Mondelez 2012 Annual Report Download - page 160

CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS
THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [ * * * ]. A COMPLETE
VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
11
reasonable assistance, any problems that may impede or delay the timely completion of each task in the Transition Plan that is
Supplier’s responsibility and shall use commercially reasonable efforts to assist Kraft with the resolution of any problems that may
impede or delay the timely completion of each task in the Transition Plan that is Kraft
’
s responsibility.
4.2.5
Reports
. Supplier shall meet at least weekly with Kraft to report on its progress in performing its responsibilities and meeting the
timetable set forth in the Transition Plan. Supplier also shall provide written reports to Kraft at least weekly regarding such matters,
and shall provide oral reports more frequently if reasonably requested by Kraft. Promptly upon receiving any information indicating
that Supplier may not perform its responsibilities or meet the timetable or Transition Milestones set forth in the Transition Plan,
Supplier shall notify Kraft in writing of material delays and shall identify for Kraft’s consideration and reasonable approval specific
measures to address such delay and mitigate the risks associated therewith.
4.2.6
Suspension or Delay of Transition Activities
. Kraft reserves the right, in its sole discretion and subject to Change Control
Procedures, to suspend or delay the performance of the Transition Services and/or the transition of all or any part of the Services. If
Kraft elects to exercise this right and Kraft’s decision is based, at least in material part, on reasonable concerns about Supplier’
s ability
to perform the Services or Supplier’s failure to perform its obligations under this Agreement, Kraft shall not incur any additional
Charges or reimbursable expenses in connection with such decision. If Kraft’s decision is not based in material part on reasonable
concerns about Supplier’s ability to perform the Services or Supplier’s failure to perform its obligations under this Agreement, Kraft
shall reimburse Supplier for any additional costs reasonably incurred by Supplier as a result of such decision, but only to the extent
Supplier notifies Kraft in advance of such costs, obtains Kraft’s approval prior to incurring such costs, and uses commercially
reasonable efforts to minimize such costs. The Parties acknowledge that the Transition Milestones and any Service or Service Levels
directly dependent upon achieving those Milestones may be equitably adjusted as a result of Kraft's decision to delay the performance
of the Transition Services and/or the transition of all or any part of the Services.
4.2.7
Failure to Meet Transition Milestones
. The Parties acknowledge and agree that the Transition Plan specifies various Transition
Milestones by which Transition activities and/or deliverables are to be completed. Supplier recognizes that its failure to meet the
Transition Milestones may have a material adverse impact on the business and operations of Kraft and the Eligible Recipients and that
the damages resulting from Supplier’s failure to meet such Transition Milestones are not capable of precise determination.
Accordingly, if Supplier fails to meet a Transition Milestone, then, in addition to any other remedies available to Kraft under this
Agreement, at law, or in equity, and subject to any exceptions to meeting Service Levels or Transition Milestones set forth in the
applicable Supplement, Supplier shall be subject to the imposition of the Deliverable Credits specified in the applicable Supplement
for such Transition Milestone, as compensation for Kraft’s damages and not as a penalty. If Kraft recovers other monetary damages
from Supplier as a result of Supplier’s failure to meet one or more Transition Milestones, Supplier shall be entitled to set off against
such damages any Deliverable Credits paid for the failures giving rise to such recovery. Neither the transition nor the activities and
deliverables associated with individual Transition Milestones shall be deemed complete until the Parties have mutually determined that
Supplier has successfully completed them in accordance with the process and standards identified in the Transition Plan.