NON EXCLUSIVE BROKER REFERRAL AGREEMENT THIS NON-EXCLUSIVE BROKER REFERRAL AGREEMENT (this Broker Contract ) is made this day of, 2013 by and between [NAME] (herein after called the "IFPG FRANCHISE CONSULTANT/BROKER ") a [STATE] corporation, and Ben & Jerry s Franchising, Inc. (hereinafter called the "FRANCHISOR") a Vermont corporation (collectively, the Parties ). WITNESSETH: That the FRANCHISOR agrees to accept referrals from the IFPG FRANCHISE CONSULTANT/BROKER of qualified candidates (the Candidates ) for the purchase of the franchise opportunity offered by the FRANCHISOR (the Work ), subject to the following terms, restrictions, and conditions: Scope of Work. (a) The IFPG FRANCHISE CONSULTANT/BROKER agrees to refer qualified candidates (a Referral ) to the FRANCHISOR using information and referral forms supplied by the FRANCHISOR, or if no referral form is supplied by the FRANCHISOR, then using the IFPG referral form. (b) All of the Work shall be performed by IFPG FRANCHISE CONSULTANT/BROKER. Each IFPG FRANCHISE CONSULTANT/BROKER shall be responsible for all acts and omissions and maintain adequate insurance of such type and magnitude as FRANCHISOR deems appropriate. Compliance with Law. IFPG FRANCHISE CONSULTANT/BROKER shall comply with all applicable laws and regulations in performing the Work and member IFPG FRANCHISE CONSULTANT/BROKER is familiar with all federal and state laws, and applicable standards and regulations of any commission or agency of the government concerning franchising and agree to abide and comply with said laws, ordinances, rules, standards, regulations and interpretations thereof. No Conflict. The IFPG FRANCHISE CONSULTANT/BROKER warrants that this Broker Contract and the Work does not conflict with any other of its agreements, working relationships, or undertakings and that none of the same will preclude IFPG FRANCHISE CONSULTANT/BROKER from performing its obligations under this Broker Contract. Experience and Personnel. IFPG FRANCHISE CONSULTANT/BROKER represents that it possesses the requisite skill, experience, knowledge, personnel and facilities necessary to perform the Work and fulfill its obligations under this Broker Contract. IFPG FRANCHISE CONSULTANT/BROKER further possesses and/or is in compliance with all necessary licenses, intellectual property rights, permits and approvals required to execute, deliver and perform its obligations under this Broker Contract. Business Partner Code. IFPG FRANCHISE CONSULTANT/BROKER has received and reviewed the Unilever Business Partner Code, which is available at: http://www.unilever.com/ourvalues/purposeandprinciples/business_partner_code/ and agrees to act in accordance with those principles. Compensation. The only compensation to any IFPG FRANCHISE CONSULTANT/BROKER for a Referral resulting in a franchise sale is outlined below. All referral fees shall be computed on franchise sales resulting from the member IFPG FRANCHISE CONSULTANT/BROKER actually completed ( Referral Fee(s) ). IFPG FRANCHISE CONSULTANT/BROKER must submit an invoice to FRANCHISOR for each Referral Fee.
FRANCHISOR shall pay IFPG FRANCHISE CONSULTANT/BROKER within 75 days of the opening of a Ben & Jerry s Franchising, Inc. Scoop Shop by the referral. Such Referral Fee will be paid to individual IFPG FRANCHISE CONSULTANT/BROKER Single Unit Referral Fee: $10,000.00 Notwithstanding the foregoing, (i) IFPG FRANCHISE CONSULTANT/BROKER agrees that if FRANCHISOR received an application from a Candidate in the 12-month period prior to the Referral, no Referral Fee will be owed to FRANCHISE CONSULTANT/BROKER and (ii) if FRANCHISOR receives a referral of the same Candidate from more than one FRANCHISE CONSULTANT/BROKER, then FRANCHISOR shall only be obligated to pay a Referral Fee to the IFPG FRANCHISE CONSULTANT/BROKER whose Referral was received first by FRANCHISOR. Additionally, the FRANCHISOR shall not be liable to IFPG or any IFPG FRANCHISE CONSULTANT/BROKER or his/her clients for any delay or failure in consummating transactions involving Referrals provided by the member FRANCHISE CONSULTANT/BROKER. In the event IFPG FRANCHISE CONSULTANT/BROKER participates in a resale of a scoop shop for FRANCHISOR, IFPG FRANCHISE CONSULTANT/BROKER shall negotiate an agreement, including a fee, between it and the independent franchisee/seller. Notwithstanding anything herein to the contrary, (i) IFPG FRANCHISE/CONSULTANT BROKER acknowledges and agrees that Franchisor is not involved in any such agreement and any such fee shall be paid by the applicable franchisee/seller; and (ii) FRANCHISOR shall not have any responsibility or liability to IFPG FRANCHISE CONSULTANT/BROKER for any such fee or any of the other terms and conditions of any such agreement. Independent Status. IFPG FRANCHISE CONSULTANT/BROKER is an independent Broker Contractor engaged by FRANCHISOR to perform the Work and is not an employee of the FRANCHISOR. Nothing in this Broker Contract shall make IFPG FRANCHISE CONSULTANT/BROKER on the one hand, and FRANCHISOR on the other hand, the legal representative or agent of the other nor shall IFPG FRANCHISE CONSULTANT/BROKER on the one hand, and FRANCHISOR on the other hand, have the right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against, in the name of or on behalf of, the other. IFPG FRANCHISE CONSULTANT/BROKER shall bear sole responsibility for payment of compensation and the provision of benefits to its employees and agents. Fees and Expenses. As an independent Broker Contractor, each IFPG FRANCHISE CONSULTANT/BROKER shall generate its own business, using its own facilities and leads, at its own expense. IFPG FRANCHISE CONSULTANT/BROKER agrees to pay all expenses incurred for generation of Referrals and is not to represent that the FRANCHISOR is in any way liable or responsible for such expense(s), and this Broker Contract shall not be construed as giving