Embedded Files
AREA FRANCHISE AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Franchise Agreement is entered by and between -
CIVIKA KNOWLEDGE MANAGEMENT SOLUTIONS, INC, a Company organized and existing under Philippine law, having its principal place of business at 18A24 Victoria Station Bldg, EDSA cor. GMA Ave, Quezon City, (the
"FRANCHISOR");
-and-
_______________________________, Filipino of legal age and a resident of________________________
(the "FRANCHISEE");
WITNESSETH:
WHEREAS, FRANCHISOR as a result of the expenditure of time, skill, effort and money has developed and owns the Bridging Leadership Institute education system, hereinafter, the "System" relative to the development and marketing of Franchises.
WHEREAS, FRANCHISOR identifies the System by means of certain trade names, service marks, trademarks, logos, emblems, slogans, signage, and indicia of origin of FRANCHISOR, including without limitation to marks "Bridging Leadership Institute", and such other trade names, service marks and trademarks as are now designated and may be hereafter be designated to and by FRANCHISOR in writing, for use in connection with the System, hereinafter referred to as "Proprietary Marks."
WHEREAS, FRANCHISOR continues to develop, use and control the use of such Proprietary Marks in order to identify for the public the source of service and to represent the System's high standards of quality, appearance and service.
WHEREAS, FRANCHISEE desires to enter into the business of operating one "Bridging Leadership Institute" franchised area whose outlet is called hereafter Franchised Facility, and wishes to obtain a franchise from FRANCHISOR for that purpose as well as to receive the training and other assistance provided by FRANCHISOR in connection therewith.
WHEREAS, FRANCHISEE understands and acknowledges the importance of FRANCHISOR'S high standards of quality, appearance and service and necessity in operating the franchise business in conformity with FRANCHISOR'S standards and specifications.
WHEREAS, FRANCHISEE declares that it has adequate personnel; organization facilities and working capital satisfactory to FRANCHISOR to perform the obligations set forth hereunder.
WHEREAS, FRANCHISEE declares to enter in to this Franchise Agreement at his own financial risk and that FRANCHISOR made no representation with regards to the profitability of the Franchise and does not warrant or guarantee any success of the business and FRANCHISEE acknowledges to have to work for their own success in their respective area.
WHEREAS, the parties acknowledge that the time or period designated in this Agreement for the performance of their respective duties and responsibilities are essential to this Agreement and, thus, does not require any demand for either party to be considered in default.
NOW THEREFORE, the parties, in consideration of the undertaking and commitments of each party to the other set forth herein, hereby agree as follows:
Section 1. APPOINTMENT AND FRANCHISE FEE
1.1 FRANCHISOR hereby grants to FRANCHISEE, upon the terms and conditions herein contained, the right and privilege to use the Proprietary Marks and FRANCHISEE undertakes the obligation, to operate an Bridging Leadership Institute Area Franchise all as designated or approved from time to time by FRANCHISOR, and to use solely in connection therewith FRANCHISOR Marketing System, as it may be changed, improved and further developed from time to time, in one (1) area only, which shall be the____________________________________________
1.2 In consideration of the franchise granted herein, FRANCHISEE shall pay to FRANCHISOR an initial franchise fee of Pesos ___ thousand (PhP ___,000) excluding Value Added Tax. Said fee shall be deemed fully earned and non- refundable upon payment thereof as consideration to FRANCHISOR for its expenses incurred in furnishing assistance and services to FRANCHISEE and for FRANCHISOR'S lost or deferred opportunity to enfranchise others.
1.3 FRANCHISEE acknowledges that because complete and detailed uniformity under many varying conditions may not be possible or practical, FRANCHISOR specifically reserves the right and privilege, at its sole discretion and as it may deem in the best interests of all concerned in any specific instance, to vary standards based upon the peculiarities of the particular site or circumstance, density of population, business potential, population of trade area, existing business practices or any other condition which FRANCHISOR deems to be of importance to the successful operation of such franchisee's business. FRANCHISEE shall not be entitled to require FRANCHISOR to disclose or grant to Franchisee a like or similar variation hereunder;
Section 2. TERM AND RENEWAL
2.1 This Agreement shall be effective and binding for an initial term equal to three (3) years from the date of its execution;
2.2 FRANCHISEE shall have the right to renew this franchise agreement, which in no case shall be more than one (1) year per renewal, provided that all of the following conditions have been fulfilled prior to the renewal term:
2.2.1 FRANCHISEE has during the entire term of this Agreement substantially complied with all its provisions;
2.2.2 FRANCHISEE has satisfied all monetary obligations owed by FRANCHISEE to FRANCHISOR and its affiliates and has timely met these obligations throughout the term of this Agreement;
2.2.3 FRANCHISEE has executed upon renewal FRANCHISOR then-current form of Franchise Agreement (with appropriate modifications to reflect the fact that the agreement relates to the grant of a renewal area franchise), which agreement shall supersede in all respects this Agreement, and the terms of which may differ from the terms of this Agreement, including, without limitation, an advertising contribution; a different territory; provided, however, FRANCHISEE shall not be required to pay the then-current initial franchise fee for its equivalent.
2.2.4 FRANCHISEE has complied with FRANCHISOR'S then-current qualification and training requirements;
2.3 FRANCHISOR shall give FRANCHISEE written notice of its election not to renew the franchise at least three (3) months prior to the expiration of the initial term of this Agreement or at least three (3) months prior to the expiration of any renewal term. Such notice shall specify the reasons for non-renewal.
2.4 Should FRANCHISEE wish to operate in other areas outside the granted area, FRANCHISEE has to apply for a new Franchise Agreement.
