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The How to Do It Yourself of Franchise Agreements.
- and -
â€" SAMPLE BUSINESS NAME
THIS FRANCHISE AGREEMENT is made the day of 2010
BETWEEN: (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.(the Company)
AND: The Party described in Item 1 of the First Schedule to this Agreement (the Franchisee)
AND: The Party described in Item 12 of the First Schedule (the Guarantor)
A. The Company is lawfully entitled under license from YOUR COMPANY OR TRADEMARK HOLDER COMPANY of YOUR COMPANY ADDRESS (the Licensor) to commercialise a business system including, and concerning YOU INDUSTRY FOR EXAMPLE â€œ ABC SERVICE BUSINESS â€ (the System).
B. The System is a franchise system under the Franchising Code of Conduct (the Code).
C. Distinguishing characteristics of the System include:
ÂŸ the registered business name â€œABC BUSINESSâ€;
ÂŸ certain logos and trade marks for which registration has and is being sought under the Trade Marks Act 1995 (Commonwealth);
ÂŸ Coaching of franchisees;
ÂŸ Operation Manuals;
ÂŸ distinctive branding and identity bearing the â€œABC â€ logo;
ÂŸ Confidential Information and intellectual property.
D. The Franchisee wishes to enter into an agreement with the Company to commercialise the System as a sub-licensee and the Company has agreed to grant the rights on the terms of this Agreement.
E. Where the Franchisee is a corporation, the Company has only agreed to grant the right at the request of the Guarantor who has agreed to guarantee to the Company the performance of all the obligations of the Franchisee under this Agreement.
THE PARTIES AGREE as follows:
In this Agreement the following definitions shall apply:
Agreement means this Franchise Agreement.
Abandons means no longer operating, to give up, not reporting, etc.
Brand Awareness Cooperative Fund means amount specified in Item 8 of the First Schedule.
Business means the business to be conducted by the Franchisee utilising the System in the Customer Contracts Premises.
Business Day means a day on which Banks are open for trading in YOUR COUNTRY.
Business Name means the name set out in Item 2 of the First Schedule, which is the only name under which the Franchisee shall conduct the Business.
Coaching means training, under which the Franchisee shall conduct, business.
Code means the Franchising Code of Conduct described in the background and any amendments or variations to it from time to time.
Commencement Date means the date specified in Item 3 of the First Schedule.
Confidential Information means but not limited to the Operations manual(s), trade secrets, information, methods, ideas, concepts, prices, forms, techniques, database, copyright materials and all records relating to the System.
Consumer Price Index means the index (All Groups) published from time to time by the YOUR COUNTRY Bureau of Census and Statistics or if such publication is discontinued.
Customer means a person or entity with which the Franchisee provides Services.
Customer Contracts Premises means the premises of the customers described in the Third Schedule that the franchise provides the services, and in the event of a re-definition of the Franchiseeâ€™s Customer Contracts Premises by the Franchisor under this Agreement means the Customer Contracts Premises so re-defined
Disclosure Document means a document containing certain confidential company information set out in the Code required to be prepared and delivered by the Company or the Franchisee.
Discontinue means to terminate â€" cease the operations of the business.
Field Consultant means any person nominated by the Company from time to time to visit the Franchisee and facilitate the commercialisation of the System.
Fortnight means the period of 14 days commencing as the Sundays designated by the Company and ending the following Saturday week.
Franchise means the rights granted by this Agreement.
Franchisor means the party described at the beginning of this Agreement and herein referred to as the Company.
Franchisee means the party named in Item 1 of the First Schedule and its legal representatives, successors and permitted assigns.
Franchise Fee means the initial fee payable by a Franchisee for the grant and other matters as specified in Item 6 of the First Schedule.
Franchise Service Fee means the amount specified in Item 7 of the First Schedule.
Franchise Package means the items and services detailed in the Fourth Schedule provided by the Company to the Franchisee as part of the Franchise Fee.
Gross Sales Revenue includes all receipts by the Franchisee from sales of any goods, products or services in the Business (whether from sales by way of cash or credit and irrespective of the collection of monies due) including sales tax EXCLUDING any sums in respect of taxes payable upon the sale of goods or services and fees payable for approvals or licences from governmental or semi-governmental regulatory bodies,
Intellectual Property includes all licensed copyrights, designs, trade marks, patents, processes and corporate names, computer software licensed by the Company and the goodwill of any licensed business name, secret processes or Confidential Information licensed by the Company including the Marks and the System.
Interest Rate means the rate specified in Item 9 of the First Schedule.
Licensor means the Licensor described in Background Recital A and any trustee in addition to or in substitution for them.
System Improvement Fee means amount specified in Item 11 of the First Schedule.
Maintenance Service Agreements means agreements (whether in writing or otherwise) for the provision of services utilising the System entered into between the Franchisor and or Franchisee and a Customer. All contracts shall remain with the franchisor or its nominees.
Marks means the overall image of the system, including but not limiting to all trade marks, logos, colour schemes, trade names and business names associated with the System and the Image specified in this Agreement and or laid out in the Second Schedule.
ABC (â€œthe Imageâ€) means a specific style and image created by the Licensor to identify the System and licensed by the Company and includes but not limited to names, marks, designs for signage, uniforms, shops, vehicles, identification badges and stationery, etc.
Month means a calendar month.
Operations Manuals means the procedural advice manuals lent to the Franchisee by the Company as may be amended from time to time.
Product means all products, and associated aids used in the services or to perform the Maintenance Service Agreement at a customers premises.
Renewal Term means the right or rights to renew the Franchise for the period or periods set out in Item 5 of the First Schedule.
Service means these services forming part of the System from time to time.
Term means the relevant period set out in Item 4 of the First Schedule.
2.1 Headings are for convenience and reference only and shall not affect the construction and interpretation of this Agreement. The Background recitals are incorporated with and form part of this Agreement.
