Franchise Referral Agreement

THIS AGREEMENT dated

Just Franchise Ltd, a company duly registered under the laws of New Zealand with company number 8751986 and having its registered office at 3/17 Judges Bay Rd, Parnell, Auckland 1052, New Zealand, hereinafter referred to as "FCC", which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its successors, assigns, administrators, and permitted transferees;

FCC and Franchisor shall collectively be referred to herein as the “Parties” or individually as a “Party”.

RECITALS:

WHEREAS, Franchisor desires to market and sell to potential purchasers a franchise, license, or business opportunity (the “Franchise”); and

WHEREAS, FCC, and its independent associate consultants (“Consultants”), all operating under the trade name “Just Franchise Ltd.”, is in the business of counseling and helping prospective franchisees of the Franchise (“Candidates”) assess their compatibility with different types of business opportunities, including franchises; and

WHEREAS, Franchisor desires to use the services of FCC to generate referrals of persons who are interested in the Franchise.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Services:

FCC will provide contact information for potential Candidate(s) to Franchisor using parameters established by Franchisor, with the understanding that Candidate is an appropriate candidate for a business relationship with Franchisor (as decided solely by Candidate and FCC). FCC will present contact information to Franchisor for potential Candidate(s) using FCC’s standard registration form. Franchisor reserves the right to have referred Candidate(s) complete its standard qualification forms at a later date.

2. Conflict:

If FCC refers a potential Candidate to Franchisor, and such referred potential Candidate has already contacted Franchisor directly or through another method, Franchisor will notify FCC of such conflict within seventy-two (72) hours of being given the lead and, thereafter, decline the lead.

3. Franchisor Responsibilities:

Franchisor shall bear the sole responsibility to provide its Franchise Disclosure Document (FDD), marketing, and other materials to the Candidate and shall initiate contact with the Candidate if Franchisor desires to pursue a business relationship with the Candidate.

4. Fees:

a. Franchisor shall pay FCC a referral fee within five (5) days of the execution by any Candidate of a Franchise Agreement, Development Agreement, Master Franchise Agreement (foreign or domestic), Area Development Agreement, Area Representative Agreement, Deposit Agreement, Earnest Money Agreement, resale, or similar agreement relating to the Franchise (collectively referred to as the “Franchise Agreement(s)”) with Franchisor.

b. The obligation of Franchisor to pay referral fees shall not be dependent upon any conditions or contingencies to the payment, the accounting recognition of the payment, or the method of payment, including but not limited to, any promissory note accepted as full or partial payment by Franchisor, any partial deposit Franchisor chooses to accept in lieu of full payment, and/or any escrow deposit requirement or deferral placed on Franchisor by any jurisdiction or the amount of any fee (including no fee) that Franchisor agrees to accept from a Candidate or Approved Franchisee in conjunction with Franchisor executing Franchise Contract with such Candidate or Approved Franchisee. This obligation to Pay FCC specifically includes any Approved Franchise created through a resale transaction approved by Franchisor.

c. Franchisor shall make all Referral Fees payable only to Just Franchise Ltd and shall submit all such payments directly to FCC via ACH or Wire Transfer at its headquarters address as specified in the notice section of this agreement. Franchisor will not pay any Referral Fees in any form or under any circumstances directly to any representative, agent, employee, or independent consultant associated with and using the trade name of FCC.

d. A Candidate who executes a Franchise Agreement with Franchisor within a 12-month period of the date of the introduction to Franchisor by anyone affiliated with the FCC is referred to hereinafter as a “Franchisee” and a referral fee, per the table below, will be earned and payable to FCC.

E. All Fees referenced in this agreement will be in the local currency of the Franchisor.

e. Resales. The referral fee for resales of Franchises shall be a standard fee as shown above or 10%, whichever is greater. This fee is to be paid to FCC by the Franchisor. It is the Franchisor’s responsibility to collect any and all transfer fees from the selling franchisee.

f. Fees Non-refundable. The fee payable to FCC is fully earned when paid, non-refundable, and not subject to any offsets or deductions.

5. Inventory Fee:

FCC charges an annual fee for inclusion in its inventory. The Franchisor has sole discretion as to what level they wish to choose and benefit from the services provided within the tiers. (As described in Schedule A– please choose a tier).

 

NOTE The Inventory Fee will be waived for the first 12 months from the date of the signing of this contract. At such time, both parties will sign a new agreement that will include an Inventory Fee based on one of the following tiers:

 

6. Conference Participation:

When/If the FCC holds conferences there is a fee for registration and accommodations to attend these conferences. The purpose of the conference is to bring Franchisors and FCC Consultants together for mutual education.