Section 3. FACILITY LOCATION
3.1 FRANCHISEE may operate the Franchised Facility only in the area as specified in Section 1 hereof and operate it from the residence or any office, which is engaged in lawful business. If the lease for the site expires or terminate without fault of FRANCHISEE or if the site is destroyed, condemned or otherwise rendered unusable or as otherwise may be agreed upon in writing by FRANCHISOR and FRANCHISEE, FRANCHISOR will grant permission for relocation of the Franchised Facility within FRANCHISEE Designated Area.
3.2 FRANCHISEE will be responsible for purchasing or leasing a suitable site for the location of the Franchised Facility. Prior to the acquisition by lease or purchase of any site for the premises of the Franchised Facility, FRANCHISEE shall submit a description of the proposed sites to the FRANCHISOR, together with evidence satisfactory to FRANCHISOR, which confirms FRANCHISEE favorable prospects for obtaining the proposed site.
3.3 While FRANCHISOR shall utilize its experience and expertise in designation of locations, nothing contained herein shall be interpreted as a guarantee of success for said location. It shall be the sole responsibility of FRANCHISEE to undertake site selection activities and otherwise secure premises for the locations of Franchised Facility;
3.4 FRANCHISEE may be required to periodically make reasonable capital expenditures, to remodel, modernize and redecorate the premises of the Franchised Facility so that the Franchised Facility will reflect the then- current image intended to be portrayed by Franchised Facility. All remodeling, modernization, or redecoration of the premises of the Franchised Facility must be done in accordance with the standards and specifications as prescribed by FRANCHISOR from time to time and with the prior written approval of FRANCHISOR and this specifications can not be changed by FRANCHISEE. All replacements must conform to FRANCHISOR then-current quality standards and specifications and must be approved by FRANCHISOR in writing.
Section 4. EQUIPMENT, FIXTURES AND FURNITURE
FRANCHISEE has to equip the Franchised Facility with the following equipment, fixtures and furniture: at least one conference table with six (6) chairs one computer with internet connection one telephone line with fax machine. FRANCHISEE shall have at least one (1) telephone line at any given time in operation at the Franchised Facility and during non-operating hours the same shall act as fax machine and answering machine.
Section 5. TRAINING AND ASSISTANCE
5.1 FRANCHISOR shall make a one time initial training available to FRANCHISEE and to a maximum of three (3) people involved in the Franchised Facility of FRANCHISEE. FRANCHISEE and its employees shall be required to attend and successfully complete to FRANCHISOR satisfaction a three (3) days training and familiarization course, to be scheduled by the FRANCHISOR after the signing of this Agreement.
5.2 All expenses incurred by FRANCHISEE and its designates in attending such program, including, but not limited to travel costs, room and board expenses, and employees' salaries, shall be the sole responsibility of FRANCHISEE. The training course shall be conducted at any location designated by FRANCHISOR;
5.3 For one (1) days during the opening of the Franchised Facility, FRANCHISOR, will provide to FRANCHISEE, at FRANCHISEE premises and at FRANCHISOR expense, one (1) of FRANCHISOR representatives for the purpose of assisting in FRANCHISEE Franchised Facility.
5.4 If FRANCHISOR determines, in its sole discretion, that FRANCHISEE is unable to satisfactorily complete the training program described above, FRANCHISOR shall have the right to terminate this Agreement in the manner herein provided. FRANCHISOR may, in the alternative, require such additional training as it may deem necessary, in which case FRANCHISEE will bear all costs of such additional training.
5.5 If FRANCHISEE designates new or additional personnel after the initial training program, FRANCHISOR shall provide training to such personnel at FRANCHISOR headquarters or other venue designated by FRANCHISOR; however, FRANCHISOR reserves the right to charge FRANCHISEE for training. Notwithstanding the foregoing, FRANCHISEE shall be responsible for all expenses incurred by FRANCHISEE employees in attending any training. Furthermore, the conduct of additional training programs is solely discretionary upon FRANCHISOR and this provision does not confer upon FRANCHISEE the right to demand training for new personnel after the initial training program.
Section 6. PROPRIETARY MARKS
6.1 FRANCHISEE acknowledges that FRANCHISOR is the owner of their respective Proprietary Marks. FRANCHISEE further acknowledges that FRANCHISEE right to use the Proprietary Marks is derived solely from this Agreement and is limited to the conduct of business by FRANCHISEE pursuant to and in compliance with this Agreement and all applicable standards, specifications, and operating procedures prescribed by FRANCHISOR from time to time during the term of the franchise. Any unauthorized use of the Proprietary Marks by FRANCHISEE is a breach of this Agreement and an infringement of the rights of FRANCHISOR in and to the Proprietary Marks. FRANCHISEE acknowledges that all usage of the Proprietary Marks by FRANCHISEE and any goodwill established by FRANCHISEE use of the marks shall inure to the exclusive benefit of FRANCHISOR as the case may be and that this Agreement does not confer any goodwill or other interests in the Marks upon FRANCHISEE. FRANCHISEE shall not, at any time during the term of this Agreement or after its termination or expiration, contest the validity or ownership of any of the Marks or provisions of this Agreement applicable to the Marks apply to any additional trademarks, service marks, and commercial symbols authorized for use by and licensed to FRANCHISEE by FRANCHISOR after the date of this Agreement;
6.2 FRANCHISEE shall promptly notify FRANCHISOR of any claim, demand or cause of action based upon or arising from any attempt by any other person, firm, or corporation to use the Proprietary Marks or any colorable imitation thereof. FRANCHISEE shall notify FRANCHISOR of any action, claim, or demand against FRANCHISEE relating to the Proprietary Marks, within ten (10) days after FRANCHISEE receives notice of said action, claim, or demand. Upon receipt of timely notice of an action, claim or demand against FRANCHISEE relating to the Proprietary Marks, FRANCHISOR shall have the sole right to defend any such action. FRANCHISOR shall have the exclusive right to contest or bring action against any third party regarding the third party use of any of the Proprietary Marks and shall exercise such right in its sole discretion. In any defense or prosecution of any litigation relating to the Proprietary Marks or components of the System undertaken by FRANCHISOR, FRANCHISEE shall cooperate with FRANCHISOR and its affiliate and execute any and all documents and take all actions as may be desirable or necessary in the opinion of FRANCHISOR counsel, to carry out such defense or prosecution. Both parties will make every effort consistent with the foregoing to protect, maintain, and promote the Proprietary Marks as identifying the System. FRANCHISOR makes no representation or warrant, express or implied, as to the use, exclusive ownership, validity or enforceability of the Proprietary Marks;
6.3 In order to preserve the validity and integrity of the Proprietary Marks and copyrighted materials licensed herein and to assure that FRANCHISEE is properly employing the same in operation of its Franchised Facility, FRANCHISOR or its agents shall have the right of entry and inspection of FRANCHISEE premises, without prior notice, at all reasonable times, additionally, shall have the right to observe the manner in which the FRANCHISEE is rendering its FRANCHISOR services and conducting its activities and operations and to inspect equipment, products, supplies, reports, forms and documents and related data for test of content and evaluation purposes to make certain that the Franchised Facility are being operated in accordance with the quality control provisions and performance standards established by FRANCHISOR.
