Marketing Fund. Our experience and business judgment is that a unified marketing program, on both a local and broader level, is an essential factor in the potential success of all Plantation Stores, to achieve top-of-mind awareness in potential customers, to build and retain goodwill associated with the Names and Marks thereby hopefully benefiting all Coffee Plantation operators, to create improved brand loyalty among new and future customers and to achieve a favorable retail position for all Plantation Stores. To maximize the possibility of obtaining these goals, you and we have agreed to a marketing program as follows: We've instituted an advertising, publicity and marketing fund (the "Marketing Fund") for such advertising, advertising-related, marketing and/or public relations programs, services and/or materials as we, in our sole and absolute discretion, may deem necessary or appropriate to promote Plantation Stores. The Marketing Fund may be combined with any marketing fund otherwise established for Plantation Stores and the funds merged for use in accordance with this Agreement. You will contribute to the Marketing Fund three percent (3%) of the Gross Sales of your Plantation Store (we may reduce or waive this amount on an individual or other basis in our sole and absolute discretion.) Marketing Fund Contributions will be calculated and paid at the same time, in the same manner, and for the same periods, as royalty payments. We will cause each Plantation Store owned by us or any affiliate to make contributions to the Marketing Fund based on the contribution rate generally in effect at the time such Plantation Store most recently came under our ownership. You understand that, due to differing forms of Franchise Agreements or otherwise, some Coffee Plantation Franchisees may 36 have different Marketing Fund and/or other obligations than in this Agreement. We will have sole and absolute discretion over all matters relating to the Marketing Fund in any way, including (but not limited to) its management, all financial matters, expenditures, receipts and/or investments by the Marketing Fund, timing of expenditures, creative concepts, content, materials and endorsements for any marketing programs, together with the geographic, market, and media placement and allocation thereof. The Marketing Fund may be used, in our sole and absolute discretion, to (among other things) pay costs of new product development, menu boards and other signage, preparing, producing, distributing and using marketing, advertising and other materials and programs; administering national, regional and other marketing programs, purchasing media, employing advertising, public relations and other agencies and firms; and supporting public relations, market research and other advertising and marketing activities, as well as any expenses associated with any Franchisee Advisory Council(s), if those Councils, and such expenses, are approved by us in our sole and absolute discretion. A brief statement regarding the availability of information regarding the purchase of Coffee Plantation franchises may be included in advertising and other items produced and/or distributed using the Marketing Fund. Where approved by a majority of any Franchisee Advisory Council, the Marketing Fund may also be used for research, secret shoppers, store development testing and other purposes. We can, in our sole and absolute discretion, arrange for services, goods and otherwise, including (but not limited to) creative concepts, production, placement, purchase of media, legal, accounting and other services, to be provided to the Marketing Fund by us, any of the Franchisor-Related Persons/Entities and our and/or their employees or agents, including persons/entities who may be owned, operated, controlled by, and/or affiliated with, us (such as an "in-house advertising agency") or who may be independent. We may use the Marketing Fund to compensate and reimburse any of such persons/entities (including ourselves) as we deem appropriate in our sole and absolute discretion (including payment of commissions) and to compensate ourselves and/or others for administrative and other services, materials, etc. rendered to the Marketing Fund, provided that any compensation to us or any affiliate will not be unreasonable in amount. While we are not required to submit any proposed or other expenditures by (or any other matters relating to) the Marketing Fund for approval by any Franchisee Advisory Council, if Franchisor does submit any matters for approval and approval is granted by a majority of such Franchisee Advisory Council, such approval will be final and binding on you. 37 You will participate in all marketing programs instituted by the Marketing Fund or us but will retain full freedom to set your own prices, except that we may, to the greatest degree permitted by applicable law, specify maximum prices above which you will not sell or otherwise provide any goods or services and you will comply with all such maximum prices. The Marketing Fund will, as available, furnish you with marketing, advertising and promotional formats and sample materials and may charge the direct cost of producing them plus shipping and handling. We may, in our sole and absolute discretion, use the Marketing Fund to pay the costs of advertising, advertising-related, marketing and/or public relations programs, services and/or materials with respect to locations, programs or concepts where Products and/or Services offered under the Name and/or Marks are to be offered in conjunction with products and/or services offered under other marks, including (but not limited to) any co-branding, dual franchising or other programs, and any other franchised or non-franchised alternative channel of distribution, whether controlled by us or not. The Marketing Fund will be accounted for separately from our other funds (but may be commingled with our other funds) and will not be used to defray any of our general operating expenses, except for such salaries, administrative costs, overhead and other expenses as we may reasonably incur in activities related to the Marketing Fund and its programs (including, without limitation, conducting market research, preparing advertising and marketing materials, insurance, legal costs and collecting and accounting for the Marketing Fund.) In any event, we may charge the Marketing Fund for attorney's fees and other costs related in any way to our defense of any claims against us and/or any of the Franchisor-Related Persons/Entities regarding the Marketing Fund or with respect to collecting amounts due and/or expenditures by or from the Marketing Fund. We may, in our sole and absolute discretion, spend in any