1. Background.
A. FCC is experienced in the formation, development, operation, marketing and sales of a franchise system.
B. Client wishes to purchase from FCC the services identified in Schedule "A" (the "Services") in connection with Client's existing or currently contemplated franchise system.
2. Engagement.
The parties hereby agree that FCC is engaged by Client to provide the Services described in Schedule "A" attached hereto, which Schedule is incorporated herein by this reference.
3. Standards of Service.
FCC agrees to perform all of the Services in a commercially reasonable manner. FCC will act diligently and in good faith in performing the Services. If FCC has failed to provide any of the Services in accordance with the terms of this Agreement, Client shall provide FCC with a written notice identifying all deficiencies. FCC shall have a period of 30 days to cure any identified deficiencies. If any deficiency which constitutes a material breach of this Agreement is not cured within the above referenced 30-day period, the Client may terminate this Agreement.
4. Standards of Service and Disclaimer
Client understands that the Services provided by FCC are based upon the underlying business model developed by Client prior to this Agreement and information provided by Client. FCC does not guarantee or represent that Client's franchise system will be successful or that the business to be operated by franchisees is viable.
5. Client Obligations.
A. Fees. Client shall make payments to FCC in the amounts set forth in Schedule A for the respective Services described therein (collectively, "Fees"). If the scope of Client's activities materially changes from those contemplated at the time this Agreement is executed, or if Client requires an unusually large number of revisions to the Work Product prepared by FCC, the time and resources necessary to complete the Services may increase and reasonable additional Fees may apply. FCC will consult with Client regarding any such additional work and the associated fees prior to commencing the work.
B. Reimbursed Costs. Most costs and services identified in Schedule A are included as part of the contracted Fee for the associated Services. In addition to these Fees, if Client requires any travel by the FCC, Client shall pay for any reasonable travel expenses including lodging and meals while traveling to Client’s desired location and any and all other reasonable expenses incurred by FCC in connection with the performance of the Services. For all necessary travel expenses, FCC shall first discuss the expense with Client and obtain Client's approval of the expenditure. All amounts that Client must reimburse to FCC pursuant to this Section shall collectively be referred to as "Reimbursed Costs”.
C. Payment of Invoices: Service Charge. All Fees and Reimbursed Costs are due and payable by the due date. The Fees shall be paid in the manner specified in Schedule A. If Client fails to pay any Fee or Reimbursed Cost five (5) days after receipt of a delinquency notice from FCC, Client agrees that any outstanding invoice shall bear interest at 18% per annum in addition to a service charge of $150 for its additional administrative efforts in seeking collection of payment. Client's payment of a service charge shall in no way affect FCC's right to terminate this Agreement pursuant to Section 10.A based on Client's failure to pay in a timely manner.
D. Client's Duty to Cooperate. Client shall, at all times and in good faith, cooperate with FCC and comply with FCC's reasonable requests relevant to FCC's performance of the Services in a timely manner, including: (i) requests for information, questionnaires, documents, access to equipment, administrative access to Client's website, and access to Client's personnel; and (ii) any other specific obligations of Client set forth on the Schedules. Client hereby represents and warrants to FCC that, to the best of its knowledge, all information provided to FCC in connection with the Services is true and correct in all material respects. Client hereby covenants to update such information as necessary for the foregoing to remain accurate in all material respects. Client acknowledges that FCC often will communicate with Client by email. In that regard, Client agrees to designate an email address to be provided to FCC and to review and respond to any emails from FCC within 48 hours of receipt. Client expressly attests and avers, through the execution of this Agreement, that all information provided to FCC by Client for the purposes of the franchise creation, documentation, franchise sales and any other information is true and correct. Client agrees to indemnify FCC for any monetary loss arising from any transaction or litigation resulting from the use of the information provided to FCC by Client and will reimburse FCC for any loss suffered in connection with any legal action arising from said transaction.
E. Miscellaneous Duties. Client shall be responsible for any and all upkeep on filed and registered trademarks, patents, copyrights, and other state or federally filed proprietary information (i.e. renewal of trademarks).
6. Work Product.
If the scope of Services includes the preparation of any work product that is fixed in any written, electronic or other tangible form (collectively, "Work Product"), Client shall become the owner of the Work Product and all intellectual property rights associated therewith immediately and automatically upon payment of all Fees and Reimbursed Costs owed under this Agreement. Prior to payment of all Fees and Reimbursed Costs, and provided that Client is not in material default under this Agreement, FCC shall grant Client a royalty-free license to use the Work Product solely for its intended purpose, which shall be limited to the administration of Client's franchise system.
If FCC terminates this Agreement pursuant to Section 10.A due to Client's uncured material breach, the license granted by this Section shall immediately terminate and Client shall immediately cease to use the Work Product and either return to FCC or destroy all Work Product (and all copies or derivatives of Work Product) in its possession. FCC shall not be permitted to utilize any returned Work Product for its own purposes or for the benefit of any other Client if such Work Product incorporates any of Client's intellectual property (e.g., trademarks, copyrighted materials, etc.).
Notwithstanding any transfer of ownership or license to use the Work Product, Client understands that it may only use the Work Product for Client's benefit and for its intended purpose, which shall be limited to the administration of Client's franchise system. Without FCC's prior written consent, Client may not sell or grant any interest in the Work Product to any person other than a successor to Client's interest in Client's franchise system. The restrictions on use of Work Product shall survive the expiration or termination of this Agreement.
