Common use of Timing of Delivery Clause in Contracts

Timing of Delivery. (a) Delivery dates for Deliverables and Services shall be firm. Lucent will deliver Deliverables and Services strictly in accordance with the terms and conditions of this Agreement. (b) If Lucent discovers any potential delay that threatens the timely delivery or the full delivery of Deliverables or Services with respect to a Purchase Order, Lucent shall immediately notify WinStar of such delay. If requested by WinStar, Lucent shall provide a written plan for correction of such delay. (c) Subject to Sections 4.1(c), 10.2 and 16.3, if Lucent fails to deliver such Deliverable or Services in accordance with the scheduled delivery or performance date set forth in the corresponding Purchase Order, then after five (5) business days following the scheduled delivery or performance date, WinStar shall be entitled to deduct from the price of such Deliverable or Service an amount equal to one percent (1%) of the price of such Deliverable or Service for each seven (7) calendar days of delay after such grace period until actual delivery of such Deliverable or performance of such Service, up to a maximum deduction of one hundred percent (100%) of the price for such Supply Agreement Confidential-WinStar/Lucent Deliverable or Service (the "Delivery Pricing Adjustment"). Notwithstanding the preceding sentence, Lucent shall not be liable for a Delivery Pricing Adjustment to the extent that Lucent can demonstrate that its failure to deliver a Deliverable or Service in accordance with the scheduled delivery or performance date set forth in the corresponding Purchase Order is reasonably caused by the wrongful actions of WinStar or a change, revision, modification, or special requirement with respect to such Deliverable or Service, or the delivery or performance date for such Deliverable or Service, that is requested by WinStar and approved by Lucent after Lucent has accepted the Purchase Order corresponding to such Deliverable or Service. In the event WinStar has not otherwise terminated the Purchase Order as provided in Subsection 4.5 below and WinStar elects to take the Delivery Pricing Adjustment as provided above, such adjustment shall be WinStar's sole and exclusive monetary remedy with respect to the delay attributable to the failure to complete the Purchase Order; provided, however, in the event Lucent has persistent delays over multiple Purchase Orders, such Delivery Pricing Adjustment shall be in addition to any other rights or remedies WinStar may have under this Agreement or at law or in equity. Lucent agrees not to make an economic determination not to deliver a Deliverable or Service under a particular Purchase Order due to the Delivery Pricing Adjustment. (d) If Lucent fails to make any delivery of a Deliverable or performance of a Service within the lesser of (i) forty-five (45) calendar days after the scheduled delivery or performance date set forth in the corresponding Purchase Order, and (ii) such other time period as mutually agreed by the Parties, Then WinStar shall be entitled to terminate the corresponding Purchase Order in accordance with Section 4.5.

Timing of Delivery. (a) The Delivery and Acceptance dates for Deliverables Products and Delivery for Services shall be firm. Lucent will deliver Deliverables Products and Services strictly in accordance with -------------------------------------------------------------------------------- Master Supply Agreement 4 Diveo / Lucent Confidential the terms and conditions of this Agreementaccepted or deemed accepted Purchase Orders or Change Control Form (as such Change Control Form is further described in Schedule J). (b) If Lucent discovers any potential delay that threatens the timely delivery Delivery and Acceptance of Products or the full delivery Delivery of Deliverables or Services with respect to a Purchase Order, Lucent shall immediately notify WinStar Diveo of such delay. If requested by WinStarDiveo, Lucent shall provide a written plan for correction of such delay. (c) Subject to Sections 4.1(c3.1(d), 10.2 9.2 and 16.315.3, if Lucent fails to deliver deliver (i) any Product or Service for which a corresponding Delivery time is set forth in Schedule J of the Agreement in accordance with such Deliverable corresponding Delivery time; (ii) any other Products or Services in accordance with the scheduled delivery Delivery date or performance Acceptance date set forth in the corresponding accepted Purchase Order, ; then after five (5) business days following the such scheduled delivery Delivery or performance Acceptance date, WinStar as applicable, Diveo shall be entitled to deduct from the price of such Deliverable the Products, Services or Service both (if included in the Purchase Order) an amount equal to one one-tenth of a percent (1.1%) of the price of Products and Services under such Deliverable or Service Purchase Order for each seven (7) calendar days day of delay after such five-day grace period until actual delivery Delivery or Acceptance (or Provisional Acceptance), as applicable, of such Deliverable or performance of such ServiceProducts and Services, up to a maximum deduction of one hundred percent (100%) of the price for such Supply Agreement Confidential-WinStar/Lucent Deliverable or Service Products and Services (the "Delivery Pricing Adjustment"). Notwithstanding the preceding sentence, Lucent shall not be liable for a Delivery Pricing Adjustment to the extent that Lucent can demonstrate that its failure to deliver a Deliverable Product or Service in accordance with the scheduled delivery Delivery or performance date Acceptance date, as applicable, set forth in the corresponding Purchase Order is reasonably caused by (i) the wrongful actions of WinStar Diveo, or (ii) a force majeure condition as defined in this Agreement, or (iii) a change, revision, modification, or special requirement with respect to such Deliverable Product, or Service, or the delivery or performance Delivery date for such Deliverable Product or Service, that is each to the extent requested by WinStar Diveo and approved by Lucent after Lucent has accepted the Purchase Order corresponding to such Deliverable Product or Service. In To the event WinStar extent that Diveo has not otherwise terminated the Purchase Order as provided in Subsection 4.5 3.5 below and WinStar elects Diveo has elected to take the Delivery Pricing Adjustment as provided above, such adjustment shall be WinStarDiveo's sole and exclusive monetary remedy with respect to the delay attributable to the failure to complete the Purchase Order; provided, however, that in the event Lucent has persistent delays over multiple Purchase Orders, such Delivery Pricing Adjustment shall be in addition to any other rights or remedies WinStar Diveo may have under this Agreement or at law or in equity. Lucent agrees not to make an economic determination not to deliver a Deliverable Product or Service under a particular Purchase Order due to the Delivery Pricing Adjustment.. -------------------------------------------------------------------------------- Master Supply Agreement 5 Diveo / Lucent Confidential (d) If Lucent fails to make any delivery Delivery or Acceptance (or Provisional Acceptance) of a Deliverable Product or performance Delivery of a Service within the lesser of (i) forty-five (45) calendar days after the scheduled delivery Delivery date or performance Acceptance date set forth in the corresponding Purchase Order, and (ii) such other time period as mutually agreed by the Parties, Then WinStar Diveo shall be entitled to terminate the corresponding Purchase Order in accordance with Section 4.53.5. (e) Lucent agrees to use its commercially reasonable efforts to have scheduled shipment dates for Purchase Orders to be as close to the Delivery date as possible.