2.2 Words importing the singular include the plural and vice versa.
2.3 Any gender includes the other gender.
2.4 Any reference to a person includes a corporation or a body politic and a person includes the legal personal representatives, successors and assigns of that person.
2.5 Any term defined in the Code shall unless defined in a different manner in this Agreement have the same meaning as set out in the Code.
3. GRANT OF FRANCHISE
The Company hereby grants to the Franchisee:
(a) subject to the provisions of Clause 3 the limited non exclusive right to advertise strictly in accordance with this entire agreement the Business in the State of purchase of the Business and to use the Business Name;
(b) the limited non exclusive right to use the System and Marks during the Term and on the terms and conditions of this Agreement.
(c) the limited, non exclusive right to provide Services outside the Customer Contracts Premises strictly in accordance with this entire agreement and the provisions of Clause 3; and
(d) The grant of rights under this Agreement is subject to:
(i) the Franchisee executing this Agreement;
(ii) the Franchisee paying the Franchise Fee(s);
(iii) the Guarantor executing this Agreement (if relevant);
(iv) the Franchisee providing cover notes or certificates of insurance concerning any requirement for insurance set out in this Agreement or the Operations Manual; and
(v) the Franchisee providing all statements and other acknowledgments required by the Code.
(vi) the Franchisee providing full contact details, all statements and other acknowledgments required by the Company from time to time.
(vii) The Franchisee being is strict accordance with the terms and obligations created under this Agreement.
3.2 No Sub-Franchise
The Franchisee acknowledges that it has no right to sub-franchise the rights conferred by this Agreement.
3.3 Cooling Off
(a) The Franchisee may, within seven (7) clear days of the earlier of:
(i) signing this Agreement;
(ii) signing any agreement to enter into this Agreement (in this Clause both called the Agreement);
(iii) paying any money under this Agreement;
may discontinue the Agreement.
(b) If the Franchisee elects to discontinue the Agreement pursuant to sub-clause 3.3(a), the Franchisee will immediately return to the Company all documents relating to the System provided by the Company and any item and other matters capable of return making up the Franchise Package.
(c) The Company will, within fourteen (14) days of the Franchisee discontinuing the Agreement, repay to the Franchisee any monies paid by it to the Company less the amount of ten (10) per centum of such monies together with such further sum as shall equate the cost of any item or service comprised in the Franchise Package that may not be capable of return to the Company, and less any reasonable expenses incurred in relation to the Business and or Agreement including but not limiting to legal fees and set-up fees and charges.
(d) The cooling off rights set out in this clause will not apply to any renewals, extensions or any assignment or sale of the Franchise.
3.4 Central Business District
(a) The Franchisee acknowledges that the Company may reserve to itself the right to secure and or provide Services to the Customers within the Central Business District of any capital city in YOUR COUNTRY.
(b) in the event the Company exercises its rights under the preceding sub-clause, the Company may in its absolute discretion, provide Services within the central business district personally or may distribute that work to the franchisees. The Company grants to its franchisees the limited, non exclusive right to undertake work in the Central Business District for Customers referred by the Company.
(c) any distribution of the work within the Central Business District to franchisees by the Company shall be on a fair and equitable basis having regard to the then availability and location of the respective franchisees;
(d) at the conclusion or any other time during the Maintenance Service Agreement within the Central Business District the Company may, in its absolute discretion, reallocate the work to be provided pursuant to the Maintenance Service Agreement to another franchisee of the Company or permit the franchisee to provide services pursuant to the Maintenance Service Agreement for a further period, on the same terms and conditions as the first period, as determined by the Company.
3.5 Work Outside Of Customer Contracts Premises
The Franchisee may, provide services for an initial period of time and such further periods as the Company may from time to time approve in writing, provide Services outside the Customer Contracts Premises but the Franchisee must not advertise to an existing Customer of the Company or of another Franchisee or provide service within the Central Business District or within the Customer Contracts Premises of any other franchisee of the Company except strictly in accordance with the provisions of this agreement or provisions provided in the confidential operations manuals.
4. REDEFINITION OF CUSTOMER CONTRACTS PREMISES
4.1 Redefinition of Customer Contracts Premises
The Company may redefine the Customer Contracts Premises by reduction or expansion if:
(a) the Franchisee does not properly exploit and commercialise the System in the Customer Contracts Premises;
(b) the Franchisee is unable to meet, within a reasonable time, the demands of Customers or potential customers in the Customer Contracts Premises provided that the Company has provided direction on the methodology required to meet those demands, and the Franchisee has been given an opportunity to undertake such further Coaching as the Company may recommend; or
(c) in the reasonable opinion of the Company a redefinition of the Customer Contracts Premises is in the best interests of the System.
Before effecting a redefinition of the Customer Contracts Premises the Company shall give the Franchisee not less than twenty eight (28) days written notice setting out particulars of the proposed change.
The Franchisee may within seven (7) days of receipt of the notice referred to in sub-clause 4.2 make representations in writing to the Company regarding the redefinition of the Customer Contracts Premises.
4.4 Representations Considered
The Company shall upon receipt of any representation of the Franchisee consider the representations and shall use its best endeavours to accommodate the wishes of the Franchisee.
4.5 Gross Sales Revenue
No alteration to Customer Contracts Premises under this clause shall be effected that will at that time in the reasonable opinion of the Company, be likely to cause the Gross Sales Revenue of the Franchisee in such redefined Customer Contracts Premises to be, on average less than the Gross Sales Revenue determined by averaging the weekly amount thereof over the preceding three months.
The Term of the Franchise is set out in Item 4 of the First Schedule.
The Term shall commence on the Commencement Date.
