Common use of Rejection of Product Clause in Contracts

Rejection of Product. (a) Voyager will have sixty (60) days after the receipt of any shipment of Product (the "Testing Period") to subject the Product, on a sample basis, to quality control testing to determine conformity with the Specifications. If testing shows a failure to meet the Specifications, Voyager may reject the portion of any shipment failing to meet Specifications by providing written notice of such rejection to Mallinckrodt before the expiry of the Testing Period and, provided such notice of any such rejection is received by Mallinckrodt and Voyager has appropriately rejected the affected Product, Voyager may return the affected Product to Mallinckrodt at Mallinckrodt's expense. (b) Mallinckrodt will have the option, within sixty (60) days of receipt of such rejected Product from Voyager, either to replace such returned and appropriately rejected Product with Product that meets the Specifications, or promptly to provide Voyager with a full refund. Voyager's remedies for proper rejection of any Product hereunder shall be limited to those specified in the immediately preceding sentence, provided that any such rejected Product shall be deemed to have been included in the amount of Product purchased in such applicable annual period for purposes of Voyager's obligation to purchase seventy five percent (75%) of its requirements for Product hereunder. (c) Should there be a discrepancy between Voyager's test results and Mallinckrodt's test results, Mallinckrodt shall notify Voyager within thirty (30) days of its receipt of the rejected Product from Voyager, and the parties will make reasonable efforts, each acting in good faith, to try to resolve any differences as to whether or not any volume of Product has been appropriately rejected and, if they cannot do so, such differences will be finally resolved by testing performed by an independent third party mutually agreed upon by the parties. The costs of such testing with be borne by the party against whom the difference is resolved. If, as a result of such testing, it is determined that any Product in question has been appropriately rejected, Voyager will have no liability to pay for such Product and shall have the remedies set forth above (but no other remedies). If, on the other hand, it is determined that any Product in question was not appropriately rejected, or if Voyager fails within the Testing Period to provide notice of rejection of such Product, Mallinckrodt shall promptly return all such Product to Voyager and, upon Voyager's receipt of such Product, the Product in question shall be deemed to be accepted by Voyager and Voyager shall be liable to pay Mallinckrodt the applicable purchase price for such Product in accordance with the applicable terms hereof.

Rejection of Product. A. If PDL rejects any of the Product pursuant to Section 6.1A, PDL shall (ai) Voyager will have sixty (60) days after the receipt of any shipment of Product (the "Testing Period") immediately provide to subject the Product, on a sample basis, to quality control testing to determine conformity with the Specifications. If testing shows a failure to meet the Specifications, Voyager may reject the portion of any shipment failing to meet Specifications by providing ICOS written notice of rejection which shall state in reasonable detail the reasons for such rejection and (ii) provide ICOS with the opportunity to Mallinckrodt before the expiry of the Testing Period and, provided conduct its own tests on such notice of any such rejection is received by Mallinckrodt and Voyager has appropriately rejected the affected Product, Voyager may . PDL shall return the affected all remaining unused Product to Mallinckrodt at Mallinckrodt's expense. (b) Mallinckrodt will have the option, within sixty (60) days of receipt of ICOS and require that ICOS replace such rejected Product from VoyagerProduct; provided, either to replace such returned and appropriately rejected Product with Product however, that meets the Specifications, or promptly to provide Voyager with a full refund. Voyager's remedies for proper rejection of any Product hereunder shall be limited to those specified in the immediately preceding sentence, provided PDL may retain only that any such rejected Product shall be deemed to have been included in the amount of Product purchased in such applicable annual period for purposes of Voyager's obligation to purchase seventy five percent (75%) of its requirements for Product hereunder. (c) Should there be a discrepancy between Voyager's test results and Mallinckrodt's test results, Mallinckrodt shall notify Voyager within thirty (30) days of its receipt portion of the rejected Product that is then being used for laboratory testing, and may use such retained portion solely to complete such tests but in no event may PDL use any of the rejected Product for any human clinical testing or trials after becoming aware of the basis for such rejection (and PDL shall indemnify ICOS for all liabilities, costs and damages incurred by ICOS resulting from VoyagerPDL’s breach of this limitation on use). ICOS shall replace the Product (as mutually agreed) as soon as practicable. In no case shall ICOS take more than [*] to replace such Product. B. Notwithstanding the foregoing, if PDL rejects the Product for the reasons stated in Section 6.1A(ii) or (iii) and the parties will make reasonable effortsdisagree on whether PDL is entitled to so reject such Product, each acting then (i) analysts from both parties shall promptly meet to determine that the methods of analysis are the same and are being executed in the same manner, (ii) carefully controlled and split samples shall be sent from one site to another for testing in an attempt to reach agreement, and (iii) the parties shall use good faith, to try faith efforts for a period of [*] after completing such tests to resolve any differences as whether PDL is entitled to whether or not any volume of Product has been appropriately rejected and, if they reject such Product. In the event that the parties cannot do soresolve their dispute in the manner described, such differences will be finally resolved by testing performed by an independent third party mutually laboratory acceptable to both parties shall be qualified and shall utilize agreed upon by on test methods to test the partiesProduct in dispute (“Disputed Product”). The costs of such testing with independent laboratory shall be borne by the parties equally; provided, however, that the party against whom that is determined to be incorrect in the difference is resolved. If, as a result dispute shall be responsible for all such costs and shall reimburse the correct party for its share of such testing, it is determined that any Product costs incurred. The decision of such independent laboratory shall be in question has been appropriately rejected, Voyager will have no liability to pay for such Product writing and shall have the remedies set forth above (but no other remedies). If, be binding on the other hand, it is determined that any both ICOS and PDL. C. If PDL properly rejects Product in question was not appropriately rejectedpursuant to Section 6.1A and 6.2B, or if Voyager fails ICOS breaches its warranty stated in Section 10.1B subject to the time limitation regarding notice of breach as stated therein, and ICOS cannot replace the Product with conforming Product within the Testing Period time period set forth in Section 6.2A, then ICOS [*]; provided, however, that ICOS will not wait for the time period in Section 6.2A to provide notice of rejection of such Product, Mallinckrodt shall promptly return all such Product expire before [*] if ICOS has earlier knowledge that it will be unable to Voyager and, upon Voyager's receipt of such Product, replace the Product [*]. Nothing in question this Section shall permit ICOS to cancel its remaining obligations under the Work and Quality Statements (e.g., obligations regarding transfer of PDL Property and confidentiality) or terminate this Agreement as it relates to other Work Statements. The provisions of this Section 6.2 shall be deemed the sole remedies available to be accepted by Voyager and Voyager shall be liable PDL with respect to pay Mallinckrodt the applicable purchase price for such Product in accordance with the applicable terms hereofthat PDL properly rejects.