7. Non-Disparagement:

FCC and its Consultants will refrain from making any false or misleading statements about the Franchisor and shall only disclose any information about the Franchisor which is in the public domain, its FDD, or its advertising materials. Franchisor will refrain from making any false or misleading statements about FCC and/or its Consultants and shall only disclose any information about FCC and/or its Consultants that is in the public domain or any materials published to the public by FCC and/or any Consultants. This Section shall survive any expiration or termination of this Agreement. Any Party who has suffered as a result of a breach of this Section of the Agreement shall be entitled to injunctive relief, along with compensation for any damages suffered as a result thereof.

8. Financial Performance Representations:

FCC and its Consultants further agree that each shall refrain from making any financial representations about Franchisor and the Franchise except as disclosed in Franchisor’s Item 19 of its FDD.

9. Franchisor Disclosure:

Franchisor will be solely responsible for compliance with federal and state franchise disclosure laws and for providing the Candidate with an FDD pursuant to all federal and applicable state laws. FCC shall have no obligation for compliance with federal or state franchise disclosure laws as they may apply to any Candidate.

10. Candidate Approval:

Only the Franchisor can finally approve the Candidate as being qualified to purchase its franchise.

11. Sales Registration Forms:

When required, FCC and all of its Consultants will prepare and deliver to the Franchisor any salesperson registration forms.

12. Non-Exclusivity:

This Agreement, and the relationship between the Parties herein, is non-exclusive to both FCC and Franchisor.

13. Confidentiality:

All Parties agree to keep the other Party’s business information confidential, including, but not limited to, the terms of this Agreement and all other confidential and proprietary business information either Party may learn about the other, and not to reveal them to others except to their key employees who have a need to know or to their professional advisors, or as otherwise required by law. This Section specifically survives the termination or expiration of this Agreement. Any Party who has suffered as a result of a breach of this Section of the Agreement shall be entitled to injunctive relief, along with compensation for any damages suffered as a result thereof.

14. Indemnification:

a. Franchisor agrees to defend, indemnify, and hold FCC and each of FCC’s Consultants (the "Indemnified Parties") harmless from and against any and all liability, costs, losses, expenses, damages, actions, or claims, including without limitation, reasonable and actual attorneys' fees and court costs (all of which shall jointly be referred to as the "Claim") resulting from: Franchisor’s (i) alleged negligence or wrongful acts; (ii) alleged breach of this Agreement; (iii) alleged violation of any law, statute, rule, regulation, or ordinance regulating the offer and sale of franchises; or (iv) alleged breach of any franchise agreement or other agreement with a Candidate or Franchisee. The benefits and obligations of this provision shall apply to each Indemnified Party and each Indemnified Party’s representatives, agents, independent contractors, successors, assigns, and employees. This Section shall survive the termination of this Agreement.

b. FCC agrees to defend, indemnify, and hold Franchisor harmless from any and all liability, costs, losses, expenses, damages, actions, or claims, including without limitation reasonable and actual attorneys' fees and court costs (all of which shall jointly be referred to as the "Claim") resulting from FCC’s: (i) negligence or wrongful acts; or (ii) breach of this Agreement. The benefits and obligations of this provision shall apply to Franchisor’s representatives, agents, independent contractors, successors, assigns, and employees. This Section shall survive the termination of this Agreement.

15. Franchisor Legal Compliance:

The Franchisor must comply with all applicable federal and New Zealand laws and regulations regarding registering the offer and sale of its franchises, preparation and proper distribution of FDDs to Candidates, and any other related requirements. Franchisor agrees to keep all marketing, disclosure, and registration documents up to date, properly registered, and in effect. Upon request by FCC, Franchisor shall provide verifiable evidence to FCC that all such marketing materials, disclosures, and registration documents are current and that all legal registration filings and related requirements have been properly met. Should Franchisor not meet such requirements or provide such requested information within a reasonable time to FCC after its request, then FCC shall be allowed to immediately suspend providing any and all services to Franchisor under this Agreement. FCC will only resume providing services to Franchisor under this Agreement upon verification by Franchisor that Franchisor has met such requirements. Franchisor shall provide to FCC copies of all franchise documents that have been filed by Franchisor with state and federal authorities and shall notify FCC of any lapse in the effectiveness of such franchise marketing, disclosure, or registration documents. Franchisor shall immediately notify FCC in writing of any material change in its franchise registration status, legal compliance, financial condition, or similar aspect of its business or condition.

16. FCC Legal Compliance:

FCC hereby agrees to comply with all applicable New Zealand laws and regulations regarding its activities under this Agreement. FCC will not provide franchise disclosure documents or any related franchise document to any Candidate.

