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SECTION 2: TERMS AND CONDITIONS

BACKGROUND:

The Franchisor because of extensive research and practical business experience has developed the Business which is carried on under the Trade Name.
The Franchisor has built up a reputation and goodwill which is associated with high standards of service. The Franchisor is the owner of Confidential Information on the management and operation of the Business and in methods of conducting, marketing, and promoting the Business.
The Franchisee wishes to acquire from the Franchisor the right and franchise to operate the Business in accordance with the terms of this agreement.
Operative provisions:

Definitions and interpretations
In this agreement unless the context otherwise requires:
Business

a website design, creation, marketing consultancy and sales business;

Confidential Information

any information which is discussed to the Franchisee by the Franchisor pursuant to, or in connection with, this agreement (whether orally, in writing or in any other form (electronic, magnetic or other media) and whether or not such information is expressly stated to be confidential or marked ‘Confidential’) or shall otherwise come into the hands of the Franchisee in relation to the Business, the Services or the Products other than information which is already in the public domain;

Deposit

the payment (if any) towards the Initial Fee as set out in Section 1;

Excluded Territories

those territories identified in Schedule 2 as being already subject to a franchise agreement with the Franchisor together with such other areas as the Franchisor may notify the Franchisee of from time to time;

Fees

the fees and charges as set out in Section 1;

Franchisee’s Business

that part of the Business operated by the Franchisee in accordance with the provisions of this agreement;

Franchisee Business Name

The trading name of the Franchisee’s Business as set out in Section 1;

Hardware

such hardware, peripherals, communications equipment, and other related items as the Franchisor from time to time shall require to be used in the Franchisee’s Business;

Individual

the key individual (if any) identified in Section 1;

Initial Fee

the fee payable or paid in accordance with clause 4.1 and as further set out in Section 1 less any Deposit;

Intellectual Property Rights

rights to inventions, copyright and related rights, moral rights, trade marks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Launch Pack

the launch and promotion pack and such other public relations documents and advertising as the Franchisor shall from time to time consider adequate to effectively launch the franchise hereby granted as set out at Schedule 1;

Manual

the operating manual of the Franchisor setting out the way in which the Franchisee shall operate the Franchisee’s Business as set out in Schedule 2 and as amended by the Franchisor from time to time;

Month

a calendar month;

Products

the products agreed between the Franchisee and the Franchisor to be offered by the Franchisee Business;

Restricted Business

any business of the Franchisor or any other franchisee of the Franchisor that is similar to the Franchisee's Business;

Restricted Customer

any firm, company or person who, during the 12 months prior to the date of termination of this agreement, was a customer of or in the habit of dealing with the Franchisee;

Support Fee

the Monthly fee payable to the Franchisor by the Franchisee for sales, online training, technical, organisational, and marketing support offered by the Franchisor as set out in detail in Section 1;

Services

the services agreed between the Franchisee and the Franchisor to be offered by the Franchisee Business;

Software

such software as the Franchisor from time to time shall require to be used in the Franchisee’s Business;

Start Date

the date on which this agreement is executed or such agreed date as the Franchisee opens for the purposes of the Franchisee’s Business;

Stationery

all invoices, order forms, stationery and other documents to be used by the Franchisee for the purposes of the Franchisee’s Business;

System

confidential information and know how which is owned by the Franchisor on the management and operation of the Business and in methods of conducting marketing and promoting the Business as provided by the Franchisor from time to time;

Territory

the United Kingdom but excluding the Excluded Territories;

Trademarks

the trademarks set out in Schedule 2 as the same may be added to, deleted, or amended by the Franchisor from time to time;

Trade Name

“activ Marketing Group”, “activ Strategic Marketing”, “activ Digital Marketing”, “activ Franchise” or such additional or alternative trade names as the Franchisor may specify from time to time in respect of the Business;

VAT

Value Added Tax;

Website

any of the Franchisor’s websites including but not limited to:

www.activdigital.marketing

www.activmarketinggroup.com

www.activfranchise.com

www.activstrategic.marketing

together with any other website or websites owned, operated or leased by the Franchisor which will promote to Customers the Products and Services for the Franchisee to sell.

1.2 In this agreement unless the context otherwise requires:

1.2.1 the singular includes the plural and vice versa and reference to any gender includes the other genders;

1.2.2 reference to persons include bodies corporate, unincorporated associations and partnerships;

1.2.3 words and phrases defined in the Companies Act 2006 have the same meanings in this agreement, but the word “company” includes any body corporate;

1.2.4 references to “clauses” are to clauses or sub-clauses of this agreement, references to the “schedule” are to the schedule to this agreement;

1.2.5 references to “termination” shall include expiry by effluxion of time.

1.3 In this agreement:

1.3.1 any reference to any statute or statutory instrument or any section or part thereof includes any enactment replacing or amending it or any instrument, order or regulation made under it and also includes any past statutory provisions (as from time to time modified or re-enacted) which such provision has directly or indirectly replaced;

1.3.2 headings are for reference purposes only and shall not affect the construction of anything in this agreement.

1.4 References to “agreement” means this Section 1, this Section 2 and the Schedules.

Franchise rights and term
2.1 The Franchisor grants to the Franchisee the right to:

2.1.1 operate the Franchisee’s Business under the Franchisee Business Name;

2.1.2 operate the Systems;

2.1.3 use the Stationery and all other material emanating from the Franchisor which is the subject of copyright;

2.1.4 sell the Products and/or provide the Services.

2.2 The Franchisee acknowledges and accepts that this is not an exclusive agreement, and that the Franchisor shall be permitted to allow other third parties to operate the Business in the Territory (or any other territory) without restriction.

2.3 This agreement shall commence on the date of execution of this agreement and shall, subject to the provisions contained in this agreement, be for the Initial Term.

2.4 The Franchisor reserves all territories outside the Territory exclusively to itself and to its other franchisees.

2.5 The Franchisee acknowledges and accepts that in the event that it makes any sale to any Customer or client that operates or is based in an Excluded Territory then a payment of 5% of the gross revenue of such sell (excluding VAT) shall be payable to the franchisee in such Excluded Territory. Failure to make such payment to the franchisee shall be a material breach of this Agreement.

