Area Development Agreement


THIS AREA DEVELOPMENT AGREEMENT (hereinafter the “Agreement”) is made as of this ___ day of _____________, 20__, by and between Braxton Independent Associates Ltd. d/b/a Braxton Independent Associates, a Maine company (hereinafter the “Company”), on the one hand, and ____________________, a ____________, _________________________ (hereinafter the “Developer”), and the persons executing this Agreement as the “PRINCIPALS” (hereinafter the “Principals”), on the other hand.

WHEREAS, Developer on behalf of itself and the Principals desires to obtain the exclusive right for Developer to develop ________ (___) Braxton Independent Associates Franchises within the geographic areas described herein for a specified period, pursuant to the terms, conditions and provisions which are set forth in this Agreement; and
WHEREAS, the Company desires to have the Developer perform the development work provided for herein and to operate the developed Braxton Independent Associates Franchises in accordance with its franchise agreements;
NOW, THEREFORE, in consideration of the mutual promises, which are set forth herein, the parties agree as follows:
Whenever used in this Agreement, unless there is something in the subject matter or context inconsistent therewith, the following words and terms shall have the respective meanings ascribed to them as follows:
“Agreement” means this agreement entitled “Area Development Agreement” and all instruments supplemental hereto or in amendment or confirmation hereof;
“Competitive Business” means the professional services business specializing but not limited to legal, accountant, consulting and other advisory services.
“Company” means Braxton Independent Associates, Ltd. d/b/a Braxton Independent Associates.
“Development Territory” has the meaning given to such term in Section 2.1 as shown on the map set out in Appendix A hereof;
“Developer” shall be deemed to include not only the individual or entity defined as “Developer” in the introductory paragraph of this Agreement, but shall also include all partners of the entity that execute this Agreement, (if the entity is a partnership); all shareholders, officers and directors of the entity that execute this Agreement (if the entity is a corporation); and all members and managers of the entity that execute this Agreement (if the entity is a limited liability company). All such persons or parties are identified below as controlling principals. By their signatures hereto, all partners, shareholders, officers, directors, members and managers of the entity that sign this Agreement as Developer acknowledges, accepts and personally guarantees the duties and obligations imposed upon each of them, individually, by the terms of this Agreement;
“Development Fee” has the meaning given to such term in Section 4 hereof;
“Marks” means the mark “BRAXTON” and such other trade names, trademarks, service marks, designs, graphics, logos and other commercial symbols as Company may designate and not thereafter withdraw to be used in connection with this Agreement.
2.1 Appointment. Company hereby grants to Developer the right and license to develop, operate and manage __________________(_____) Braxton Independent Associates Franchises in strict accordance with the System and under the Marks within the Development Territory described in Appendix A. Each Braxton Independent Associates Franchise shall be operated according to the terms of the individual Franchise Agreement with respect thereto. Such
development will include operating the franchise in strict accordance with the Company’s then existing Operations Manual.
2.2 Development Territory; Reservation of Rights. If the Developer complies with the terms of this Agreement, the Development Schedule and the individual Franchise Agreement for each Braxton Independent Associates Franchise, then Company will not franchise or license others, nor will it itself directly or indirectly develop, own, lease, construct or operate in any manner, any Braxton Independent Associates Franchises in the Development Territory during the term of this Agreement.

Franchisor reserves the right, among others:
(a) to own, franchise, or operate a Braxton Independent Associates Franchise at any location outside of the Development Territory, regardless of the proximity to the Development Territory or to any specific Braxton Independent Associates Franchise in the Development Territory;
(b) to use the Marks and System to sell any Professional Services, similar to those which Franchisee will sell, through alternative channels of distribution
within or outside of the Development Territory, other than through a Braxton Franchise office located in the Development Territory;
(c) to use and license the use of other proprietary and non-proprietary marks or methods which are not the same as or confusingly similar to the Marks which may be the same as, similar to or different from the Braxton Independent Associates Franchises developed by the Developer; and
(d) to purchase or be purchased by, or merge or combine with, any businesses wherever located, including a business that competes directly with the
Developer’s Braxton Independent Associates Franchises.
2.3 Term. Developer’s rights contained in this Agreement will expire five (5) years from the date above, unless sooner terminated as hereinafter provided, or extended by mutual written agreement of each of the parties hereto.
2.4 Exclusivity. During the term of this Agreement, the Company will not license or allow any other corporation or person to operate a Braxton Independent Associates Franchise within the Territory, or open or operate any Company-operated Braxton Independent Associates Franchise within the Territory.
2.5 Termination. If this Agreement is terminated as a result of a material breach by the Developer, the Company will have the full and absolute right to franchise other parties to operate Braxton Independent Associates businesses within the Territory and/or to operate a Braxton Independent Associates
business itself within the Territory.
2.6 Governing Agreement. This Agreement is not a Franchise Agreement and Developer shall have no right to use, in any manner, the Marks or System by virtue of this Agreement. Each Braxton Independent Associates Franchise will be governed by the individual Franchise Agreement executed by Company and the Developer for each Braxton Independent Associates Franchise.