Section 7. CONFIDENTIAL INFORMATION
FRANCHISEE acknowledges that its entire knowledge of Franchise Development and certain details of Companies represented by Franchisor, including the knowledge or know-how regarding the specifications, standards and operating procedures of services and activities of Companies represented by Franchisors is derived from information disclosed to FRANCHISEE by FRANCHISOR and that certain of such information is proprietary, confidential and a trade secret of
FRANCHISOR and the Companies FRANCHISOR represents. FRANCHISEE shall maintain the absolute confidentiality of all such proprietary information during the term of the franchise and shall not use any such information in any other business or in any manner not specifically authorized or approved in writing by FRANCHISOR;
Section 8. MODIFICATION OF THE SYSTEM
FRANCHISEE acknowledges that from time to time hereafter FRANCHISOR may change or modify the System identified by the Proprietary Marks, including, without limitation, the adoption and use of new or modified trade names, trademarks, service marks or copyrighted materials; new products or operating systems; ancillary merchandise and related services and activities; new employee training or education programs and services; new equipment; or new techniques and that FRANCHISEE will accept, use and display for the purpose of this Agreement any such changes in the System, as if they were part of thi Agreement at the time of execution hereof. FRANCHISEE will make such expenditures for such changes or modifications in the System may reasonably require. FRANCHISEE shall not change, modify or alter in any way the System without written permission of FRANCHISOR. FRANCHISEE further acknowledges that FRANCHISOR may alter the requirements of the System to suit the particular demands of any particular market, and may therefore require FRANCHISEE or any other franchisee to adopt such modifications as maybe deemed necessary by FRANCHISOR, as provided in this Agreement.
Section 9. ADVERTISING
FRANCHISEE will submit to FRANCHISOR, for its prior approval, all promotional materials and advertising to be used by FRANCHISEE, including, but not limited to flyers, newspapers, radio and television advertising and signs. In the event written disapproval of said advertising and promotional materials is not given by
FRANCHISOR to FRANCHISEE within fifteen (15) business days from the date such material is received by FRANCHISOR, said materials shall be deemed approved. Failure by FRANCHISEE to conform with the provisions herein and subsequent non-action by FRANCHISOR to require FRANCHISEE to cure or remedy this failure and default shall not be deemed a waiver of future or additional failures and defaults of any other provision of this Agreement. FRANCHISOR reserves the right to use for its own purposes or to disseminate to other Franchised Facility any and all advertising materials, procedures and concepts submitted to FRANCHISOR by FRANCHISEE.
Section 10. STANDARDS OF QUALITY AND PERFORMANCE
10.1 FRANCHISEE shall comply with all the requirements set forth in this Agreement and other written policies supplied to FRANCHISEE by FRANCHISOR. Mandatory specifications, standards, operating procedures and rules prescribed from time to time by FRANCHISOR, shall constitute provisions of this Agreement as if fully set forth herein and shall be reasonably and uniformly applied to all franchisees. All references herein to this Agreement shall include all such mandatory specifications, standards and operating procedures and rules regulating the operation of the Franchised Facility. FRANCHISEE shall comply with the entire System including, but not limited to, the provisions of this Section 10;
10.2 FRANCHISEE shall offer all applicable types of products and services that FRANCHISOR from time to time authorizes for Franchise Development, seminars and Franchise Marketing. FRANCHISEE has to provide to interested parties for Franchise Development or Franchise information as prescribed by FRANCHISOR.
10.3 FRANCHISEE shall organize at least once a year a Bridging Leadership Seminar in the Territory and shall charge participants a fee of not less than Pesos five hundred (P 500) of which FRANCHISOR receives Pesos two hundred (P200) per participant. FRANCHISEE provides the venue and snacks to participants and presentation facilities, to conduct such seminars at the expense of Franchisee. Franchisor provides the Seminar materials given to participants of the seminar and the seminar speaker. All advertisement costs for the seminars are at the expense of Franchisee.
10.4 FRANCHISEE has to offer within the territory to any interested party the Franchise Development service of FRANCHISOR. Those services have to be priced according to FRANCHISOR. FRANCHISEE is not authorized to do Franchise Development work by himself or contract them out to third parties but only be executed by FRANCHISOR.
10.5 FRANCHISEE has to offer all Franchise Companies, which FRANCHISOR represents for the territory of FRANCHISEE, to third parties under the provisions as provided by FRANCHISOR and is not authorized to change any condition or offer of said Franchise Companies.
10.6 FRANCHISEE has to inform within twenty-four (24) hours FRANCHISOR of any interested party in either Franchise Development or in a Franchise.
