Common use of Refund or Replacement Clause in Contracts

Refund or Replacement. Company shall not be required to pay any invoice with respect to any shipment of Captisol properly rejected pursuant to this Section 3.5. Notwithstanding the foregoing, Company shall be obligated to pay in full for any rejected shipment of Captisol that is subsequently determined to meet the Specifications in all material respects, irrespective of whether Company has already paid CyDex for a replacement shipment. CyDex shall, upon acceptance of Company’s basis of rejection or other confirmation that such shipment failed to meet the Specifications, at Company’s sole discretion and direction either: (i) issue a refund or credit equal to the purchase price paid, taxes paid and shipping costs with respect to such rejected shipment within [***] of Company’s request; or (ii) replace such rejected shipment at no additional cost (beyond the total cost, including delivery, for the rejected shipment paid or owed by Company to CyDex) to Company, with such replacement to be shipped to Company in accordance with Company’s instructions and schedule (or, if CyDex in good faith cannot meet Company’s schedule, as soon as reasonably practical). Company acknowledges and agrees that, except for the warranty provisions set forth in Section 9.2 below and the indemnification obligations set forth in Section 10 below, Company’s rights to a refund or credit for or to receive replacement of properly rejected shipments of Captisol hereunder shall be Company’s sole and exclusive remedy, and CyDex’s sole obligation, with respect to non-conforming Captisol delivered hereunder which has not been used in the manufacture of the Licensed Product.

Refund or Replacement. Company shall not be required to pay any invoice with respect to any shipment of Captisol properly rejected pursuant to this Section 3.5. Notwithstanding the foregoing, Company shall be obligated to pay in full for any rejected shipment of Captisol that is subsequently determined to meet the Specifications in all material respects, irrespective of whether Company has already paid CyDex for a replacement shipment. CyDex shallIf Company pays in full for a shipment of Captisol and subsequently properly rejects such shipment in accordance with this Section 3.5, Company shall be entitled, upon acceptance of Company’s basis of rejection or other confirmation that such shipment failed to meet the SpecificationsSpecifications in all material respects, at Company’s sole discretion and direction either: (i) issue to a refund or credit equal to the purchase price paid, taxes paid and shipping costs with respect to such rejected shipment within [***] of Company’s requestshipment; or (ii) to require CyDex to replace such rejected shipment at no additional cost (beyond the total cost, including delivery, for the rejected shipment paid or owed by Company to CyDex) to Company, with such replacement to be shipped to Company in accordance with Company’s instructions and schedule (or, if CyDex in good faith cannot meet Company’s schedule, as soon as reasonably practical). Company acknowledges and agrees that, except for the warranty provisions set forth in Section 9.2 below and the indemnification obligations set forth in Section 10 below, Company’s rights to a refund or credit for or to receive replacement of properly rejected shipments of Captisol hereunder shall be Company’s sole and exclusive remedy, and CyDex’s sole obligation, with respect to non-conforming Captisol delivered hereunder which has not been used in the manufacture of the Licensed Producthereunder.

Refund or Replacement. Company shall not be required to pay any invoice with respect to any shipment of Captisol properly rejected pursuant to this Section 3.53.6. Nor shall such properly rejected Captisol count against Company or Company Affiliates or in any way comprise a failure of Company or Company Affiliates to satisfy a Detailed Forecast, minimum purchase or other duties and obligations under this Agreement, the License Agreement or otherwise. Notwithstanding the foregoing, Company shall be obligated to pay in full for any rejected shipment of Captisol that is not subsequently determined to meet the Specifications in all material respectsbe Defective (unless CyDex already provided Company with acceptance of its rejection under Section 3.6), irrespective of whether Company has already paid CyDex for a replacement shipment. CyDex shallIf Company pays in full for a shipment of Captisol and subsequently properly rejects such shipment in accordance with this Section 3.6, Company shall be entitled, upon its receipt of CyDex’s acceptance of Company’s basis of such rejection or other confirmation that such shipment failed to meet the Specificationsor material portion thereof is Defective, at Company’s sole discretion and direction its election, either: (i) issue to a prompt refund or credit equal to the purchase price paidand the reasonable costs associated with the destruction or return, taxes including but not limited to, shipping and insurance paid and shipping costs with respect to such rejected shipment within [***] of Company’s request(or destruction costs to the extent destroyed); or (ii) to require CyDex to promptly replace such rejected shipment with non-Defective Captisol at no additional cost (beyond the total cost, including delivery, for the rejected shipment paid or owed by Company to CyDex) to Company, with such replacement to be shipped to Company in accordance with Company’s instructions and schedule (or, if CyDex in good faith cannot meet Company’s schedule, as soon as reasonably practical). Company acknowledges and agrees that, except for the warranty provisions set forth in Section 9.2 below and the indemnification obligations set forth in Section 10 below10.1 of the License *** 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. Agreement (to the extent applicable) and/or Company’s right to terminate this Agreement for material breach by CyDex (to the extent applicable), Company’s rights to a refund or credit for or to receive replacement of properly rejected shipments of Captisol hereunder shall be Company’s sole and exclusive remedy, and CyDex’s sole obligation, with respect to Defective or non-conforming Captisol delivered hereunder which has not been used in the manufacture of the Licensed Producthereunder.