3.1 Development Schedule. Developer hereby covenants and agrees to develop at least a total of _____ (__) Braxton Independent Associates Franchises within the Territory during the term of this Agreement in strict accordance with the development schedule set forth in Appendix B attached hereto and incorporated herein by reference (the “Development Schedule”). The Development Schedule contains a specific minimum number of Braxton Independent Associates Franchises to be open and operating by Developer within the Territory during certain time periods, and if any franchise locations are temporarily or permanently closed for business, such closed locations will not be included, while closed, as open and operating in computing such minimum numbers of open and operating Braxton Independent Associates Franchises and in satisfying the deadlines set forth in the Development Schedule.
3.2 Deadlines. The parties acknowledge and agree that the deadlines set forth in the Development Schedule are of the essence of this Agreement. No modification or amendment to the Development Schedule or any consent to or waiver of any deadline or other obligation on this  Agreement will either (a) be effective unless made by written mutual agreement of the parties or (b) create any obligation to grant additional modifications, amendments, consents or waivers.

In consideration of the Company’s grant to Developer of the right to develop Braxton Braxton Franchises in the Territory as provided for herein, Developer agrees to pay to the Company upon execution by the parties of this Agreement a non-refundable Development Fee equal to ________________________ DOLLARS ($_____________) (the “Development Fee”).
The Development Fee is fully earned by the Company through and upon its execution hereof as a result of its forbearance from developing the Territory itself or through other parties and is not refundable in any manner whatsoever.

5.1 Continuing Approval Mandatory. Developer specifically understands and agrees that it must at all times remain operationally and financially approved for each franchise developed hereunder to be approved by the Company. Developer’s failure to do so will constitute good cause for the Company to disapprove any pending franchise application or site approval request by Developer.
5.2 Franchise Agreements and Fees. Developer and the Company will execute the Company’s then current Braxton Independent Associates Franchise Agreement approximately thirty days prior to opening of each franchise developed hereunder. Developer specifically agrees to pay for each franchise the fees and royalties set forth in such then current form of Franchise Agreement and the Company’s then current initial franchise fee; provided, however, that (a) Developer will receive for each franchise opened under the Development Schedule a credit of $_________ against such initial franchise fee and that (b) during the first sixty months following the date of this Agreement, such initial franchise fee will be fixed at $__________. The balance of the initial fee, if any, after deducting such credit will be paid by Developer upon execution of the Franchise Agreement for each such franchise. Moreover, regardless of the language contained in the executed or then current Braxton Independent Associates Franchise Agreement, the Royalty Fee charged by Company to Developer shall not exceed six percent under any of the franchise agreements entered into by the parties, so long as Developer fulfills all of its obligations under this Agreement in a timely manner. In the event that Developer fails to fulfill any of its obligations under this Agreement in a timely manner, the language of the executed or then current Braxton Franchise Agreement shall control with respect to the issue of increasing royalty payments.
6.1 Company Owned Franchises. The Company does not currently operate any Braxton Independent Associates businesses in the Developer’s Territory.
6.2 Acquisitions: First Right of Refusal.
(a) The Company may during the term hereof acquire a chain of competing businesses from a third party with the intention of converting some or all of such competing businesses to Braxton Independent Associates businesses and/or franchises, in which event Developer agrees that the Company may so convert any of such competing businesses located within the Territory, so long as the Company satisfies the following conditions:
(i) The Company will first send a written offer to Developer to purchase all such competing businesses within the Territory at the Company’s total acquisition cost (including without limitation its “soft” costs as defined in (c) below for such businesses;
(ii) Developer will have thirty days from the date such offer is sent to accept such offer, and until Developer has either rejected such offer or such thirty day period has elapsed, no conversion or other offer to third parties will be made by the Company; and