Rights of renewal
3.1 The Franchisee may apply to renew the franchise at the end of the term by notice in writing to the Franchisor given not more than six Months nor less than three Months before the expiry of the term.

3.2 The fee for renewal of the franchise shall be £2500 ex VAT if the Initial Term was 3 years or less and £0 if the Initial Term was over 3 years.

3.3 Subject to clause 3.6 and the remainder of this clause 3.3, the Franchisor shall renew the term for a further period that is equivalent to the Initial Term provided:

3.3.1 there have been no material breaches of this agreement which would have entitled the Franchisor to terminate this agreement and there are no breaches of this agreement outstanding at the date that the notice referred to in clause 3.1 is served or at any time thereafter up to and including the expiry of the term granted by this agreement;

3.3.2 the Franchisee has performed his obligations under this agreement to the reasonable satisfaction of the Franchisor;

3.3.3 the Franchisee’s sales shall not (otherwise than by virtue of circumstances beyond the Franchisee’s reasonable control) during any 12 months period commencing after the second anniversary of this agreement be in the bottom 10 per cent of all the Franchisor’s franchisee’s (who have entered into a franchise agreement more than 24 months previously) performances;

3.3.4 the Franchisee shall have entered into a new franchise agreement on the Franchisor’s then current terms;

3.3.5 the Franchisee shall implement the actions specified by the Franchisor and in the timescales specified by the Franchisor to ensure that the Franchisee's Business matches the performance of the Franchisor's top quartile of franchisees;

3.3.6 the Franchisee, if so required by the Franchisor, shall relinquish in such form as the Franchisor may require all claims against the Franchisor or any third party associated with the Franchisor;

3.3.7 the Franchisor’s legal costs (if any) relating to the grant of the new agreement shall be reimbursed.

3.4 Provided that if after the service of the notice referred to in sub-clause 3.1 and prior to the execution of the new franchise agreement referred to in sub-clause 3.3.4 above the Franchisee shall fail to comply with the provisions set out above the Franchisor shall not be obliged to grant a renewal under this clause.

3.5 If the Franchisee continues to operate the Franchisee’s Business after expiry of this agreement without having previously entered into a renewal agreement as envisaged by this clause 3, the Franchisee shall be deemed to be operating as a franchisee subject to the terms of this agreement, save that the Franchisor may, by serving one Month’s written notice, and the Franchisee may, by serving three Months’ written notice terminate the franchise.

3.6 The Franchisor shall not be required to agree to any renewal term beyond the one immediately following the Initial Term.

Fees
4.1 On the execution of this Agreement the Franchisee shall pay to the Franchisor the Initial Fee. The Initial Fee shall cover all of the Franchisor’s obligations under clause 5.1.

4.2 The Franchisee shall pay the Support Fee on a Monthly basis to the Franchisor commencing on the seventh Month following the execution date of this Agreement in relation to sales, technical, marketing and online training support offered by the Franchisor.

4.3 The Franchisee shall pay any fees due under this agreement by Direct Debit or by credit/debit card or by any other payment method decided upon by the Franchisor, the details of which shall be furnished to the Franchisor upon the date of this agreement using the accompanying Monthly Management Fee Form.

4.4 The Franchisor may attribute any money received by the Franchisor from the Customer to any sum owed by the Franchisee to the Franchisor regardless of any designation of any payment.

4.5 The Franchisor may on notice to the Franchisee require all payments to be made by the Franchisee to the Franchisor to be made by direct debit, standing order or other payment arrangements.

4.6 Where appropriate and VAT is payable, all Fees payable under this agreement are exclusive of VAT.

Pre-launch obligations
5.1 The Franchisor shall provide the Franchisee with the following:

5.1.1 Launch Pack;

5.1.2 Marketing Tools, which is the Franchisor’s current marketing information to assist the Franchisee in promoting the Business and the Franchisee’s business.

5.2 The Franchisee shall at its own cost before the Start Date:

5.2.1 comply with the Franchisor’s reasonable instructions relating to the preparation of the Franchisees Business; and

5.2.2 ensure that they have all the necessary Hardware and Software advised by the Franchisor for the operation of the Franchisees Business.

Online Training
6.1 The Franchisor shall provide the necessary information for the Franchisee to be trained in the operation of the System and in relevant aspects of the Business. The Franchisee acknowledges and accepts that unless the Franchisor agrees all training will be provided online. Any face to face training will be subject to additional charges.

6.2 The Franchisor shall have the right to require the Franchisee to attend further training courses at any time during the term of this agreement if it reasonably considers that such further training is necessary.

6.3 All training referred to in this clause (save for the training referred to in clause 6.1 which shall be provided free as part of the launch of the Franchisee’s business) shall be provided at the Franchisee’s expense.

6.4 The time of any training provided by the Franchisor shall unless otherwise specified be at the absolute discretion of the Franchisor, but the Franchisor shall try to accommodate the Franchisee’s reasonable requirements.

Franchisor’s continuing obligations
7.1 The Franchisor shall subject to compliance by the Franchisee with the terms of this agreement throughout the term of this agreement:

7.1.1 permit the Franchisee to carry on the Franchisee’s Business in the Territory under the Franchisee Business Name;

7.1.2 promptly make available to the Franchisee members of the Franchisor’s staff for advice in connection with the System, promotion and operational requirements when reasonably required by the Franchisee and subject to the re-imbursement of the Franchisor’s costs if this goes above standard support;

7.1.3 organise and convene annual franchisee meetings, the Franchisee bearing the cost of any travel and subsistence expenses incurred in travelling to attend such meetings. The event will be funded by head office however, on their terms.

Franchisee’s obligations
To maintain the highest standard of service to be provided by the Franchisee and the Franchisor’s other franchisees the Franchisee shall during the term of this agreement:

8.1 General obligations

8.1.1 Carry on the Franchisee’s Business to the highest standards of service.

8.1.2 Use reasonable efforts to promote and extend the Franchisee’s Business using all of the resources available under this agreement to the Franchisee.