Refund or Replacement. Company Sage shall not be required to pay any invoice with respect to any shipment of Captisol properly rejected pursuant to this Section 3.53.6. Notwithstanding the foregoing, Company Sage shall be obligated to pay in full for any rejected shipment of ***Text Omitted and Filed Separately with the Securities and Exchange Commission Confidential Treatment Requested Under 17 C.F.R. Sections 200.80(b)(4) and 230.406 Captisol that is not returned or destroyed in accordance with Section 3.6(d) above and that is subsequently determined to meet the Specifications in all material respects, irrespective of whether Company Sage has already paid CyDex for a replacement shipment. CyDex shallIf Sage pays in full for a shipment of Captisol and subsequently properly rejects such shipment in accordance with this Section 3.6, Sage shall be entitled, upon acceptance of Company’s basis of rejection or other confirmation that such shipment failed to meet the SpecificationsSpecifications in all material respects, either, at CompanySage’s sole discretion and direction eitheroption: (i) issue to a refund or credit equal to the purchase price paid, taxes paid and shipping costs with respect to such rejected shipment within [***] of Company’s request(including without limitation, taxes paid and shipping expenses); or (ii) to require CyDex to promptly replace and deliver to Sage an amount of Captisol that conforms to the requirements of this Agreement to replace such rejected shipment at no additional cost (beyond the total cost, including delivery, for the rejected shipment paid or owed by Company to CyDex) to Company, with such replacement to be shipped to Company in accordance with Company’s instructions and schedule (or, if CyDex in good faith cannot meet Company’s schedule, as soon as reasonably practical)Sage. Company Sage acknowledges and agrees that, except for the warranty provisions set forth in Section 9.2 below and the indemnification obligations set forth in Section 10 below, CompanySage’s rights to a refund or credit for or to receive replacement of properly rejected shipments of Captisol hereunder shall be CompanySage’s sole and exclusive remedy, and CyDex’s sole obligation, with respect to non-conforming Captisol delivered hereunder which has not been used in the manufacture of the Licensed Producthereunder.

Refund or Replacement. Company shall not be required to pay any invoice with respect to any shipment of Captisol properly rejected pursuant to this Section 3.53.6. Notwithstanding the foregoing, Company shall be obligated to pay in full for any rejected shipment of Captisol that is not subsequently determined to meet the Specifications in all material respectsbe Defective, irrespective of whether Company has already paid CyDex for a replacement shipment. CyDex shallIf Company pays in full for a shipment of Captisol and subsequently properly rejects such shipment in accordance with this Section 3.6, Company shall be entitled in addition to any other rights or remedies Company may have under this Agreement, upon acceptance of Company’s basis of rejection or other confirmation that such shipment failed to meet the Specificationsor material portion thereof is Defective, at Company’s sole discretion and direction its election, either: (i) issue to a refund or credit equal to the purchase price paidprice, taxes shipping, insurance and other incidental expenses paid and shipping costs with respect to such rejected shipment within [***] of Company’s requestshipment; or (ii) to require CyDex to replace such rejected shipment with non-Defective Captisol at no additional cost (beyond the total cost, including delivery, for the rejected shipment paid or owed by Company to CyDex) to Company, with such replacement to be shipped to Company in accordance with Company’s instructions and schedule (or, if CyDex in good faith cannot meet Company’s schedule, as soon as reasonably practical). Company acknowledges and agrees that, except for the warranty provisions set forth in Section 9.2 below and the indemnification obligations set forth in Section 10 below10.1 of the License Agreement, Company’s rights to a refund or credit for or to receive replacement of properly rejected shipments of Captisol hereunder shall be Company’s sole and exclusive remedy, and CyDex’s sole obligation, with respect to Defective or non-conforming Captisol delivered hereunder which has not been used in the manufacture of the Licensed Producthereunder.