fiscal year an amount greater or less than the aggregate contributions to the Marketing Fund in that year and the Marketing Fund may borrow from us or other lenders to cover deficits of the Marketing Fund or cause the Marketing Fund to invest any surplus for future use by the Marketing Fund. You authorize us to collect for remission to the Marketing Fund any advertising or promotional monies or credits offered by any supplier based upon purchases by you or otherwise. In any event, and notwithstanding any designation by you, any provisions of this Agreement to the contrary or otherwise, your Marketing Fund contributions may be applied, in our sole and absolute discretion, to any obligations of you to us or any affiliate, including (but not limited to) royalties, marketing contributions, purchases, interest, rent or otherwise. All interest earned on monies contributed to, or held in, the 38 Marketing Fund may be retained in our General Account and/or applied and/or expended by us as we determine in our sole and absolute discretion and is not subject to the restrictions of this Agreement. A statement of monies collected and costs incurred by the Marketing Fund will be prepared annually by us and be furnished to you upon written request. We may (but are not required to) have financial statements of the Marketing Fund audited and any costs in connection therewith will be paid by the Marketing Fund. We will have the right to cause the Marketing Fund to be incorporated or operated through an entity separate from us as we deem appropriate in our sole and absolute discretion, and such successor entity will have all rights and duties of ours relating to the Marketing Fund. Franchisor may (but is not required to) remit a portion of Marketing Fund contributions back to a franchisee on such terms and conditions as Franchisor determines in Franchisor's sole and absolute discretion, including (but not limited to) reimbursement of local advertising expenditures made by a Franchisee and Franchisor may waive and/or compromise claims for contributions to, and/or claims against or with respect to, the Marketing Fund in Franchisor's sole and absolute discretion, using the Marketing Fund to pay any such claims. We will have sole and absolute discretion as to whether or not Franchisor takes legal or other action against any franchisee who is in default of his or her obligations with respect to the Marketing Fund (including obligations to make contributions) or otherwise and whether a franchisee may be allowed to make direct advertising expenditures in place of contributions to the Marketing Fund. We have no obligation to ensure that expenditures by the Marketing Fund in or affecting any geographic area or Plantation Store are or will be proportionate or equivalent to the contributions to the Marketing Fund by Plantation Stores operating in that geographic area or that any Plantation Store will benefit directly or in proportion to its contribution to the Marketing Fund or from the development of advertising and marketing materials and/or programs, the placement of advertising or otherwise. We will have no obligation to cause other Plantation Stores, licensees or outlets (some of which may be under different arrangements) to contribute to the Marketing Fund, any cooperative or engage in local marketing. You agree that we (and each of the Franchisor-Related Persons/Entities) will not have any direct or indirect liability or obligation to you, the Marketing Fund or otherwise with respect to the management, maintenance, direction, administration or otherwise of the Marketing Fund. You agree that neither we (nor any of the Franchisor-Related Persons/Entities) will be liable for any act or omission, whether with respect to the Marketing Fund or otherwise which is consistent with this Agreement or other
Appears in 1 contract
Marketing Fund. Our experience Recognizing the value of advertising and business judgment is marketing to the goodwill and public image of UNITS, COMPANY has instituted and LICENSE OWNER agrees that COMPANY or its designee shall maintain and administer a unified marketing program, on both a local and broader level, is an essential factor in the potential success of all Plantation Stores, to achieve top-of-mind awareness in potential customers, to build and retain goodwill associated with the Names and Marks thereby hopefully benefiting all Coffee Plantation operators, to create improved brand loyalty among new and future customers and to achieve a favorable retail position for all Plantation Stores. To maximize the possibility of obtaining these goals, you and we have agreed to a marketing program as follows: We've instituted an advertising, publicity and marketing fund (the "Marketing FundMARKETING FUND") for such advertising, advertising-relatedmedia placement, marketing and/or and public relations programs, services and/or materials research and related activities as weCOMPANY, in our its sole and absolute discretion, may deem necessary or appropriate to generally promote Plantation StoresUNITS and/or the System. The Marketing Fund may be combined with any marketing fund otherwise established for Plantation Stores and the funds merged for use in accordance with this Agreement. You will LICENSE OWNER shall contribute to the Marketing Fund three two percent (32%) of the Gross Sales of your Plantation Store Store's Royalty Base Revenue (we may reduce without credit for any Promotional Allowances collected by COMPANY and contributed pursuant to Section 12.C.), payable to COMPANY by separate check or waive this amount on an individual or other basis in our sole and absolute discretion.) Marketing Fund Contributions will be calculated and paid transfer at the same time, time and in the same manner, and for manner as the same periods, as royalty paymentsRoyalty Fees due hereunder. We will cause each Plantation Store UNITS which are owned by us COMPANY or any affiliate its Affiliates, to make contributions the extent COMPANY has the right to require such Affiliates to do so, shall contribute to the Marketing Fund based on the contribution rate generally in effect at same basis as LICENSE OWNER. COMPANY shall have the right to require LICENSE OWNER from time such Plantation Store most recently came under our ownership. You understand that, due to differing forms of Franchise Agreements or otherwise, some Coffee Plantation Franchisees may 36 have different time to increase LICENSE OWNER'S Marketing Fund and/or other obligations than in this Agreementcontributions up to one fourth of one percent (0.25%) per year. We will have sole COMPANY shall direct all advertising, media placement, marketing and absolute discretion over all matters relating