8.1.3 Not do anything which may bring the Business or the Franchisee’s Business into disrepute or may have a detrimental effect on the Business or the Franchisee’s Business and not assist any other person to do so.

8.1.4 Comply with all statutes, byelaws and other legal requirements relating to the Franchisee’s Business and obtain (and maintain) all licences, consents and approvals (if any) that may be required.

8.1.5 Where reasonably possible, the Franchisee agrees to use the services and products offered by the Franchisor and not to engage in or be involved directly or indirectly in any business which competes with the Business or the Franchisee’s Business.

8.1.6 Without permission, not engage in the Franchisee’s Business outside the Territory.

8.1.7 Ensure that the Franchisee’s Business is effectively managed by the Franchisee.

8.1.8 Comply with the invoicing and accounting procedures specified by the Franchisor.

8.1.9 Attend all Franchisee meetings unless prevented from doing so for reasons beyond the Franchisee’s reasonable control and in any event attend an annual national conference at least once every two years.

8.1.10 Refrain from providing any information to the media about the Business unless the Franchisor’s prior written consent has been obtained.

8.1.11 Ensure that the words “Powered by Activ Marketing” are displayed in a prominent position on the Franchisee’s website and on any marketing information and/or literature.

8.2 Name and know-how

8.2.1 Not make use of, or disclose, other than exclusively for the purposes of the Franchisee’s Business, any information relating to the Franchisor, the Business, the System or the Franchisee’s Business or any other Confidential Information, Intellectual Property Rights supplied by or on behalf of the Franchisor and the Franchisee shall ensure that none of its employees or self-employed persons make use of or disclose such information other than for such purpose.

8.2.2 Only use the Trade Name and Trademarks and any other Intellectual Property Rights in connection with the Franchisee’s Business and in accordance with this agreement and not, without the Franchisor’s prior written consent, register any company name, domain name or trade mark or make use of any business or domain name incorporating the Trade Name or Trade Marks or any part or parts of the Trade Name or Trade Marks or incorporating any similar sounding name or names and not use any name other than the Trade Name or the Trade Marks in connection with the Franchisee’s Business.

8.3 Trading

8.3.1 Provide potential franchisees, at the request of the Franchisor, with such information concerning the Business and the Franchisee’s Business as such prospective franchisees may reasonably require and at all times be courteous and co-operative to such prospective franchisees.

8.3.2 Promptly replace or refund the costs of any Product or Service supplied by or on behalf of the Franchisee which does not conform to the high standards required by the System.

8.4 Internet

8.4.1 Not make use of or establish any website for the purposes of communicating with the Franchisor’s other franchisees.

8.4.2 Not participate in or register with any internet group, web site or similar medium which has as its aim (whether stated or not) or its effect the denigration of the Business or the Trade Name.

8.5 Information technology

8.5.1 Use the Software and do all such things as the Franchisor shall reasonably require (including the purchase of Hardware and entering into applicable software licences) to permit and/or facilitate the operation and use of the Software.

8.5.2 Cease to operate any Software or Hardware which the Franchisor no longer considers to be appropriate for use by its franchisees.

8.5.3 Immediately enter into or comply with such Software licences and other agreements (whether with the Franchisor or third party suppliers) concerning the Software which are required to enable the Franchisee to use the Software in accordance with the terms of this Agreement and comply strictly with their terms.

Franchise website and customers
9.1 The Franchisee is responsible for the development, maintenance and hosting of its own website.

9.2 The Franchisee must ensure to the best of its ability that any Product or Service being purchased through the Franchisee are not illegal and against the interests of the public.

9.3 The Franchisee using its reasonable endeavours must ensure that any Product and/or Service supplied by it:

9.3.1 complies with all applicable laws and regulations;

9.3.2 is accurate in relation facts.

9.4 The Franchisee indemnifies and holds harmless the Franchisor against any claims that the Franchisor may be liable to as a result of any Customer Websites which are contrary to public interests and/or cause offence.

Accounting records
10.1 The Franchisee shall:

10.1.1 Furnish to the Franchisor all such accounting and management information which the Franchisor may from time to time reasonably require.

10.1.2 Maintain at the main place of work accurate books of account and supporting accounting records including all invoices, credit notes, and statements and shall permit the Franchisor or its duly authorised agents during business hours to inspect any such accounts and records and take copies at the expense of the Franchisor.

10.1.3 Preserve all such accounts and records for not less than six years notwithstanding the expiry or termination of this agreement.

10.1.4 Permit agents or accountants nominated by the Franchisor at all reasonable times to audit, review and examine by any means, including electronically through the use of telecommunications devices or otherwise, at the Franchisor’s expense, the books, records, accounts and tax returns of the Franchisee.

10.1.5 Comply with the terms of this clause after termination of this Agreement in so far as required by the Franchisor to establish the financial and accounting position of the Franchisee and sums due to the Franchisor during the term of this Agreement.

10.1.6 Irrevocably permit the Franchisor to show a prospective purchaser of the Franchisee’s Business all financial and trading figures relating to the Franchisee’s Business which are in the Franchisor’s possession.

Insurance
11.1 The Franchisee shall pay for and maintain with a reputable insurance company an all risks insurance policy of such levels and coverage as is suitable for the Franchisee Business but covering as a minimum:

11.1.1 liability in respect of employees and third parties;

11.1.2 professional negligence;

11.1.3 damage to property;

11.1.4 loss of profits or business interruption;

11.1.5 any other cover the Franchisor is concerned about.

11.2 The Franchisee shall not do anything which could breach the terms of the insurance policy referred to in this clause 11.

Staffing
12.1 The Franchisee shall be responsible for:

12.1.1 All employed staff and shall make clear that there is no relationship between the staff and the Franchisor;

12.1.2 Obtain a signed contract of service from all persons employed by or who provide services to the Franchisee in such form as is approved by the Franchisor prior to their employment or their engagement and shall disclose Confidential Information only to such persons who have previously signed such a contract;

12.1.3 Not take on any persons who are self employed to assist in the Franchisee’s Business unless the Franchisor’s prior written consent has been obtained.

