Mondelez 2012 Annual Report Download - page 238

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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11.5.1.2
Acceptance or Rejection.
Kraft may accept or reject any New Services proposal in its sole discretion and Supplier shall
not be obligated to perform any New Services to the extent the applicable proposal is rejected. Unless the Parties otherwise
agree, if Kraft accepts Supplier’s proposal, Supplier will perform the New Services and be paid in accordance with the
proposal submitted by Supplier and the provisions of the applicable Supplement. Upon Kraft’s acceptance of a Supplier
proposal for New Services, the scope of the Services will be expanded and the applicable Supplement will be modified to
include such New Services. If Supplier is unable to provide such New Services related to the Services using its own
resources, Kraft may require Supplier to engage (as Supplier’
s subcontractor) a third party approved or selected by Kraft to
provide such services. Notwithstanding any provision to the contrary, (i) Supplier shall act reasonably and in good faith in
formulating such pricing proposal, (ii) Supplier shall use commercially reasonable efforts to identify potential means of
reducing the cost to Kraft, including utilizing Subcontractors as and to the extent appropriate, (iii) such pricing proposal
shall be [ * * * ] than the [ * * * ], and (iv) such pricing proposal shall take into account [ * * * ].
11.5.1.3 [ * * * ]
Expenses
. The [ * * * ] requirement set forth in [ * * * ] of the definition of [ * * * ] (in
Schedule 1
) shall not
apply to [ * * * ] for purchase of [ * * * ] which cannot be performed [ * * * ], or the purchase of [ * * * ], to the extent that
such [ * * * ]: (1) result in changes to [ * * * ] specifically requested [ * * * ] and are not otherwise required for [ * * * ] to
meet its then current obligations under [ * * * ], including its obligations under [ * * * ] below; (2) are approved by [ * * * ]
in writing in advance; and (3) are not offset by costs or expenses that are avoided as a result of [ * * * ].
11.5.2 Use of Third Parties
. Kraft may elect to solicit and receive bids from third parties to perform any New Services. If Kraft elects to use
third parties to perform New Services, (i) such New Services shall not be deemed “Services” under the provisions of this Agreement,
and (ii) Supplier shall cooperate with such third parties as provided in
Section 4.5
.
11.5.3
Services Evolution and Modification.
The Parties anticipate that the Services will evolve and be supplemented, modified, enhanced
or replaced over time to keep pace with technological advancements and improvements in the methods of delivering Services and
changes in the businesses of Kraft and the Eligible Recipients, provided that the foregoing shall not be interpreted to require Supplier
to refresh Equipment at a rate that is faster than the rate specified in the applicable Supplement for such Equipment. The Parties
acknowledge and agree that these changes will modify the Services and will not be deemed to result in New Services unless the
changed services meet the definition of New Services.
11.5.4
Authorized User and Eligible Recipient Requests
. Supplier will promptly inform the Kraft Contract Manager of requests for New
Services from Authorized Users or Eligible Recipients, and shall submit any proposals for New Services to the Kraft Contract
Manager or his or her designee. Supplier shall not agree to provide New Services to any Authorized Users or Eligible Recipients
without the prior written approval of the Kraft Contract Manager or his or her designee. If Supplier fails to comply strictly with this
Section 11.5.4
, it shall receive no compensation for any services rendered to any person or entity in violation of such provision.