to the Marketing Fund in any way, including (but not limited to) its management, all financial matters, expenditures, receipts and/or investments public relations programs and activities financed by the Marketing Fund, timing of expenditureswith sole discretion over the strategic direction, creative concepts, content, materials and endorsements for any marketing programsused therein, together with and the geographic, market, and media placement and allocation thereof. The LICENSE OWNER agrees that the Marketing Fund may be usedused to pay various costs and expenses, in our sole including, by way of example 45 168 and absolute discretionwithout limitation: preparing and producing video, to (among other things) pay costs audio and written advertising materials; interest on borrowed funds; sponsorship of new product developmentsporting, menu boards charitable or similar events; reasonable salaries and other signageexpenses of employees of COMPANY or its Affiliates working for or on behalf of the Marketing Fund or on advertising, preparing, producing, distributing and using marketing, advertising and other materials and programs; administering national, regional and other marketing programs, purchasing media, employing advertising, public relations materials, programs, or activities or promotions for the benefit of the Marketing Fund and administrative costs and overhead of COMPANY or its Affiliates incurred in activities reasonably related to the administration of the Marketing Fund; administering advertising programs, including, without limitation, purchasing direct mail and other media advertising and employing advertising agencies and firmsto assist therewith; and supporting public relations, market and consumer research and other advertising advertising, promotional and marketing activities, as well as any expenses associated with any Franchisee Advisory Council(s)including testing and test marketing programs, if those Councilsfulfillment charges, and such expensesdevelopment, are approved by us in our sole implementation and absolute discretiontesting of Trade Dress and design prototypes. A brief statement regarding the availability of information regarding the purchase of Coffee Plantation franchises may be included in advertising and other items produced and/or distributed using the Marketing Fund. Where approved by a majority of any Franchisee Advisory Council, the Marketing Fund may also be used for research, secret shoppers, store development testing and other purposes. We can, in our sole and absolute discretion, arrange for services, goods and otherwise, including (but not limited to) creative concepts, production, placement, purchase of media, legal, accounting and other services, LICENSE OWNER agrees to be provided to the Marketing Fund by us, any of the Franchisor-Related Persons/Entities and our and/or their employees or agents, including persons/entities who may be owned, operated, controlled by, and/or affiliated with, us (such as an "in-house advertising agency") or who may be independent. We may use the Marketing Fund to compensate and reimburse any of such persons/entities (including ourselves) as we deem appropriate in our sole and absolute discretion (including payment of commissions) and to compensate ourselves and/or others for administrative and other services, materials, etc. rendered to the Marketing Fund, provided that any compensation to us or any affiliate will not be unreasonable in amount. While we are not required to submit any proposed or other expenditures by (or any other matters relating to) the Marketing Fund for approval by any Franchisee Advisory Council, if Franchisor does submit any matters for approval and approval is granted by a majority of such Franchisee Advisory Council, such approval will be final and binding on you. 37 You will participate in all marketing advertising, marketing, promotions, research and public relations programs instituted by the Marketing Fund or us but will retain full freedom to set your own prices, except that we may, to the greatest degree permitted by applicable law, specify maximum prices above which you will not sell or otherwise provide any goods or services and you will comply with all such maximum pricesFund. The Marketing Fund will, as available, shall furnish you LICENSE OWNER with reasonable quantities of marketing, advertising and promotional formats and sample materials and may charge the direct cost of producing them plus shipping and handling. We may, in our sole and absolute discretion, use the Marketing Fund to pay the costs of advertising, advertising-related, marketing and/or public relations programs, services and/or materials with respect to locations, programs or concepts where Products and/or Services offered under the Name and/or Marks are to be offered in conjunction with products and/or services offered under other marks, including (but not limited to) any co-branding, dual franchising or other programs, and any other franchised or non-franchised alternative channel of distribution, whether controlled by us or notat cost. The Marketing Fund will shall be accounted for separately separately, but shall not be required to be segregated, from our the other funds (but may be commingled with our other funds) of COMPANY and will shall not be used to defray any of our COMPANY's general operating expenses, except for such reasonable salaries, administrative costs, costs and overhead and other expenses as we COMPANY may reasonably incur in activities reasonably related to the administration and activities of the Marketing Fund and creation or conduct of its marketing programs (including, without limitation, conducting market research, preparing advertising and marketing materials, insurance, legal costs materials and collecting and accounting for the Marketing Fund.) In any event, we may charge the Marketing Fund for attorney's fees and other costs related in any way contributions to our defense of any claims against us and/or any of the Franchisor-Related Persons/Entities regarding the Marketing Fund or with respect to collecting amounts due and/or expenditures by or from the Marketing Fund. We may, in our sole and absolute discretion, COMPANY may spend in any a fiscal year an amount greater or less than the aggregate contributions of all UNITS to the Marketing Fund in that year and the year. The Marketing Fund may borrow from us COMPANY or other lenders at standard commercial interest rates to cover deficits of the Marketing Fund or cause the Marketing Fund to invest any surplus for future use by the Marketing Fund. You authorize us to collect for remission to the Marketing Fund any advertising or promotional monies or credits offered by