Common use of Additional Performance Criteria Clause in Contracts

Additional Performance Criteria. 8.1 CCE agrees that the Bottlers will place and keep each Vendor and Cooler purchased and placed in accordance with the Program in place at customer locations, as well as any existing cold drink equipment currently on location, for a period of at least twelve (12) years from date of placement, unless such equipment is rendered inoperable and cannot be reasonably repaired as the result of mechanical or other similar difficulties. Only Vendors and Coolers of the type approved by TCCEC will be funded under the Program. 8.2 TCCEC's investment described in this Agreement is based on generating incremental sales that support the expenditures contemplated. Therefore, TCCEC wishes to ensure that Coolers and Vendors optimise the sale of products of The Coca-Cola Company and CCE agrees to take the acts described in this Agreement to do so. 8.3 On the execution of this Agreement CCE is not aware of any contractual obligations, other than those in effect in Great Britain, which would prevent the performance and fulfillment of the terms of this Agreement. 8.4 The Parties specifically agree and acknowledge, however that: (i) CCE and CCSB have existing contractual obligations in Great Britain that restrict its ability to use only the trademarks or products of The Coca-Cola Company with respect to the Vendors and Coolers; (ii) current or developing regulatory and/or legal needs may also result in similar restrictions; and (iii) all obligations stated in this Agreement are subject to these actual and potential restrictions. Accordingly, CCE shall make best efforts to optimise the placement of trademarks and products of The Coca-Cola Company and take the steps described below but only within the constraints described in this paragraph (provided TCCEC agrees that such constraints are required to comply with the law): 8.4.1 During the Program any vendors or coolers which are refurbished will be refurbished with the trademarks and approved graphics of The Coca-Cola Company; 8.4.2 CCE agrees that all of CCE's total inventory of vendors and coolers will be dressed only with the trademarks and approved graphics of The Coca-Cola Company; and 8.4.3 The obligations contained in clause 8.8. 8.5 It shall not be a breach of this Agreement if CCE and the Bottlers cannot meet the obligations otherwise set out herein if that failure is the result of actions taken by CCE and the Bottlers, with the agreement of TCCEC, which are deemed necessary to comply with the law or regulatory requirements or contractual restrictions existing on the effective date of this Agreement. If the Parties do not agree on the actions necessary to comply with legal or regulatory requirements or the above mentioned contractual restrictions, TCCEC may terminate this Agreement without liability attaching to either party (other than the pro-rata repayment of any Funds paid in advance and not yet earned). 8.6 CCE and/or the Bottlers will provide TCCEC within 30 days of the end of each Agreement Year reports certifying: (i) the number of Vendors and Coolers Funded under this Agreement which were actually placed at customer locations in the Bottler Territories during the preceding year; (ii) the total number of vendors and coolers (including units in existing inventory and units not funded under this Agreement) actually on location at the conclusion of such year; and (iii) the number of Coolers and Vendors sold outright to customers. CCE and/or the Bottlers will provide TCCEC with a monthly report certifying the number of Vendor and Cooler placements made, by Territory, in the preceding month. 8.7 The Bottlers agree not to sell any used or refurbished vendor with any remaining useful life to any third party during the Term of this Agreement without TCCEC's express written consent, except for sale of vendors not Funded under this Agreement to other licensed bottlers of Coca-Cola. 8.8 Prior to the beginning of each Agreement Year, CCE also agrees to establish maintain and publish, subject to section 8.4, for the employees of each Bottler "Flavour Set Standards". The Flavour Set Standards will contain, unless prohibited by contract or regulatory and/or legal requirements, the following minimum average requirements for all vendors and coolers owned by the Bottlers, including the Vendors and Coolers placed in accordance with the Program: (i) all slots in vendors will dispense only products authorised by TCCEC; and (ii) all of the inventory in coolers will be products authorised by TCCEC. It is understood by CCE and TCCEC that the Flavour Set Standard will apply to all bottle or can equipment owned by the Bottlers, whether acquired under the Program or otherwise. Product exclusivity is not a requirement of this Agreement. CCE and TCCEC shall review the specific terms of the Flavour Set Standard as part of the annual business planning process. Following such review, TCCEC shall confirm in writing the terms of the Flavour Set Standard for the applicable calendar year. CCE and the Bottlers will use all reasonable efforts to implement the Flavour Set Standard within one hundred and twenty (120) days following agreement between CCE and TCCEC. In connection with Great Britain a Flavour Set Standard shall be agreed on the execution of this Agreement and any subsequent Flavour Set Standard shall not, unless otherwise agreed with TCCEC, have Brand exposure or positioning for KO Brands less favourable than that originally agreed. 8.9 To the extent in each Territory that products not authorised by TCCEC ("Competitive Products") are dispensed in Vendors or Coolers purchased in connection with the Funding, TCCEC will receive a Fair Share payment in connection with that Territory if the percentage of Competitive Products dispensed exceeds, on average, *** percent (***%) of the available space in the equipment. The Fair Share payment will be calculated based on each Territory and paid annually in arrears in the applicable local currency and shall be calculated in the following manner: 8.9.1 As of September 30 of each year throughout the Term, CCE and/or the Bottlers will provide TCCEC with the weighted average percentage of Competitive Products in Vendors and Coolers Funded by TCCEC under this Program in that Agreement Year in each Territory. Such percentage shall be provided during the certification process set forth in section 9.1 and back-up and support for such calculation shall be provided to TCCEC upon request. 8.9.2 The weighted average percentage minus the ***% threshold and multiplied by the total Funding due to that Bottler in that Territory for such year shall be the Fair Share payment owing to TCCEC. That amount shall then be deducted from any annual or fourth quarter funding due to that Bottler. If the amount of such payment exceeds the fourth quarter Funding, the Bottler shall make a separate payment to the Company as necessary to cover the full amount. 8.10 CCE, on behalf of the Bottlers, acknowledges and agrees that all of the Funding set forth herein is offered and will be paid by TCCEC based on the expectation that each Bottler will remain in compliance with its Bottler's Agreement pertaining to TCCEC products. In the event that a Bottler materially breaches its Bottler's Agreement during the Term, or attempts to terminate such agreements absent breach by TCCEC as defined therein, TCCEC shall have the right to treat such action as a breach of this Program as it applies to that Territory, including the right to terminate this Program in all respects as it applies to that Territory and to recover all sums set forth above as it applies to that Territory.