IFPG FRANCHISE CONSULTANT/BROKER any authority to ask for or charge such expenses on behalf of the FRANCHISOR. New York State has specific franchise broker registration requirements. If you are selling in New York, you must register and provide FRANCHISOR a copy of your filing within ten (10) days of said filing. New York Form 1-- Franchise Broker Form can be found here: http://www.ag.ny.gov/sites/default/files/pdfs/bureaus/investor_protection/franchise/form%20i%20franchise%20br oker%20registration%20form_1.pdf No Third Party Beneficiaries. This Broker Contract shall be binding upon and inure solely to the benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Broker Contract. FRANCHISOR may not sell or otherwise disseminate to any third party any Referrals that do not result in a sale. Term and Termination. This Broker Contract shall commence on date set forth above and continue in full force and effect until the one-year anniversary thereof (the Term ), unless earlier terminated in accordance with the terms of this Broker Contract.
This Broker Contract may be terminated at any time by either party with or without cause upon thirty (30) days written notice to the other party at the address set forth below by each party. Either party may change its address by providing notice to the other party pursuant to the provisions outlined in the Notices section. If there is a Referral of a qualified candidate prior the end of the Term, and a scoop shop is opened within twelve (12) months following expiration or termination of this Agreement, then FRANCHISOR agrees to pay the FRANCHISOR CONSULTANT/BROKER a Referral Fee if such Referral Fee would have been owed under this Broker Contract if the applicable scoop shop had opened during the Term. Indemnification. (a) FRANCHISOR shall indemnify, defend and hold member IFPG FRANCHISE CONSULTANT/BROKER and its subsidiaries and affiliates and their respective officers, directors, employees, agents and representatives harmless, to the maximum extent permitted by law, from and against any and all claims, losses, damages, costs, expenses or other liabilities, including without limitation, reasonable attorney s fees (collectively, Losses ), arising out of or relating to (i) actual or alleged injury to any person (including death) or property to the extent caused in whole in part by FRANCHISOR s negligence, (ii) non-fulfillment or breach by FRANCHISOR of any agreement or covenant under this Broker Contract, or (iii) the inaccuracy or breach of any warranty or representation made by FRANCHISOR under this Broker Contract. (b) IFPG FRANCHISE CONSULTANT/BROKER shall indemnify, defend and hold FRANCHISOR and its subsidiaries and affiliates and their respective officers, directors, employees, agents and representatives harmless, to the maximum extent permitted by law, from and against any and all Losses arising out of or relating to (i) actual or alleged injury to any person (including death) or property to the extent caused in whole or in part by member IFPG FRANCHISE CONSULTANT/BROKER negligence, (ii) non-fulfillment or breach by member IFPG FRANCHISE CONSULTANT/BROKER of any agreement or covenant under this Agreement, or (iii) the inaccuracy or breach of any warranty or representation made by member IFPG FRANCHISE CONSULTANT/BROKER under this Agreement. Assignment. This Broker Contract may not be assigned in whole or in part by either party without the prior written consent of the other; provided, however, FRANCHISOR may assign any of its rights, benefits and obligations under this Broker Contract, without such consent, to an affiliate of FRANCHISOR or, in the event of an acquisition of FRANCHISOR S business to which this Broker Contract relates, to the successor to such business. Public Announcements. Neither party shall issue any press release or make any other public announcement or comment relating to this Broker Contract or the transactions contemplated herein without the prior written consent of the other party. Severability. It is mutually agreed that all the agreements and covenants contained herein are severable and that, in the event that any provision of this Broker Contract shall for any reason be held to be invalid, illegal or unenforceable in any jurisdiction, such provision shall be ineffective as to such jurisdiction to the extent of invalidity, illegality or unenforceability without invalidating or affecting the remaining provisions hereof or affecting the validity, legality or unenforceability of such provisions in any other jurisdiction. Entire Agreement; Amendment; Waiver. This Broker Contract and any amendments hereto or thereto constitute the entire understanding between the parties with respect to the subject matter hereof and supersede all other understandings and negotiations with respect thereto. This Broker Contract may be amended only by a writing manually signed by both parties hereto. Any provision of this Broker Contract may be waived only by a writing manually signed by the party to be charged by such waiver. No course of dealing between the parties shall be effective to amend or waive any provision of this Broker Contract. Any representations relied upon are contained within this Broker Contract, and any understanding or representation not contained herein is not valid or binding. Notices. Any notice or other communication shall be in writing and shall be deemed to have been duly given (a) on the date of delivery if delivered personally, (b) on the business day after dispatch if sent by documented overnight delivery service, (c) on the date of transmission if sent by facsimile or electronic mail transmission, provided that a confirmation copy thereof is sent no later than the next business day by a documented overnight delivery service or certified mail, postage prepaid, return receipt requested or (d) on the fifth day following deposit in the United States mail if sent by certified mail, postage prepaid, return receipt requested. Notices or other communications shall be directed to the addresses set forth on the