any supplier based upon purchases by you or otherwise. In any event, and notwithstanding any designation by you, any provisions of this Agreement to the contrary or otherwise, your Marketing Fund contributions may be applied, in our sole and absolute discretion, to any obligations of you to us or any affiliate, including (but not limited to) royalties, marketing contributions, purchases, interest, rent or otherwise. All interest earned on monies contributed to, or held in, to the 38 Marketing Fund may will be retained in our General Account and/or applied and/or expended by us as we determine in our sole and absolute discretion and is not subject used to pay costs of the restrictions Marketing Fund before other assets of this Agreementthe Marketing Fund are expended. A summary statement of monies collected and costs incurred by the Marketing Fund will for COMPANY's immediately preceding fiscal year shall be prepared annually by us and be furnished made available to you LICENSE OWNER upon LICENSE OWNER's written request. We may (but are not required to) have financial statements of the Marketing Fund audited and any costs in connection therewith will be paid by the Marketing Fund. We COMPANY will have the right to cause the Marketing Fund to be incorporated or operated through an entity separate from us COMPANY at such time as we deem appropriate in our sole and absolute discretionCOMPANY deems appropriate, and such successor entity will shall have all rights and duties of ours relating COMPANY pursuant to this Paragraph A. Notwithstanding anything in this Agreement to the contrary, under no circumstances will COMPANY or its Affiliates be required to contribute to the Marketing FundFund any revenue or profits (or an portion thereof) made or collected by COMPANY or its Affiliates from sales to or purchases by LICENSE OWNER of any goods or services. Franchisor may (but is not required to) remit a portion of Marketing Fund contributions back to a franchisee on such terms LICENSE OWNER understands and conditions as Franchisor determines in Franchisor's sole and absolute discretion, including (but not limited to) reimbursement of local advertising expenditures made by a Franchisee and Franchisor may waive and/or compromise claims for contributions to, and/or claims against or with respect to, acknowledges that the Marketing Fund in Franchisor's sole is intended to maximize recognition of the Marks and absolute discretion, using the System generally. Although COMPANY will endeavor to utilize the Marketing Fund to pay any such claims. We will have sole develop advertising and absolute discretion as marketing materials and programs, and to whether or not Franchisor takes legal or other action against any franchisee who is place advertising in default of his or her obligations with respect order to the Marketing Fund (including obligations to make contributions) or otherwise and whether a franchisee may be allowed to make direct advertising expenditures in place of contributions to the Marketing Fund. We have benefit all UNITS, COMPANY undertakes no obligation to ensure that expenditures by the Marketing Fund in or affecting any geographic area or Plantation Store are or will be proportionate or equivalent to the contributions to the Marketing Fund by Plantation Stores UNITS operating in that geographic area or that any Plantation Store UNIT will benefit directly or in proportion to its contribution to the Marketing Fund or from the development of advertising and marketing materials and/or programs, or the placement of advertising advertising. COMPANY may use the Marketing Fund to promote any type of UNIT in the System. LICENSE OWNER acknowledges that its failure to derive any such benefit will not serve as a basis for a reduction or otherwise. We will have no elimination of its obligation to cause other Plantation Stores, licensees or outlets (some of which may be under different arrangements) to contribute to the Marketing Fund. LICENSE OWNER further acknowledges and agrees that the failure (whether with or without COMPANY's permission) of any other license owner to make the appropriate amount of contributions to the Marketing Fund shall not in any way release LICENSE OWNER from or reduce LICENSE OWNER's obligations under this Paragraph A., any cooperative or engage such obligations being separate and independent obligations of LICENSE OWNER under this Agreement. Except as expressly provided in local marketing. You agree that we (and each of the Franchisor-Related Persons/Entities) will not have any this Paragraph A., COMPANY assumes no direct or indirect liability or obligation to you, the Marketing Fund or otherwise LICENSE OWNER with respect to the management, maintenance, direction, or administration or otherwise of the Marketing Fund. You agree LICENSE OWNER understands and acknowledges that neither we (nor any of the Franchisor-Related Persons/Entities) will be liable for any act or omission, whether with respect monies it contributes to the Marketing Fund shall be combined with contributions of other license owners and franchise owners in the System, including those franchise owners and license owners in the System that may operate their UNITs under different brand names or otherwise which is consistent Marks, or with this Agreement trade dress and operations that differ from LICENSE OWNER'S. Contributions to the Marketing Fund made by LICENSE OWNER may be used to promote UNITS and brands that differ from the type of UNIT LICENSE OWNER operates and the brands LICENSE OWNER uses, and contributions to the Marketing Fund made by license owners in the System that use brands and operate UNITS that differ from LICENSE OWNER'S brands and UNIT may be used to promote the type of UNIT LICENSE OWNER operates. COMPANY undertakes no obligation to insure that Marketing Fund monies will be spent to promote various types of UNITS using various brands in proportion to the Marketing Fund contributions made by franchise owners and license owners in the System of such types of UNITS or otherusing those brands. COMPANY reserves the right, in its sole discretion, to suspend contributions to and operations of the Marketing Fund for such periods that it determines to be appropriate and to terminate the Marketing Fund upon written notice to LICENSE OWNER. All unspent monies on the date of termination shall be distributed to COMPANY and franchise owners and license owners in proportion to their respective contributions to the Marketing Fund during the preceding twelve (12) month period. COMPANY has the right to reinstate the Marketing Fund upon the same terms and conditions set forth herein upon thirty (30) days' prior written notice to LICENSE OWNER.
