Extract to table

The right to impose surcharges is subject to two express conditions: (a) The Seller must deliver a Surcharge Notice with supporting documentation to the Buyer no later than 15 business days after the end of the applicable month in which the surcharge-triggering costs were incurred; and (b) The surcharge components must be calculated in accordance with the methodology set forth in Exhibit C to the MSA

The requirement of prior written consent for any exceedance means that the Buyer must affirmatively agree to bear costs above the cap — silence or inaction does not constitute consent

4(d) (Dispute Procedure): The MSA provides a structured mechanism for disputing surcharges: The Buyer must notify the Seller of any disputed surcharge within 30 calendar days of receipt of the Surcharge Notice

The key legal principles, as set forth in that memorandum, are as follows: • A condition precedent must be strictly complied with unless the beneficiary of the condition waives it, either expressly or through conduct inconsistent with an intent to enforce it

4(c) of the MSA imposes a ceiling on the aggregate monthly surcharge that the Seller may charge without the Buyer's prior written consent: The aggregate monthly surcharge for any product category shall not exceed 12% of the applicable Base Price for that product category without the prior written consent of the Buyer

The use of the word "prior" means that consent must be obtained before the surcharge is invoiced, not after the fact