6. RENEWAL TERM
6.1 Three Further Rights of Renewal
Subject to the provisions of this clause, the Franchisee shall have the option to renew the Franchise for the periods set out in Item 5 of the First Schedule, if at the time of exercise of each option the Franchisee:
(a) has been, throughout the Term or relevant Renewal Term, in substantial compliance with this Agreement;
(b) enters into the Companyâ€™s then current franchise agreement, that may be different to this Agreement;
(c) causes the Guarantor, or a person approved by the Company in substitution for the Guarantor, to enter into the then current franchise agreement in the capacity of a guarantor;
(d) pays the Companyâ€™s full costs of any renewal including but not limited to, license fees and legal fees incurred in the preparation of all necessary documents and stamp duty on such documents;
(e) provides all statements and other acknowledgments required by the Code.
6.2 Time for Renewal
The Franchisee may exercise each option by written notice to the Company not more than six (6) months and not less than three (3) months prior to the end of the relevant period.
7.1 Use and purchase of Product
(a) During the Term or Renewal Term the Franchisee will NOT use including but not limiting to any products or supplies, whatsoever unless they are approved by the Company.
(b) The Franchisee will purchase all Products from the Company or from authorised suppliers nominated from time to time in the Operation Manuals.
(c) The Franchisee may not, without the prior written consent of the Company and or allowed for in this Agreement, convey or offer any product or service for sale to Customers or any other person or entity.
(d) The Franchisee may NOT supply product or services that are not approved for in the operations manual or by the company, or do not meet the system standards or that may damage the System, The Company, The Licensor or the reputation or goodwill of the entire System.
(e) The franchisee acknowledges that any breach under this clause, then this Agreement may be discontinued and or pay a non-compliance fee(s) specified in Item 15.
7.2 Product Supply
(a) The Franchisee will give the Company or any approved supplier reasonable notice of the Product requirements of the Franchisee to allow sufficient time to enable shipment or delivery to occur within the ordinary course of business or as set out in the Operations Manuals;
(b) A failure by the Company to access Product for the purposes of supply to the Franchisee shall be sufficient excuse for any failure or delay in providing, delivering or shipping it;
(c) The right of the Franchisee to utilise or otherwise deal with the Product is strictly limited in accordance with the terms of this Agreement and any directives contained in the Operations Manuals;
(d) Product may not be used in breach of any occupational health and safety guideline contained in the Operations Manuals or as prescribed by law.
7.3 Bulk Buying
The Company shall attempt to secure any bulk buying arrangements it can negotiate with a supplier or manufacturer of the Product.
The Franchisee shall ensure that the Company or any approved supplier as the case may be, is paid promptly for all Product ordered and accepted by the Franchisee and in any event in accordance with the Companyâ€™s or any approved suppliers then current written terms and conditions of payment;
The Franchisee shall pay all sales, goods and services and other taxes that may be required to be paid by the Franchisee in the conduct of the Business pursuant to any act or regulation whether State or Federal;
The Franchisee acknowledges and accepts that the Company may receive rebates and other benefits from suppliers in relation to Product purchased by the Franchisor, Franchisee and other franchisees.
8.1 The Franchisee agrees:
(a) Response Time
to respond to all enquiries by Customers or potential customers on the same day as they are made;
(b) Complimentary Service and Quote Arrangement
to provide, at the Companyâ€™s request, a complimentary service and complimentary quote for any new customer or potential customer outside Customer Contracts Premises, or the central business district or within the metropolitan area of the city in which the Customer Contracts Premises is situate.
(c) Integrated Business Services
to utilise, all marketing and advertising methods and where possible cause Customers to use the cross promotion services and integrated businesses offered by the company now and or at any time during the term of this agreement. Such integrated business services may include but not limiting to services associated with the business from time to time.
(d) Maintenance Service Agreement
to utilise, and where possible cause Customers to sign the form of Maintenance Service Agreement published by the Company in the Operations Manuals;
(e) Promotional Presentation
the Franchisee shall not make any form of presentation to potential customers without the prior written consent of the Franchisor, the Franchisor agrees to assist the Franchisee in making such reasonable presentations, and any Maintenance Service Agreement entered into by the Franchisee as a result of a promotional presentation by the Franchisee shall be deemed to be Maintenance Service Agreements entered into by the Franchisee for an on behalf of the Franchisor.
(f) Notify Company
to forthwith provide a copy of each Maintenance Service Agreements to the Company on execution and to further inform the Company of any enquiries or potential Maintenance Service Agreements of which the Franchisee becomes aware;
(e) Observe Terms
to well and faithfully observe the terms of all Maintenance Service Agreements and to advise the Company immediately of any inability to properly perform a Maintenance Service Agreements (whether temporary or otherwise);
(f) Customer Complaints
to immediately report FIRST (and before leaving the site of the Customer) all Customer complaints to the Company and observe and participate in any procedures laid down by the Company for the resolution of such complaints;
(g) Equipment, Plant, fixtures and Fittings Malfunction or Breakage
to immediately report FIRST (and before leaving the site of the Customer) to the Company and then the Customer under instructions from the Company any breakage or malfunction of any equipment whatsoever including but not limiting to, plant, fixtures and or fittings, and comply with all reasonable directions of the Company and the Customer to remedy any fault or default. The Franchisee shall not, without the prior written consent of the Company, make any admissions to liability, which may affect the Company and or insurance policies of the Franchisee and/or the Company.
(H) Breach under this Clause
The franchisee acknowledges that any breach under this clause, then the company may issue a Notice of Dispute and or issue a non-compliance fee(s) specified in Item 15.
8.2 Performance by Company
Where the Franchisee is unable to perform a Maintenance Service Agreements for any time the Company is authorised by the Franchisee to cause its employees or another franchisee to perform the terms of the same provided that in doing so the Company or franchisee shall be treated as an agent of the Franchisee and the Franchisee shall be responsible for the reasonable costs of the Company or franchisee in complying with the terms of such Maintenance Service Agreements and shall have the legal right to payment.