(iii) Failure of Developer to accept such offer within said thirty-day period will constitute a rejection.
(b) If Developer has accepted the above offer and converted such competing businesses to Braxton Independent Associates Franchises to the Company’s satisfaction, such businesses will apply toward meeting Developer’s development obligations under the Development Schedule. If the Company converts or franchises another party to convert such businesses to Braxton Franchises, such franchises will not have any effect on Developer’s obligations under
the Development Schedule.
(c) For purposes herein, “soft costs” will mean all internal and external costs incurred by the Company in connection with the acquisition. These will include without limitation cost of funds, personnel time (e.g., in analyzing, negotiating, approving and permitting the acquisition, etc.), and out-of-pocket expenses (e.g., travel, lodging, meals, professional fees to lawyers,etc.) in connection with the acquisition as applied pro rata to each franchise being offered to Developer.
Except as otherwise set forth herein, all legal and other costs and expenses incurred by each party hereto in connection with this Agreement and the transactions contemplated herein will be paid by the party which incurs such expense.
8.1 Default by Developer. Company will have the right to terminate this Agreement upon thirty (30) days written notice to Developer if the Developer fails to perform any obligation of Developer contained in this Agreement and fails to cure said failure within thirty (30) days of its receipt of such notice.
8.2 Deadlines Missed by Developer. The parties hereto agree that TIME IS OF THE ESSENCE of this Agreement. The failure of the Developer to meet any deadline set forth in the Development Schedule will constitute a material default under this Agreement without any opportunity to cure such default or notice under Section 8.1 hereof. If the Developer fails to meet such a deadline, the Company at any time thereafter may immediately terminate this
Agreement effective upon written notice from the Company.
8.3 Other Defaults. Default under any Franchise Agreement between Developer and the Company will constitute a material default under the Agreement and the Company may terminate this Agreement in such event unless such default is timely cured by the Developer in accordance with the terms of the pertinent Franchise Agreement. For purposes of this Section 8, any Franchise Agreement issued by Company to the Developer or its affiliates, or any Entity or joint venture, or their affiliates, in which the Developer or any stockholder, partner or joint venturer of the Developer, has any direct or indirect ownership or participation interest, shall be deemed a Franchise Agreement issued to the Developer.
8.4 Remedies and Termination Rights. Upon such default, Company shall have the right, at its option, and in its sole discretion, to do any or all of the following:
(a) terminate this Agreement;
(b) terminate the territorial exclusivity granted to the Developer;
(c) reduce the size of the Developer’s Development Territory or the number of Braxton Independent Associates Franchises the Developer may develop in the Development Territory;
(d) accelerate the Development Schedule on immediate written notice; or terminate any or all other Franchise Agreements granted to the Developer.
Developer and each of the Principals expressly acknowledge that neither it nor they have relied upon any earnings claims such as oral or written statements or suggestions made by any representative of or any other person purporting to be acting on behalf of the Company regarding the potential future sales, revenues or profits which may be derived from operation of Braxton Franchises or development of the Territory, except as set forth in Item 19 of the
Disclosure Document given to Developer.
10.1 By Company. Company shall have the absolute right to transfer or assign all or any part of its rights or obligations hereunder to any person or legal entity which assumes its obligation under this Agreement and Company shall thereby be released from any and all further liability to Developer.
10.2 By Developer. Developer understands and acknowledges that the rights and duties set forth in this Agreement are personal to Developer and are granted in reliance upon the personal qualifications of Developer or Developer’s principals. Developer has represented to Company that Developer is entering into this Agreement with the intention of complying with its terms and conditions and not for the purpose of transferring the development rights hereunder.
(a) Neither Developer nor any partner, member, or shareholder thereof shall, without Company’s prior written consent, directly or indirectly assign,
transfer, convey, give away, pledge, mortgage or otherwise encumber any interest in this Agreement or in Developer. Any such proposed assignment occurring by operation of law or otherwise, including any assignment by a trustee in bankruptcy, without Company’s prior written consent, shall be a
material default of this Agreement.
(b) Any assignment, transfer or other disposition by Developer of a single Braxton Independent Associates Franchise within the Development Territory will be
governed by the Franchise Agreement to which such single Braxton Franchise is bound.
10.3 Assignment Procedure. If Developer wishes to sell, transfer or otherwise assign any portion, or all, of the Development Territory, or this Agreement, Developer shall notify  Company which may approve or disapprove the same in its sole discretion, and in addition Company may require any or all of the following as conditions of its approval:
(a) All of Developer’s accrued monetary obligations and all other outstanding obligations to Company, its affiliates and suppliers must be fully paid and
(b) Developer must not be in default of any provision of its Franchise Agreements, any amendments thereof or successors thereto, or any other
agreement between Developer and Company, its subsidiaries, parents, or affiliates;
(c) Developer and each of its affiliates, shareholders, members, partners, officers and directors must execute a general release, under seal, the consideration for which shall be the approval of the transfer, in a form satisfactory to  Company and a form substantially similar to the one attached hereto as
Appendix D, of any and all claims against Company and its parents, subsidiaries, and affiliates, officers, directors, shareholders and employees, in their corporate and individual capacities, including, without limitation, claims arising under federal, state and local laws, rules and ordinances;
(d) The transferee must enter into a written assignment, under seal and in a form satisfactory to Company, assuming and agreeing to discharge all of
Developer’s obligations under the relevant Franchise Agreements and, if deemed necessary by Company, the transferee’s principals, individually,
shall guarantee the performance of all such obligations in writing in a form satisfactory to Company;
(e) The transferee must demonstrate to Company’s satisfaction that the transferee meets Company’s educational, managerial and business standards;
possesses a good moral character, business reputation and credit rating; has the aptitude and ability to operate Braxton Independent Associates Franchises (as may be evidenced by prior related experience or otherwise); has at least the same managerial and financial acumen required of new Area Developers and shall have sufficient equity capital, as determined by Company in Company’s sole discretion, to operate the Braxton Independent Associates Franchises; and
(f) At Company’s option, the transferee must execute or, upon Company’s request, shall cause all interested parties to execute, for a term ending on the
expiration date of the Franchise Agreement(s) and with such renewal term as may be provided by the Franchise Agreement(s), the standard form of
Franchise Agreement then being offered to new Area Developers and Franchisees, and such other ancillary agreements as Company may require for the Braxton Independent Associates Franchisees, which agreements shall supersede the Franchise Agreements between Developer and Company in all respects
and the terms of which agreements may materially differ from the terms of the Franchise Agreements, including, without limitation, the implementation
of other fees and different royalty rates.
10.4 Liability. Developer and its principals shall remain liable for all direct and indirect obligations to Company in connection with the Braxton Independent Associates Franchises prior to the effective date of transfer and will continue to remain responsible for their obligations of nondisclosure, noncompetition and indemnification as provided in the Franchise Agreements and guaranty, and shall execute any and all instruments reasonably requested by Company to further evidence such liability.
10.5 Transfer Fee. Developer or its approved transferee shall pay to Company, at the time of said transfer, a Transfer Fee equal to Ten Percent of the then current franchise fee for each Braxton Independent Associates Franchise to be transferred, unless the transferee is the child, parent, sibling or spouse of Developer, in which case the Transfer Fee is waived, to cover Company’s administrative and other expenses in connection with the transfer of the Braxton Independent Associates Franchises by Developer.
10.6 Entity Ownership. If the Area Developer is a corporation, partnership, limited liability company, or any other form of business or association (“Entity”), each shareholder, member, manager, or partner (“Controlling Person”) which is granted the rights to serve as Developer hereunder shall be a party to a shareholders agreement, operating agreement, or partnership agreement which shall provide, among other things, that upon any dissolution of the
Entity, or upon any divorce decree among the parties who are also Controlling Persons, that ownership of the shares, membership interest, or partnership interest shall be transferred to the Controlling Person, for agreed upon consideration, which has primary responsibility for sales and marketing activities, typically the president, following any such dissolution or decree. The form and content of the shareholders agreement, operating agreement, or partnership agreement must be approved by Company prior to execution.
11.1 Scope. Nothing contained in this Agreement shall be construed to require Company to divulge to Developer any trade secrets, techniques, methods or processes except the material contained in Company’s manuals and training materials, and then only pursuant to the terms, conditions and restrictions contained in the applicable Franchise Agreement. Developer acknowledges that its knowledge of Company’s know-how, processes, techniques, information
and other proprietary data are derived entirely from information disclosed to it by Company and that such information is proprietary, confidential and a trade secret of Company. Developer agrees to adhere fully and strictly to the confidentiality of such information and to exercise the highest degree of diligence in safeguarding Company’s trade secrets during and after the term of this Agreement. Developer shall divulge such material only to its employees and agents and
only to the extent necessary to permit the efficient operation of the Braxton Independent Associates Franchises. It is expressly agreed that the ownership of all such items and property is and shall remain vested solely in Company.
11.2 Disclosure. Developer agrees that all terms of this Agreement shall remain confidential and shall not make any public announcement, issue any press release or publicity, make any confirmation of statements made by third parties concerning the terms of this Agreement, or make any other disclosures other than the existence of this Agreement without the prior written consent of Company, unless compelled by law or ordered to do so by a court of competent jurisdiction. It is agreed and understood that Developer may disclose the terms of this Agreement to its professional advisors and lenders. Company shall be free to make such disclosure of the terms of this Agreement as it determines, in its sole discretion, to be in the best interest of Company or the System.