Advertising/promotions
13.1 The Franchisee will not publish or distribute any advertising or promotional material unless it has been approved in writing by the Franchisor and unless the publication or media has also been approved by the Franchisor. The Franchisee will immediately cease the use of any advertising or promotional material or cease to advice or market in any publication or media upon receipt of a request from the Franchisor so to do.

13.2 The Franchisee will participate in and comply with the terms of any special advertising, promotion or other activity as the Franchisor may reasonably direct.

Intellectual Property Rights
14.1 The Franchisor warrants that it is not aware of any reason why it may not be entitled to licence the Trademarks and why the use of the Trademarks by the Franchisee in accordance with the terms of this agreement would constitute an infringement of the rights of any third party.

14.2 In no circumstance will the Franchisee apply for registration as a proprietor of any of the Trademarks or any other Franchisors Intellectual Property Rights to be used in the Franchisee’s Business unless so requested by the Franchisor.

14.3 The Franchisee acknowledges that the Intellectual Property Rights in the Business including the goodwill and all other rights in and associated with the Trademarks vest absolutely in the Franchisor and that all such rights will at all times hereafter and for all purposes remain vested in the Franchisor and in the event that any such rights at any time accrue to the Franchisee the Franchisee will at its own expense forthwith on demand do all such acts and things and execute all such documents as the Franchisor shall deem necessary to vest such rights absolutely in the Franchisor.

14.4 If the Franchisor obtains registration of any trademark for use in the Business after the date of this agreement the Franchisee shall have such rights to such trademark as if it had been included in this agreement at the date hereof and where the context so allows all references in this agreement to the Trademarks shall be deemed to include a reference to such further marks.

14.5 The Franchisee will immediately notify the Franchisor of all circumstances coming to the attention of the Franchisee which may constitute an infringement of any of the Trademarks or other Intellectual Property Rights or may constitute passing off in respect of the Intellectual Property Rights used in the Business and shall take such reasonable action as the Franchisor may direct at the expense of the Franchisor to assist the Franchisor in the protection of the Franchisors Intellectual Property Rights, the Trademarks and the Trade Name.

14.6 If required by the Franchisor the Franchisee shall forthwith enter into the Franchisor’s then standard registered licence agreement in respect of the Trademarks and any of the other Intellectual Property Rights of the Franchisor.

14.7 The Franchisee shall (and shall procure the Customer to) in all representations of Trademarks append in a manner approved by the Franchisor such inscription as the Franchisor shall require indicating that such Trademarks are registered.

14.8 Any rights which the Franchisee may have under sections 30 and 31 of the Trademarks Act 1994 are excluded.

Improvements
15.1 The Franchisee shall without delay introduce any improvement or modification to the Franchisee’s Business at the time and in the manner specified by the Franchisor in writing.

15.2 The Franchisee shall notify the Franchisor of any improvement or modification which may be beneficial to the operation of the Business and the Franchisor may introduce such improvement or modification without any obligation to make any payment to the Franchisee.

15.3 The Franchisee shall not introduce any improvement or modification to the Franchisee’s Business without the prior written consent of the Franchisor.

Right to sell
16.1 The Franchisee shall not whether before or after termination assign this agreement or any rights under it nor grant any sub-licence of its rights or obligations under this agreement or sub-contract any of its obligations but may with the prior written consent of the Franchisor sell the Franchisee’s Business. Such consent shall not be unreasonably withheld or delayed upon the Franchisee fully complying with the Franchisor’s resale procedure and documentation and with the following terms and conditions, the Franchisee:

16.1.1 must at the time the Franchisee seeks consent from the Franchisor to the sale of the Franchisee’s Business be in full compliance with all material terms and conditions on their part to be performed under this agreement;

16.1.2 shall procure the proposed purchaser and if the proposed purchaser is a limited liability company such of the shareholders and directors of the proposed purchaser as the Franchisor shall reasonably require, shall if required by the Franchisor enter into a new agreement in such form as is currently offered by the Franchisor to new franchisees save that no Initial Fee shall be payable and the Franchisor shall not be required to perform any obligations currently contained in clause 5 or any other obligation relating to the launching and setting up of the Franchisees Business;

16.1.3 authorising the Franchisor to discuss with the proposed purchaser the Franchisor’s views as to the appropriate method of valuing the Franchisee’s Business;

16.1.4 complying with the Franchisor’s resale procedure and documentation and pay all monies due to the Franchisor;

16.1.5 executing a general release in a form satisfactory to the Franchisor of any and all claims against the Franchisor and officers, directors, shareholders and employees.

16.2 The Franchisee shall submit to the Franchisor a copy of the proposed purchaser’s written offer to purchase the Franchisee’s Business, full written details of any other terms agreed between the Franchisee and the proposed purchaser all other relevant information and a warranty (as at the date it is given and as at the date of sale) that the Franchisor has been provided with all information required to be provided by this clause. Upon receipt of such information the Franchisor shall have in addition to its other rights hereunder an option to purchase or nominate a third party to purchase the Franchisee’s Business for the same amount and upon the same terms as the proposed purchaser has offered. The Franchisor shall have a period of 28 days after the receipt of such information in which to exercise its option to purchase. If the Franchisor does not exercise such option and consents to the proposed sale the proposed purchaser shall deposit the full purchase price with the Franchisor as agent for the Franchisee and the Franchisor shall deduct from the said purchase price any sums which are payable or will become payable by the Franchisee or the proposed purchaser to the Franchisor (as certified by the Franchisor’s accountants). The outstanding balance of the purchase price shall then be remitted to the Franchisee.

16.3 On sale of the Franchisee’s Business the Franchisee shall pay to the Franchisor a commission of forty (40) per cent of the original purchase price of the Franchisee’s Business, to reflect the administration, online training and set up costs involved for the Proposed Purchaser.