8.3 Companyâ€™s Rights to Assign Maintenance Service Agreements
If the Company reasonably concludes that there has been serious or persistent non-performance of a Maintenance Service Agreement, the Company may direct the Franchisee to immediately assign by default the rights of the Maintenance Service Agreement to the Company or another franchisee of the Company. The Franchisee shall have no right to claim consideration for any assignment of the Maintenance Service Agreements.
The Franchisee agrees to use such communications technology as the Company may from time to time require.
9. MONIES PAYABLE BY FRANCHISEE
SECTION REMOVED FROM PUBLIC VERSION
9.2 No Offset
Any payment under this Clause shall be made without any offset, deduction, or abatement and by cash, Cheque, direct deduction by the Company or by direct debit to the account of the Company or as nominated by it from time to time.
10. COMPANYâ€™S OBLIGATIONS
The Company agrees with the Franchisee as follows:
10.1 Manuals and Coaching
to lend to the Franchisee the Operations Manuals;
10.2 Coaching at Commencement
to provide, either directly or through an agent or contractor initial Coaching in the conduct of the System for a period of not less than Five Business Days (or such longer or lesser periods determined by the Company as appropriate) which shall be at a location nominated by the Company. The Franchiseeâ€™s costs of attending Coaching under this sub-clause shall be met by it. The Company may require that any employee(s) of the Franchisee also attend initial Coaching;
10.3 Franchise Package
to ensure that the Product and equipment making up the Franchise Package is suitable and in good order;
10.4 Identification with System and Image
to authorise and permit the Franchisee to identify the Business as a franchisee of the System and to conduct it using the Image and the Marks subject to any restrictions under this Agreement properly imposed by the Company;
to provide such advice and information whether orally or in writing as the Company shall consider reasonable to assist the Franchisee with:
(a) customer development and service;
(b) marketing and advertising;
(c) management and administration;
(d) the use of the Image or any changes to it;
(e) the sale and proper use and application of the Product and or Service;
(c) proper use of equipment;
(d) cross promotion of associated goods and services;
10.6 Consent to the use of the Business Name
to consent to the use of the Business Name subject to the observance of this Agreement;
10.7 Ongoing Coaching
to provide ongoing Coaching in addition to the Coaching at Commencement during the Term or any Renewal Term at the cost of the Franchisee after any written request by the Franchisee, or if considered necessary, by the Company;
10.8 Franchisee Meetings
to convene meetings of franchisees as the Company considers necessary;
10.9 Product Availability
to maintain and or to provide access to, unless the Company by notice discontinues this arrangement, a reasonable supply of Product for purchase by the Franchisee;
11. BRAND AWARENESS COOPERATIVE FUND
SECTION REMOVED FROM PUBLIC VERSION
12. system improvement fee
SECTION REMOVED FROM PUBLIC VERSION
The Franchisee acknowledges that the Company may require of it the installation and use of equipment and facilities designed to enhance the System. The Franchisee agrees to immediately and at its cost act on the Companyâ€™s requirements. Such requirements may in the future include the need to:
14.1 if required by the company contribute to the cost of the acquisition, marketing and administration of a telephone number which telephone number shall be for a central referral office;
14.2 if required by the company establish and maintain credit card facilities for the payment of accounts by Customers;
SECTION REMOVED FROM PUBLIC VERSION
15. FRANCHISEEâ€™S OBLIGATIONS
The Franchisee agrees with the Company as follows:
15.1 Payments to Company
to pay on the relevant due dates for payment (time being of the essence) all amounts due to the Company;
15.2 Best Endeavours
to use its best endeavours to carry on to promote and conduct the Business (either by itself or by an employee approved by the Company) in a proper and efficient manner and to devote, unless otherwise agreed to by the Company, complete attention to the conduct of the Business or in the case of the Franchisee being a Company, to ensure that a Manager approved by the Company devotes full time attention to the Business;
15.3 Commence Business/hours
to commence Business operations within fourteen (14) days of Commencement Date and to conduct the Business between such hours and on such days as the Company shall from time to time reasonably direct;
at its own cost to participate in such initial and ongoing Coaching as the Company may require at the locations nominated by the Company and to ensure that such of its employees as the Company may nominate undertake such Coaching;
15.5 Operate as Independent Proprietor
to conduct the Business as an independent proprietor and under the Business Name at its sole risk and expense and for its sole benefit and not as a representative, agent, partner, joint venturer or employee of the Company. Neither party has the authority (expressed or implied) to represent, act on behalf of or by any other means bind the other except as expressly provided for in this Agreement;
SECTION REMOVED FROM PUBLIC VERSION
Any Franchisee or Guarantor of the Franchisee unlawfully found to and including but not limiting to combine, and conspire and or induces together, with intent to oppose any measure or measures of the Business or Systems of the Business or Requests of the Business; or with such intent, to counsel, advise, or attempt to procure any insurrection, unlawful assembly, or combination; or to write, print, utter, or publish, or cause, or procure to be written, or willingly to assist in writing, or utter, any false, scandalous, and malicious comments, suggestions, writing, writings against the Business, with intent to defame them, or to bring them into contempt, or disrepute, or to excite against the Business with other Franchisees and or Contractors of the Business and or System, or to stir up sedition; or to excite and or induce any unlawful combination for opposing, or resisting any Clause, or any lawful act of the Business and or System Adjustment from time to time, or to resist, oppose, or defeat any such Clause or act; or to aid, encourage, induce, or abet any hostile relationship whatsoever against The Company, The Licensor, The System, The Franchisees and or Directors, Employees or Contractors of the Business and furthermore agrees that this would be a fundamental breach of this entire Agreement and furthermore agrees to an Immediate Discontinuation of the Franchise Agreement and Franchise relationship without claim for compensation. Notwithstanding this clause the lawful act of franchisees wishing to form an association or to associate in a lawful manner with other franchisees is consented.