12.1 Competition During Term. Developer covenants that during the term of this Agreement and subject to the post-term provisions contained herein, except as otherwise approved in writing by Company, Area Developer shall not, either directly or indirectly, for itself or through, on behalf of or in conjunction with any person, persons, partners or corporations:
(a) Divert or attempt to divert any business or customer of the Braxton Franchises to any competitor, 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 Company’s Marks or the System;
(b) Employ or seek to employ any person who is at that time employed by Company or by Developer or any other Developer or Franchisee of Company, or otherwise directly or indirectly induce such person to leave his or her employment; or
(c) Own, maintain, engage in, be employed by, advise, assist, invest in, franchise, make loans to or have any interest in any business which is the same as or substantially similar to the Braxton Independent Associates Franchises.
12.2 Post-Term Competition. Developer covenants that, except as otherwise approved in writing by Company, Developer shall not, for a continuous uninterrupted period commencing upon the expiration or termination of this Agreement, regardless of the cause for termination, and continuing for two (2) years thereafter, either directly or indirectly, for itself or through, on behalf of or in conjunction with any person, persons, partnership or corporation, own, maintain, engage in, be employed by, advise, assist, invest in, franchise, make loans to, or have any interest in any business which is the same as or substantially similar to Braxton Independent Associates Franchises and which is located anywhere within the Development Territory. However, Sections 12.1 and 12.2 shall not apply to ownership by Developer of less than a five percent (5%) beneficial interest in the outstanding equity securities of any publicly-held corporation.
12.3 Independent Covenants. The parties agree that each of the foregoing covenants shall be construed as independent of any other covenant or provision of this Agreement. If any or all portions of the covenants in this Section 12 is held unreasonable or unenforceable by a court or agency having valid jurisdiction in an un-appealed final decision to which Company is a party, Developer expressly agrees to be bound by any lesser covenant subsumed within the terms of such covenant that imposes the maximum duty permitted by law, as if the resulting covenant were separately stated in and made a part of this Section 12.
12.4 Modification. Developer understands and acknowledges that Company shall have the right, in its sole discretion, to reduce the scope of any covenant set forth in Sections 12.1 and 12.2 in this Agreement, or any portion thereof, without Developer’s consent, effective immediately upon receipt by Developer of written notice thereof, and Developer agrees that it shall forthwith comply with any covenant as so modified, which shall be fully enforceable.
12.5 Irreparable Injury. Developer acknowledges that Developer’s violation of the terms of this Section 12 would result in irreparable injury to Company for which no adequate remedy at law may be available, and Developer accordingly consents to the issuance of an injunction, without the requirement of posting a bond, by any court of competent jurisdiction or arbitrator having jurisdiction over the Agreement prohibiting any conduct by Developer in
violation of the terms of this Section 12.
12.6 Additional Covenants. At Company’s request, Developer shall require and obtain execution of covenants similar to those set forth in this Section 12 (including covenants applicable upon the termination of a person’s relationship with Area Developer) from any or all of the following persons:
(a) all directors and Managers of the Braxton Independent Associates Franchises;
(b) all officers, directors and holders of a beneficial interest of five percent (5%) or more of the securities of Developer and of any corporation
directly or indirectly controlling Developer if Developer is a corporation; and
(c) the members or general partners and any limited partners (including any corporation, and the officers, directors and holders of a beneficial interest
of five percent (5%) or more of the securities of any corporation which controls, directly or indirectly, any general or limited partner) if Developer
is a limited liability company or general or limited partnership.
12.7 Form. All covenants required by this Section 12 must be in forms satisfactory to Company, including, without limitation, specific identification of Company as a third party beneficiary of such covenants with the independent right to enforce them.

