Will sums paid by a Ben Jerrys operator to the Fund be accounted for separately?

All sums paid by OPERATOR to the Fund shall be accounted for separately and shall not be used to defray any of the expenses of BEN & JERRY'S, except for such costs and overhead, if any, as BEN & JERRY'S may incur in activities related to the management, direction and implementation of the Fund and marketing programs for operators and the System, including costs of personnel for creating and implementing marketing, advertising, and promotional programs.

BEN & JERRY'S shall maintain separate bookkeeping accounts for the Fund;

• 12.2.4 BEN & JERRY'S, upon OPERATOR's reasonable written request, shall provide OPERATOR with an annual accounting of Fund receipts and disbursements; and

• 12.2.5 BEN & JERRY'S reserves the right, in its sole discretion, to discontinue the Fund upon written notice to OPERATOR.

• 12.3 With respect to "local advertising and promotion" for the Scoop Shop, OPERATOR shall comply with the following:

• 12.3.1 OPERATOR shall spend such amounts as BEN & JERRY'S may specify in accordance with Section 12.1 above and 12.4 below for the Grand Opening.

[Chunk 2 | Item 22: Contracts] (chunk_id: 3a697704-8673-4e53-9e6a-45b59923dc94) [Item 22: CONTRACTS]

The Advertising Obligation shall be in the form of the following, and in such proportions as may be designated by BEN & JERRY'S in writing from time to time: (i) contributions paid to the Fund, pursuant to Section 12.2 below, (ii) expenditures by OPERATOR on "local advertising and promotion" pursuant to Section 12.3, and/or (iii) contributions paid to any Cooperative, as may be established pursuant to Section 12.3.4 below.

As of the Effective Date and until written notice from BEN & JERRY'S, the allocation shall be as follows: two percent (2%) of Gross Sales shall be contributed by OPERATOR to the Fund, and two percent (2%) of Gross Sales shall be spent by OPERATOR on local advertising and promotion.

OPERATOR understands and acknowledges the Advertising Obligation is the minimum requirement only, and that OPERATOR may, and is encouraged to, expend additional funds for marketing and promotion.

• 12.2 BEN & JERRY'S has established a marketing fund for the system (the "Fund").

During the existence of the Fund, OPERATOR shall contribute to the Fund in the manner specified in Section 4.5, such amounts as BEN & JERRY'S may specify in accordance with Section 12.1 above.

The Fund shall be maintained and administered by BEN & JERRY'S as follows:

• 12.2.1 BEN & JERRY'S shall have the right to direct all marketing programs, and to determine the concepts, materials, and media used in such programs and the placement and allocation thereof.

BEN & JERRY'S is not obligated, in administering the Fund, to make expenditures for OPERATOR which are equivalent or proportionate to OPERATOR's contribution, or to ensure that any particular OPERATOR benefits directly or pro rata from expenditures by the Fund.

Contributions to the Fund are not held by BEN & JERRY'S in trust and BEN & JERRY'S does not have any fiduciary obligation to OPERATOR with respect to contributions to the Fund.

Contributions to the Fund are not refundable to OPERATOR and, once received by BEN & JERRY'S, will be used in accordance with this Section 12.2;

[Chunk 3 | Item 22: Contracts] (chunk_id: eceb8f69-28cb-496e-b5a3-ef8d0cceff6d) [Item 22: CONTRACTS]

Gross Sales shall not include any sales taxes or other taxes collected from customers by OPERATOR and paid directly to the appropriate taxing authority.

• 4.5 All monthly payments and contributions required under this Section 4 shall be paid by the fifteenth (15th) day of each month, calculated on the Gross Sales for the preceding calendar month in the manner specified by BEN & JERRY'S from time to time.

Concurrent with such payments, OPERATOR shall submit to BEN & JERRY'S any reports or statements required under Section 11.3 below.

For any payments required under Section 4 or 12, OPERATOR shall, if requested by BEN & JERRY'S, make each such payment by separate cashier's check or shall establish an arrangement for electronic funds transfer or deposit of any payments required under Sections 4 or 12.

OPERATOR shall comply with the payment and reporting procedures specified by BEN & JERRY'S in the Manual or otherwise in writing.

[Chunk 4 | Item 22: Contracts] (chunk_id: 5afb0ea9-96bf-46fc-89c0-20b21d45d2b0) [Item 22: CONTRACTS]

OPERATOR shall comply with the payment and reporting procedures specified by BEN & JERRY'S in the Manual or otherwise in writing.