15.11 Responsibility for Employees
if so required by the Company, to be responsible for the Coaching of the franchisees employees the observance by them of occupational health and safety regulations and to pay and bear all relevant costs and statutory obligations and charges imposed in the Customer Contracts Premises concerning those persons;
15.12 Engagement of Employees
to obtain the prior consent of the Company as to the engagement of all employees and to submit to the Company all information required by the Company as requested by it.
15.13 Character of Employees/confidentiality
to ensure that its employees are of respectable and responsible standing and of good character and to make as a condition of employment the obtaining of a satisfactory Police clearance advice for each employee and ensure prior to operation that the employee enters into a confidentiality â€" non competition agreement concerning the System;
15.14 Adhere to Procedures
at all times to adhere to any standards and or procedures set by the Company and or set out in the Operations Manual including but not limiting to those standards and procedures designed to ensure the health and safety of the Franchisee, employees and Customers;
to refer to the Company, for its prior approval, the contents, style and media proposed to be used by the Franchisee (including signage) for any advertising what so ever, including the System, and the Business in the Customer Contracts Premises, or a proposed Sale of a Franchise Business. Advertising approved by the Company will be at the cost of the Franchisee;
to promptly inform the Company of any matter that may affect or assist with the exploitation of the System inside or outside the Customer Contracts Premises and in particular to advise the Company of any potential customers outside the Customer Contracts Premises of whom the Franchisee becomes aware;
15.17 Customer Payment Contact
not to contact or challenge in any way, legal or otherwise any Customer(s) of the business and or the system without first contacting the Company and obtaining written directions as to the appropriate methodology and or actions needed to rectify any matter whatsoever to do with the Customers. The franchisee acknowledges that any breach under this clause then the Company may issue a notice of Dispute and or issue a non compliance fee specified in Item 15.
SECTION REMOVED FROM PUBLIC VERSION
15.22 To Take Out and Maintain Insurances
to take out and maintain insurances in the name of the Franchisee and the Company with respect to the risks set out in Item 10 of the First Schedule. All such insurances shall be for such amounts and cover with such insurer approved by the Company from time to time PROVIDED ALWAYS that approval shall not be unreasonably withheld and PROVIDED FURTHER that the Franchisee shall cause each policy of insurance to contain an endorsement that the said policies shall not be cancelled by the insurer until the expiration of fourteen (14) days written notice from the insurer to the Company. The Franchisee shall at all times observe the conditions of the policies arranged pursuant to this clause and produce to the Company on demand the policies effected by the Franchisee pursuant to this clause and receipts for payment of premiums and renewal of such policies;
15.23 To Pay Accounts of the Business
to pay promptly as when they fall due all accounts received by the Franchisee pertaining to the Business;
15.24 To Advertise the Business
to advertise and market the business at the cost of the Franchisee and first obtaining authorisation from the Franchisor as to the type and style for approval.
15.25 Inspection by Company
to permit the Company and its servants and agents (including the Field Consultant) at all reasonable times upon the provision of reasonable notice by the Company to inspect and copy all books of accounts, financial and other records relating to the Business;
15.26 Maintenance Service Agreements
to observe and faithfully discharge the terms of all Maintenance Service Agreements;
15.27 iso 9002 and other accreditations
if required by the Company, to observe and assist the Company in maintaining any accreditation whatsoever of the Company and the System including but not limiting to ISO 9002 or other quality endorsed service provider accreditations.
15.28 To Pay Costs Arising from Default
to pay the costs and expenses including but not limiting to legal costs which the Company may in any way incur arising from any default by the Franchisee in the performance of its obligations under this entire Agreement, and including but not limiting to any breach or corrective measures required to remedy a customers complaint and or provisions of the Maintenance Service Agreement.
to pay any government impost, duty, levy or tax howsoever arising from the conduct of the Business by the Franchisee;
to wear and cause any and all employees to wear at all times in the conduct of the Business uniforms as required by the Company and to wear an approved Security Pass at all times and in an appropriate position during the entire operation of the Business; The franchisee acknowledges that any breach under this clause, then the company may issue a notice of dispute and or issue a non compliance fee specified in Item 15.
15.31 Personal Hygiene and Appearance
To protect the interests of the System and the Business it is the policy of the Company that every Franchisee and or Employee of the Franchisee and or Person associated with the Company must ensure dress, grooming, and personal hygiene should be appropriate to the work situation.
All Franchisees must maintain proper personal hygiene and appearance. Radical departures from conventional dress or personal grooming and hygiene standards are not permitted; hair should be clean, combed (where appropriate) and neatly trimmed or arranged, shaggy, unkempt hair is not permissible regardless of length. Sideburns, moustaches, and beards (where appropriate) should be neatly trimmed. Tattoos and body piercing should not be visible, clothing and uniform standards must be neat and clean and appropriate for the situation. Uniforms must be changed as frequently as required to ensure that they retain no odour or residual marks left over from any previous wear. Hair, clothing & body must be kept clean and free of unpleasant odors at all times, clean is defined as free of dirt, body oil, tobacco smoke or other overpowering smells, dandruff, or foreign substances. It is a requirement of the Company that if you are a smoker you must use refreshing breath mints before and during your time at the clientâ€™s premises.
The Franchisee acknowledges and agrees that any breach under this clause, then the company may issue a Notice of Dispute, and or issue a non compliance fee(s) specified in Item 15.
SECTION REMOVED FROM PUBLIC VERSION
15.34 Motor Vehicle
(a) to maintain in good order and repair at all times a motor vehicle of a colour, type and model approved by the Company for use in the Business (the vehicle); and set out in Item 14 of the First Schedule.
