Mondelez 2012 Annual Report Download - page 286

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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19.3.2
Location and Decision.
Any arbitration under this Agreement shall take place in Chicago, Illinois, and shall apply the governing law
of this Agreement. The decision of the arbitrators shall be final and binding and judgment on the award may be entered in any court of
competent jurisdiction. The arbitrators shall be instructed to state the reasons for their decisions, including findings of fact and law.
The arbitrators shall be bound by the warranties, limitations of liability and other provisions of this Agreement. Except with respect to
the provisions of this Agreement which provide for injunctive relief rights, such arbitration shall be a precondition to any application
by either Party to any court of competent jurisdiction.
19.3.3
Selection and Qualification of Arbitrators.
Within 30 days, or such reasonable period mutually agreed upon by the Parties, after
delivery of written notice (“ Notice of Arbitration ”) by one Party to the other in accordance with this Section, the Parties each shall
use good faith efforts to mutually agree upon one arbitrator. If the Parties are not able to agree upon one arbitrator within such period
of time, the Parties each shall within 30 days: (i) appoint one arbitrator 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 arbitrator and a copy of his or her written acceptance of such appointment to the other Party. If either Party fails or refuses to
appoint an arbitrator within such 30-day period, the single arbitrator appointed by the other Party shall decide alone the issues set out
in the Notice of Arbitration. Within 30 days after such appointment and notice, such arbitrators 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 arbitrators fail to appoint a third arbitrator within 30 days of the
appointment of the second arbitrator, either arbitrator or either Party may apply for the appointment of a third arbitrator to the
American Arbitration Association.
19.3.4
Scope of Discovery
. Subject to the last two sentences of this
Section 19.3.4
, discovery will be limited to the request for and
production of documents, depositions and interrogatories. Interrogatories will be allowed only as follows: a Party may request the
other Party to identify by name, last known address and telephone number (i) all persons having knowledge of facts relevant to the
dispute and a brief description of that person's knowledge, (ii) any experts who may be called as an expert witness, the subject matter
about which the expert is expected to testify, the mental impressions and opinions held by the expert and the facts known by the expert
(regardless of when the factual information was acquired) that relate to or form the basis for the mental impressions and opinions held
by the expert, and (iii) any experts who have been used for consultation, but who are not expected to be called as an expert witness, if
such consulting expert's opinions or impressions have been reviewed by an expert witness. All discovery will be governed by the
Federal Rules of Civil Procedure. All issues concerning discovery upon which the Parties cannot agree will be submitted to the
arbitrator for determination. Nothing in this Section 19.3.4
shall preclude either party from seeking limited third party discovery under
applicable AAA Rules or the laws of the State of Illinois in the discretion of the arbitrator. In addition, should a Party be able to prove
that it will be unfairly prejudiced without additional discovery on a certain issue, the arbitrator in its discretion can permit additional
limited discovery for the purpose of improving the efficiency of the arbitration proceeding.
19.3.5
General
. All arbitrators shall be attorneys with experience with the technology and/or law applicable to the Services or similar
services or transactions. Any such appointment shall be binding upon the Parties. The arbitrator will not have authority to award
damages in excess of the amount or other than the types allowed by Section 18.3 and may not, in any event, make any ruling, finding
or award that does not conform to the terms and conditions of this Agreement. The decision or award of the arbitrator or arbitrators
shall be final, binding and nonappealable, and