Common use of Supply Disruption Clause in Contracts

Supply Disruption. If VIVUS is unable to supply confirmed orders to Purchaser with respect to the quantity or the delivery date (a “Supply Disruption”), or if VIVUS believes that a Supply Disruption is reasonably likely to occur based on Purchaser’s confirmed and/or forecasted orders, VIVUS shall provide Purchaser with prompt written notice of such inability or belief. In the event of a Supply Disruption, VIVUS shall be obliged to allocate the available Product among Purchaser and any other licensees and/or authorized distributors of Product worldwide, *** based on the volume of Product orders of Purchaser and such other licensees and distributors. The “volume of Product orders” will be calculated based on (a) orders for Product that were delivered during the preceding *** or that are then in transit (excluding in each case any orders where payment therefor is delinquent), and (b) the binding portion of any outstanding purchase orders or forecasts. In the event of a Supply Disruption, notwithstanding Section ‎2.1(c), Purchaser shall be permitted to obtain from another source the quantities of Product that VIVUS is unable to supply. In the absence of gross negligence or willful misconduct, this Section ‎2.8 describes Purchaser’s sole and exclusive remedy, and VIVUS’ sole and exclusive liability, for any Supply *** 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 RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Disruption; provided, that if VIVUS actually recovers direct contract damages from its Third Party manufacturer or supplier in connection with a Supply Disruption, VIVUS shall pass through to Purchaser its allocable portion (which shall be calculated and allocated *** based on the volume of Product orders of Purchaser and such other licensees and distributors, as described above in this Section ‎2.8) of such recovery amount. In the event of any Supply Disruption that results in more than *** percent (***%) of ordered Product in any *** period arriving at the delivery location more than *** after the intended delivery date, Purchaser shall be relieved of any further obligation during the then-current *** to purchase the Minimum Purchase Obligation for ***; provided that to the extent any such Supply Disruption results in the delivery of any such quantity of Product after *** of the relevant ***, such late-delivered quantities shall be credited against the Minimum Purchase Obligation of the immediately following ***. In the event a Supply Disruption affects the quantities of Product available for Commercialization in a subsequent ***, the Parties will meet and negotiate in good faith a possible reduction of the Minimum Purchase Obligation for such subsequent ***, which reduction shall take into account (i) the reasonably likely commercial effect of the Supply Disruption and (ii) VIVUS’ respective minimum purchase obligations under any arrangements or agreements with any Third Parties (including Sanofi).

Supply Disruption. If VIVUS is unable to supply confirmed orders to Purchaser with respect to the quantity or the delivery date (a “Supply Disruption”), or if VIVUS believes that a Supply Disruption is reasonably likely to occur based on Purchaser’s confirmed and/or forecasted orders, VIVUS shall provide Purchaser with prompt written notice of such inability or belief. In the event of a Supply Disruption, VIVUS shall be obliged to allocate the available Product among Purchaser and any other licensees and/or authorized distributors of Product worldwide, *** based on the volume of Product orders of Purchaser and such other licensees and distributors. The “volume of Product orders” will be calculated based on (a) orders for Product that were delivered during the preceding *** or that are then in transit (excluding in each case any orders where payment therefor is delinquent), and (b) the binding portion of any outstanding purchase orders or forecasts. In the event of a Supply Disruption, notwithstanding Section ‎2.1(c), Purchaser shall be permitted to obtain from another source the quantities of Product that VIVUS is unable to supply. In the absence of gross negligence or willful misconduct, this Section ‎2.8 describes Purchaser’s sole and exclusive remedy, and VIVUS’ sole and exclusive liability, for any Supply *** 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 RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Disruption; provided, that if VIVUS actually recovers direct contract damages from its Third Party manufacturer or supplier in connection with a Supply Disruption, VIVUS shall pass through to Purchaser its allocable portion (which shall be calculated and allocated *** based on the volume of Product orders of Purchaser and such other licensees and distributors, as described above in this Section ‎2.8) of such recovery amount. In the event of any Supply Disruption that results in more than *** percent (***%) of ordered Product in any *** period arriving at the delivery location more than *** after the intended delivery date, Purchaser shall be relieved of any further obligation during the then-current *** to purchase the Minimum Purchase Obligation for ***; provided that to the extent any such Supply Disruption results in the delivery of any such quantity of Product after *** of the relevant ***, such late-delivered quantities shall be credited against the Minimum Purchase Obligation of the immediately following ***. In the event a Supply Disruption affects the quantities of Product available for Commercialization in a subsequent ***, the Parties will meet and negotiate in good faith a possible reduction of the Minimum Purchase Obligation for such subsequent ***, which reduction shall take into account (i) the reasonably likely commercial effect of the Supply Disruption and (ii) VIVUS’ respective minimum purchase obligations under any arrangements or agreements with any Third Parties (including Sanofi).