Refund or Replacement. Company Sage shall not be required to pay any invoice with respect to any shipment of Captisol properly rejected pursuant to this Section 3.53.6. Notwithstanding the foregoing, Company Sage shall be obligated to pay in full for any rejected shipment of Captisol that is not returned or destroyed in accordance with Section 3.6(d) above and that is subsequently determined to meet the Specifications in all material respects, irrespective of whether Company Sage has already paid CyDex for a replacement shipment. CyDex shallIf Sage pays in full for a shipment of Captisol and subsequently properly rejects such shipment in accordance with this Section 3.6, Sage shall be entitled, upon acceptance of Company’s basis of rejection or other confirmation that such shipment failed to meet the SpecificationsSpecifications in all material respects, either, at CompanySage’s sole discretion and direction eitheroption: (i) issue to a refund or credit equal to the purchase price paid, taxes paid and shipping costs with respect to such rejected shipment within [***] of Company’s request(including without limitation, taxes paid and shipping expenses); or (ii) to require CyDex to promptly replace and deliver to Sage an amount of Captisol that conforms to the requirements of this Agreement to replace such rejected shipment at no additional cost (beyond the total cost, including delivery, for the rejected shipment paid or owed by Company to CyDex) to Company, with such replacement to be shipped to Company in accordance with Company’s instructions and schedule (or, if CyDex in good faith cannot meet Company’s schedule, as soon as reasonably practical)Sage. Company Sage acknowledges and agrees that, except for the warranty provisions set forth in Section 9.2 below and the indemnification obligations set forth in Section 10 below, CompanySage’s rights to a refund or credit for or to receive replacement of properly rejected shipments of Captisol hereunder shall be CompanySage’s sole and exclusive remedy, and CyDex’s sole obligation, with respect to non-conforming Captisol delivered hereunder which hereunder. *** Certain information on this page has not been used in omitted and filed separately with the manufacture of Commission. Confidential treatment has been requested with respect to the Licensed Product.omitted portions. EXECUTION COPY

Refund or Replacement. Company shall not be required to pay any invoice with respect to any shipment of Captisol properly rejected pursuant to this Section 3.5. Notwithstanding the foregoing, Company shall be obligated to pay in full for any rejected shipment of Captisol that is subsequently determined to meet the Specifications in all material respects, irrespective of whether Company has already paid CyDex for a replacement shipment. CyDex shallIf Company pays in full for a shipment of Captisol and subsequently properly rejects such shipment in accordance with this Section 3.5, Company shall be entitled, upon acceptance of Company’s basis of rejection or other confirmation that such shipment failed to meet the SpecificationsSpecifications in all material respects, at Company’s sole discretion and direction either: (i) issue to a refund or credit equal to the purchase price paid, taxes paid and shipping costs with respect to such rejected shipment within [***] of Company’s requestshipment; or (ii) to require CyDex to replace such rejected shipment at no additional cost (beyond the total cost, including delivery, for the rejected shipment paid or owed by Company to CyDex) to Company, with such replacement to be shipped to Company in accordance with Company’s instructions and schedule (or, if CyDex in good faith cannot meet Company’s schedule, as soon as reasonably practical). Company acknowledges and agrees that, except for the warranty provisions set forth in Section 9.2 below and the indemnification obligations set forth in Section 10 below, Company’s rights to a refund or credit for or to receive replacement of properly rejected shipments of Captisol hereunder shall be Company’s sole and exclusive remedy, and CyDex’s sole obligation, with respect to non-conforming Captisol delivered hereunder which has not been used in the manufacture of the Licensed Producthereunder. [***] INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE RULES APPLICABLE TO SUCH CONFIDENTIAL TREATMENT REQUEST.

