as set forth in this Paragraph
5(f), and in furtherance thereof, Client hereby waives all other remedies at law
or in equity regarding the foregoing.
(G)
BSCP LIABILITY FOR NON-CONFORMING PRODUCT; DISPUTE.
(I)
CLIENT SHALL HAVE [**] AFTER RECEIPT OF EACH PRODUCT AND
COMPLETED PRODUCTION RECORD (INCLUDING ALL MANUFACTURING AND QC TESTING) TO
DELIVER TO BSCP, IN ACCORDANCE WITH THE NOTICE PROVISIONS SET FORTH IN PARAGRAPH
9(D) HEREOF, WRITTEN NOTICE OF DISAPPROVAL (THE "DISAPPROVAL NOTICE") OF SUCH
PRODUCT, AFTER WHICH TIME, IF THE DISAPPROVAL NOTICE IS NOT SENT TO BSCP, CLIENT
SHALL BE DEEMED TO HAVE PROVIDED ITS FINAL APPROVAL OF THE PRODUCT.
THE
DISAPPROVAL NOTICE SHALL STATE WITH SPECIFICITY THE REASON(S) FOR CLIENT'S
9
DISAPPROVAL OF THE PRODUCT.
ANY DISAPPROVAL NOTICE SENT TO BSCP IN BAD FAITH
SHALL BE NULL AND VOID.
IF THE DISAPPROVAL NOTICE SHALL BE TRANSMITTED TO BSCP
IN ACCORDANCE WITH THE FOREGOING PROVISIONS WITHIN THE TIME PERIOD THEREIN SET
FORTH, THEN, TO DETERMINE IF THE PRODUCT FAILS TO CONFORM TO THE DESCRIPTION SET
FORTH IN SCHEDULE A-(
) OR THE SPECIFICATIONS SET FORTH IN THE PRODUCTION
RECORD AND THE PRODUCT CAN NOT BE USED IN CLINICAL TRIALS OR FOR COMMERCIAL USE,
BSCP SHALL HAVE [**] TO CONDUCT PRODUCT TESTING, UPON THE COMPLETION OF WHICH IT
AND CLIENT SHALL PROVIDE ONE ANOTHER WITH THE RESULTS OF THEIR QUALITY CONTROL
TESTS AND ALL RELATED PAPERWORK AND RECORDS RELATING TO THE PRODUCTION OF THE
PRODUCT.
BSCP AND CLIENT EXPEDITIOUSLY AND IN GOOD FAITH SHALL ATTEMPT TO
RESOLVE ANY DISPUTE REGARDING THE INTERPRETATION OF VARYING QUALITY CONTROL
TESTS AND RELATED PAPERWORK, BUT IF SUCH DISPUTE CANNOT BE SETTLED WITHIN [**]
OF THE SUBMISSION OF SUCH TEST RESULTS AND RELATED PAPERWORK, THEN THE DISPUTE
SHALL BE SUBMITTED TO AN ARBITRATOR LOCATED IN THE STATE OF THE PARTY NOT
BRINGING THE ACTION WITH THE REQUISITE SCIENTIFIC BACKGROUND AND TRAINING (THE
"PARAGRAPH 5(G) ARBITRATOR"), SELECTED JOINTLY WITHIN 14 DAYS BY BSCP AND
CLIENT.
THE PARAGRAPH 5(G) ARBITRATOR, EMPLOYING THE COMMERCIAL ARBITRATION
RULES OF THE AMERICAN ARBITRATION ASSOCIATION, SHALL DETERMINE THE CAUSE OF SUCH
FAILURE, AND THE PARAGRAPH 5(G) ARBITRATOR'S FINDINGS, SHALL BE FINAL.
ANY
ADDITIONAL TESTING OR INFORMATION THAT IS GENERATED AS PART OF AN INVESTIGATION
WILL BE REPORTED WITH THE PRODUCTION RECORD.
(II)
IF IT IS (A) AGREED BY BSCP AND CLIENT OR (B) DETERMINED BY THE
PARAGRAPH 5(G) ARBITRATOR, IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN
SUBPARAGRAPH (I) ABOVE, THAT THE PRODUCT PRODUCED BY BSCP HEREUNDER FAILED TO
CONFORM TO THE DESCRIPTION SET FORTH IN SCHEDULE A-(
) OR THE SPECIFICATIONS
SET FORTH IN THE PRODUCTION RECORD DUE TO THE FAILURE OF (I) BSCP PERSONNEL
PROPERLY TO EXECUTE THE PRODUCTION RECORD OR (II) THE UTILITIES, THEN BSCP SHALL
AGAIN PRODUCE FOR CLIENT THE PRODUCT IN ACCORDANCE WITH THE PROVISIONS OF THIS
AGREEMENT (THE "PRODUCTION RERUN") THAT PORTION OF THE NON-CONFORMING PRODUCT
WHEN THE PRODUCTION AREA (OR ANOTHER AREA AT THE FACILITY SUITABLE FOR THE
PRODUCTION RERUN) NEXT BECOMES AVAILABLE, WITHOUT CHARGING CLIENT A SET-UP FEE
OR A [**]