Appears in 1 contract
Marketing Fund. Our The FRANCHISOR'S experience and business judgment is that a unified marketing program, on both a local and broader level, is an essential factor in the potential success of all Plantation StoresGJC STORES, to achieve top-of-mind awareness in potential customers, to build and retain goodwill associated with the Names Name and Marks thereby hopefully benefiting all Coffee Plantation operatorsGLORXX XXXX'X xxxrators, to create improved brand loyalty among new and future customers and to achieve a favorable retail position for all Plantation StoresGJC STORES. To maximize the possibility of obtaining these goals, you FRANCHISOR and we FRANCHISEE have agreed to a marketing program as follows: We've The FRANCHISOR has instituted an advertising, publicity and marketing fund (the "Marketing Fund") for such advertising, advertising-related, marketing and/or public relations programs, services and/or materials as weFRANCHISOR, in our its sole and absolute discretion, may deem necessary or appropriate to promote Plantation StoresGJC STORES. The Marketing Fund may be combined with any marketing fund otherwise established for Plantation Stores GJC STORES and the funds merged for use in accordance with this Agreement. You FRANCHISEE will contribute to the Marketing Fund two percent (2%) of the gross sales of the STORE (as defined in Paragraph B of Section 13), payable as provided in Paragraph C of Section 13. The FRANCHISOR reserves the right to increase the amount the FRANCHISEE is required to contribute to an amount not to exceed three percent (3%) of the Gross Sales gross sales of your Plantation Store (we may reduce or waive this amount on an individual or other basis in our sole and absolute discretion.) Marketing Fund Contributions will be calculated and paid at the same time, in the same manner, and for the same periods, as royalty paymentsSTORE. We The Franchisor will cause each Plantation Store all GJC STORES owned by us or any affiliate it to make contributions to the Marketing Fund based on the contribution rate generally in effect at the time such Plantation Store GJC STORES most recently came under our the FRANCHISOR'S ownership. You understand FRANCHISEE understands that, due to differing forms of Franchise Agreements or otherwise, some Coffee Plantation Franchisees GLORXX XXXX'X Xxxnchisees may 36 have different Marketing Fund and/or other obligations than in this Agreement. We The FRANCHISOR will have sole and absolute discretion over all matters relating to the Marketing Fund in any way, including (but not limited to) its management, all financial matters, expenditures, receipts and/or investments by the Marketing Fund, timing of expenditures, creative concepts, content, materials and endorsements for any marketing programs, together with the geographic, market, and media placement and allocation thereof. The Marketing Fund may be used, in our FRANCHISOR'S sole and absolute discretion, to (among other things) pay costs of new product development, menu boards and other signage, preparing, producing, distributing and using marketing, advertising and other materials and programs; administering national, regional and other marketing programs, purchasing media, employing advertising, public relations and other agencies and firms; and supporting public relations, market research and other advertising and marketing activities, as well as any expenses associated with any Franchisee Advisory Council(s), if those Councils, and such expenses, are approved by us in our sole and absolute discretion. A brief statement regarding the availability of information regarding the purchase of Coffee Plantation franchises may be included in advertising and other items produced and/or distributed using the Marketing Fund. Where approved by a majority of any Franchisee Advisory Council, the Marketing Fund may also be used for research, secret shoppers, store development testing and other purposes. We can, in our sole and absolute discretion, arrange for services, goods and otherwise, including (but not limited to) creative concepts, production, placement, purchase of media, legal, accounting and other services, to be provided to the Marketing Fund by us, any of the Franchisor-Related Persons/Entities and our and/or their employees or agents, including persons/entities who may be owned, operated, controlled by, and/or affiliated with, us (such as an "in-house advertising agency") or who may be independent. We may use the Marketing Fund to compensate and reimburse any of such persons/entities (including ourselves) as we deem appropriate in our sole and absolute discretion (including payment of commissions) and to compensate ourselves and/or others for administrative and other services, materials, etc. rendered to the Marketing Fund, provided that any compensation to us or any affiliate will not be unreasonable in amount. While we are not required to submit any proposed or other expenditures by (or any other matters relating to) the Marketing Fund for approval by any Franchisee Advisory Council, if Franchisor does submit any matters for approval and approval is granted by a majority of such Franchisee Advisory Council, such approval will be final and binding on you. 37 You will participate in all marketing programs instituted by the Marketing Fund or us but will retain full freedom to set your own prices, except that we may, to the greatest degree permitted by applicable law, specify maximum prices above which you will not sell or otherwise provide any goods or services and you will comply with all such maximum prices. The Marketing Fund will, as available, furnish you with marketing, advertising and promotional formats and sample materials and may charge the direct cost of producing them plus shipping and handling. We may, in our sole and absolute discretion, use the Marketing Fund to pay the costs of advertising, advertising-related, marketing and/or public relations programs, services and/or materials with respect to locations, programs or concepts where Products and/or Services