPPLIER of responsibility price for the non-conforming Productsgoods as outlined below. If Mannatech elects to receive replacement Manapol Powder, the product fails replacement of rejected Manapol Powder will have priority over the incoming supply of Manapol Powder ordered for shipment not more than ninety (90) days before, or any time after, the rejection of such nonconforming Manapol Powder. With respect to Mannatech electing to receive a credit or refund for the non conforming goods, if a Manapol Powder shipment or part thereof is rejected before the date on which payment is due, Mannatech may withhold payment for such shipment or the rejected portion thereof. If a Manapol Powder shipment or portion thereof is rejected after payment, Mannatech, at its option may either (i) credit the amount paid against other amounts due to Supplier hereunder; or (ii) request a refund of the actual amount paid for the non-conforming shipment. If a refund is elected by Mannatech, payment in full shall be made by Supplier to Mannatech within ten (10) days of supplier’s receipt of Mannatech’s notice of election of refund. Failure by Mannatech to timely respond to its option to elect a refund will be deemed acceptance of the delivery schedule.
(c) If, subsequent to investigation, a Manapol Powder shipment deemed by Mannatech to be rejected is found to meet Specifications, then Mannatech will not only pay for the originally shipped Manapol Powder but also any replacement Manapol Powder made, or in process, while the investigation was being conducted. The warranties given by Supplier in Section 8(a) above will survive any failure to reject by Mannatech under this Section 9. Except for a Latent Defect as set forth in Section 9(d) below, Manapol Powder shipments will be deemed accepted if no notice to the contrary is received by Supplier within thirty (30) days of Mannatech’s receipt of such Manapol Powder.
(d) As soon as either Party becomes aware of any defect in any Manapol Powder that is not discoverable upon a reasonable inspection or quality control testing (" Latent Defect”) as set forth in Exhibit A, but in no case later than sixty (60) days after reaching such awareness, it shall immediately notify the other Party and, at Mannatech's election, shall be deemed rejected as of the date of such notice. In the event of such rejection by Mannatech, the applicable provisions of Section 9(a) will apply. Notwithstanding anything herein to the contrary, Supplier will only be responsible for Latent Defects resulting from an act or omission of Supplier, reasonably demonstrated, relative to its manufacturing, packaging, and testing services responsibilities according to this Agreement.
(e) IF SUPPLIER FAILS TO TIMELY SUPPLY THE CONFORMING GOODS IN ACCORDANCE WITH THE SCHEDULE PROVIDED TO AND ACCEPTED BY MANNATECH OR IF SUPPLIER FAILS TO TIMELY REMIT ANY REFUND DUE HEREUNDER, THEN SUCH FAILURE SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT AND SHALL BE SUBJECT TO TERMINATION IN ACCORDANCE WITH SECTION 18(b)(ii).
(f) Shipments of the Manapol Powder not meeting the applicable Specifications may, at Supplier’s option and expense, be returned to Supplier or destroyed by Mannatech. If Supplier is unable to produce conforming Manapol Powder, any sums actually paid therefore will be promptly refunded within ten (10) days after Mannatech’s receipt of such notice.
(g) Except as provided in Section 8, there are discovered no warranties or representations of any kind, express or implied, including but not limited to contain warranties of merchantability, fitness, and fitness for a material defect particular purpose, or non-conformance infringement made with respect to Products the Manapol Powder to be sold hereunder, and none shall be implied by the authorized installer/distributor at the time of installation, SUPPLIER shall, upon Mobileye’s request, issue a Return Material Authorization (RMA) number within 48 hours of the RMA request. An issuance of RMA by SUPPLIER does not constitute an admission of fault by SUPPLIER. Acceptance criteria are defined solely by Mobileye in the Manufacturing Filelaw.
Appears in 1 contract
Samples: Supply Agreement (Mannatech Inc)