(b) to purchase and have applied to the vehicle approved signage including, colours, themes and logos on the vehicle and to repair and or upgrade or review the same as required by the Company;
(c) to keep the vehicle fully registered and roadworthy in accordance with applicable State laws;
(d) to keep the vehicle the subject of proper comprehensive insurance to the full value of it;
(g) to keep the vehicle at all times in a clean and tidy condition and free of any advertising or promotional material other than that required by law or this Agreement;
(h) if required by the company to purchase and have applied to the vehicle approved number plates, including numbers, names, colours, themes and plate logos on the vehicle;
15.35 Operations Manuals
to immediately return to the Company all pages in the Operations Manuals required to be replaced by the Company from time to time;
15.36 Telephone And Other Directories
(a) if required (at the option of the Company) to make such annual contribution to advertising in telephone and other directories (printed and/or digital ) of the city in which the Customer Contracts Premises is situate as the Company may reasonably require having regard to the number of franchisees in the city;
(b) not to advertise a private phone number including mobile number, email or facsimile address in any telephone or other directory without the prior written consent of the Company which may be withheld in its absolute discretion. The Franchisee may advertise its mobile phone number on business cards only. All other stationery shall bear only the national sales and enquires telephone number approved by the Company from time to time;
if required to engage a Telemarketing assistant for such period as may be reasonably required by the Company from time to time;
15.38 Work Outside the Customer Contracts Premises
not to provide any Services outside the Customer Contracts Premises except in accordance with the provisions of sub-clauses 3.4 and 3.5 without the prior written consent of the Company which may be denied or granted on such terms and conditions as the Company deems fit.
15.39 Breaches under this Clause
The Franchisee acknowledges and agrees that any breach under this clause, then the company may issue a Notice of Dispute, Discontinue, and or issue a non compliance fee(s) specified in Item 15.
16. MAINTAIN SECRECY AND NOT DISCLOSE ANY CONFIDENTIAL INFORMATION
16.1 No Disclosure
The Franchisee (and where relevant) its directors, employees or agents, will not during the Term or any Renewal Term or after its expiry or discontinuation, use or disclose any Confidential Information received by any of them from the Company in the course of the Business, unless so required by law and will inform the Company of any such disclosure it is compelled to make.
The Franchisee expressly acknowledges that all materials, information, manuals and advice provided by the Company during Coaching or thereafter is and shall remain the property of the Licensor and or the Company (except where expressly stated in writing to the contrary) and shall not be copied, reproduced or used except in the proper conduct of the Business. A Breach of Clause 16 would be a fundamental breach of this entire agreement and the Company reserves its rights to take whatever action necessary to remedy such a breach, including but not limiting to a Discontinuation of the Franchise Agreement, legal action such as an injunction and or issue a non compliance fee(s) specified in Item 15.
17. ACCOUNTING AND REPORTING
The Franchisee agrees to:
17.1 Render Written Invoices
render to all customers written invoices recording services provided and the fee charged for the same;
17.2 Job sheets
use the form of jobsheets provided by the Company or set out in the Operations Manuals;
SECTION REMOVED FROM PUBLIC VERSION
17.7 monthly Statements
to provide to the Company, in a form and manner approved by the Company in the Operations Manual, by the close of business on the third day following the end of each month during the Term and Renewal Terms such reports as the Company may prescribe from time to time; The franchisee acknowledges that any breach under this clause, then this Agreement may be discontinued and or pay a non compliance fee specified in item 15
17.8 Annual Statements
provide to the Company true copies of its annual financial statements (including a balance sheet) no later than thirty (30) days of the end of each financial year;
17.9 Accounting Standards
ensure that all financial statements are drawn by a qualified accountant made up in accordance with proper and accepted accounting standards or as set out in the Operations Manual;
provide the Company with copies of such invoices, statements, copy receipts, financial statements and other like relevant documents as the Company may require;
permit the Company to nominate an independent auditor to examine the books of account of the Franchisee. The auditorâ€™s fees and expenses shall be paid by the Company unless the books of account are not in order and are inaccurate to the extent of disclosing an understatement of two per centum (2%) or more of the Franchiseeâ€™s Gross Sales Revenue. In that event the costs of the auditor shall be borne by the Franchisee and the Company shall have the right to discontinue this Agreement and or take further actions as required.
18. RESTRICTIONS WHERE FRANCHISEE IS TRUSTEE OF TRUST
If the Franchisee holds this Agreement in the capacity of trustee of a trust which has been disclosed and approved by the Company prior to its execution, the Franchisee shall not during the Term or any Renewal Term:
18.1 vary, amend, alter, revoke or modify the provisions or powers contained in the trust deed constituting the said trust;
18.2 distribute or join in the distribution of any or all of the capital of the trust fund or in any other way invest the said trust fund; or
18.3 resign office as trustee; without the prior written approval of the Company which shall not be unreasonably withheld.
19. TO PAY LEGAL COSTS
19.1 The Franchisee shall pay all reasonable legal costs of and incidental to the preparation of this Agreement and all stamp duty assessed hereon; such legal cost have been included in the opening investment package.
19.2 The Franchisee shall reimburse the Company for all legal fees incurred by the Company as a result of breaches of this Agreement by the Franchisee (except costs associated with the dispute resolution clause 34 of this Agreement).
The Franchisee covenants and agrees that it will assume the sole and entire responsibility for and indemnify and save harmless the Company from any and all claims, liabilities, losses, expenses, responsibility and damages by reason of any claim, proceedings, action, liability or injury arising out of the Franchiseeâ€™s conduct of the Business or as a result of the Franchiseeâ€™s dealings with Customers and other third parties or because of any breach of this Agreement by the Franchisee.
21. REGULAR INCOME
For the purpose of this clause Base Revenue shall mean the amount per calendar month set out in Item 17 of the Schedule.