• 4.5.1 Any payment, contribution, statement, or report not actually received by BEN & JERRY'S on or before such date shall be overdue. If any contribution or payment is overdue, OPERATOR shall pay BEN & JERRY'S immediately upon demand, in addition to the overdue amount, interest on such amount from the date it was due until paid, at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less. Entitlement to such interest shall be in addition to any other remedies BEN & JERRY'S may have. If any payment or contribution submitted by check is returned or dishonored, OPERATOR shall pay BEN & JERRY'S immediately upon demand, in addition to the amount due, an amount established by BEN & JERRY'S from time to time to compensate BEN & JERRY'S for any fees or charges that BEN & JERRY'S incurs due to such returned or dishonored check.
• 4.5.2 BEN & JERRY'S reserves the right to collect all or a portion of OPERATOR's past due royalties and contributions (including interest) by adding such amount to the monies due for OPERATOR's purchases of Products from BEN & JERRY'S and/or its affiliates and approved suppliers or distributors (as provided in Section 7.10.3, cash on delivery may be required for purchases of Ben & Jerry's Products). All monies collected by BEN & JERRY'S affiliates and suppliers for OPERATOR's past due contributions shall be remitted to BEN & JERRY'S on OPERATOR's account. OPERATOR shall not delay, withhold or set-off any payments or contributions due hereunder against any monetary or other claim it may have against BEN & JERRY'S.

5. CONSTRUCTION AND OPENING OF SCOOP SHOP

[Chunk 5 | Item 22: Contracts] (chunk_id: da62fd20-ae27-4ba0-8705-828d277b7947) [Item 22: CONTRACTS]

• 11.3 OPERATOR shall, at OPERATOR's expense, submit to BEN & JERRY'S in the form prescribed by BEN & JERRY'S, the following reports, financial statements, and other data:

• 11.3.1 No later than the fifteenth (15th) day of each month, or such other time as may correspond to the required payment periods as set forth in Section 4.5, OPERATOR shall submit to BEN & JERRY'S a royalty report, a marketing report, and Gross Sales report for the prior month, and such other information as BEN & JERRY'S specifies, all in the form prescribed by BEN & JERRY'S;

• 11.3.2 No later than the sixtieth (60th) day of the end of each calendar year, OPERATOR shall submit an annual profit and loss statement reflecting all Gross Sales during the preceding calendar year and such other information as BEN & JERRY'S may specify for the preceding calendar year.

OPERATOR shall prepare profit and loss statements on an accrual basis and in accordance with GAAP; and

• 11.3.3 Other forms, statements, reports, records, information, and data as BEN & JERRY'S may designate.

• 11.4 BEN & JERRY'S and its agents shall have the right at all reasonable times during the term of this Agreement, and for up to two (2) years thereafter, to examine and copy, at the expense of BEN & JERRY'S, the books, records, accounts, Customer Lists and/or business tax returns of OPERATOR.

BEN & JERRY'S shall also have the right, at any time, to have an independent audit made of the books of OPERATOR.

If an inspection should reveal that any contributions or payments have been understated in any statement or report to BEN & JERRY'S, then OPERATOR shall immediately pay to BEN & JERRY'S the amount understated upon demand, in addition to interest from the date such amount was due until paid, at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less.

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11. ACCOUNTING, RECORDS AND AUDIT RIGHTS

• 11.1 OPERATOR agrees to employ sound financial management and planning practices in connection with the Scoop Shop and the business operated hereunder. OPERATOR shall record all sales on a computer-based, point-of-sale record keeping and control system designated by BEN & JERRY'S, or on any other equipment or communication system specified by BEN & JERRY'S in the Manual or otherwise in writing. OPERATOR shall prepare, and shall preserve for at least five (5) years from the dates of their preparation, complete and accurate books, records, and accounts in accordance with generally accepted accounting principles recognized in the United States as consistently applied ("Generally Accepted Accounting Principles" or "GAAP") and in the form and manner prescribed by BEN & JERRY'S from time to time in the Manual or otherwise in writing, including daily cash reports, cash receipts journal and general ledger, cash disbursements journal and weekly payroll register, monthly bank statements, and daily deposit slips and canceled checks, all business tax returns, suppliers invoices (paid and unpaid), dated cash register tapes (detailed and summary), semi-annual balance sheets and monthly profit and loss statements, weekly inventories, records of promotion and coupon redemptions, and such other records and information as BEN & JERRY'S may from time to time request, all of which shall accurately reflect the operations and condition of the Scoop Shop. The reporting requirements of this Section 11 shall be in addition to, and not in lieu of, the electronic reporting required under Section 7.11.2.