10.7 FRANCHISEE may be required by FRANCHISOR to inspect locations or visit interested parties within their designated territory for the purpose of Franchise Development or Franchise Sales at the expense of FRANCHISEE.
10.8 The Franchised Facility shall at all times be under the direct, on-premises supervision of a trained and competent employee acting as supervisor or manager. FRANCHISEE shall keep FRANCHISOR informed at all times of the identity of any employee acting as manager of the Franchised Facility. FRANCHISEE shall at all times faithfully, honestly and diligently perform its obligations hereunder and shall not engage in any business or other activities that will conflict with its obligations hereunder;
10.9 FRANCHISEE shall secure and maintain in the force all required licenses, permits and certificates relating to the operation of the Franchised Facility and shall operate the Franchised Facility in full compliance with all applicable laws, ordinances and regulations, and taxes.
10.10 FRANCHISEE shall notify FRANCHISOR in writing within five (5) days of the commencement of any action, suit or proceeding, and of the issuance of any order, writ, injunction, award or decree of any court, agency, or other governmental instrumentality including action against professional services/credentials of any employee or person associated with FRANCHISEE, which may adversely affect the operation or financial condition of the Franchised Facility.
10.11 Pricing of products and services offered by FRANCHISEE to clients are guided by FRANCHISOR. In the event FRANCHISEE wants to change any pricing of Franchises or services in his area, the written consent of the FRANCHISOR prior to price changes is needed.
Section 11. FRANCHISORS OPERATIONS ASSISTANCE
11.1 FRANCHISEE shall at all times comply with the standard prices for services as may be set by FRANCHISOR from time to time, unless FRANCHISOR expressly consents a deviation there from considering, among other things, prevailing market conditions. In formulating a modified pricing policy, FRANCHISOR may offer guidance to FRANCHISEE relative to prices for the Services and Franchise Opportunities, and related services offered by Franchised Facility that in FRANCHISOR judgment constitutes good business practice. The pricing policy required by FRANCHISOR to be adopted and any guidance relative to a modified pricing policy will be based on the experience of FRANCHISOR and its franchisees in operating Franchised Facility and an analysis of the costs of such services, activities, and prices charged for. FRANCHISOR, however, by setting pricing policy or offering guidance relative thereto, does not assume in whole or in apart any business risk arising from the operation of the Franchised Facility;
11.2 Upon commencement of operation of the Franchised Facility, and during the term of this Agreement, FRANCHISOR shall provide to FRANCHISEE the following:
11.2.1 A comprehensive list of available Bridging Leadership courses and other product and services, and supplies necessary for the operation of the Franchised Facility;
11.2.2 Information on new methods of operation and new services; new Franchises or changes in Franchises of FRANCHISOR are updated to FRANCHISEE on a monthly basis
11.2.3 Suggested and mandatory specifications, standards, operating procedures and rules prescribed from time to time by FRANCHISOR, as well as information relative to other obligations of FRANCHISEE under this Agreement and the operation of the franchise;
11.2.4 Regulation of quality standards and products in conformance with the System specifications.
11.3 FRANCHISOR shall advise FRANCHISEE of problems arising out of the operation of the Franchised Facility as disclosed by reports submitted to FRANCHISOR by FRANCHISEE or by inspections conducted by FRANCHISOR of the Franchised Facility. FRANCHISOR may furnish FRANCHISEE with such assistance in connection with the operation of the Franchised Facility as is reasonably determined to be necessary by FRANCHISOR from time to time.
11.4 FRANCHISOR or FRANCHISOR representative shall visit the Franchised Facility at least quarter-annually for the purposes of consultation, assistance and guidance of FRANCHISEE in all aspects of the operation and management of the Franchised Facility. FRANCHISOR and FRANCHISOR representatives who attend at the Franchised Facility will prepare, for the benefit of both FRANCHISOR and FRANCHISEE, written reports with respect to such visits outlining any suggested changes or improvements in the operations of the Franchised Facility and detailing any defaults in such operations which become evident as a result of any such visit, and a copy of each such written report shall be provided to both FRANCHISOR and FRANCHISEE;
11.5 All the specifications, information on available Franchises are to be provided by FRANCHISOR to FRANCHISEE pursuant to this Agreement shall be delivered upon completion of the training program by FRANCHISEE.
Section 12. REMITTANCE INSTRUCTIONS
12.1 FRANCHISEE shall submit to FRANCHISOR reports for development and inquiries on a daily basis and summaries every Monday for the previous week.
12.2 FRANCHISEE receives from FRANCHISOR for every student or package which was initiated by FRANCHISEE the amount of __ percent of gross revenues as ROYALTY/CONNECTIVITY FEE. Said payment shall be deposited in the account of FRANCHISEE by FRANCHISOR after five (5) banking days after FRANCHISOR received the payment.
Section 13. COVENANTS
13.1 Unless otherwise specified, the term "FRANCHISEE" as used in this Section13 shall include any holder of a beneficial interest, at any time during the term of this Agreement.
13.2 FRANCHISEE covenants that during the term of this Agreement, except as otherwise approved in writing by FRANCHISOR, FRANCHISEE and partners of FRANCHISEE shall devote time, energy, and best efforts, to the management and operation of the Franchise, which shall be not less than one (1) day per week;
13.3 FRANCHISEE covenants that during the term of this Agreement, except as otherwise approved in writing by FRANCHISOR, FRANCHISEE shall not, either directly or indirectly, for itself, or through, on behalf of, or in conjunction with any persons, partnership, or corporation:
13.2.1 Divert or attempt to divert any business or customers of the Franchised Facility to any competitor or any other Franchise Consultant, by direct or indirect inducement or otherwise, or do or perform, directly or indirectly, any other act injurious or prejudicial to the goodwill associated with the Proprietary Marks and the System, such as developing Franchises himself or contracting other parties for that purpose or offering Franchises not connected with FRANCHISOR;
13.2.2 Employ or seek to employ or otherwise engage the services of any person who is at that time, or at any time within the preceding year, employed by FRANCHISOR or by any other franchisee of FRANCHISOR, or otherwise directly or indirectly induce or seek to induce such person to leave his or her employment;
13.2.3 Own, maintain, engage in, consult with, or have any interest in any competitive business specializing, in whole or in part, in Franchising.