SECTION REMOVED FROM PUBLIC VERSION
21.2 The obligations of the Franchisor contained in sub-clause 21.1 above:
(a) are personal to the Franchisee named herein and shall not survive any assignment of this Deed; and
(b) shall remain binding upon the Franchisor only if the Franchisee has been in strict compliance with all of the terms and conditions of this Deed and only in respect of income generated from Initial Maintenance Service Agreements.
22. COMPANYâ€™S LIABILITY TO FRANCHISEE
The Company shall not be liable to the Franchisee for any loss incurred by the Franchisee caused by the Companyâ€™s failure to observe the terms and conditions of this Agreement and on its part to be observed and performed where such failure is occasioned by any cause beyond the Companyâ€™s reasonable control.
23. PROTECTION OF INTELLECTUAL PROPERTY
SECTION REMOVED FROM PUBLIC VERSION
23.3 Court Relief
If Clause 23 is breached, the Franchisee and or its Guarantors consents to an injunction and any other court order or relief which may be necessary to enable us to enforce and obtain the full benefit of Clause 23
23.4 Ownership of Intellectual Property
(a) Owned by the Company
The Franchisee acknowledges that the Licensor is the exclusive owner of the Intellectual Property.
(b) No Rights Created in the Franchisee
The use of any or all of the Intellectual Property shall not create in the Franchisee or in any person or entity other than the Licensor or the Company any right, title or interest in or to any of it except as expressly provided in this Agreement.
(c) Not to Assert Conflicting Interests
The Franchisee shall not directly or indirectly assert any right, title or interest in or to any of the Marks or any other part of the Intellectual Property.
(d) Conditions on Use of Marks
The Franchisee shall in using the Marks:
(i) in the case of such Marks as are registered, indicate that such Marks are registered and that the Franchisee is an authorised user of the Marks;
(ii) supply the Company with samples of all proposed uses of the Marks and obtain the Companyâ€™s prior written approval of such use; and
(iii) not at any time (whether during the Term or any Renewal Term or thereafter) directly or indirectly use or cause to be used any other service mark, trade mark, business name or any other mark or thing or any other means of designation or commercial identification which is likely to be confused with any one or more of the Marks.
If the Franchisee learns of any actual or threatened infringement or piracy of the Intellectual Property or if any infringement or piracy claim is made against the Franchisee by a party other than the Licensor or the Company, the Franchisee shall immediately notify the Company in writing of the infringement, piracy or claim. The Company shall in its sole discretion determine what action if any to take with respect to the foregoing and shall bear the expenses of any such action (except to the extent, if any, to which such dispute or costs arise from any act, neglect or default on the part of the Franchisee).
(f) Parties to Litigation
The Franchisee agrees to be a named party and to give its full co-operation in such action if so requested by the Company. If the Franchisee is named as a party in any legal proceedings brought by a party other than the Company or the Licensor for infringement of their rights in the Intellectual Property based upon the Franchiseeâ€™s use of the Intellectual Property, any such proceedings shall be defended in the name of the Franchisee by and at the expense of the Company (except to the extent, if any, to which such dispute or costs arise from any act, neglect or default on the part of the Franchisee).
(g) Not to Detract from Marks
The Franchisee must not either during or after the Term or any Renewal Term do or permit to be done anything which may detract from the Company or Licensors goodwill and reputation attaching to the Intellectual Property or which does or is likely to deceive or cause confusion.
(h) Other Marks
The Franchisee must not use or allow to be used or displayed in connection with the Business any Mark, name, colour scheme, design or other things other than the Image and the Business Name;
(i) Other Purpose
The Franchisee must not use the Intellectual Property for any purpose other than the operation of the Business and or the system.
23.5 Infringement of Intellectual Property
The Franchisee must not do anything or aid or assist any other person to do anything, which would infringe upon, harm or contest the Licensorâ€™s Intellectual Property as licensed by the Company.
23.6 Change of Marks
If it becomes advisable on reasonable grounds at any time for the Franchisee to modify or discontinue use of any Marks, and/or use of one or more additional or substitute trade or service marks, the Franchisee agrees to comply with such directions at its expense and within a reasonable time after notice by the Company.
24. ASSIGNMENT BY COMPANY
The Company may assign its rights and obligations under this Agreement and upon assignment the Company shall not, except for any anticipated breach, be liable under this Agreement provided that the assignee has agreed to be bound by the Companyâ€™s obligations under this Agreement.
25. ASSIGNMENT BY FRANCHISEE
25.1 Rights Personal
The Franchisee acknowledges the rights and duties created by this Agreement are personal to the Franchisee and the Company has granted the Franchise in reliance upon the individual or collective character, skill, aptitude, attitude, business ability and financial capacity of the Franchisee.
25.2 Assignment Right
The Franchisee shall not without the consent of the Company:
(a) propose or purport to effect any sale, transfer, mortgage, charge, pledge, assignment, sub-franchise, declaration of trust or any other legal or equitable disposition of the Franchise or the Business;
(b) if the Franchisee is a corporation, suffer any change in or appointment of additional directors of the Franchisee;
(c) if the Franchisee is a corporation, resolve to or permit the issue or allotment of any shares in the Franchisee or approve the registration of the transfer of any shares in the Franchisee; or
(d) if the Franchisee is a trustee of a trust, permit the transfer of any units or beneficial interest in the trust.
All of the foregoing events are referred to in this clause as an â€œassignmentâ€ and any assignment whether by operation of law or act of the Franchisee or otherwise howsoever without the prior written approval of the Company shall be void and shall constitute a breach of this Agreement.
25.3 Consent Not to be Unreasonably Withheld
The Company shall not unreasonably withhold its approval to an assignment if:
(a) the Franchisee is in full compliance with this Agreement;
(b) the proposed assignee is, in the reasonable opinion of the Company, of good moral character and has sufficient business experience and financial resources to own and operate the Business;
(c) the Company has not exercised its first right of refusal; and
(d) if the following conditions are satisfied:
(i) all obligations of the Franchisee in connection with this Agreement and any Service Maintenance Agreement are assumed by the assignee in writing to the satisfaction of the Company and the assignee enters into the Companyâ€™s then current version of this Agreement. All costs of the preparation associated with the assignment shall be borne by the franchisee and the assignee.