offered under the Name and/or Marks are to be offered in conjunction with products and/or services offered under other marks, including (but not limited to) any co-branding, dual franchising or other programs, and any other franchised or non-franchised alternative channel of distribution, whether controlled by us or not. The Marketing Fund will be accounted for separately from our other funds (but may be commingled with our other funds) and will not be used to defray any of our general operating expenses, except for such salaries, administrative costs, overhead and other expenses as we may reasonably incur in activities related to the Marketing Fund and its programs (including, without limitation, conducting market research, preparing advertising and marketing materials, insurance, legal costs and collecting and accounting for the Marketing Fund.) In any event, we may charge the Marketing Fund for attorney's fees and other costs related in any way to our defense of any claims against us and/or any of the Franchisor-Related Persons/Entities regarding the Marketing Fund or with respect to collecting amounts due and/or expenditures by or from the Marketing Fund. We may, in our sole and absolute discretion, spend in any fiscal year an amount greater or less than the aggregate contributions to the Marketing Fund in that year and the Marketing Fund may borrow from us or other lenders to cover deficits of the Marketing Fund or cause the Marketing Fund to invest any surplus for future use by the Marketing Fund. You authorize us to collect for remission to the Marketing Fund any advertising or promotional monies or credits offered by any supplier based upon purchases by you or otherwise. In any event, and notwithstanding any designation by you, any provisions of this Agreement to the contrary or otherwise, your Marketing Fund contributions may be applied, in our sole and absolute discretion, to any obligations of you to us or any affiliate, including (but not limited to) royalties, marketing contributions, purchases, interest, rent or otherwise. All interest earned on monies contributed to, or held in, the 38 Marketing Fund may be retained in our General Account and/or applied and/or expended by us as we determine in our sole and absolute discretion and is not subject to the restrictions of this Agreement. A statement of monies collected and costs incurred by the Marketing Fund will be prepared annually by us and be furnished to you upon written request. We may (but are not required to) have financial statements of the Marketing Fund audited and any costs in connection therewith will be paid by the Marketing Fund. We will have the right to cause the Marketing Fund to be incorporated or operated through an entity separate from us as we deem appropriate in our sole and absolute discretion, and such successor entity will have all rights and duties of ours relating to the Marketing Fund. Franchisor may (but is not required to) remit a portion of Marketing Fund contributions back to a franchisee on such terms and conditions as Franchisor determines in Franchisor's sole and absolute discretion, including (but not limited to) reimbursement of local advertising expenditures made by a Franchisee and Franchisor may waive and/or compromise claims for contributions to, and/or claims against or with respect to, the Marketing Fund in Franchisor's sole and absolute discretion, using the Marketing Fund to pay any such claims. We will have sole and absolute discretion as to whether or not Franchisor takes legal or other action against any franchisee who is in default of his or her obligations with respect to the Marketing Fund (including obligations to make contributions) or otherwise and whether a franchisee may be allowed to make direct advertising expenditures in place of contributions to the Marketing Fund. We have no obligation to ensure that expenditures by the Marketing Fund in or affecting any geographic area or Plantation Store are or will be proportionate or equivalent to the contributions to the Marketing Fund by Plantation Stores operating in that geographic area or that any Plantation Store will benefit directly or in proportion to its contribution to the Marketing Fund or from the development of advertising and marketing materials and/or programs, the placement of advertising or otherwise. We will have no obligation to cause other Plantation Stores, licensees or outlets (some of which may be under different arrangements) to contribute to the Marketing Fund, any cooperative or engage in local marketing. You agree that we (and each of the Franchisor-Related Persons/Entities) will not have any direct or indirect liability or obligation to you, the Marketing Fund or otherwise with respect to the management, maintenance, direction, administration or otherwise of the Marketing Fund. You agree that neither we (nor any of the Franchisor-Related Persons/Entities) will be liable for any act or omission, whether with respect to the Marketing Fund or otherwise which is consistent with this Agreement or otheremploying
Appears in 1 contract
Marketing Fund. Our experience Recognizing the value of advertising and business judgment is that a unified marketing programto the goodwill and public image of XXXXX'X SUBS Restaurants, on both a local and broader level, is an essential factor in the potential success of all Plantation Stores, to achieve top-of-mind awareness in potential customers, to build and retain goodwill associated with the Names and Marks thereby hopefully benefiting all Coffee Plantation operators, to create improved brand loyalty among new and future customers and to achieve a favorable retail position for all Plantation Stores. To maximize the possibility of obtaining these goals, you and we have agreed to established a marketing program as follows: We've instituted an advertising, publicity and marketing fund (the "Marketing Fund") for such the advertising, advertising-related, marketing and/or and public relations programs, services and/or programs and materials as we, in our sole and absolute discretion, may