13.4 FRANCHISEE specifically acknowledges that, pursuant to this Agreement, FRANCHISEE will receive valuable training and confidential information, including, without limitation, information regarding the promotional, operational, sales and marketing methods and techniques of FRANCHISOR and the System. Accordingly, FRANCHISEE covenants that, except as otherwise approved in writing by FRANCHISOR, FRANCHISEE shall not, for a period of two (2) years after the expiration or termination of this Agreement, regardless of the cause of termination, either directly or indirectly, for himself, or through, on behalf of, or in conjunction with any person, persons, partnership, or corporation, own, maintain, engage in, consult with or have any interest in any business offering, in whole or in part, products or services the same as or similar to those offered or provided in the System, within the Philippine territory;
13.5 FRANCHISEE acknowledges that FRANCHISOR shall be entitled to immediate equitable remedies, including but not limited to, restraining orders and injunctive relief against future violations of the confidentiality restrictions herein, and to such other remedies as may be necessary to safeguard such proprietary, confidential, unique and special information of FRANCHISOR and Companies FRANCHISOR represents and that the money damages alone would be an insufficient remedy with which to compensate FRANCHISOR for any breach of the terms of this Section 13.
Section 14. DEFAULT AND TERMINATION
14.1 This Agreement shall, at the option of FRANCHISOR, terminate automatically upon delivery of notice of termination to FRANCHISEE. If FRANCHISEE or its owner(s), officer(s) or manager(s):
14.1.1 Fails to satisfactorily complete the entire training program as provided in this Agreement;
14.1.2 Made any material misinterpretation or omission in its application for the franchise;
14.1.3 Make any unauthorized use, disclosure or duplication of any portion of the trade secrets or confidential information provided to FRANCHISEE by FRANCHISOR;
14.1.4 Abandons or fails or refuses to actively operate the Franchised Facility for ten (10) business days in any twelve (12) month period, unless the Franchised Facility has been closed for a purpose approved by FRANCHISOR, or fails to relocate to approved premises within an approved period of time following expiration or termination of the lease for the premises of the Franchised Facility;
14.1.5 Surrenders or transfers control of the operation of the Franchise or a Franchised Facility, makes or attempts to make an unauthorized direct or indirect assignment of the franchise;
14.1.6 If FRANCHISEE shall be adjudicated bankrupt, becomes insolvent, commits any affirmative act of insolvency or files any action or petition of insolvency;
14.1.7 Materially misuses or makes unauthorized use of any of the Marks or commits and other act which can reasonably be expected to materially impair the goodwill associated with any of the Marks;
14.1.8 Fails on two (2) or more separate occasions within any period of two (2) consecutive months to submit when due reports or other information or supporting records, to pay when due the proceeds of the sale or otherwise fails to comply with this Agreement, whether or not such failures to comply are corrected after notice thereof is delivered to FRANCHISEE.
14.1.9 Any operational default by FRANCHISEE or non-following of the operational directives
14.1.10 If FRANCHISEE does unauthorized collections for Franchise Development or for Franchise Sales.
14.1.11 If FRANCHISEE marks up any price of service or Franchise Opportunity.
14.1.12 Fails or refuses to comply with any other provision of this Agreement, or any mandatory specification, standard or operating procedure prescribed in writing, and does not correct such failure within five (5) days and provide proof acceptable to FRANCHISOR that FRANCHISEE has made all reasonable efforts to correct such failure and will continue to make all reasonable efforts to cure until a cure is effected; if such failure cannot reasonably be corrected within five (5) days after written notice of such failure to comply is delivered to FRANCHISEE.
14.1.13 If FRANCHISEE violates the boundaries of the area granted in Section 1 of this agreement.
14.2 In addition to FRANCHISOR'S right to terminate this Agreement, and not in lieu of such right or any other rights against FRANCHISEE, FRANCHISOR, in the event that FRANCHISEE shall not have cured a default under this Agreement within the five (5) days after receipt of the written notice to cure from FRANCHISOR, may, at its option, enter upon the premises of Franchised Facility and exercise complete authority with respect to the operation of said business until such time as FRANCHISOR determines that the default of FRANCHISEE has been cured and that there is compliance with the requirements of this Agreement.