Death or incapacity
17.1 The Franchisee shall take all steps which the Franchisor shall require to ensure that if the Individual dies during the currency of this agreement, relatives of or the personal representatives or executors of the Individual shall within 7 days inform the Franchisor of the Individual’s death.

17.2 If required by the Franchisor, the Franchisee shall take all steps to ensure that the Individual’s relatives or personal representatives or executors do all such things which the Franchisor may require to enable the Franchisor to operate the Franchisee’s Business within the Territory following the death of the Individual.

17.3 The Franchisor will use its reasonable commercial endeavours to find a purchaser of the assets of the Franchisee’s Business following the death of the Individual but if no such purchaser has been found within six Months of the death of the Individual the Franchisor may (but shall be under no obligation so to do) purchase the said assets at their market value less forty (40) per cent by notice in writing given to the Individual’s personal representatives. If the Parties are unable to agree upon the market value of the said assets within ten days after the service of the said written notice the market value of the said assets shall be ascertained at the request of either Party by a Chartered Accountant acceptable to both Parties or failing agreement by a Chartered Accountant nominated by the President of the Institute of Chartered Accountants of England and Wales who shall act as an expert and whose decision shall be binding on both Parties. The Franchisor may take over the assets at any time after the date it serves notice under this clause and the price to be paid for the assets shall be calculated as at the date the Franchisor takes over the Franchisee’s Business. If the Franchisor finds a purchaser for the assets of the Franchisee’s Business who would make a suitable franchisee the provisions of clause 18 will apply.

17.4 If the Individual is at any time incapacitated or in the reasonable opinion of the Franchisor is unable to a material degree to operate the Franchisee’s Business for a continuous period of two Months or a total period of 80 working days in any period of 12 Months, the Franchisor may by notice to that effect terminate the agreement whereupon the provisions set out above shall apply as if the references to the Individual’s death shall be to receipt of the said notice and the references to the Individual’s personal representatives or executors shall be to the Franchisee.

17.5 References in this clause to the assets of the Franchisee’s Business shall be deemed to include in the alternative the entire issued share capital of the Franchisee with the intent that the Franchisor or a third party may at their option acquire the said shares instead of the assets of the Franchisee’s Business.

17.6 Any action taken by the Franchisor under the above provisions of this clause on the instructions of, or with the approval of, any person or persons claiming to be the executor or personal representative of a deceased Individual shall be binding on and not under any circumstances open to challenge by the executors or personal representatives of such deceased Individual even if they were not a party thereto. The Franchisor shall be entitled to terminate this Agreement at any time if it believes that such executors or personal representatives are not in compliance with this clause.

Termination
18.1 The Franchisor may terminate this agreement immediately by giving notice in writing to the Franchisee in any of the following events which because of the special nature of the Franchise relationship shall constitute repudiatory breaches of contract:

18.1.1 if the Franchisee fails to commence the Franchisee’s Business within a period of 3 Months from the date of this agreement or at the Start Date;

18.1.2 if the Franchisee shall at any time fail to pay any amounts due to the Franchisor or fails to provide accurate information about sales unless such failure arises for reasons outside the Franchisee’s control or occurs only once in any 12 month period and is immediately corrected on receiving notification from the Franchisor of such non-payment;

18.1.3 if the Franchisee or the Individual shall, in the reasonable opinion of the Franchisor, have a detrimental effect on the goodwill of the Business or the Franchisee’s Business;

18.1.4 if the Franchisee shall transfer any of the rights, licences or obligations contained in this agreement other than in accordance with the terms of this agreement;

18.1.5 if the Franchisee fails for more than 10 days to submit to the Franchisor any of the accounting or management information required to be submitted;

18.1.6 if the Franchisee discloses or allows the disclosure of any part of the Manual or other Confidential Information relating to the Business or the Franchisee’s Business otherwise than in accordance with the terms of this agreement;

18.1.7 if the Franchisee fails to obtain any prior written approval or consent of the Franchisor expressly required by this agreement;

18.1.8 if the Franchisee, the Individual or any officer, director or employee of the Franchisee gives to the Franchisor any false or misleading information or makes any misrepresentation in connection with obtaining this agreement or at any time during the continuance of this agreement in connection with the Franchisee’s Business;

18.1.9 provided that such Individual is in the Franchisor’s reasonable opinion material to the success of the Franchisee’s Business such Individual shall have a statutory demand or bankruptcy order/ petition made/ presented against him or if a person who is qualified to act as an insolvency practitioner shall be appointed in relation to him pursuant to s.273 of the Insolvency Act 1986 or if a receiver or manager (including for the avoidance of doubt an interim receiver within the meaning of Pt IX of the Insolvency Act 1986) shall be appointed in respect of him or the whole or any part of his property or estate or if an interim order shall be made in relation to him pursuant to s.252 of the Insolvency Act 1986 or if he shall enter into any arrangement or composition with his creditors (including for the avoidance of doubt any voluntary arrangement within the meaning of Pt VIII of the Insolvency Act 1986);

18.1.10 in the event that the Franchisee:

goes into compulsory or members voluntary liquidation or passes a resolution for voluntary winding up or its directors convene a meeting of shareholders for that purpose; or
has an administrative receiver or receiver appointed over all or any part of its assets or undertaking; or
has any action, step, legal proceedings or other procedure taken in respect of it by its directors, shareholders, bankers, creditors or any person seeking to appoint a liquidator or an administrator or takes any such act or step itself and, in the case or court proceedings, the same are not discharged within 10 days; or
has proposed in respect of it a company voluntary arrangement pursuant to the Insolvency Act 1986 as amended from time to time; or
gives the Franchisor reasonable grounds for believing that it is unable to meet its debts as they fall due within the meaning of s.123 of the Insolvency Act 1986 as amended;
18.1.11 in the event of persistent valid complaints to the Franchisor as to the quality of the service given by the Franchisee the Franchisee having been given timely notice of such complaints and having been given the opportunity to address the issues which are the subject of such complaints;