17. FCC Registration Sales Information:

FCC will promptly provide the Franchisor with any reasonable information requested by Franchisor that Franchisor may need to include in its FDD, and Franchisor, in Franchisor’s sole discretion and legal obligation, will determine if such inclusion is necessary to comply with any federal or New Zealand law. FCC agrees to promptly notify Franchisor of any changes in the information provided to Franchisor in order to assist Franchisor in maintaining compliance with federal and New Zealand franchise regulations and disclosure requirements.

18. Relationship of the Parties:

FCC’s relationship to Franchisor is that of an independent contractor. Nothing in this Agreement or the Parties’ relationship shall be deemed to create a partnership, joint venture, association, agency, franchise, or employment relationship between FCC and Franchisor. Neither FCC nor Franchisor shall represent to any third party that there is any relationship between them other than that of an independent contractor relationship. Neither FCC nor Franchisor shall have the authority to create any obligations or liabilities or incur any debts or expenses binding on the other. FCC and Franchisor are separate and distinct entities and are completely independent of one another. Each is solely liable for its own actions or lack of action, and for the actions or lack of action of its agents, independent contractors, employees, and representatives.

19. Termination:

a. This Agreement may be terminated by either Party by giving the other Party at least thirty (30) calendar days prior written notice.

b. This Agreement may be terminated immediately for cause by either Party if the other Party fails to comply with any New Zealand laws, ordinances, regulations, or statutes.

c. This Agreement may be terminated by FCC upon five (5) days’ prior written notice if Franchisor fails to make timely payment to FCC.

d. Upon termination or expiration of this Agreement, the Franchisor shall remain responsible for the payment of any fees due FCC for any introduction made by FCC, even if the Candidate has not signed the franchise agreement until after this Agreement has been terminated.

e. Until terminated by written notice from one Party to the other, this Agreement shall consist of a 1-year term with automatic renewals.

20. Dispute Resolution:

a. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration with one arbitrator in accordance with the Commercial Arbitration Rules of the New Zealand Arbitration Association, held in Auckland, New Zealand, using the laws of New Zealand, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof in Auckland, New Zealand. The arbitrator shall reasonably limit the right of discovery.

b. Notwithstanding the previous provisions of this Section, any Party may, at their option, bring a claim arising out of or relating to this Agreement, or the breach thereof, in a court of competent jurisdiction in Auckland, New Zealand.

c. Notwithstanding anything herein to the contrary, any claim of breach of the confidentiality section of this Agreement may be brought in any court in Auckland, New Zealand for both injunctive relief and damages. The laws of New Zealand shall govern any proceeding brought under this Agreement.

d. In any action or arbitration proceeding brought under this Agreement, the losing Party shall pay to the prevailing Party all costs of such action, plus reasonable attorney fees incurred in bringing such action and/or enforcing any judgment granted herein, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorney’s fees and costs incurred in enforcing such judgment. For the purposes of this section, attorney’s fees shall include, without limitation, fees incurred in the following: (i) post-judgment motions; (ii) contempt proceedings; (iii) garnishment, levy, and debtor and third-party examinations; (iv) discovery; and (v) bankruptcy litigation.

21. Governing Law:

This Agreement shall be interpreted in accordance with the law of New Zealand, and the venue for any action brought under this Agreement shall be in Auckland, New Zealand.

22. Notices:

Any notice required under this Agreement shall be in writing to the Parties at the address as follows:

FCC: Just Franchise Ltd 3/17 Judges Bay Rd Parnell, Auckland 1052 New Zealand Attn: Alexander Mitchell, Director

With a copy via email to: Just Franchise Ltd Franchisor Address: 3/17 Judges Bay Rd, Parnell, Auckland, NZ 1052 Email: amitchell@thefranchiseconsultingcompany.com

With a copy via email to: Franchisor Details

23. Survival:

Any of the terms and covenants contained in this Agreement which require the performance of either Party after the termination of this Agreement for any reason shall survive the termination and shall remain enforceable.

24. Waiver:

Failure of either Party to require performance of any provision of this Agreement shall not limit the Party’s right to enforce the provision at a later date.

25. Entire Agreement:

This Agreement contains the entire agreement between the parties hereto and supersedes any prior written or oral agreements between the parties. This Agreement may only be amended by a written amendment executed by all parties hereto and signed by an individual authorized to sign and bind such Party.

IN WITNESS WHEREOF, this Agreement is executed by the Parties as of the date first set forth above.

IN WITNESS WHEREOF, this Agreement is executed by the Parties as of the date first set forth above.

Company: Just Franchise Ltd

Name: Alexander Mitchell

 

Signature

 

_______________________________________

I WARRANT THIS INFORMATION TO BE TRUE AND ACCURATE.

Schedule A