Mondelez 2012 Annual Report Download - page 234

not deviate from such instructions without Kraft’s prior approval. Unless otherwise agreed by the Parties, the procurement price of
such products and services shall be treated as a Pass-Through Expense or otherwise passed through to Kraft without Supplier markup.
For all other products and services Kraft may request Supplier to procure on Kraft's behalf, Supplier will quote to Kraft terms,
including prices, for such products and services, and upon Kraft's approval, will obtain the products and services on Kraft's behalf on
those terms.
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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11.3.3
Supplier may use, with Kraft’s prior approval, master agreements, existing as of the Commencement Date, that are between Kraft and
various third party vendors to procure products and services requested by Kraft. Supplier’s use of such Kraft master agreements shall
be conditioned on and subject to the following: (i) Supplier obtaining any Required Consents to the use of such master agreements;
(ii) Supplier complying with the terms and conditions of such master agreements; and (iii) Supplier accepting responsibility for curing
any breaches by Supplier of such master agreements and indemnifying, in accordance with Section 17.5 , Kraft or the Eligible
Recipients for any Losses in connection with such breaches.
11.3.4
Supplier may use existing agreements between Supplier and third party vendors or enter into new agreements with third party vendors
to procure such products and services on a Pass-Through Expense or, if agreed upon by the Parties, on a cost-reimbursement basis.
Supplier’s use of such agreements for such purchases shall be conditioned on and subject to the following: (i) Kraft approving in
advance the terms, conditions and pricing of such agreements and any financial or other commitments made therein by or on behalf of
Kraft or the Eligible Recipients; (ii) Supplier complying with the terms and conditions of such agreements and accepting responsibility
for meeting any minimum volumes; (iii) Supplier passing through to Kraft any refunds, credits, discounts or other rebates;
(iv) Supplier retaining responsibility for curing any breaches of such agreements and indemnifying, in accordance with Section 17.5 ,
Kraft or the Eligible Recipients for any Losses in connection with such breaches; and (v) such agreements offering more favorable
pricing and equivalent or better terms and conditions for the requested product or service than the master agreements existing as of the
Commencement Date that are between Kraft and third party vendors.
11.3.5
If, at any time, Kraft determines that the pricing and terms and conditions available through Supplier are not as favorable as those
Kraft could obtain on its own, Kraft reserves the right to select and negotiate with the provider of such third party products and
services and Supplier shall comply with Kraft
’
s decision with respect thereto.
11.3.6 With respect to all products and services purchased by Supplier for Kraft and/or the Eligible Recipients on Pass-Through Expense or,
where agreed upon by the Parties, on a cost-reimbursement basis during the course of performing the Services, Supplier shall use
commercially available efforts to pass through, or otherwise provide, to Kraft and/or the applicable Eligible Recipient(s) all benefits
offered by the manufacturers and/or vendors of such products and services(including all warranties, refunds, credits, rebates,
discounts, training, technical support and other consideration offered by such manufacturers and vendors) except to the extent
otherwise agreed by Kraft. If Supplier is unable to pass through any such benefit to Kraft and/or the applicable Eligible Recipient(s), it
shall notify Kraft in advance and shall not purchase such product or service without Kraft
’
s prior approval.