18.1.12 if the Franchisee take any steps to harm, misuse, claim ownership of or to dispute the Franchisor’s ownership of or rights to the Trade Name, Trademarks or any other Intellectual Property Rights in the System;

18.1.13 in the event of a change in the shareholdings or directors in the Franchisee unless the Franchisor’s previous written consent has been obtained;

18.1.14 if the Franchisee shall be in breach of any of the terms of this agreement (except those set out above) the Manual, or the Franchisor’s reasonable instructions and the Franchisor shall have notified the Franchisee or any of the Individuals (as the case may be) in writing of any such breach and the Franchisee or the Individual as the case may be shall not have rectified such breach immediately or if immediate rectification is not possible, within such period, not exceeding 28 days as the Franchisor shall reasonably require;

18.1.15 in the event of any repeated breach of any of the Franchisee’s obligations under this agreement. For the purpose of this sub-clause a repeated breach shall be interpreted as two or more breaches of the same provision of this agreement by the Franchisee during any calendar year.

18.2 Any termination under this clause shall be without prejudice to the rights of either Party against the other in respect of any antecedent breach of any of the terms and conditions of this agreement.

18.3 The Franchisee shall not be entitled to recover any part of the Initial Fee howsoever the agreement is terminated by the Franchisor.

18.4 If the Franchisor has reasonable grounds for believing that the Franchisee has ceased to operate the Franchisee’s Business without the Franchisor’s consent the Franchisor may operate the Franchisee’s Business as the Franchisee’s agent with full powers to bind the Franchisee and the Franchisee shall be responsible for the Franchisor’s costs until the date of termination which shall not be more than three months after the Franchisor starts to operate the Franchisee’s Business under this sub-clause.

Conditions following termination
19.1 Immediately upon termination of this Agreement for any reason the Franchisee shall:

19.1.1 cease forthwith to trade under the Trade Name and if required by the Franchisor take the necessary steps to change the name of the franchisee so that the name is not likely to be associated with the Franchisor;

19.1.2 not hold themselves out as operators of the Franchisee’s Business or as having any connection with the Business;

19.1.3 not make or receive telephone calls, faxes or emails in connection with the Franchisee’s Business and shall transfer any listings in any directory to the Franchisor;

19.1.4 pass to the Franchisor the names and contact details of all persons enquiring about and/or requesting the services of the Franchisee’s Business or the Business;

19.1.5 not divulge or use any Confidential Information relating to the Business the Franchisee’s Business or the Franchisor unless it has entered the public domain otherwise than by virtue of this Agreement;

19.1.6 deliver up to the Franchisor all Customer lists and names and addresses and full details of contracts with Customers and details of all persons who have become Customers of the Franchisee during the term hereof and if required by the Franchisor transfer all uncompleted contracts or unfulfilled orders to the Franchisor or its nominee for £1;

19.1.7 make available all software used in the Franchisee's Business and/or at the Franchisor's discretion all data contained on such software, certifying that no copies have been retained;

19.1.8 return to the Franchisor all Stationery, the Manual (including copies) in good condition and shall not copy the Manual or any part of the Manual before returning the same to the Franchisor;

19.1.9 pay to the Franchisor all money owing and pay all debts owing to the creditors of the Franchisee’s Business and permit the Franchisor to make such payments on behalf of the Franchisee;

19.1.10 join with the Franchisor in cancelling any registered licence of the Trademarks. If the Franchisee shall fail so to do the Franchisor is hereby irrevocably appointed the agent of the Franchisee with full authority to give such notice to the Registrar of Trademarks on behalf of the Franchisee;

19.1.11 assign and transfer all domain names and web sites owned by the Franchisee or used in the Franchisee’s Business;

19.1.12 execute and deliver to the Franchisor any and all documents necessary to complete the termination or would facilitate the termination of this Agreement;

19.1.13 immediately return all software used in the Franchisee’s Business, certifying that no copies have been retained;

19.1.14 meet with a representative of the Franchisor at a time specified by the Franchisor having made reasonable efforts to accommodate the Individual within fourteen days prior to or after termination of this Agreement in order to ensure full compliance with the provisions set out above.

19.2 If the termination of this agreement is a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 or any amendment thereof apply the Franchisee hereby irrevocably agrees to indemnify the Franchisor and/or its nominee against any claims for wrongful and/or unfair dismissal and/or redundancy payments or any other claim by any person employed by the Franchisee immediately prior to the termination of this Agreement or the exercise of the rights in relation to the transfer of assets. Such indemnity shall include legal costs and disbursements incurred by the Franchisor and/or its nominee on a full indemnity basis.

Restrictive covenants and indemnity
20.1 To protect the Confidential Information, trade secrets and business connections of the Franchisor and the Franchisor's other franchisees, the Franchisee covenants (and will ensure that the Individual also does not) with the Franchisor that they shall not:

20.1.1 during the term, or for twelve (12) months after termination or expiry of this agreement, solicit or endeavour to entice away from the Franchisor or any other franchisee of the Franchisor the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business; or

20.1.2 during the term, or for six (6) months after termination or expiry of this agreement, be involved as agent, consultant, director, employee, owner, partner or shareholder with any business concern which is (or intends to be) in competition with any Restricted Business; or

20.1.3 during the term, or for six (6) months after termination of this agreement, be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business; or

20.1.4 at any time after termination, represent himself as connected, in any way, with the Franchisor.

20.2 None of the restrictions in clause 20.1 shall prevent the Franchisee from being engaged or concerned in any business concern, provided that their duties or work relate solely to services or activities of a kind with which they were not concerned to a material extent in the nine (9) months prior to termination of this agreement.

20.3 The restrictions imposed on the Franchisee by this clause 20 apply to them acting:

20.3.1 directly or indirectly; and

20.3.2 on their own behalf or on behalf of, or in conjunction with, any firm, company or person.

20.4 Each of the restrictions in this clause 20 is intended to be separate and severable. If any of the restrictions are held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective.

20.5 The Franchisee agrees (and will procure that the Individual agrees) that each of the restrictions contained in clauses 20.1.1 to 20.1.4 are reasonable.