Refund or Replacement. Company Sage shall not be required to pay any invoice with respect to any shipment of Captisol properly rejected pursuant to this Section 3.53.6. Notwithstanding the foregoing, Company Sxxx shall be obligated to pay in full for any rejected shipment of Captisol that is not returned or destroyed in accordance with Section 3.6(d) above and that is subsequently determined to meet the Specifications in all material respects, irrespective of whether Company Sxxx has already paid CyDex for a replacement shipment. CyDex shallIf Sage pays in full for a shipment of Captisol and subsequently properly rejects such shipment in accordance with this Section 3.6, Sage shall be entitled, upon acceptance of Company’s basis of rejection or other confirmation that such shipment failed to meet the SpecificationsSpecifications in all material respects, either, at CompanySxxx’s sole discretion and direction eitheroption: (i) issue to a refund or credit equal to the purchase price paid, taxes paid and shipping costs with respect to such rejected shipment within [***] of Company’s request(including without limitation, taxes paid and shipping expenses); or (ii) to require CyDex to promptly replace and deliver to Sage an amount of Captisol that conforms to the requirements of this Agreement to replace such rejected shipment at no additional cost (beyond the total cost, including delivery, for the rejected shipment paid or owed by Company to CyDex) to Company, with such replacement to be shipped to Company in accordance with Company’s instructions and schedule (or, if CyDex in good faith cannot meet Company’s schedule, as soon as reasonably practical)Sage. Company Sxxx acknowledges and agrees that, except for the warranty provisions set forth in Section 9.2 below and the indemnification obligations set forth in Section 10 below, CompanySxxx’s rights to a refund or credit for or to receive replacement of properly rejected shipments of Captisol hereunder shall be CompanySxxx’s sole and exclusive remedy, and CyDex’s sole obligation, with respect to non-conforming Captisol delivered hereunder which has not been used in the manufacture of the Licensed Producthereunder.

Refund or Replacement. Company shall not be required to pay any invoice with respect to any shipment of Captisol properly rejected or determined finally to have a Latent Defect pursuant to this Section 3.53.6. Nor shall such properly rejected/Latent Defect Captisol count against Company or Company Affiliates or in any way comprise a failure of Company or Company Affiliates to satisfy a Detailed Forecast, minimum purchase or other duties and obligations under this Agreement, the License Agreement or otherwise. Notwithstanding the foregoing, Company shall be obligated to pay in full for any rejected shipment of Captisol that is not subsequently determined to meet the Specifications in all material respectsbe Defective, irrespective of whether Company has already paid CyDex for a replacement shipment. CyDex shallIf Company pays in full for a shipment of Captisol and subsequently properly rejects such shipment (or such shipment is determined finally to have a Latent Defect) in accordance with this Section 3.6, Company shall be entitled, upon acceptance of Company’s basis of rejection or other confirmation that such shipment failed to meet the Specificationsis Defective, at Company’s sole discretion and direction its election, either: (i) issue to a refund or credit equal to the purchase price paidprice, taxes paid and shipping costs and insurance paid with respect to such rejected shipment within [***] of Company’s requestshipment; or (ii) to require CyDex to replace such rejected rejected/Latent Defect shipment with non-Defective Captisol at no additional cost (beyond the total cost, including delivery, for the rejected shipment paid or owed by Company to CyDex) to Company, with such replacement to be shipped to Company in accordance with Company’s instructions and schedule (or, if CyDex in good faith cannot meet Company’s schedule, as soon as reasonably practical). Company acknowledges and agrees that, except for the warranty provisions set forth in Section 9.2 below and the indemnification obligations set forth in Section 10 below10.1 of the License Agreement (to the extent applicable), Company’s rights to a refund or credit for or to receive replacement of properly rejected shipments of Captisol hereunder shall be Company’s sole and exclusive remedy, and CyDex’s sole obligation, with respect to Defective or non-conforming Captisol delivered hereunder which has not been used in the manufacture of the Licensed Producthereunder.