Mondelez 2012 Annual Report Download - page 230

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.
81
10.2
Savings Clause
.
10.2.1
Requirements
. Supplier’s failure to perform its responsibilities under this Agreement or to meet the Service Levels shall be excused
if and to the extent such Supplier non-performance is caused by (i) the wrongful or tortious act or failure to act by Kraft, an Eligible
Recipient, or a Kraft Third Party Contractor or an agent or employee thereof performing obligations on behalf of Kraft (unless and to
the extent, as to Kraft Third Party Contractors, such failure is attributable to Supplier’s failure to properly manage such Kraft Third
Party Contractor), or (ii) the failure of Kraft or an Eligible Recipient to perform (either directly or through a third party engaged by
Kraft or an Eligible Recipient to do so) Kraft’s obligations described in this Agreement, but only if Supplier, upon actual or
constructive knowledge of such an occurrence, expeditiously:
10.2.1.1 notifies Kraft of such wrongful or tortious act or failure to act, or such failure to perform and the impact thereof on
Supplier's ability to perform under such circumstances,
10.2.1.2 provides Kraft with reasonable opportunity to correct such wrongful or tortious act or failure to act, or correct such failure
to perform and thereby avoid such Supplier non
-
performance,
10.2.1.3 identifies and pursues commercially reasonable means to avoid or mitigate the impact of such wrongful or tortious act or
failure to act, or failure to perform, so long as Supplier is not obligated to incur additional costs in connection therewith
that will not be reimbursed by Kraft,
10.2.1.4 uses commercially reasonable efforts to perform notwithstanding such wrongful or tortious act or failure to act, or failure
to perform, so long as Supplier is not obligated to incur additional costs in connection therewith that will not be reimbursed
by Kraft, and
10.2.1.5 conducts a Root Cause Analysis and thereby demonstrates that such act or omission or failure to perform is the cause of
Supplier
’
s non
-
performance.
10.2.2
No Other Circumstances
. Supplier acknowledges and agrees that the circumstances described in this
Section 10.2
, and in the
applicable Supplement, together with force majeure, are the only circumstances in which its failure to perform its responsibilities
under this Agreement or to meet the Service Levels will be excused and that Supplier will not assert any other act or omission of Kraft
or the Eligible Recipients as excusing any such failure on Supplier
’
s part.
10.2.3
Authorized User Actions
. For the avoidance of doubt with respect to
clause (ii)
of
Section 10.2.1
and except as provided in
clause
(i) of Section 10.2.1 , Supplier will not be excused of any of its responsibilities, including its failure to meet any Service Levels, with
respect to an operational area due to [ * * * ] in such operational area, except to the extent [ * * * ] has failed to perform [ * * * ] on
which [ * * * ] performance was dependent.
11. CHARGES
11.1
General
.
11.1.1
Payment of Charges
. In consideration of Supplier’
s performance of the Services, Kraft agrees to pay Supplier the applicable Charges
that are set forth in the applicable Supplement beginning as of the Commencement Date. Supplier shall continually seek to identify
methods of reducing such Charges and will notify Kraft of such methods and the estimated potential savings associated with each such
method.