20.6 The Franchisee shall indemnify and keep indemnified the Franchisor (both during the term and thereafter) from and against any and all loss, damage, liability and legal fees and costs incurred by the Franchisor arising from any breach of contract or negligence of the Franchisee, the Individual, its agents, employees or licensees unless such act or default is required by the terms of this agreement, the Manual or the Franchisor.

Acknowledgements
21.1 The Franchisee and the Individual hereby acknowledge that they have no rights in the System save for those rights granted under this agreement.

21.2 The Franchisee and the Individual hereby acknowledge that in giving advice to the Franchisee, assisting the Franchisee to establish the Franchisee’s Business, recommending equipment and materials and assessing the suitability of the Franchisee, the Franchisor has based its recommendations on experience actually obtained in practice but that the Franchisor does not give any guarantee or warranty with regard to such matters or generally in connection with the sales volume, profitability or any other aspect of the Franchisee’s Business. The Franchisee and the Individual acknowledge that they have been advised by the Franchisor to discuss their intention to enter into this Agreement with other franchisees of the Franchisor and to seek appropriate independent advice, and that the decision to enter into this agreement has been taken solely on the basis of the personal judgement and experience of the Franchisee and the Individual having taken such independent advice. Accordingly, no representation, warranty, inducement or promise express or implied has been made by the Franchisor or relied upon by the Franchisee or the Individual in entering into this agreement save such as may have been notified by the Franchisee or the Individual to the Franchisor in writing and are annexed to this agreement and signed by the Parties to this agreement.

21.3 It is hereby expressly agreed between the Parties that each of the restrictions contained in this agreement is reasonably necessary for the protection of the Franchisor and its other franchisees, the System, the Trade Name and the Trade Marks and does not unreasonably interfere with the freedom of action of the Franchisee or the Individual who enter into this agreement with the benefit of legal advice in full knowledge of all the provisions hereof and the Franchisee and the Individual acknowledge that all such provisions are fair and reasonable.

21.4 The Franchisee and the Individual hereby warrant that prior to the execution of this agreement or any similar agreement with the Franchisor they had no knowledge of the System, methods, trade secrets and Confidential Information or know how relating to the operation of a business similar to the Business or on how to conduct the Business.

21.5 The Franchisee and the Individual confirms that they have obtained legal advice on this Agreement from a solicitor familiar with franchise agreements.

No warranties without authority
The Franchisee shall make no representation or claim and shall give no warranty to any person in respect of the Franchisee’s Business, the Business, the Products, the Services or the System save such as are specifically authorised in the Manual in its then current form at the time of the making by the Franchisee of any such representation, claim or warranty.

Transfer by franchisor and reservation of rights
23.1 This agreement and all the rights of the Franchisor hereunder may be assigned, transferred or otherwise dealt with by the Franchisor and shall inure to the benefit of the successors and assigns of the Franchisor. If required by the Franchisor the Franchisee and the Individual shall do all such things as the Franchisor shall reasonably require facilitating such a transfer.

23.2 All rights and licences not specifically or expressly granted to and conferred upon the Franchisee by this agreement are for all purposes reserved to the Franchisor.

Agency and business names
24.1 Nothing in this agreement shall be construed as making the Parties hereto partners or joint venturers or render either Party hereto liable for any of the debts or obligations of the other Party and the Franchisee shall in no way be considered as being an agent or representative of the Franchisor in any dealings which the Franchisee may have with any third party and the Franchisee shall not act for or make any representation on behalf of the Franchisor in any such dealings and shall have no power to contract on behalf of the Franchisor.

24.2 The Franchisee shall place upon all letter headings, bills, invoices and all other documents and literature used in connection with the Franchisee’s Business in such manner and place as the Franchisor may direct the following words (or such other words to similar effect as may from time to time be specified by the Franchisor): “a Franchise owned and operated under Licence by” followed by the name of the Franchisee.

Force Majeure
None of the Parties to this agreement shall be responsible to any other Party for any delay in performance or non-performance due to any causes beyond the reasonable control of the Parties hereto, but the affected Party shall promptly upon the occurrence of such cause so inform the other Parties in writing, stating that such cause has delayed or prevented its performance hereunder and thereafter such Party shall take all action within its power to comply with the terms of this agreement as fully and promptly as possible.

Waiver, modification and continuing provisions
26.1 The failure of any Party at any time to enforce any of the term’s provisions or conditions of this agreement or to exercise any right hereunder shall not constitute a waiver of the same or affect that Party’s rights thereafter.

26.2 No variation, modification or alteration of any of the terms of this agreement shall be of any effect unless evidenced in writing signed by or on behalf of each of the Parties hereto.

26.3 The termination of this agreement (for whatever reason) shall not terminate any provision which is expressly or by implication provided to come into or continue in force after such termination and shall be without prejudice to the accrued rights and liabilities and other remedies of the Parties hereto.

Data protection
27.1 The Franchisee agrees that it will in relation to the personal data processed in connection with this agreement (“Franchise Data”):

27.1.1 process the Franchise Data in accordance with the Data Protection Act 2018 (“2018 Act”) and any other applicable data protection legislation such as UK GDPR;

27.1.2 process the Franchise Data only insofar as is necessary for the purpose of performing its obligations under this agreement;

27.1.3 process the Franchise Data in accordance with the Franchisor's instructions provided always that to do so does not infringe the 2018 Act;

27.1.4 not disclose the Franchise Data to or allow access to it other than by employees and/or third parties engaged by the Franchisee to perform the obligations imposed on the Franchisee by this agreement and ensure that such employees and/or third parties are subject to written contractual obligations concerning the Franchise Data which are no less onerous than those imposed on the Franchisee by this agreement;

27.1.5 use all reasonable efforts to assist the Franchisor to comply with such obligations as are imposed on the Franchisor by the 2018 Act.