(ii) the Franchisee shall have paid or have made reasonable provisions to pay all amounts owed to the Company which are then due and unpaid;
(iii) the assignee satisfactorily completes the Coaching program required by the Company at the cost of the assignee;
(iv) the assignee (and if being a corporation its directors and shareholders, if being a partnership the partner and if being a trustee all beneficiaries who are of adult age) shall, at the Companyâ€™s option, have executed and agreed to be bound by a guarantee and indemnity and a non-competition covenant in the form required by the Company;
(v) the Franchisee shall have paid to the Company a sum equivalent to fifteen per centum (15%) of the assignment consideration to defray the expenses and time incurred by the Company in connection with the assignment; and
(vi) The Franchisee has prepared and served on the proposed assignee a Disclosure Document.
(e) The Company will be deemed to have approved an assignment at the expiration of forty two (42) days after the date upon which the Franchisee submits to the Company a request for the assignment of the Franchise unless the Company withholds consent to the sale of the Franchise in writing specifying the reasons for withholding the consent.
25.4 No Waiver
The Companyâ€™s consent to assignment shall not constitute a waiver of any claims it may have against the Franchisee.
25.5 Right of First Refusal
(a) Option of Company to Purchase
If the Franchisee or any of its beneficial owners desires to sell, assign or transfer any part of his or their interest in this Agreement or the Business or in any trust of which the Franchisee is a trustee then the Franchisee shall notify the Company in writing of:
(i) all the terms and conditions of such proposed sale, assignment or transfer;
(ii) the name of the proposed purchaser, assignee or transferee; and
(iii) the names of any beneficial owners of that proposed purchaser, together with financial statements and business resumes including photographs, from all such named parties.
(iv) all Customers belonging to or that have been services by the franchisee during the Term of this agreement; and to utilise the appropriate forms in association with the proposed sale or assignment, approved by the company from time to time.
(b) Time for Exercise
Upon receipt of such notice the Company may within twenty one (21) days agree to purchase the Business or relevant interest upon the same terms and conditions as are notified to it. If the Company fails to exercise such right then the Company is presumed to have waived this right of first refusal. The Franchisee may then dispose of the interest to the named purchaser, under the terms and conditions set forth in the notice; but subject to compliance, where relevant, with the provisions of this clause of this Agreement.
(c) Terms of Sale
If the Company exercises its right of first refusal under then the Franchisee grants to the Company the absolute right to purchase the interest described in the notice on the same terms and conditions contained in the notice less any commission that would normally be payable to a business agent as an incidence of such sale. The Company may at its sole discretion, purchase the interest described in the notice in the same terms and conditions contained in the notice or for cash equal to the fair market value of such consideration.
25.6 Death and Disability
If the Franchisee, being a natural person, dies or suffers a permanent disability (which shall be deemed to have occurred if due to mental or physical infirmity the Franchisee is unable to actively participate in the Business for a total of thirty (30) days at any time throughout any consecutive three hundred and sixty five (365) day period of the Term or Renewal Term) then the executor, administrator or personal representative of the Franchisee, or the Franchisee shall transfer its interest under the Franchise to such third party as may be approved by the Company which transfer shall be at a value determined by an independent accountant nominated by the Company.
25.7 Illness of Franchisee
(a) If the Franchisee becomes unable to conduct the Business through accident, ill health or any other reason it shall forthwith notify the Company of the inability to conduct the Business. The Company shall, at its option, arrange for another franchisee to provide Services to Customers of the Franchisee during the period of inability or shall provide its own employees or agents to provide such Services.
(b) In the event that another franchisee of the Company or agents or employees of the Company provide Services to Customers of the Franchisee, the other franchisee or Company, as the case may be, shall be entitled to receive full payment from the Customer for the provision of such Services.
(c) The Company shall use its best endeavours to ensure that any franchisee of the Company which provides Services to Customers of the Franchisee during the period of inability provides such Services in a proper workmanlike manner.
25.8 Holidays Of Franchisee
SECTION REMOVED FROM PUBLIC VERSION
26. DISCONTINUATION: DEFAULT BY FRANCHISEE
26.1 Notice of Default.
(a) the Franchisee breaches a term of the Agreement;
(b) the Company, in consequence of the breach, proposes to discontinue the Agreement; and
(c) the provisions of clause 27 and clause 28 do not apply;
the Company shall give to the Franchisee reasonable notice in the circumstances (but not exceeding thirty (30) days) advising of the breach and of its intent to discontinue the Agreement, and advise the Franchisee of what is required to remedy the breach and allow the Franchisee the period set out in the notice to remedy the breach.
26.2 No Discontinuance if Compliance
If the Franchisee remedies the breach in the manner required by the Company under sub-clause 26.1 and within the time specified in the notice then the Company may not discontinue the Agreement.
If the Franchisee fails to remedy any breach set out in the relevant notice and within the time permitted for the same then the Company shall be at liberty to forthwith discontinue the Agreement immediately upon communicating its intent to do so to the Franchisee.
26.4 Dispute Resolution
In the event that a dispute between the Franchisee and the Company arises out of a discontinuation under clause 26 then the Dispute Resolution procedures under clause 34 shall apply.
27. DISCONTINUATION â€" SPECIAL CIRCUMSTANCES
Notwithstanding the provisions of the preceding sub-clauses the Company may immediately discontinue the Agreement by giving written notice of discontinuation to the Franchisee if the Franchisee:
27.1 becomes bankrupt, insolvent under administration or an externally â€" administered body corporate;
27.2 voluntarily abandons the Business or the franchise relationship;
27.3 is convicted of a