Supply Disruption. If VIVUS is unable to supply confirmed orders to Purchaser with respect to the quantity or the delivery date (a “Supply Disruption”), or if VIVUS believes that a Supply Disruption is reasonably likely to occur based on Purchaser’s confirmed and/or forecasted orders, VIVUS shall provide Purchaser with prompt written notice of such inability or belief. In the event of a Supply Disruption, VIVUS shall be obliged to allocate the available Product among Purchaser and any other licensees and/or authorized distributors of Product worldwide, [*** ] based on the volume of Product orders of Purchaser and such other licensees and distributors. The “volume of Product orders” will be calculated based on (a) orders for Product that were delivered during the preceding [*** ] or that are then in transit (excluding in each case any orders where payment therefor is delinquent), and (b) the binding portion of any outstanding purchase orders or forecasts. In the event of a Supply Disruption, notwithstanding Section ‎2.1(c2.1(c), Purchaser shall be permitted to obtain from another source the quantities of Product that VIVUS is unable to supply. In the absence of gross negligence or willful misconduct, this Section ‎2.8 2.8 describes Purchaser’s sole and exclusive remedy, and VIVUS’ ’s sole and exclusive liability, for any Supply *** 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 RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Disruption; provided, that if VIVUS actually recovers direct contract damages from its Third Party manufacturer or supplier in connection with a Supply Disruption, VIVUS shall pass through to Purchaser its allocable portion (which shall be calculated and allocated *** based on the volume of Product orders of Purchaser and such other licensees and distributors, as described above in this Section ‎2.8) of such recovery amount. In the event of any Supply Disruption that results in more than [*** ] percent ([***]%) of ordered Product in any [*** ] period arriving at the delivery location more than [*** ] after the intended delivery date, Purchaser shall be relieved of any further obligation during the then-current *** Term to purchase the Minimum Purchase Obligation for ***; provided that to the extent any such Supply Disruption results in the delivery of any such quantity of Product after *** of the relevant ***, such late-delivered quantities shall be credited against the Minimum Purchase Obligation of the immediately following ***. In the event a Supply Disruption affects the quantities of Product available for Commercialization in a subsequent ***, the Parties will meet and negotiate in good faith a possible reduction of the Minimum Purchase Obligation for such subsequent ***, which reduction shall take into account (i) the reasonably likely commercial effect of the Supply Disruption and (ii) VIVUS’ respective minimum purchase obligations under any arrangements or agreements with any Third Parties (including Sanofi)Obligation.

