THE
DELIVERY OF PRODUCT EXW, LB SHALL LOAD THE PRODUCT AT LB'S EXPENSE ONTO THE
TRUCKS PROVIDED BY IMCLONE, AT IMCLONE'S EXPENSE.
AT IMCLONE'S REQUEST AND
EXPENSE, LB WILL (ACTING AS AGENT FOR IMCLONE) ARRANGE FOR INSURANCE TO COVER
THE PRODUCT AFTER SUCH FOURTEEN (14) DAY PERIOD.
AT IMCLONE'S WRITTEN REQUEST
AND EXPENSE, LB WILL (ACTING AS AGENT FOR IMCLONE) ARRANGE THE TRANSPORTATION OF
PRODUCT TO A FACILITY IN THE UNITED STATES DESIGNATED BY IMCLONE, TOGETHER WITH
INSURANCE FOR THE PRICE FOR THE RELEVANT BATCH(ES) OF PRODUCT. ALL ADDITIONAL
COSTS AND EXPENSES INCURRED BY LB IN ARRANGING TRANSPORTATION AND INSURANCE
SHALL BE CHARGED TO IMCLONE IN ADDITION TO THE PRICE. IN CASES WHERE IMCLONE HAS
NOT REQUESTED LB TO ARRANGE FOR TRANSPORTATION OF PRODUCT, LB WILL PROVIDE
REASONABLE COOPERATION WITH IMCLONE'S TRANSPORTATION AGENTS IN COORDINATING THE
COLLECTION OF PRODUCT FROM LB (NH)'S PORTSMOUTH, NEW HAMPSHIRE FACILITY.
TRANSPORTATION OF THE PRODUCT, WHETHER OR NOT UNDER ANY ARRANGEMENTS MADE BY LB
ON BEHALF OF IMCLONE, SHALL BE MADE AT THE SOLE RISK AND EXPENSE OF IMCLONE. FOR
THE AVOIDANCE OF DOUBT, THE PRODUCT WILL NOT BE INSURED BY LB AFTER THE ABOVE
REFERENCED FOURTEEN (14) DAY PERIOD UNLESS OTHERWISE ARRANGED FOR.
7.4.
QUARANTINE OF PRODUCT.
AT IMCLONE'S REQUEST, LB WILL DELIVER
PRODUCT BATCHES IN QUARANTINE PRIOR TO DELIVERY OF THE CERTIFICATE OF ANALYSIS.
SUCH REQUEST SHALL BE ACCOMPANIED BY IMCLONE'S WRITTEN ACKNOWLEDGEMENT THAT THE
BATCH HAS BEEN DELIVERED WITHOUT THE TRANSMITTAL TO IMCLONE OF A CERTIFICATE OF
ANALYSIS, THAT ACCORDINGLY THE BATCH CANNOT BE ADMINISTERED TO HUMANS UNTIL
TRANSMITTAL OF THE CERTIFICATE OF ANALYSIS, AND THAT IMCLONE NEVERTHELESS
ACCEPTS FULL RISK OF LOSS, TITLE AND OWNERSHIP OF THE BATCH WHEN DELIVERED.
THE
DELIVERY OF A BATCH IN
[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
23
QUARANTINE SHALL BE SUBJECT TO SUCH TESTING REQUIREMENTS AS LB OR IMCLONE MAY
REASONABLY REQUIRE, AND THE SIXTY (60) DAY PERIOD REFERRED TO IN SECTION 7.6
SHALL RUN FROM RECEIPT IN QUARANTINE BY IMCLONE OF THE RELEVANT BATCHES.
7.5.
INSPECTION OF PRODUCT.
WHERE LB HAS MADE ARRANGEMENTS FOR THE
TRANSPORTATION OF PRODUCT UNDER SECTION 7.3, LB SHALL USE ITS REASONABLE
ENDEAVORS TO NOTIFY IMCLONE BY FACSIMILE OF SHIPMENT ON THE DATE OF DISPATCH.
IMCLONE SHALL DILIGENTLY EXAMINE THE PRODUCT AS SOON AS PRACTICABLE AFTER
RECEIPT.
NOTICE OF ALL CLAIMS ARISING OUT OF:
7.5.1.
DAMAGE TO OR TOTAL OR PARTIAL LOSS OF PRODUCT IN TRANSIT SHALL BE
GIVEN IN WRITING TO LB AND THE CARRIER WITHIN FIVE (5) BUSINESS DAYS OF
DELIVERY; OR
7.5.2.
FAILURE OF A SHIPMENT OF PRODUCT TO ARRIVE SHALL BE GIVEN IN
WRITING WITHIN TEN (10) BUSINESS DAYS OF THE DATE ON WHICH THE SHIPMENT WAS
MADE, AS STATED IN LB'S NOTICE OF SHIPMENT PROVIDED IN ACCORDANCE WITH THE TERMS
ABOVE TO IMCLONE.
ImClone shall make damaged Product available for inspection and shall comply
with the requirements of any insurance policy