27.2 Process and/or processing means obtaining, recording, or holding personal data or carrying out any operation or set of operations on the personal data, including:

27.2.1 organisation, adaptation, or alteration;

2.2.2 retrieval, consultation, or use;

27.2.3 disclosure by transmission, dissemination or otherwise making available; or

27.2.4 alignment, combination, blocking, erasure, or destruction.

27.3 Insofar as the Franchisee acts as a person or organisation which processes personal data on behalf of a data controller (“Data Processor”) or on behalf of the Franchisor in relation to the Franchise Data, the Franchisee agrees to comply with the obligations placed on the Franchisor by article 28 of GDPR.

27.4 The Franchisee shall indemnify the Franchisor against all claims and proceedings and all liability, loss, costs and expenses incurred in connection therewith incurred by the Franchisor as a result of any claim made or brought by any individual or other legal person in respect of any loss, damage or distress caused to that individual or other legal person as a result of the Franchisee’s unauthorised processing, unlawful processing, destruction of and/or damage to any Franchise Data processed by the Franchisee, its employees or agents.

27.5 The Franchisee shall do all such things as the Franchisor shall require to enable the Franchisor to hold data relating to the Franchisee and/or the Franchisee’s Business and/or the Customers and the Franchisee hereby agrees that the Franchisor may use such data for its own business purposes, including but not limited to marketing, comparing such data to that of other franchisees, and to make all such data available to third parties selected by the Franchisor, including but not limited to other franchisees.

27.6 In this clause 30 ‘data controller’ and ‘personal data’ shall have the same meanings as set out in the 2018 Act.

Governing law and dispute resolution
28.1 This agreement is governed in all respects in accordance with English law and shall be construed and take effect as an agreement made in England.

28.2 The Franchisee shall conduct its business in a lawful manner, and it will faithfully comply with all applicable laws or regulations for the conduct of its business.

28.3 The Franchisor will before recourse to litigation attempt to settle all disputes in good faith and on an amicable basis.

28.4 The Franchisee must, and the Franchisor may refer (but shall not be obliged so to do) all disputes to an arbitrator under the British Franchise Association’s then current arbitration scheme.

28.5 Notwithstanding the provisions of sub-clauses 28.3 and 28.4 the Parties shall not be prevented from resolving any dispute by litigation if any formal mediation fails to resolve the dispute or if either Party believes that immediate injunctive relief is required, or the dispute relates to the nonpayment of sums due from one Party to the other.

28.6 If litigation is instigated as envisaged by sub-clause 28.5 and the Franchisor is awarded its costs in the proceedings, the Franchisee shall make good the difference between the costs awarded to the Franchisor by the court and the actual costs (including all disbursements and court fees) incurred by the Franchisor within fourteen days of receiving a request therefore from the Franchisor.

28.7 If the Franchisor shall receive advice confirmed in writing by a solicitor specialising in franchising who is a member of the British Franchise Association’s legal committee (“the Expert”) that this agreement does not comply with the European Commission’s block exemption for vertical restraints (“the Exemption”), that a failure to so comply could constitute a breach of Article 81 of the E.C. Treaty and that it is in the Franchisor’s commercial interests for the agreement to so comply, the Franchisor shall submit a revised franchise agreement in the same form as this agreement but incorporating those amendments (and only those amendments) which are in the Expert’s opinion required to enable this agreement to comply with the Exemption along with an explanatory memorandum setting out the reasons for the amendments. The Franchisee shall execute the revised agreement within 14 days of its receipt.

Set off, interest and VAT/GST
29.1 The Franchisee will not be entitled to withhold or reduce any payment required by the Franchisor to be made to the Franchisor for any reason whatsoever.

29.2 Any monetary obligation not paid by the Franchisee on its due date shall bear interest at two (2) per cent per Month from the date payment became due until payment is received in full by the Franchisor. The Franchisee shall pay all the Franchisor’s costs, charges and expenses directly or indirectly incurred in obtaining or otherwise enforcing payment of the same.

29.3 All sums to be paid to the Franchisor under this agreement are, unless otherwise expressly provided, VAT/GST exclusive and accordingly VAT/GST at the appropriate rate should be added to such payment.

Entire agreement
30.1 This agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, terms or statements in connection with the subject matter of this agreement. No director, employee or agent of the Franchisor is authorised to make any representation or warranty not contained in this agreement and the Franchisee acknowledge that they have not relied on any such oral or written representations or statements about the Business, the Franchisee’s Business, the prospects for the same, turnover, profitability or any other matter unless such representations or statements are annexed to this agreement and signed by the Parties.

30.2 The Franchisee having been given the opportunity to provide to the Franchisor particulars of any statements or representations which they consider have been made and which have induced either of them to enter into this agreement shall to the extent that any such statements or representations are not annexed to this agreement confirm that they have not relied on any such statement or representation.

30.3 It is expressly provided that nothing in this agreement shall exclude any liability of the Franchisor for pre-contractual statements or representations made fraudulently.

Notice and third party rights
31.1 Any notice, consent or the like required to be given to any Party in connection with this agreement shall be in writing and shall be served personally or shall be sent by e-mail, first class post or recorded delivery to the address of such Party set out in this agreement or to such changed address as shall for that purpose be notified to the other Party and every such notice, consent and the like shall be deemed to have been given when served if made by personal delivery or if not made by personal delivery at the time when in the course of ordinary postage or transmission it should have been delivered at the address to which it was sent.

31.2 This agreement does not create any right enforceable by any person not a party to it except that a transferee, successor or assignee under this agreement is deemed to be a party to this agreement.

31.3 This agreement may be rescinded or varied without the consent of or the need to give any notice to any person not a party to it.

Schedule 1

The Launch Pack and Ongoing Support

Upon joining franchisees will have access to the following as part of their franchise fee:

Elevation of freelance business


Comprehensive online group support


200 fixed price services to sell into clients


Team resource – marketing and technical at fixed prices


Back-office system


Marketing templates


Legal templates


Private support forum


Full technical support team


Online group induction, online accelerator programme, and monthly webinars.


Attend annual franchise forum – in-person team event and awards




Schedule 2



Excluded Territories