AGREEMENT ON THE UNIT SIZES OF THE EXCESS QUANTITIES.
IF
THE PARTIES ARE UNABLE TO REACH AGREEMENT ON THE UNIT SIZES OF ANY EXCESS
QUANTITIES WITHIN TEN (10) DAYS FROM THE NOTICE, OSIRIS SHALL PROCESS AND
DELIVER TO NUVASIVE UNIT SIZES OF SUCH EXCESS QUANTITIES IN THE SAME PROPORTION
AS THE UNIT SIZES OF PRODUCT SET FORTH IN NUVASIVE'S MOST RECENT ORDER.
SUBJECT
TO THE NOTICE AND SIZING PROVISIONS IMMEDIATELY ABOVE, IN ADDITION TO NUVASIVE'S
REQUIREMENT TO PURCHASE FROM OSIRIS PRODUCT IN QUANTITIES OF AT LEAST THE
MINIMUM PERFORMANCE LEVEL (PROVIDED THAT OSIRIS AND/OR ITS SUBCONTRACTORS
PROCESSES AT LEAST SUCH QUANTITIES) FOR THE APPLICABLE PERIOD, NUVASIVE SHALL
PURCHASE FROM OSIRIS THE EXCESS QUANTITIES THAT OSIRIS PROCESSES IN ACCORDANCE
WITH THIS AGREEMENT DURING THE TERM; PROVIDED, HOWEVER, THAT NUVASIVE SHALL HAVE
NO OBLIGATION HEREUNDER TO PURCHASE PRODUCT IN QUANTITIES GREATER THAN
CUBIC CENTIMETERS, AND THE DELIVERY AND PURCHASE OF SUCH
GREATER QUANTITIES OF PRODUCT, IF ANY, SHALL BE BY MUTUAL WRITTEN AGREEMENT OF
BOTH PARTIES. FOR ALL PRODUCT PROCESSED HEREUNDER, OSIRIS SHALL PROVIDE NUVASIVE
WITH A MONTHLY FORECAST OF PROJECTED PRODUCT MANUFACTURING QUANTITIES FOR SUCH
MONTH.
3.4.
SHIPMENT AND DELIVERY.
ALL PRODUCT SHALL BE SHIPPED TO NUVASIVE
OR NUVASIVE'S CUSTOMERS AS DIRECTED BY NUVASIVE USING A SHIPPING COMPANY
DESIGNATED BY NUVASIVE.
OSIRIS SHALL TENDER PRODUCT FOR DELIVERY, FCA THE
FACILITY, IN ACCORDANCE WITH THE SPECIFICATIONS AND ADDRESSED TO THE SHIPPING
ADDRESS SPECIFIED BY NUVASIVE IN THE ORDERS OR TO SUCH OTHER ADDRESS AS NUVASIVE
MAY PROVIDE TO OSIRIS IN WRITING IN ADVANCE OF ANY DELIVERY.
NUVASIVE SHALL
PROVIDE OSIRIS WITH STANDARD SHIPPING INSTRUCTIONS PRIOR TO THE FIRST REQUESTED
SHIPPING DATE HEREUNDER; THEREAFTER, SUCH SHIPPING INSTRUCTIONS MAY BE CHANGED
UPON WRITTEN NOTICE GIVEN TO OSIRIS BY NUVASIVE.
OSIRIS SHALL NOT DELIVER ANY
PRODUCT PRIOR TO COMPLETION OF QUALITY CONTROL AND RELEASE TESTING BY OSIRIS.
NUVASIVE SHALL BE RESPONSIBLE FOR ALL SHIPPING AND INSURANCE CHARGES AND RISK OF
LOSS ASSOCIATED WITH THE SHIPMENT OF PRODUCT HEREUNDER (FROM AND AFTER
DELIVERY), PROVIDED THAT OSIRIS HAS COMPLIED WITH THE SHIPPING INSTRUCTIONS OF
NUVASIVE AND THAT THE PRODUCT IS TENDERED FOR DELIVERY IN ACCORDANCE
64
WITH THE SPECIFICATIONS. TITLE TO PRODUCT SHALL PASS TO NUVASIVE UPON DELIVERY
OF PRODUCT TO THE CARRIER SELECTED BY NUVASIVE.
3.5.
QUALITY CONTROL; RELEASE TESTING; DOCUMENTATION. OSIRIS SHALL BE
RESPONSIBLE FOR QUALITY CONTROL TESTS TO ENSURE THAT EACH LOT CONFORMS TO THE
SPECIFICATIONS AND IS PRODUCED IN ACCORDANCE WITH APPLICABLE LAWS AND CGTP, AND
OSIRIS SHALL BE RESPONSIBLE FOR ALL RELEASE TESTING.
ALL QUALITY CONTROL TEST
RESULTS AND RELEASE TESTING AND OTHER DOCUMENTS RELATED TO QUALITY CONTROL AND
QUALITY ASSURANCE AND COPIES THEREOF SHALL BE MADE AVAILABLE TO NUVASIVE AT
OSIRIS'S OFFICES UPON WRITTEN REQUEST OF NUVASIVE.
SUCH INFORMATION IS
CONSIDERED NUVASIVE'S CONFIDENTIAL INFORMATION IN ACCORDANCE WITH THIS AGREEMENT
AND SHALL BE TRANSFERRED TO NUVASIVE UPON THE TERMINATION OF THIS AGREEMENT.
ANY TESTING PERFORMED BY OR ON BEHALF OF OSIRIS (INCLUDING TESTS TO CONFIRM THAT
EACH LOT MEETS THE SPECIFICATIONS) SHALL BE PERFORMED AT OSIRIS'S SOLE COST AND
EXPENSE AND