Mondelez 2012 Annual Report Download - page 222

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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9.12.4
Supplier Responsibility
. Unless otherwise approved by Kraft, the terms of any subcontract (but not including contracts for Supplier
Overhead Materials) must be consistent (where “consistent” means either that such subcontract contains these requirements or such
subcontract enables Supplier to direct the subcontractor as necessary to comply with such listed items set forth in clauses (i) through
(vii)) with this Agreement, including: (i) confidentiality and intellectual property obligations; (ii) Kraft’s approval rights (which must
apply directly to the Subcontractor); (iii) compliance with Kraft Standards, Strategic Plans and applicable Laws; (iv) compliance with
Kraft’s policies and directions; (v) audit rights as described in Section 9.10 ; (vi) Key Supplier Personnel; and (vii) insurance
coverage, as described in Section 16.1.1 , with coverage limits consistent with the scope of the work to be performed by such
Subcontractors. Supplier shall use a common methodology and tool set to ensure all of the Subcontractors are managed effectively and
efficiently. Kraft acknowledges and approves Supplier’s use of Kraft assigned contracts notwithstanding that such contracts do not
comply with all of the requirements of this Agreement as of the Effective Date. Notwithstanding the terms of the applicable
subcontract, the approval of such Subcontractor by Kraft or the availability or unavailability of Subcontractor insurance, Supplier shall
be and remain responsible and liable. Supplier shall be responsible for any failure by any Subcontractor or Subcontractor 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 employees. Supplier shall be
responsible for the performance of all such Subcontractors and Subcontractor personnel providing any of the Services hereunder.
Supplier shall be Kraft
’
s sole point of contact regarding the Services, including with respect to payment.
9.13
Government Contract Flow
-
Down Clauses
.
9.13.1
General
. The Parties acknowledge and agree that, as a matter of federal procurement law, Supplier may be deemed a “subcontractor”
to Kraft and/or an Eligible Recipient under one or more of their contracts with the federal government, that the Services provided or to
be provided by Supplier in such circumstances constitute “commercial items” as that term is defined in the Federal Acquisition
Regulation, 48 C.F.R. Section 52.202, and that “subcontractors” providing “commercial items”
under government contracts are subject
to certain mandatory “flow-down” clauses (currently, (i) Equal Opportunity, (ii) Affirmative Action for Special Disabled and Vietnam
Era Veterans, and (iii) Affirmative Action for Handicapped Workers) under the Federal Acquisition Regulation, 48 C.F.R.
Section 52.244-6. The Parties agree that to the extent these specific clauses and any other government-mandated clauses are required
to be flowed down to Supplier, Supplier shall comply with such clauses at no additional cost to Kraft.
9.13.2
Special Requirements
. The Parties do not believe that the Services provided by Supplier under this Agreement will be subject to
government flow-down requirements other than those associated with any subcontracts for commercial items. Should compliance by
Supplier with additional flow-down provisions nevertheless be required by the federal government due to Supplier being a
subcontractor under a government contract in which the Services fail to qualify as “commercial items”, then Kraft will reimburse
Supplier for additional direct incremental costs of compliance approved by Kraft provided that (i) Supplier notifies Kraft of such costs
before Supplier incurs them or begins providing the applicable Services, (ii) uses commercially reasonable efforts to minimize such
costs, and (iii) Supplier equitably allocates such costs among Kraft and any other Supplier customers who have similar compliance
requirements.