signature page. Either party may change the persons required to receive notices or other communications hereunder or their addresses by sending notices of such change to the other party as outlined above. Confidential Information. The parties acknowledge that in the course of performing their respective obligations hereunder, each party may come into possession of confidential information of the other including, but not limited to, specifications, formulae, manufacturing processes, know-how, technical, business and economic data and records, strategic plans, personnel records, Company s Intellectual Property and Consultant s Intellectual Property (collectively, Confidential Information ). Ownership; Disclosure. Confidential Information of the disclosing party coming into possession of the receiving party shall remain the sole and exclusive property of the disclosing party. The receiving party shall use reasonable care, but in no event less care than such party uses to safeguard and protect its own Confidential Information, to protect the Confidential Information of the disclosing party and such party shall not use the receiving party s Confidential Information for any purpose other than the discharge of its obligations under this Broker Contract. Each party may make available the Confidential Information of the other party to those of its and its affiliates officers, directors, employees, agents and representatives (each a Representative ) only on a need to know basis. Representatives shall be advised of their obligation to abide by the confidentiality obligations set forth herein and the receiving party shall be responsible for a breach by any of its Representatives. Neither party shall divulge the Confidential Information of the other to any third party without the prior written consent of the disclosing party, except as the receiving party is specifically required by any governmental entity lawfully requesting the same, under compulsion of civil or criminal process by any court of competent jurisdiction acting pursuant to its powers and then only after notice has been given to the disclosing party as early as reasonably possible so that the disclosing party can attempt to object to such disclosure. Exceptions to Confidential Information. Information disclosed hereunder shall not be considered Confidential Information to the extent it is (a) previously known by the receiving party prior to the disclosure thereof, (b) hereafter becomes, other than through the fault of the receiving party, generally available to the public, (c) disclosed to the receiving party by a third party other than in breach of an obligation of confidentiality owed by such third party to the disclosing party or (d) independently developed by the receiving party without using Confidential Information. Duration of Confidential Information. Upon the expiration or early termination of this Broker Contract, unless otherwise required by applicable laws, rules or regulations, each party shall return to the other all Confidential Information of the other within its possession or control, and not thereafter use such Confidential Information in the promotion of its own business or the business of any third party, or otherwise make use of or refer to any Confidential Information or the identity of the other party. The obligations of confidentiality set forth herein shall remain in effect for five years after the later of expiration or earlier termination of this Broker Contract. Survival. All representations, warranties, covenants, and agreements of each party shall survive the expiration or earlier termination of this Broker Contract. Governing Law. This Broker Contract and any claim or dispute arising out of, relating to or in connection with this Broker Contract or the transactions contemplated hereby, whether in Broker Contract, tort or otherwise, shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its conflicts of law principles (other than Section 5-1401 of the General Obligations Law). Jurisdiction/Waiver of Jury Trial. Each party irrevocably consents and agrees that any legal action, suit or proceeding against either of them arising out of, relating to or in connection with the transaction contemplated hereby or disputes relating hereto may be brought only in United States District Court for the Southern District of New York, or if such court does not have jurisdiction, in the courts of the State of New York located in New York County and hereby irrevocably accepts and submits to the exclusive jurisdiction of the aforesaid courts in personam, with respect to any such action, suit or proceeding. Each party waives to the fullest extent permitted by law any right to trial by jury in any action, suit or proceeding brought to enforce, defend or interpret any rights or remedies arising under, relating to or in connection with this Broker Contract.
Captions. The captions in this Broker Contract are for the purpose of reference only and shall not limit or otherwise affect the interpretation hereof. Counterparts. This Broker Contract may be signed in counterparts, each of which taken together shall constitute one and the same instrument. Signature page: IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. For the FRANCHISOR: Ben & Jerry s Franchising, Inc. IFPGFRANCHISE CONSULTANT/BROKER: (name) By: Name: Jostein Solheim Title: President Telephone: (802) 846-1500 By: Name: Title: Telephone: 888) 977-IFPG Date: Date: Address for Notice Attn: Gwen Bruns Paralegal/Franchise Compliance Specialist 30 Community Drive South Burlington, VT 05403 Address for Notice With copies to: Conopco, Inc. 800 Sylvan Avenue Englewood Cliffs, New Jersey 07632 Attention: General Counsel