Mondelez 2012 Annual Report Download - page 200

Supplier, not Kraft or the Eligible Recipients, has the right, power, authority and duty to supervise and direct the activities of the Supplier
Personnel, to compensate such Supplier Personnel for any work performed by them on the behalf of Kraft or the Eligible Recipients pursuant to
this Agreement, and to terminate Supplier’s employment of such personnel. Supplier, and not Kraft or the Eligible Recipients, shall be
responsible and therefore solely liable for all acts and omissions of Supplier Personnel acting in the course of their employment, including acts
or omissions constituting negligence, gross negligence, willful misconduct and/or fraud.
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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8.8
Replacement, Qualifications and Retention of Supplier Personnel.
8.8.1
Sufficiency and Suitability of Personnel
. Supplier shall assign (or cause to be assigned) sufficient Supplier Personnel to provide the
Services in accordance with this Agreement and such Supplier Personnel shall possess suitable competence, ability and qualifications
and shall be properly educated and trained for the Services they are to perform.
8.8.2
Requested Replacement
. In the event that Kraft determines lawfully and in good faith that the continued assignment to Kraft of any
individual Supplier Personnel (including Key Supplier Personnel) is not in the best interests of Kraft or the Eligible Recipients, then
Kraft shall give Supplier notice to that effect requesting that such Supplier Personnel be replaced. Supplier shall have 10 business days
following Kraft’s request for removal of such Supplier Personnel in which to investigate the matters forming the basis of such request,
correct any deficient performance and provide Kraft with assurances that such deficient performance shall not recur (provided that, if
requested to do so, Supplier shall immediately remove (or cause to be removed) the individual in question from all Kraft sites pending
completion of Supplier’s investigation and discussions with Kraft). If, following such 10 business day period, Kraft is not reasonably
satisfied with the results of Supplier’s efforts to correct the deficient performance and/or to ensure its non-recurrence, Supplier shall,
as soon as possible, remove and replace such Supplier Personnel with an individual of suitable ability and qualifications, without cost
to Kraft. Nothing in this provision shall operate or be construed to limit Supplier’s responsibility for the acts or omission of the
Supplier Personnel, or be construed as joint employment.
8.8.3 Turnover Rate and Data . Supplier will use commercially reasonable efforts to keep the turnover rate of personnel performing the
Services to a level comparable or better than averages for large, well-managed first tier service providers performing similar services,
and in any case as necessary to comply with the applicable Service Levels. If Kraft determines that the turnover rate of Supplier
Personnel is higher than that noted above or otherwise has an adverse effect on Kraft, and so notifies Supplier, Supplier shall within 30
days (i) provide Kraft with data concerning Supplier’s turnover rate, (ii) meet with Kraft to discuss the reasons for the turnover rate,
and (iii) submit a proposal for reducing the turnover rate for Kraft’s review and approval. Notwithstanding any transfer or turnover of
Supplier Personnel, Supplier shall remain obligated to perform the Services without degradation and in accordance with the Service
Levels.
8.8.4
Restrictions on Performing Services to Competitors
. Neither Supplier nor any Subcontractor shall cause or permit any dedicated,
client-facing Transitioned Personnel; Transitioned Personnel who are SAP basis programmers or database administrators; Critical
Affected Personnel, other than contractors; or Key Supplier Personnel (who remain employed by Supplier or a Subcontractor) to
perform services directly or indirectly for or market Supplier’s services to a Direct Kraft Competitor either while engaged in the
provision of Services or during the first [ * * * ] after the Effective Date for the Transitioned Employees and, with respect to: (a) each
Key