13.1 Non-Waiver
No failure of Company to exercise any power reserved to it hereunder, or to insist upon strict compliance by Developer with any obligation or condition hereunder, and no custom or practice of either Company or Developer in variance with the terms hereof, shall constitute a waiver of Company’s right to demand exact compliance with the terms hereof. Waiver by Company of any particular default by Developer shall not be binding unless in writing and
executed by the party sought to be charged and shall not affect or impair Company’s right with respect to any subsequent default of the same or of a different nature; nor shall any delay, waiver, forbearance or omission of Company to exercise any power or rights arising out of any breach or default by Developer of any of the terms, provisions or covenants hereof, affect or impair Company’s rights nor shall such constitute a waiver by Company of any right hereunder
or of the right to declare any subsequent breach or default. Subsequent acceptance by Company of any payment(s) due to it hereunder shall not be deemed to be a waiver by Company of any preceding breach by Developer of any terms, covenants or conditions of this Agreement.
13.2 Notices
Any and all notices required or permitted under this Agreement shall be in writing and shall be deemed received: (a) at the time delivered by hand to the recipient party (or to an officer, director or partner of the recipient party); (b) on the next business day of the transmission by confirmed facsimile, telegraph or other reasonably reliable electronic communication system; (c) two (2) business days after being placed in the hands of a commercial courier service for
guaranteed overnight delivery; or (d) five (5) business days after placement in country Mail by Registered or Certified Mail, Return Receipt Requested, postage prepaid and addressed to the party to be notified at its most current principal business address of which the notifying party has been notified in writing. All notices, payments, and reports required by this Agreement shall be sent to Company at the address below:

