Extract to table

Where a contractual provision establishes conditions precedent, the party seeking to enforce the right must demonstrate that all conditions have been satisfied

4(a) provides that the Seller must deliver "to Buyer a Surcharge Notice with supporting documentation no later than fifteen (15) business days after the end of the applicable month

Both requirements must be satisfied for the condition precedent to be met

4(c) of the MSA provides as follows: "In no event shall the aggregate monthly surcharge exceed 12% of the applicable Base Price for the relevant product category without prior written consent of Buyer

" The phrase "in no event" reinforces the absolute nature of the limitation, and the requirement of "prior written consent" makes clear that the Buyer's agreement must be both prospective (prior to the exceedance) and documented in writing (not oral, implied, or retroactive)

4(d) of the MSA establishes the following dispute procedure for surcharges: The Buyer must notify the Seller of any disputed surcharge within thirty (30) calendar days of receipt of the Surcharge Notice