Section 15. RIGHTS AND DUTIES OF PARTIES UPON EXPIRATION OR
TERMINATION
Upon termination or expiration, this Agreement and all rights granted hereunder to
Franchise shall forthwith terminate and:
15.1 FRANCHISEE shall immediately cease to operate the Franchised Facility under this Agreement, and shall not thereafter, directly or indirectly, represent to the public or hold itself out as a present or former franchisee of FRANCHISOR;
15.2 FRANCHISEE shall immediately and permanently cease to use, by advertising or in any other manner whatsoever, any confidential method, procedures and techniques associated with the System and Franchise Companies; the Proprietary Marks and any distinctive forms, slogans, signs, symbols, logos or devices associated with the Marks or System of FRANCHISOR or any Franchise Company. In particular, FRANCHISEE shall cease to use, without limitation, all signs, advertising materials, stationery, forms, and any other article which displays the Proprietary Marks associated with the System and from Franchise Companies;
15.3 FRANCHISEE shall take such action as may be necessary to cancel or assign to FRANCHISOR or FRANCHISOR designee, any assumed name or equivalent registration filed with the province, city or municipality authorities which contains the name of any of the Proprietary Marks, and FRANCHISEE shall furnish FRANCHISOR with evidence satisfactory to FRANCHISOR of compliance with this obligation within thirty (30) days after termination or expiration of this Agreement;
15.3.1 In the event FRANCHISEE continues to operate or subsequently begins to operate any other business, FRANCHISEE shall not use any reproduction, counterfeit, copy or colorable imitation of the Proprietary Marks of FRANCHISOR or Franchise Companies either in connection with such other business or the promotion thereof, which is likely to cause confusion, mistake or deception, or which is likely to dilute FRANCHISOR exclusive rights in and to the Proprietary Marks. FRANCHISEE shall not utilize any designation of origin or description or representation, which falsely suggests or represents an association or connection with FRANCHISOR so as to constitute unfair competition. FRANCHISEE shall make such modifications or alterations to the premises of the Franchised Facility (including, without limitation, the changing of the telephone number) immediately upon termination or expiration of this Agreement as may be necessary to prevent any association between FRANCHISOR or the System and any business thereon subsequently operated by FRANCHISEE or others, and shall make such specific additional changes thereto as FRANCHISOR may reasonably request for that purpose, including without limitation, removal of all distinctive physical and structural features identifying the System. In the event FRANCHISEE fails or refuses to comply with the requirements of this Section 15, FRANCHISOR shall have the right to enter upon the Franchised Facility without being guilty of trespass or any other tort, for the purpose of making or causing to be made such changes as may be required at the expense of FRANCHISEE, which expenses FRANCHISEE shall pay upon demand;
15.4 FRANCHISEE shall pay to FRANCHISOR all damages, costs and expenses, including reasonable attorney's fees, incurred by FRANCHISOR subsequent to the termination or expiration of the franchise herein granted in obtaining injunctive or other relief for the enforcement of any provisions of this Agreement;
15.5 FRANCHISEE shall immediately turn over to FRANCHISOR all manuals, Franchise Marketing materials of FRANCHISOR and Franchise Companies, Software, customer lists, records, files, instructions, brochures, agreements, and any and all other materials provided by FRANCHISOR to FRANCHISEE relating to the operation of the Franchised Facility (all of which are acknowledged to be FRANCHISORS property);
15.6 FRANCHISOR shall acquire, without compensation, all right, title and interest in and to any sign or sign faces bearing any of the Proprietary Marks. FRANCHISEE hereby acknowledges FRANCHISORS right to have access to the premises of the Franchised Facility should FRANCHISOR elect to take possession of any said sign or sign faces bearing any of the Proprietary Marks;
15.7 FRANCHISEE shall comply with the covenants contained in Section 14 of this Agreement and not operate or work as owner, shareholder, consultant, employee or volunteer for a competing or similar in operation Consultancy with FRANCHISOR within the Philippines for two (2) years;
15.8 All obligations of FRANCHISOR and FRANCHISEE which expressly or by their nature survive the expiration or termination of these Agreements shall continue in full force and effect subsequent to and not with standing its expiration or termination and until they are satisfied or by their nature expire.
Section 16. TRANSFERABILITY OF INTEREST
16.1 This Agreement and all rights hereunder can be assigned and transferred by FRANCHISOR and, if so, shall be binding upon and inure to the benefit of FRANCHISOR successors and assigns; provided, however, that with respect to any assignment resulting in the subsequent performance by the assignee of the functions of FRANCHISOR; the assignee shall:
16.1.1 At the time of such assignment, be financially responsible and economically capable of performing the obligations of FRANCHISOR.
16.1.2 Expressly assume and agree to perform such obligations. Specifically, and without limitation to the foregoing, FRANCHISEE expressly agrees that FRANCHISOR may sell its assets. Proprietary Marks, or System outright to a third party; may make a public offering of securities; may engage in a private placement of some or all of its securities; may merge, acquire other corporations or entities, or be acquired by another corporation or other entity; may undertake a refinancing, recapitalization, leveraged buy out or other economic or financial restructuring; and, with regard to any or all of the above sales, assignments and dispositions, FRANCHISEE expressly and specifically waives any claims, demands or damages arising from or related to the loss of said Marks (or any variation thereof) and/or the loss of association with or identification of BRIDGING LEADERSHIP INSTITUTE as FRANCHISOR hereunder. Nothing contained in this Agreement shall require FRANCHISOR to remain in the business in the event that FRANCHISOR exercises its right hereunder to assign its right to this Agreement.
16.2 This Agreement and all rights hereunder may be assigned and transferred by FRANCHISEE to relatives or close associates only with the approval of FRANCHISOR, if so, shall be binding upon and inure to the benefit of FRANCHISEE successors and assigns, subject to the conditions an requirements, and FRANCHISOR right of first refusal.
16.3 If the transfer, other than such transfer as is authorized under this Agreement, if consummated alone or together with other related previous, simultaneous, or proposed transfers, would have the effect of transferring control of the franchise licensed herein to someone other than an original signatory of this Agreement:
16.3.1 The transferee(s) shall be of good moral character and reputation and shall have a good credit rating and competent business qualifications reasonably acceptable to FRANCHISOR. FRANCHISEE shall provide FRANCHISOR with such information as FRANCHISOR may require to make such determination concerning each such proposed transferee(s);
16.3.2 The transferee(s) or such other individual(s) as shall be the actual manager of the franchise shall have successfully completed and passed the training course then in effect for franchisees, or otherwise demonstrated to FRANCHISORS satisfaction, sufficient ability to operate;
16.4 Approval by FRANCHISOR of any transfer by FRANCHISEE of the franchise herein granted or any of FRANCHISEE rights under this Agreement shall in no way be deemed a release by FRANCHISOR of FRANCHISEE obligations pursuant to this Agreement. Consent by FRANCHISOR to a transfer of the franchise shall not constitute or be interpreted as consent for any future transfer thereof;
16.5 The term of said agreements required pursuant to this Agreement shall be for the unexpired term of this Agreement and for any extensions or renewals as provided herein;
Section 17. DEATH OR INCAPACITY OF FRANCHISEE
17.1 In the event of the death or incapacity of an individual FRANCHISEE, the heirs, beneficiaries, or legal representatives of said individual, shall, within thirty (30) days of such event apply to FRANCHISOR for the right to continue to operate the franchise for the duration of the term of this Agreement and any renewals hereof, which right shall be granted upon the fulfillment of all of the conditions
17.2 For purposes of this Agreement, "incapacity” shall be defined as the inability of FRANCHISEE to operate or oversee the operation of the Franchise on a regular basis by reason of any continuing physical, mental or emotional incapacity, chemical dependency or other limitation.
