Resolution of Defective Product. Notwithstanding the foregoing, Mikah shall have the right to reject any batch of Product having Latent Defects prior to the expiry of such batch of Product. If Epic agrees that the batch is Defective Product, Epic shall, at its option, replace the Defective Product or repay the full amount of any payments, including shipping and recall costs and cost of API, made by Mikah for such Product. If Epic does not agree with Mikah's determination that such Product is Defective Product, then after reasonable efforts to resolve the disagreement, either Party may submit a sample of such Product to a mutually agreed upon independent third party who is an expert or is familiar with the industry to determine whether the Product meets the Specifications. The independent party's results shall be final and binding and if such results indicate that the Product was a Defective Product, Epic shall, at its option, replace the Defective Product or repay the full amount of any payments, including shipping costs and cost of API, made by Mikah for such Product. Unless otherwise agreed to by the Parties in writing. the costs associated with such testing and review shall be borne by the non-prevailing Party.
Resolution of Defective Product. (a) Patent Defect or Latent Defect. Subject to, and without waiver or limitation of OptiNose’s and/or CPL’s rights and remedies hereunder, at law and/or in equity, if OptiNose believes that a Product or shipment has a Patent Defect or Latent Defect, OptiNose shall, at its option, [***]. If CPL does not agree with OptiNose’s determination that such Product or shipment has a Latent Defect or Patent Defect, then after [***] to resolve the disagreement, and subject to, and without waiver or limitation of OptiNose’s and/or CPL’s rights and remedies hereunder, at law and/or in equity, either Party may submit a sample of such Product to a mutually agreed upon independent third party testing laboratory which is an expert in the industry and which will expertly apply the agreed upon testing protocol in order to determine whether the Product constitutes Defective Product. The independent party’s results shall be final and binding for purposes of determining whether payment is owed (but not for purposes of any pending or potential product liability litigation which shall be governed by Article 9 hereof). If such results indicate that the Product was Defective Product, then in addition to, and without waiver or limitation of OptiNose’s or CPL’s rights and remedies hereunder, at law and/or in equity, OptiNose shall be entitled, at its option, to [***]. If the independent party’s results indicate the Product was not a Defective Product, OptiNose shall [***]. If the independent party is unable to determine that a Product is Defective Product, [***]. Unless otherwise agreed to by the Parties in writing, the costs associated with testing and review of a Product pursuant to this Section shall be borne by [***]. Notwithstanding anything herein to the contrary, a Product shall be deemed not to be a Defective Product if the alleged defect or subject matter of the alleged defect is related to an error in or failure to properly conduct the Antimicrobial Effectiveness Test, provided that such defect or alleged defect is not due to the negligence or willful misconduct of CPL and CPL otherwise is in compliance with its obligations under this Agreement with respect to such test.
Resolution of Defective Product. If Bioniche Pharma agrees that a Product is Defective Product, Bioniche Pharma shall, at Bioniche Pharma’s sole and absolute option, either (i) replace such Product or (ii) remit the full amount of any Delcath payments to Bioniche Pharma related thereto plus any and all direct costs incurred by Delcath for the freight, insurance, customs and duties associated with the Defective Product. If Bioniche Pharma does not agree with Delcath’s determination that such Product is Defective Product then, after reasonable efforts to resolve the disagreement, either Delcath or Bioniche Pharma may request, in writing, that an independent laboratory resolve the disagreement. Thereafter, the Parties shall in good faith mutually agree upon and select a reputable independent laboratory (the “Laboratory”) to resolve the disagreement. The Laboratory shall in good faith review and analyze the Product to determine whether the Product is Defective Product. The Laboratory shall render its decision within thirty (30) days of the laboratory’s selection, in writing, which shall be non-appealable and binding on the Parties. If the Laboratory determines that such Product is Defective Product, Bioniche Pharma shall, at Bioniche Pharma’s sole and absolute option, (i) replace such Product or (ii) remit the full amount of any Delcath payments to Bioniche Pharma related thereto. If the Laboratory determines that the Product is not Defective Product, Delcath shall be obligated to purchase such Product on the terms set forth herein. Unless otherwise agreed to by the Parties in writing, the cost of the Laboratory’s testing and review of such Product shall be borne by the non-prevailing Party.
Resolution of Defective Product. If Mikah agrees that a batch constitutes Defective Product, Mikah shall, at its option, replace the Defective Product or repay the full amount of any payments, including shipping costs, made by DRL for such Product. If Mikah does not agree with DRL’s determination that such Product is Defective Product, then after reasonable efforts to resolve the disagreement, either Party may submit a sample, batch record, and associated documentation of such Product to a mutually agreed upon independent third party who is an expert or is familiar with the industry to determine whether the Product meets the Specifications or is otherwise Defective Product. The independent party’s results shall be final and binding on both Parties. If such results indicate that the Product was Defective Product, Mikah shall replace the Defective Product or repay the full amount of any payments, including shipping costs, made by DRL for such Product. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the non-prevailing Party.
Resolution of Defective Product
