Mondelez 2012 Annual Report Download - page 265

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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15.4.3.2 During such warranty period with respect to any Developed Materials developed by Supplier, Supplier shall correct any
failure of such Developed Material to Comply at no additional Charge to Kraft and shall use commercially reasonable
efforts to do so as expeditiously as possible; provided that in the case of Developed Materials produced by Supplier on a
time-and-materials or cost-plus basis, Supplier’s obligation to perform such correction at no additional charge shall be
limited to 10% (measured by Charges) of Supplier’s original development effort for producing those materials. The
foregoing warranty period will not extend to any failure to Comply attributable to (i) a change or modification to the
applicable Developed Material by Kraft or its Third Party Contractors not contemplated by this Agreement or
recommended, performed or approved by Supplier or (ii) Kraft operating the applicable Developed Material other than
(x) in accordance with the applicable documentation and Specifications, (y) for the purposes contemplated in this
Agreement or (z) on types of hardware contemplated by this Agreement or recommended, supplied or approved by
Supplier. In the event that Supplier fails or is unable to repair or replace such nonconforming Developed Material, Kraft
shall, in addition to any and all other remedies available to it hereunder, be entitled to obtain from Supplier a copy of the
source code and/or object code to such Developed Material.
15.4.4
Nonconformity of Supplier Owned Software
. In addition to the foregoing, in the event that the Supplier Owned Software
(excluding Supplier Owned Developed Materials which are addressed in Section 15.4.3 ) does not conform to the Specifications and
criteria set forth in this Agreement or the applicable Supplement, and/or materially adversely affects the Services provided hereunder,
Supplier shall expeditiously repair such Software or replace such Software with conforming Software.
15.4.5
Out of Support Third Party Software
. To the extent Third Party Software for which Supplier has operational responsibility under
Schedule 11.1 , 12.1 or 12.3 or the applicable Supplement is no longer supported by the applicable licensor or manufacturer, Supplier
shall use commercially reasonable efforts to perform maintenance for such Software as required.
15.5
Non
-
Infringement
.
15.5.1
Performance of Responsibilities
. Except as otherwise provided in this Agreement, each Party covenants that it shall perform its
responsibilities under this Agreement in a manner that does not infringe, or constitute an infringement or misappropriation of, any
patent, copyright, trademark, trade secret or other proprietary rights of any third party; provided, however, that the performing Party
shall not have any obligation or liability to the extent any infringement or misappropriation is caused by (i) modifications made by the
other Party or its contractors or subcontractors, without the knowledge or approval of the performing Party, (ii) the other Party’s
combination of the performing Party’s work product or Materials with items not furnished, specified or reasonably anticipated by the
performing Party or contemplated by this Agreement, (iii) a breach of this Agreement by the other Party, (iv) the failure of the other
Party to use corrections or modifications provided by the performing Party offering equivalent features and functionality, or (v) Third
Party Software, except to the extent that such infringement or misappropriation arises from the failure of the performing Party to
obtain the necessary licenses or Required Consents or to abide by the limitations of the applicable Third Party Software licenses. Each
Party further