Section 18. OPERATION IN THE EVENT OF ABSENCE. INCAPACITY OR
DEATH
In order to prevent any interruption of the Franchised Facility which would cause harm to said business and thereby depreciate the value thereof, FRANCHISEE authorizes FRANCHISOR, in the event that FRANCHISEE is absent or incapacitated as defined herein or by death and is not, therefore, in the sole judgment of FRANCHISOR, unable to operate the necessary and practical, without waiver of any other rights or remedies FRANCHISOR may have under this Agreement, provided, however, that FRANCHISOR shall not be obligated to so operate the franchise.
Section 19. INDEPENDENT CONTRACTOR
19.1 This Agreement does not create a fiduciary relationship between the parties, nor does it constitute FRANCHISEE as joint venture partner, employee, or servant of FRANCHISOR for any purpose whatsoever; and it is understood between the parties hereto that FRANCHISEE shall be an independent contractor and is in no way authorized to make any contract, agreement, warranty or representation on behalf of FRANCHISOR to incur any debt, or to create any obligation express or implied, on behalf of FRANCHISOR;
19.2 During the term of this Agreement and any extension hereof, FRANCHISEE shall hold itself out to the public as an independent contractor operating the business pursuant to a franchise from FRANCHISOR. FRANCHISEE shall take such affirmative action as may be necessary to do so, including without limitation, exhibiting a notice of the fact in a conspicuous place on the premises of the Franchised Facility and on all forms, stationery, or other written materials, the content of which FRANCHISOR reserves the right to specify;
19.3 FRANCHISEE shall defend at his own cost and indemnify and hold harmless FRANCHISOR, general partners, employees and agents, from and against any and all loss, costs, expenses (including without limitation, reasonable accountants’, attorneys’ and expert witness fees, costs of investigation and proof of facts, court costs other litigation expenses and travel and living expenses), damages and liabilities, however caused, resulting directly or indirectly from or pertaining to the use, condition, or operation of the Franchised Facility, including the sale of any service sold from the Franchised Facility. Such loss, claims, costs, expenses, damages and liabilities shall include, without limitation, those arising from latent or other defects in the Franchised Facility, whether or not discoverable by FRANCHISOR, and those arising from the death or injury to any person or arising from the damage to the property of FRANCHISEE or FRANCHISOR, their agents or employees, or any third person, firm or corporation, whether or not such losses, claims, costs, expenses, damages or liabilities were actually or allegedly caused wholly or in part through the active or passive negligence of FRANCHISOR or any of its agents or employees or resulted from any strict liability imposed on FRANCHISOR or any of its agents or employees. All such indemnification shall survive termination of this Agreement;
19.4 FRANCHISOR shall not, by virtue of any approvals, advice or services provide to FRANCHISEE, assume responsibility or liability to FRANCHISEE or any third parties to which FRANCHISOR would not otherwise be subject.
19.5 Personnel working in the Franchised Facility are employees of FRANCHISEE and FRANCHISOR does not take any liability or responsibility towards the employees of FRANCHISEE or their deeds.
Section 20. NON-WAIVER
No failure of FRANCHISOR to exercise any power reserved to it hereunder, or to insist upon strict compliance by FRANCHISEE with any obligation or condition hereunder or to insist upon strict compliance by FRANCHISEE with any obligation or condition hereunder, and no custom or practice of the parties in variance with the terms hereof, shall constitute a waiver of FRANCHISOR right to demand exact compliance with the terms hereof. Waiver by FRANCHISOR of any particular default by FRANCHISEE shall not be binding unless in writing and executed by the party sought to be charged and shall not affect or impair FRANCHISOR'S right with respect to any subsequent default of the same or a different nature; nor shall any delay, waiver, forbearance, or omission of FRANCHISOR to exercise any power or rights arising out of any breach or default by FRANCHISEE of any of the terms, provision, or covenants hereof, affect or impair FRANCHISOR rights nor shall such constitute a waiver by FRANCHISOR of any right hereunder or of the right to declare any subsequent breach or default. Subsequent acceptance by FRANCHISOR of any payment(s) due to it hereunder shall not be deemed to be a waiver by FRANCHISOR of any preceding breach by FRANCHISEE of any terms, covenants or conditions of this Agreement.
Section 21. NOTICE
Any and all notices required under this Agreement shall be in writing and shall be personally delivered or mailed by certified mail, return receipt requested, to the respective parties at the addresses as stated on the front page of this agreement unless and until a different address has been designated by written notice to the other party.
Section 22. COST OF ENFORCEMENT OR DEFENSE
In the event that either party to this Agreement is required to employ legal counsel or to incur other expense to enforce any obligation of the defaulting party, or to defend against any claim, demand, action, or proceeding by reason of the defaulting party's failure to perform any obligation imposed upon the defaulting party by this Agreement, and provided that legal action is filed and such action or the settlement thereof established the defaulting party's default hereunder, then the other party shall be entitled to recover from the defaulting party the amount of all reasonable attorney's fees of such counsel and all other expenses incurred in enforcing such obligation or in defending against such claim, demand, action, or proceeding, whether incurred prior to or in preparation for or contemplation of the filing of such action or thereafter. Nothing contained in this Section shall relate to arbitration proceedings pursuant to this Agreement.
