Mondelez 2012 Annual Report Download - page 285

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.
136
19.2
Non
-
Binding Mediation.
19.2.1
Requirement to Attempt Non
-
Binding Mediation.
Except for disputes described in
Section 19.4
or
Section 20.8
or termination of
this Agreement pursuant to Article 20
, any dispute arising out of or relating to this Agreement, or any breach thereof, which cannot be
resolved using the procedures set forth in Section 19.1 shall be first attempted to be resolved through non-binding mediation under the
mediation rules of the Center for Public Resources.
19.2.2
Location and Decision
. The mediation shall take place in Chicago, Illinois, and shall apply the governing law of this Agreement. The
recommendations of the mediators shall be non-binding. The mediators shall be instructed to state the reasons for their
recommendations. The mediators shall be bound by the warranties, limitations of liability and other provisions of this Agreement.
19.2.3
Selection and Qualification of Mediators
. Within 10 days after delivery of written notice (“
Notice of Mediation
”) by one Party to
the other in accordance with this Section, the Parties each shall use good faith efforts to mutually agree upon one mediator. If the
Parties are not able to agree upon one mediator within such period of time, the Parties each shall within 10 days: (i) appoint one
mediator who has at no time ever represented or acted on behalf of either of the Parties, and is not otherwise affiliated with or
interested in either of the Parties and (ii) deliver written notice of the identity of such mediator and a copy of his or her written
acceptance of such appointment to the other Party. If either Party fails or refuses to appoint a mediator within such 10-day period, the
single mediator appointed by the other Party shall decide alone the issues set out in the Notice of Mediation. Within 10 days after such
appointment and notice, such mediators shall appoint a third neutral and independent arbitrator who at no time ever represented or
acted on behalf of either of the Parties, and is not otherwise affiliated with or interested in either of the Parties. In the event that the
two mediators fail to appoint a third mediator within 10 days of the appointment of the second mediator, either mediator or either Party
may apply for the appointment of a third mediator to the Center for Public Resources.
19.2.4
General
. All mediators shall be practicing attorneys with at least five years’ experience with the business processes, technology and
law applicable to the Services or similar services or transactions. The Parties shall use commercially reasonable efforts to conclude the
mediation within 60 days after selection of the mediator or mediators. The recommendations of the mediator or the majority of the
three mediators, as applicable, shall be rendered within 15 days after the conclusion of the hearing, shall be in writing, shall set forth
the basis therefore. Each Party shall bear its own mediation costs and expenses and all other costs and expenses of the mediation shall
be divided equally between the Parties.
19.3
Arbitration.
19.3.1
Arbitration
. Except for disputes described in
Section 19.4
, any controversy or claim arising out of or relating to this Agreement, or
any breach thereof, which cannot be resolved using the procedures set forth above in Section 19.1 or 19.2 shall be finally resolved
under the Commercial Arbitration Rules of the American Arbitration Association then in effect; provided, however, that without
limiting any rights at law or in equity a Party may have because of an improper termination of this Agreement by the other Party,
nothing contained in this Agreement shall limit either Party
’
s right to terminate this Agreement pursuant to
Article 20 .