we deem necessary or appropriate to promote Plantation Stores. The Marketing Fund may be combined with any marketing fund otherwise established for Plantation Stores and the funds merged for use in accordance with this Agreementappropriate. You will agree to contribute to the Marketing Fund three four percent (34%) of the Gross Sales of your Plantation Store (we may reduce or waive this amount on an individual or other basis in our sole and absolute discretion.) Marketing Fund Contributions will be calculated and paid at the same timeRESTAURANT, payable in the same manner, and for manner as the same periods, as royalty paymentsRoyalty due hereunder. We XXXXX'X SUBS Restaurants that we or our affiliates own will cause each Plantation Store owned by us or any affiliate to make contributions contribute to the Marketing Fund based on the contribution rate generally in effect at the time such Plantation Store most recently came under same basis as our ownership. You understand that, due to differing forms of Franchise Agreements or otherwise, some Coffee Plantation Franchisees may 36 have different Marketing Fund and/or other obligations than in this Agreementfranchise owners. We will have sole and absolute discretion over direct all matters relating to the Marketing Fund in any way, including (but not limited to) its management, all financial matters, expenditures, receipts and/or investments programs financed by the Marketing Fund, timing of expenditures, with sole discretion over the creative concepts, content, materials and endorsements for any marketing programs, together with the used and their geographic, market, market and media placement and allocation thereofallocation. The You agree that the Marketing Fund may be used, in our sole and absolute discretion, used to (among other things) pay the costs of new product developmentpreparing and producing video, menu boards audio and written materials; administering regional and multi-regional marketing and advertising programs, including, without limitation, purchasing trade journal, direct mail and other signage, preparing, producing, distributing and using marketing, media advertising and other materials and programs; administering national, regional and other marketing programs, purchasing media, employing advertising, public relations promotion and other marketing agencies and firmsto provide assistance; and supporting public relations, market research and other advertising advertising, promotion and marketing activities, as well as any expenses associated with any Franchisee Advisory Council(s), if those Councils, and such expenses, are approved by us in our sole and absolute discretion. A brief statement regarding the availability of information regarding the purchase of Coffee Plantation franchises may be included in advertising and other items produced and/or distributed using the Marketing Fund. Where approved by a majority of any Franchisee Advisory Council, the Marketing Fund may also be used for research, secret shoppers, store development testing and other purposes. We can, in our sole and absolute discretion, arrange for services, goods and otherwise, including (but not limited to) creative concepts, production, placement, purchase of media, legal, accounting and other services, to be provided to the Marketing Fund by us, any of the Franchisor-Related Persons/Entities and our and/or their employees or agents, including persons/entities who may be owned, operated, controlled by, and/or affiliated with, us (such as an "in-house advertising agency") or who may be independent. We may use the Marketing Fund to compensate and reimburse any of such persons/entities (including ourselves) as we deem appropriate in our sole and absolute discretion (including payment of commissions) and to compensate ourselves and/or others for administrative and other services, materials, etc. rendered to the Marketing Fund, provided that any compensation to us or any affiliate will not be unreasonable in amount. While we are not required to submit any proposed or other expenditures by (or any other matters relating to) the Marketing Fund for approval by any Franchisee Advisory Council, if Franchisor does submit any matters for approval and approval is granted by a majority of such Franchisee Advisory Council, such approval will be final and binding on you. 37 You will participate in all marketing programs instituted by the Marketing Fund or us but will retain full freedom to set your own prices, except that we may, to the greatest degree permitted by applicable law, specify maximum prices above which you will not sell or otherwise provide any goods or services and you will comply with all such maximum prices. The Marketing Fund will, as available, periodically will furnish you with marketingsamples of advertising, advertising marketing and promotional formats and sample materials and may charge the at no cost. Multiple copies of these materials will be furnished to you at our direct cost of producing them them, plus shipping any related shipping, handling and handling. We may, in our sole and absolute discretion, use the Marketing Fund to pay the costs of advertising, advertising-related, marketing and/or public relations programs, services and/or materials with respect to locations, programs or concepts where Products and/or Services offered under the Name and/or Marks are to be offered in conjunction with products and/or services offered under other marks, including (but not limited to) any co-branding, dual franchising or other programs, and any other franchised or non-franchised alternative channel of distribution, whether controlled by us or notstorage charges. The Marketing Fund will be accounted for separately from our other funds (but may be commingled with our other funds) and will not be used to defray any of our general operating expenses, except for such the reasonable salaries, administrative costs, travel expenses and overhead and other expenses as we may reasonably incur in activities related to administering the Marketing Fund and its