Section 23. ENTIRE AGREEMENT
23.1 This Agreement and the documents referred to herein, shall be construed together and constitute the entire, full and complete agreement between FRANCHISOR and FRANCHISEE concerning the subject matter hereof, and supersede all prior agreements. No other representations, inducements, promises, or agreements, oral or otherwise, between the parties not embodied herein, which are of any force or effect with reference to this Agreement or otherwise. No amendment, change of variance from this Agreement shall be binding on either party unless executed in writing by both parties.
23.2 This entire contract is further conditioned upon FRANCHISOR evaluation of the personal abilities, work ethnic, mental condition, aptitudes and financial qualifications of FRANCHISEE and FRANCHISEE partners and employees and FRANCHISOR may elect to cancel this Agreement if above mentioned conditions of FRANCHISEE or his partners and employees are not of the standard as required by FRANCHISOR without any refund of monies paid by FRANCHISEE.
Section 24. SEVERABILITY AND CONSTRUCTION
24.1 Each section, part, term and/or provision of this Agreement shall be considered severable, and if, for any reason any Section, part, term and/or provision herein is determined to be invalid and contrary to or in conflict with any existing or future law or regulation, including the Intellectual Property Code, such shall not impair the operation of or in affect the remaining portions, sections, parts, terms and/or provision of this Agreement, and the latter will continue to be given full force and effect and bind the parties hereto; and said invalid sections parts, terms and/or provisions shall be deemed not part of this Agreement and the Agreement shall be deemed to impose such similar obligation, to the fullest extent as may be allowed by Intellectual Property Code or applicable law; provided, however, that if FRANCHISOR determines that said finding of illegality adversely affects the basic consideration of this Agreement, FRANCHISOR may, at its option, terminate this Agreement;
24.2 Anything to the contrary herein notwithstanding, nothing in this Agreement is intended, nor shall be deemed, to confer upon any person or legal entity other than FRANCHISOR or FRANCHISEE and such of their respective successors and assigns as may be contemplated by this Agreement, any rights or remedies under or by reasons of this Agreement;
24.3 FRANCHISEE expressly shall be bound by any promise or covenant imposing the maximum duty permitted by law which is contained within the terms of any provision hereof, as though it were separately stated in and made a part of this Agreement, that may result from striking from any of the provisions hereof any portion or portions which a court may hold to be unreasonable and unenforceable in a final decision to which FRANCHISOR is a party, or from reducing the scope of any promise or covenant to the extent required to comply with such a court order;
24.3 All captions herein are intended solely for the convenience of the parties and none shall be deemed to affect the meaning or construction of any provision hereof;
24.4 This Agreement may be executed in triplicate, and each copy so executed shall be deemed an original;
Section 25. APPLICABLE LAW
FRANCHISEE acknowledged that this Agreement is entered into in Quezon City and that any action sought to be brought by either party, except those claims required to be submitted to arbitration, shall be brought in the Regional Trial Court of Quezon City, and the parties do hereby waive all questions of personal jurisdiction or venue for the purposes of carrying out this provision;
Section 26. FRANCHISEE- DEFINED AND GUARANTY
As used in this Agreement, the term "FRANCHISEE" shall include all persons who succeed in the interest of the original FRANCHISEE by transfer or operation of law and shall be deemed to include not only the individual or entity defined as "FRANCHISEE" in the introductory paragraph of this Agreement, but shall also include all partners of the entity that executes this Agreement, in the event said entity that executes this Agreement, in the shareholders, officers and directors of the entity that executes this Agreement, in the event said entity is a corporation. By their signatures hereto, all partners, shareholders, officers and directors of the entity that signs this Agreement as FRANCHISEE acknowledges and accepts the duties and obligations imposed upon each of them, individually, by the terms of this Agreement.
Section 27. CAVEAT
The success of the business venture contemplated to be undertaken by FRANCHISEE by virtue of this Agreement is speculative and depends, to a large extent, upon the ability of FRANCHISEE as an independent businessman, and his active participation in the daily affairs of the business as well as other factors. FRANCHISOR does not make any representation or warranty express or implied as to the potential success of the business venture contemplated hereby.
Section 28. ACKNOWLEDGMENTS
28.1 FRANCHISEE represents and acknowledges that it has received, read and understood this Agreement and that FRANCHISOR has fully and adequately explained the provisions of each to FRANCHISEE'S satisfaction; and that FRANCHISOR has accorded FRANCHISEE ample time and opportunity to consult with advisors of its own choosing about the potential benefits and risks of entering into this Agreement;
28.2 FRANCHISEE understands and acknowledges that all representation of fact contained herein are made solely by FRANCHISOR. All documents, including FRANCHISOR franchise agreement, have been prepared solely in reliance upon representations made and information provided by FRANCHISOR. FRANCHISEE further agrees to release from all liability and indemnify and hold harmless the preparer of such franchise agreement from any and all loss, costs, expenses, (including attorney's fees), damages and liabilities resulting from any representations and/or claims made by FRANCHISOR in such documents.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have duly executed, sealed and delivered this Agreement in triplicate this ___ day of__________ 2005 in Quezon City, Philippines.
BRIDGING LEADERSHIP INSTITUTE
________________________________
FRANCHISOR FRANCHISEE
ACKNOWLEDGMENT
Republic of the Philippines)
Quezon City) S.S.
On this __ day of _______ 2019 personally appeared
NAME CTC No. Issued on / at
known to me to be the same persons who executed the foregoing Area Franchise Agreement and who acknowledged to me that the same is their free and voluntary act and deed and that of the corporations they represent.
ITNESS MY HAND AND SEAL on the date and place above written.
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