Mondelez 2012 Annual Report Download - page 184

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.
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6.6.1.1.1 Supplier shall be excused of such obligation to the extent the terms of Kraft’s agreement with a Managed Third
Party do not permit Supplier to enforce the terms of the applicable Supplement;
6.6.1.1.2 Supplier will not be liable for a Managed Third Party’s breach of this Agreement with respect to matters not
involving performance of the Services, such as confidentiality obligations, but only if and to the extent that
(i) such breach is not a result of Supplier’s failure to properly manage such Managed Third Party, (ii) Supplier,
following discovery of the breach, promptly notifies Kraft of such breach and takes prompt action to demand
the Managed Third Party to so comply and (iii) Supplier uses commercially reasonable efforts, in cooperation
with Kraft, to mitigate any damage resulting from such breach (with any incremental expense of mitigation
being borne by the Party which has financial responsibility for such Managed Third Party
’
s performance); and
6.6.1.1.3 Supplier will be excused from its failure to comply with its Service-related obligations, including meeting the
Service Levels set forth in the applicable Supplement, under this Agreement if and to the extent Supplier
(i) confirms through a Root Cause Analysis that a Managed Third Party caused Supplier to fail to perform any
Services in accordance with the applicable Service Levels for such Services, and (ii) Kraft declines to take such
action demanded by Supplier under its agreement with the Managed Third Party which Kraft is contractually
entitled to take; provided that Supplier shall indemnify and defend Kraft from any third party claims (including
any increased costs payable by Kraft or an Eligible Recipient under its agreement with such Managed Third
Party) resulting from Kraft compliance with Supplier’s direction. In the event Kraft declines to take the
requested action, Supplier shall nonetheless use commercially reasonable efforts without additional costs to
Supplier to perform such Services notwithstanding the Managed Third Party
’
s failure to perform.
6.6.1.2 Unless otherwise specified in the applicable Supplement,
Section 6.6.2
, or agreed in writing by the Parties, Supplier is
responsible for all costs and charges associated with Managed Third Parties and, subject to the exceptions noted in
Sections 6.6.1.1.1 , 6.6.1.1.2 , and 6.6.1.1.3 , for any failure by any Managed Third Party or its personnel to perform in
accordance with this Agreement or to comply with any duties or obligations imposed on Supplier under this Agreement, to
the same extent as if such failure to perform or comply was committed by Supplier or Supplier Personnel. Supplier shall be
Kraft
’
s and the Eligible Recipients
’
sole point of contact regarding the services provided by such Managed Third Parties.
6.6.2
Modification.
If a Managed Third Party’s Third Party Contract is terminated (other than by Kraft for convenience) or a Managed
Third Party ceases to perform or fails to perform in accordance with this Agreement, Supplier shall be responsible for the continued
performance of the Services in accordance with this Agreement and shall either provide such Services itself or enter into an agreement
for such Services with a replacement Managed Third Party. In that event, if and to the extent Kraft is financially responsible for that
Managed Third Party, Kraft (i) will