7. Confidentiality and Non-Solicitation.
The parties acknowledge that they will be sharing information with one another of a confidential nature, including without limitation: proprietary business information, financial information, trade secrets, client lists, data, pricing, information, vendor relationships, methods of operation, strategic plans, and other information which shall be deemed to be confidential regardless of whether or not such information is marked as such (collectively “Confidential Information”). The parties agree to use reasonable commercial efforts to protect each parties’ respective Confidential Information, and not to disclose Confidential Information except on a “need to know” basis in furtherance of this Agreement. The parties may share Confidential Information with their respective affiliates, accountants, attorneys, and representatives provided that such sharing is in furtherance of the purposes of this Agreement, or in order to facilitate additional services and support that a party reasonably believes will be beneficial to the other party.
During the period that this Agreement is in effect and for a period of two (2) years thereafter, neither party shall, directly or indirectly, induce or attempt to induce: (i) any employee of the other party to leave such employment; or(ii) any Client or prospective Client of the other party to transfer its business away from such party. In addition, neither party shall solicit or make offers of employment, in any capacity, either directly or indirectly, to or enter into any consulting relationships or agreements with the employees of the other party during the term of this Agreement for a period of two (2) years thereafter.
Neither party shall interfere with the other party's business relationships with any of its independent contractors or vendors or directly or indirectly solicit or attempt to induce such contractors or vendors to enter into a direct relationship with the party for services previously provided by the other party during the term of this Agreement or for a period of two (2) years thereafter. Client understands and agrees that FCC is permitted to offer its franchise services, similar to those offered to Client, to other businesses, including those that may currently or in the future be considered a competitor of the Client. The restrictions in this Section 7 shall survive the expiration or termination of this Agreement.
8. Indemnification.
Each party agrees to indemnify and hold harmless the other party, and each of the other party's affiliates, owners, members, employees and agents (in either case, the "Indemnified Parties") for, from and against any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys' fees, incurred by the Indemnified Parties as a result of any claim by a third party alleging that any materials, information or intellectual property provided by the indemnifying party (whether or not incorporated into the Work Product) infringes upon the intellectual property rights of such third party. In addition, Client agrees to indemnify and hold harmless FCC and FCC's affiliates, owners, members, employees and agents for any claims, actions, damages, liabilities, costs and expenses incurred by any such parties as a result of Client's use of the Work Product and/or the administration of the franchise system, except to the extent the claim is based upon an allegation that any materials, information or intellectual property provided by FCC infringes upon the intellectual property rights of such third party. This Section 8 shall survive the expiration or termination of this Agreement.
9. Termination.
A. Termination for Default. Should either party default in the performance of this Agreement or materially breach any of its provisions, the other party may terminate this Agreement by giving 30 day's written notice specifying the nature of the default. If the defaulting party fails to cure the default within the 30-day notice period, this Agreement shall be deemed terminated without further notice. Upon termination of this Agreement by FCC for non-payment by Client, all outstanding amounts owed by Client shall become due immediately.
B. Suspension of Services. If Client fails to comply with any of its payment obligations or its obligation to cooperate with FCC, FCC reserves the right to suspend performance of all Services until Client has fully cured such breach. In such an event, FCC also reserves the right to terminate Client's license to use the Work Product until the breach is fully cured. Notwithstanding anything to the contrary herein, FCC will not suspend performance of services and will not terminate Client's license to use the Work Product where a legitimate dispute as to payment or obligations exist.
10. Miscellaneous Provisions.
A. Independent Contractor. FCC and all of its personnel and its independent contractors are not employees or agents of Client and are acting as independent contractors with respect to the performance of the Services for Client. Neither FCC, nor Client, shall have any obligation, responsibility or authority to act on behalf of, or in the name of, the other to bind the other in any manner whatsoever, and neither party shall represent to any other person or entity that they may do so.
B. Customer Reference. Client agrees (i) that FCC may identify Client as a recipient of services and use Client’s logo in sales presentations, marketing materials, press release, etc.; and (ii) that FCC may develop and use a brief customer profile for use by FCC on franchisegenesis.com for promotional purposes.
C. Force Majeure. Neither party shall have any liability for delay in performance or failure to perform any of its obligations under this Agreement if such delay or failure to perform results from causes beyond such party's reasonable control.
D. Entire Agreement. Each party to this Agreement acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms. This Agreement (and the Schedule and agreements attached hereto) constitutes the complete and exclusive statement of the terms and conditions between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and/or written, between the parties related to the subject matter hereof. The parties expressly acknowledge that they do not intend for any other person or entity to be a third- party beneficiary of this Agreement, except as expressly set forth in this Agreement.
E. No Oral Modification of this Agreement. This Agreement may not be modified, amended or altered in any manner except by a written agreement to modify, amend or alter duly executed by the parties hereto.
F. No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed to be a waiver of any further right hereunder.
G. Governing Law and Dispute Resolution. This Agreement and any disputes arising between the parties shall be governed by the laws of the State of Florida(without giving effect to its conflict of laws principles). The parties agree to submit any claim, dispute or disagreement to mediation before a mutually agreeable mediator. If the dispute is not resolved by mediation within 30 days after either party makes a demand for mediation, the parties agree that any action to enforce, interpret or construe this Agreement or otherwise arising from the relationship between Client and FCC must be brought to court in Florida .
H. Attorneys’ Fees. In any dispute arising between the parties to this Agreement they each agree to bear their own attorney’s fees in connection with any mediation or litigation in court in Florida .
I. Severability. The invalidity or unenforceability of any term or terms of this Agreement shall not invalidate, make unenforceable or otherwise affect any other term of this Agreement. All other terms of this Agreement shall remain in full force and effect.
J. Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by email, hand delivery or by delivery service. Upon receipt thereof, or (ii) if mailed, three (3) days after deposit in the U.S. mail, postage prepaid. All notices shall be addressed to the parties at the addresses specified below or at such other addresses as either party may in the future specify in writing to the other.
K. Counterparts. This Agreement may be signed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same document.