Copy To:

Copy To:

13.3 Cost of Enforcement or Defense
If Company brings any legal action or other proceeding for the enforcement of this Agreement, or is forced to defend itself because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, it shall be entitled to recover reasonable lawyers’ fees, court costs and all expenses even if not taxable as court costs (including, without limitation, all such fees, costs and expenses incident to arbitration, appeals,
bankruptcy and post judgment proceedings), incurred in that action or proceeding, in addition to any other relief to which Company may be entitled. Lawyer’s fees include paralegal fees, administrative costs and all other charges billed by the lawyer.
13.4 Approvals
Whenever this Agreement requires the prior approval or consent of Company, Developer shall make a timely written request to Company therefore and, except as otherwise provided herein, any approval or consent granted shall be effective only if in writing. Company makes no warranties or guarantees upon which Developer may rely and assumes no liability or obligation to Developer or any third party to which it would not otherwise be subject, by providing any
waiver, approval, advice, consent or services to Developer in connection with this Agreement, or by reason of any neglect, delay or denial of any request therefore.
13.5 Entire Agreement
This Agreement, any exhibit attached hereto and the documents referred to herein, shall be construed together and constitute the entire, full and complete agreement between Company and Developer concerning the subject matter hereof, and shall supersede all prior agreements. No other representation has induced Developer to execute this Agreement and there are no 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, or variance from this Agreement shall be binding on either party unless executed in writing by both parties. Nothing in this Agreement or in any related agreement is intended to disclaim the representations we made in the Franchise Disclosure Document.
13.6 Severability
Each paragraph, part, term and/or provision of this Agreement shall be considered severable, and if, for any reason, any paragraph, 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, such shall not impair the operation of or affect the remaining portions, paragraphs, parts, terms and/or provisions of this Agreement, and the latter shall continue to be given full force and effect and bind the parties hereto; and said invalid paragraphs, parts, terms and/or provisions shall be deemed not part of this Agreement; provided, however, that if Company determines that said finding of illegality adversely affects the basic consideration of this Agreement, Company may, at its option, terminate this Agreement 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 Company or Developer and such of their respective successors and assigns as may be contemplated by this Agreement, any rights or remedies under or by reason of this Agreement.
Developer 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 Company is a party, or from reducing the scope of any promise or covenant to the extent required to comply with such a court order.
13.7 Construction
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.
13.8 Force Majeure
Whenever a period of time is provided in this Agreement for either party to do or perform any act or thing, except the payment of monies, neither party shall be liable or responsible for any delays due to strikes, lockouts, casualties, acts of God, war, governmental regulation or control or other causes beyond the reasonable control of the parties, and in any event said time period for the performance of an obligation hereunder shall be extended for the amount of time
of the delay. This clause shall not apply or not result in an extension of the term of this Agreement.

