Mondelez 2012 Annual Report Download - page 277

Supplier agrees to indemnify, defend and hold harmless the Entities and individuals that are entitled to indemnification pursuant to Section 17.1
,
and Kraft agrees to indemnify, defend and hold harmless the Entities and individuals that are entitled to indemnification pursuant to
Section 17.2 , from any and all Losses and threatened Losses to the extent they arise from or in connection with any of the following: (a) except
as otherwise provided in Section 17.1.10 or Section 17.2.10 , third party claims arising from the death, personal injury or bodily injury of any
agent, employee, customer, business invitee, business visitor or other person caused by the negligence or other tortious conduct of the indemnitor
or the failure of the indemnitor to comply with its obligations under this Agreement; and (b) the damage, loss or destruction of any third party’s
real or tangible personal property caused by the negligence or other tortious conduct of the indemnitor or the failure of the indemnitor to comply
with its obligations under this Agreement.
In the event that (i) any Software, Equipment, Materials or Services for which Supplier has an indemnification obligation pursuant to
Section 17.1.5 or for which Kraft has an indemnification obligation pursuant to Section 17.2.5 , or in the reasonable opinion of the Party with
the indemnification obligation, are likely to be found, to infringe upon the patent, copyright, trademark, trade secrets, intellectual property or
proprietary rights of any third party in any country in which Services are to be performed or received under this Agreement, or (ii) the continued
use of such item(s) is enjoined, the party with the indemnification obligation shall, in addition to defending, indemnifying and holding harmless
the other Party as provided in Section 17.1.5 or Section 17.2.5 , as applicable, and to the other rights the non-indemnifying Party may have
under this Agreement, promptly and at its own cost and expense and in such a manner as to minimize the disturbance to the non-indemnifying
Party’s business activities do one of the following (subject to any applicable limitation of liability set forth in Section 18.3.2 ):
With respect to non-Party claims which are subject to indemnification under this Agreement (other than as provided in Section 17.6 with respect
to claims covered by Section 17.1.6 ), the following procedures shall apply:
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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17.3
Additional Indemnities
.
17.4
Infringement
.
17.4.1
Obtain Rights
. Obtain for the non
-
indemnifying Party the legal right to continue using such Software, Equipment or Materials.
17.4.2
Modification
. Modify the item(s) in question so that it is no longer infringing (provided that such modification does not degrade the
performance or quality of the Services or adversely affect Kraft’s and the Eligible Recipients’ intended use as contemplated by this
Agreement).
17.4.3
Replacement
. Replace such item(s) with a non
-
infringing functional equivalent acceptable to Kraft.
17.4.4
Removal
. If Kraft is the indemnifying Party, Kraft may at its option elect to require Supplier to discontinue use of the infringing
Material, in which case Supplier shall be excused to the extent such removal prevents Supplier from meeting any of its performance
obligations under this Agreement.
17.5
Indemnification Procedures
.