• 11.2 All Gross Sales, sales tax, and charges collected on behalf of third parties shall be recorded by OPERATOR in accordance with the procedures prescribed by BEN & JERRY'S in the Manual or otherwise in writing, and on such point-of-sale record-keeping and control system as BEN & JERRY'S may specify pursuant to Section 7 hereof.

• 11.3 OPERATOR shall, at OPERATOR's expense, submit to BEN & JERRY'S in the form prescribed by BEN & JERRY'S, the following reports, financial statements, and other data:

[Chunk 7 | Item 22: Contracts] (chunk_id: 9126da5d-e92d-483d-ad37-52cd34795ee5) [Item 22: CONTRACTS]

OPERATOR shall complete the Grand Opening within ninety (90) days after the Scoop Shop commences operation.

OPERATOR acknowledges and agrees that the Grand Opening shall be considered local advertising and promotion, subject to Section 12.3 above.

OPERATOR may credit toward its required expenditures for the Grand Opening: OPERATOR's costs, including fees paid to third party service providers to implement and use such public relations templates as BEN & JERRY'S may provide; OPERATOR's costs, including fees paid to third party service providers to provide entertainment at the Scoop Shop's grand opening event; OPERATOR's costs for the Products that OPERATOR sells at a discount, or gives away, to customers at the Scoop Shop during the grand opening event; and OPERATOR's costs to conduct such other activities as BEN & JERRY'S specifies in the Manual or otherwise in writing; provided that such activities are conducted in accordance with BEN & JERRY'S specifications, standards, and policies.

OPERATOR shall, upon BEN & JERRY'S request, provide BEN & JERRY'S with documentation outlining the schedule for the Grand Opening and evidencing the associated costs and expenses that OPERATOR incurred.

• 12.5 All marketing and promotion to be used by OPERATOR, the Fund or a Cooperative shall be in such media and manner, and of such type and format, as BEN & JERRY'S may approve, shall be conducted in a dignified manner, and shall conform to such standards and requirements as BEN & JERRY'S may specify.

OPERATOR shall not use any marketing or promotional plans or materials that are not provided by BEN & JERRY'S unless

and until OPERATOR has submitted the materials to BEN & JERRY'S, pursuant to the procedures and terms set forth in Section 12.7 herein.

• 12.6 BEN & JERRY'S shall make available to OPERATOR from time to time, marketing plans and promotional materials, including newspaper mats, coupons, merchandising materials, sales aids, point-of-purchase materials, special promotions, direct mail materials, and similar marketing and promotional materials produced from contributions to the Fund; provided that OPERATOR acknowledges and agrees that BEN & JERRY'S has the right to withhold any such materials from OPERATOR during any period in which OPERATOR is in not in full compliance with its obligations to contribute to the Fund or in which BEN & JERRY'S does not require contributions from OPERATOR.

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19. TAXES, PERMITS, AND INDEBTEDNESS

• 19.1 OPERATOR shall promptly pay when due all taxes levied or assessed, including unemployment and sales taxes, and all accounts and other indebtedness of every kind incurred by OPERATOR in the operation of the Scoop Shop. OPERATOR shall pay to BEN & JERRY'S an amount equal to any sales tax, gross receipts tax, or similar tax (other than income tax) imposed on BEN & JERRY'S with respect to any payments to BEN & JERRY'S required under this Agreement, unless the tax is credited against income tax otherwise payable by BEN & JERRY'S.
• 19.2 In the event of any bona fide dispute as to OPERATOR's liability for taxes assessed or other indebtedness, OPERATOR may contest the validity or the amount of the tax or indebtedness in accordance with procedures of the taxing authority or applicable law, but in no event shall OPERATOR permit a tax sale or seizure by levy or execution or similar writ or warrant, or attachment by a creditor, to occur against the Premises of the Scoop Shop, or any improvements thereon.
• 19.3 OPERATOR shall comply with all federal, state, and local laws, rules, and regulations, and shall timely obtain any and all permits, certificates, or licenses necessary for the full and proper conduct of the Scoop Shop, including licenses to do business, fictitious name registrations, sales tax permits, and fire clearances. OPERATOR also must co

Source: Item 22 — CONTRACTS (FDD pages 133–134)