14.1 Choice Of Law
This Agreement and the rights of the parties will not take effect unless and until this Agreement is accepted and signed by Company. This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts (without reference to its conflict of laws principles), excluding any franchise law regulating the registration, disclosure or relationship between a company and developer, which currently exists or may be adopted by the
State of Massachusetts, shall not apply, unless the jurisdictional requirements of such laws are met independently without reference to this section.
14.2 Jurisdiction And Venue
Developer acknowledges that this agreement is entered into in Boston, Massachusetts, and that any action sought to be brought by either party shall be brought in the appropriate state court located in Boston, Massachusetts or in the United States District Court located in Boston, Massachusetts. The parties do hereby waive all questions of personal jurisdiction or venue for the purposes of carrying out this provision.
14.3 Cumulative Rights And Remedies
No right or remedy conferred upon or reserved to Company or Developer by this Agreement is intended to be, nor shall be deemed, exclusive of any other right or remedy herein or by law or equity provided or permitted, but each shall be in addition to every other right or remedy. Nothing herein contained shall bar Company’s right to obtain injunctive relief against threatened conduct that shall cause it loss or damages including obtaining restraining orders, preliminary and permanent injunctions.
14.4 Limitations Of Claims
Any claim concerning the franchised business or this Agreement or any related agreement brought by Developer will be barred unless an action for a claim is commenced within one (1) year from the date on which Developer knew or should have known, in the exercise of reasonable diligence, of the facts giving rise to or the claim.
14.5 No Punitive Or Exemplary Damages
Developer and Company each waive, to the fullest extent permitted by law, any right or claim for any punitive or exemplary damages against the other, and agrees that if there is a dispute with the other, each will be limited to the recovery of actual damages sustained by it including reasonable accounting and/or legal fees as provided in section 21.3.
A. Receipt of Agreement
Developer represents and acknowledges that it has received, read and understood this Agreement and Company’s Franchise Disclosure Document; and that Company has accorded Developer ample time and opportunity to consult with advisors of its own choosing about the potential benefits and risks of entering into this Agreement.
B. Receipt of Franchise Disclosure Document
Developer acknowledges that it has received a copy of this Agreement and the attachments thereto, at least five (5) business days prior to the date on which this Agreement was executed. Developer further acknowledges that Developer has received the Franchise Disclosure Document at least ten (10) business days prior to the date on which this Agreement was executed.
C. Consultation by Developer
Developer has been advised to consult with its own advisors with respect to the legal, financial and other aspects of this Agreement, the Franchised Business franchised hereby and the prospects for that Franchised Business. Developer has either consulted with such advisors or has deliberately declined to do so.
D. Multiple Originals In the event the parties execute multiple copies of this Agreement, each executed copy will be deemed an original.
E. Risk
Developer has conducted an independent investigation of the Franchised Business contemplated by this Agreement and recognizes that, like any other business, an investment in a Franchised Business involves business risks and that the success of the venture is dependent, among other factors, upon the business abilities and efforts of Developer. Company does not, in this Agreement or otherwise, make any representation or warranty, express or implied, as to the potential success of the Franchised Business contemplated hereby.
F. No Guarantee of Success
Developer acknowledges that it has not received or relied on any guaranty, express or implied, as to the revenues, profits or likelihood of success of the Franchised Business that it will operate pursuant to this Agreement. Developer acknowledges that there have been no representations by Company’s directors, employees or agents, that are not contained in, or inconsistent with, the statements made in the Franchise Disclosure Document or with the
provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written.

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