programs (programs, including, without limitation, conducting market research, preparing advertising advertising, promotion and marketing materials, insurance, legal costs materials and collecting and accounting for the Marketing Fund.) In any event, we may charge the Marketing Fund for attorney's fees and other costs related in any way contributions to our defense of any claims against us and/or any of the Franchisor-Related Persons/Entities regarding the Marketing Fund or with respect to collecting amounts due and/or expenditures by or from the Marketing Fund. The Marketing Fund will not be our asset. All contributions to the Marketing Fund will be held for the benefit of those who have contributed to the Marketing Fund and used solely for the purposes for which the contributions were made. We maymay spend, in our sole and absolute discretionon behalf of the Marketing Fund, spend in any fiscal year an amount greater or less than the aggregate contributions contribution of all XXXXX'X SUBS Restaurants to the Marketing Fund in that year year, and the Marketing Fund may borrow from us or other lenders others to cover deficits of the Marketing Fund or cause the Marketing Fund to invest any surplus for future use by the Marketing Fund. You authorize us to collect for remission to the Marketing Fund any advertising or promotional monies or credits offered by any supplier based upon purchases by you or otherwise. In any event, and notwithstanding any designation by you, any provisions of this Agreement to the contrary or otherwise, your Marketing Fund contributions may be applied, in our sole and absolute discretion, to any obligations of you to us or any affiliate, including (but not limited to) royalties, marketing contributions, purchases, interest, rent or otherwiseuse. All interest earned on monies moneys contributed to, or held in, to the 38 Marketing Fund may will be retained in our General Account and/or applied and/or expended by us as we determine in our sole and absolute discretion and is not subject used to pay advertising costs before other assets of the restrictions of this AgreementMarketing Fund are expended. A We will prepare an annual statement of monies moneys collected and costs incurred by the Marketing Fund will be prepared annually by us and be furnished furnish the statement to you upon written request. We may (but are not required to) can have financial statements of the Marketing Fund audited and any costs in connection therewith will be paid by the Marketing Fund. We will have the right to cause the Marketing Fund to be incorporated or operated through an a separate entity separate from us as anytime we deem appropriate in our sole and absolute discretionappropriate, and such the successor entity will have all of the rights and duties of ours relating to the Marketing Fundspecified in this Section. Franchisor may (but is not required to) remit a portion of Marketing Fund contributions back to a franchisee on such terms and conditions as Franchisor determines in Franchisor's sole and absolute discretion, including (but not limited to) reimbursement of local advertising expenditures made by a Franchisee and Franchisor may waive and/or compromise claims for contributions to, and/or claims against or with respect to, You acknowledge that the Marketing Fund in Franchisor's sole is intended to maximize recognition of the Marks and absolute discretion, using patronage of XXXXX'X SUBS Restaurants. Although we will endeavor to utilize the Marketing Fund to pay any such claims. We develop advertising and marketing materials and programs and to place advertising and marketing that will have sole and absolute discretion as to whether or not Franchisor takes legal or other action against any franchisee who is in default of his or her obligations with respect to the Marketing Fund (including obligations to make contributions) or otherwise and whether a franchisee may be allowed to make direct advertising expenditures in place of contributions to the Marketing Fund. We have benefit all XXXXX'X SUBS Restaurants, we undertake no obligation to ensure that expenditures by the Marketing Fund in or affecting any geographic area or Plantation Store are or will be proportionate or equivalent to the contributions to the Marketing Fund by Plantation Stores XXXXX'X SUBS Restaurants operating in that geographic area or that any Plantation Store XXXXX'X SUBS Restaurant will benefit directly or in proportion to its contribution to the Marketing Fund or from the development of advertising and marketing materials and/or programs, or the placement of advertising or otherwise. We will have no obligation to cause other Plantation Stores, licensees or outlets (some of which may be under different arrangements) to contribute to the Marketing Fund, any cooperative or engage in local and marketing. You agree that Except as expressly provided in this Section, we (and each of the Franchisor-Related Persons/Entities) will not have any assume no direct or indirect liability or obligation to youyou for collecting amounts due to, the Marketing Fund or otherwise with respect to the managementmaintaining, maintenancedirecting or administering, direction, administration or otherwise of the Marketing Fund. You agree that neither we We can defer or reduce contributions of a XXXXX'X SUBS Restaurant franchise owner and, upon thirty (nor any 30) days' prior written notice to you, reduce or suspend contributions to and operations of the Franchisor-Related Persons/EntitiesMarketing Fund for one or more periods of any length and terminate (and, if terminated, reinstate) the Marketing Fund. If the Marketing Fund is terminated, all unspent moneys on the date of termination will be liable for any act or omission, whether with respect distributed to our franchise owners and to us and our affiliates in proportion to their and our respective contributions to the Marketing Fund or otherwise which is consistent with this Agreement or otherduring the preceding twelve (12) month period.
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