Mondelez 2012 Annual Report Download - page 279

Except as otherwise provided in Section 16.1 , in the event that an indemnitor shall be obligated to indemnify an indemnitee pursuant to any
provision of this Agreement, the indemnitor shall, upon payment of such indemnity in full, be subrogated to all rights of the indemnitee with
respect to the claims to which such indemnification relates.
Subject to the specific provisions and limitations of this Article 18 , it is the intent of the Parties that each Party shall be liable to the other Party
for any actual damages incurred by the non-breaching Party as a result of the breaching Party’s failure to perform its obligations in the manner
required by this Agreement.
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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17.6.2
Procedure for Defense
. The indemnitee shall be entitled, at its option, to have the claim handled pursuant to
Section 17.5
or to retain
sole control over the defense and settlement of such claim; provided that, in the latter case, the indemnitee shall (i) consult with the
indemnitor on a regular basis regarding claim processing (including actual and anticipated costs and expenses) and litigation strategy,
(ii) reasonably consider any the indemnitor settlement proposals or suggestions, and (iii) use commercially reasonable efforts to
minimize any amounts payable or reimbursable by the indemnitor.
17.7
Subrogation
.
18.
LIABILITY
18.1
General Intent
.
18.2
Force Majeure
.
18.2.1
General
. Subject to
Section 18.2.4
, no Party shall be liable for any default or delay in the performance of its obligations under this
Agreement if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or
acts of God, wars, riots, civil disorders, rebellions or revolutions, acts of terrorism, or any other similar cause beyond the reasonable
control of such Party except to the extent that the non-performing Party could not have prevented such default or delay using
reasonable precautions, and provided that such default or delay cannot reasonably be circumvented by the non-performing Party
through the use of alternate sources, workaround plans or other means. A strike, lockout or labor dispute involving Supplier Personnel
shall not excuse Supplier from its obligations hereunder. The failure of any Equipment, Software or System for which Supplier is
operationally responsible to be year 2000 compliant shall not be considered a force majeure event and shall not relieve Supplier of any
of its obligations under this Agreement, including its obligations to perform the Services in accordance with the Service Levels. In
addition, the refusal of Supplier Personnel to enter a facility that is the subject of a labor dispute shall excuse Supplier from its
obligations hereunder only if and to the extent such refusal is based upon a reasonable fear of physical harm.
18.2.2
Duration and Notification
. In the event of a force majeure event the non-performing Party shall be excused from further
performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such Party continues to use
commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay.
Any Party so prevented, hindered or delayed in its performance shall, as quickly as practicable under the circumstances, notify the
Party to whom performance is due by telephone (to be confirmed in writing within one day of the inception of such delay) and
describe at a reasonable level of detail the circumstances of the force majeure event, the steps being taken to address such force
majeure event, and the expected duration of such force majeure event.