Supply Disruption. If VIVUS is unable to supply confirmed orders to Purchaser with respect to the quantity or the delivery date (a “Supply Disruption”), or if VIVUS believes that a Supply Disruption is reasonably likely to occur based on Purchaser’s confirmed and/or forecasted orders, VIVUS shall provide Purchaser with prompt written notice of such inability or belief. In the event of a Supply Disruption, VIVUS shall be obliged to allocate the available Product among Purchaser and any other licensees and/or authorized distributors of Product worldwide, *** based on the volume of Product orders of Purchaser and such other licensees and distributors. The “volume of Product orders” will be calculated based on (a) orders for Product that were delivered during the preceding *** or that are then in transit (excluding in each case any orders where payment therefor is delinquent), and (b) the binding portion of any outstanding purchase orders or forecasts. In the event of a Supply Disruption, notwithstanding Section ‎2.1(c2.1(c), Purchaser shall be permitted to obtain from another source the quantities of Product that VIVUS is unable to supply. In the absence of gross negligence or willful misconduct, this Section ‎2.8 2.8 describes Purchaser’s sole and exclusive remedy, and VIVUS’ ’s sole and exclusive liability, for any Supply *** 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 RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Disruption; provided, that if VIVUS actually recovers direct contract damages from its Third Party manufacturer or supplier in connection with a Supply Disruption, VIVUS shall pass through to Purchaser its allocable portion (which shall be calculated and allocated *** based on the volume of Product orders of Purchaser and such other licensees and distributors, as described above in this Section ‎2.8) of such recovery amount. In the event of any Supply Disruption that results in more than *** percent (***%) of ordered Product in any *** period arriving at the delivery location more than *** after the intended delivery date, Purchaser shall be relieved of any further obligation during the then-current *** Term to purchase the Minimum Purchase Obligation for ***; provided that to the extent any such Supply Disruption results in the delivery of any such quantity of Product after *** of the relevant ***, such late-delivered quantities shall be credited against the Minimum Purchase Obligation of the immediately following ***. In the event a Supply Disruption affects the quantities of Product available for Commercialization in a subsequent ***, the Parties will meet and negotiate in good faith a possible reduction of the Minimum Purchase Obligation for such subsequent ***, which reduction shall take into account (i) the reasonably likely commercial effect of the Supply Disruption and (ii) VIVUS’ respective minimum purchase obligations under any arrangements or agreements with any Third Parties (including Sanofi)Obligation.

Supply Disruption. If VIVUS is unable to supply confirmed orders to Purchaser with respect to the quantity or the delivery date (a “Supply Disruption”), or if VIVUS believes that a Supply Disruption is reasonably likely to occur based on Purchaser’s confirmed and/or forecasted orders, VIVUS shall provide Purchaser with prompt written notice of such inability or belief. In the event of a Supply Disruption, VIVUS shall be obliged to allocate the available Product among Purchaser and any other licensees and/or authorized distributors of Product worldwide, *** proportionally based on the volume of Product orders of Purchaser and such other licensees and distributors. The “volume of Product orders” will be calculated based on (a) orders for Product that were delivered during the preceding *** six (6) months or that are then in transit (excluding in each case any orders where payment therefor is delinquent), and (b) the binding portion of any outstanding purchase orders or forecasts. In the event of a Supply Disruption, notwithstanding Section ‎2.1(c2.1(c), Purchaser shall be permitted to obtain from another source the quantities of Product that VIVUS is unable to supply. In the absence of gross negligence or willful misconduct, this Section ‎2.8 2.8 describes Purchaser’s sole and exclusive remedy, and VIVUS’ sole and exclusive liability, for any Supply *** 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 RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Disruption; provided, that if VIVUS actually recovers direct contract damages from its Third Party manufacturer or supplier in connection with a Supply Disruption, VIVUS shall pass through to Purchaser its allocable portion (which shall be calculated and allocated *** proportionally based on the volume of Product orders of Purchaser and such other licensees and distributors, as described above in this Section ‎2.82.8) of such recovery amount. In the event of any Supply Disruption that results in more than *** twenty-five percent (***25%) of ordered Product in any *** four (4) month period arriving at the delivery location more than *** (60) days after the intended delivery date, Purchaser shall be relieved of any further obligation during the then-current *** calendar year to purchase the Minimum Purchase Obligation for ***such calendar year; provided that to the extent any such Supply Disruption results in the delivery of any such quantity of Product after *** December 31st of the relevant ***calendar year, such late-delivered quantities shall be credited against the Minimum Purchase Obligation of the immediately following ***calendar year. In the event a Supply Disruption affects the quantities of Product available for Commercialization in a subsequent ***year, the Parties will meet and negotiate in good faith a possible reduction of the Minimum Purchase Obligation for such subsequent ***year, which reduction shall take into account (i) the reasonably likely commercial effect of the Supply Disruption and (ii) VIVUS’ respective minimum purchase obligations under any arrangements or agreements with any Third Parties (including Sanofi).