TUPPERWARE U.S., INC.
FRANCHISE AGREEMENT
FRANCHISEE
DATE OF AGREEMENT
TABLE OF CONTENTS
PAGE
1. INTRODUCTION AND DEFINITIONS . . . . . . . . . . . . . . . 1
2. GRANT, ACCEPTANCE AND INITIAL TERM . . . . . . . . . . . . 3
3. DISTRIBUTION RIGHTS AND PERFORMANCE CRITERIA . . . . . . . 4
4. GUIDANCE AND ASSISTANCE. . . . . . . . . . . . . . . . . . 4
A. GUIDANCE AND ASSISTANCE . . . . . . . . . . . . . . . 4
B. OPERATING MANUALS . . . . . . . . . . . . . . . . . . 5
5. MARKS. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. OWNERSHIP AND GOODWILL OF MARKS . . . . . . . . . . . 5
B. LIMITATIONS ON YOUR USE OF MARKS. . . . . . . . . . . 6
C. DISCONTINUANCE OF USE OF MARKS. . . . . . . . . . . . 6
D. NOTIFICATION OF INFRINGEMENTS AND CLAIMS. . . . . . . 6
E. INDEMNIFICATION FOR USE OF MARKS. . . . . . . . . . . 7
6. RELATIONSHIP OF THE PARTIES/INDEMNIFICATION. . . . . . . . 7
A. INDEPENDENT CONTRACTORS . . . . . . . . . . . . . . . 7
B. NO LIABILITY FOR ACTS OF OTHER PARTY. . . . . . . . . 7
C. TAXES . . . . . . . . . . . . . . . . . . . . . . . . 8
D. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . 8
7. FEES AND PAYMENTS. . . . . . . . . . . . . . . . . . . . . 8
A. INITIAL FEES. . . . . . . . . . . . . . . . . . . . . 8
B. TERMS OF SALE TO FRANCHISEE . . . . . . . . . . . . . 8
C. INTEREST ON LATE PAYMENTS . . . . . . . . . . . . . . 9
D. APPLICATION OF PAYMENTS . . . . . . . . . . . . . . . 9
8. CONFIDENTIAL INFORMATION . . . . . . . . . . . . . . . . . 9
9. EXCLUSIVE RELATIONSHIP . . . . . . . . . . . . . . . . . . 10
10. IMAGE AND OPERATING PROCEDURES . . . . . . . . . . . . . . 11
A. PREMISES. . . . . . . . . . . . . . . . . . . . . . . 11
B. TUPPERWARE CONSULTANTS. . . . . . . . . . . . . . . . 11
C. STANDARDS AND PROCEDURES. . . . . . . . . . . . . . . 11
D. MAINTENANCE AND REFURBISHING OF PREMISES AND
VEHICLES. . . . . . . . . . . . . . . . . . . . . . . 12
E. COMPLIANCE WITH LAWS AND GOOD BUSINESS PRACTICES. . . 12
F. FORMS AND INVOICES. . . . . . . . . . . . . . . . . . 13
G. CUSTOMER RELATIONS/WARRANTIES . . . . . . . . . . . . 13
H. INSURANCE . . . . . . . . . . . . . . . . . . . . . . 13
I. COMPUTER. . . . . . . . . . . . . . . . . . . . . . . 13
11. REPORTS AND FINANCIAL STATEMENTS . . . . . . . . . . . . . 14
12. INSPECTIONS AND AUDITS . . . . . . . . . . . . . . . . . . 14
A. COMPANY'S RIGHT TO INSPECT. . . . . . . . . . . . . . 14
B. COMPANY'S RIGHT TO AUDIT. . . . . . . . . . . . . . . 15
13. TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. BY COMPANY. . . . . . . . . . . . . . . . . . . . . . 15
B. FRANCHISEE MAY NOT TRANSFER WITHOUT APPROVAL OF
COMPANY . . . . . . . . . . . . . . . . . . . . . . . 15
C. CONDITIONS FOR APPROVAL OF TRANSFER . . . . . . . . . 16
D. DEATH OR INCAPACITY OF FRANCHISEE . . . . . . . . . . 17
E. EFFECT OF CONSENT TO TRANSFER . . . . . . . . . . . . 18
F. COMPANY'S RIGHT OF FIRST REFUSAL. . . . . . . . . . . 18
G. OPERATION THROUGH A CORPORATION . . . . . . . . . . . 19
H. COMPLIANCE WITH STATE AND FEDERAL LAWS. . . . . . . . 19
14. RENEWAL OF FRANCHISE . . . . . . . . . . . . . . . . . . . 19
15. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . 20
A. BY FRANCHISEE . . . . . . . . . . . . . . . . . . . . 20
B. BY COMPANY. . . . . . . . . . . . . . . . . . . . . . 20
C. OUR OTHER RIGHTS UPON DEFAULT . . . . . . . . . . . . 22
16. RIGHTS AND OBLIGATIONS OF COMPANY AND FRANCHISEE UPON
TERMINATION OR EXPIRATION OF THE FRANCHISE . . . . . . . . 23
A. PAYMENT OF AMOUNTS OWED TO COMPANY. . . . . . . . . . 23
B. TRADEMARKS. . . . . . . . . . . . . . . . . . . . . . 23
C. RETURN OF CONFIDENTIAL MATERIAL . . . . . . . . . . . 24
D. NONSOLICITATION AND NONCOMPETITION. . . . . . . . . . 24
E. COMPANY OPTION TO PURCHASE PRODUCTS . . . . . . . . . 24
F. CONTINUING OBLIGATIONS. . . . . . . . . . . . . . . . 24
17. ENFORCEMENT. . . . . . . . . . . . . . . . . . . . . . . . 25
A. SEVERABILITY AND SUBSTITUTION OF VALID PROVISIONS . . 25
B. WAIVER. . . . . . . . . . . . . . . . . . . . . . . . 25
C. CUMULATIVE REMEDIES . . . . . . . . . . . . . . . . . 26
D. WRITTEN CONSENTS FROM COMPANY . . . . . . . . . . . . 26
E. COSTS AND ATTORNEYS' FEES . . . . . . . . . . . . . . 26
F. GOVERNING LAW/CONSENT TO JURISDICTION . . . . . . . . 26
G. BINDING EFFECT. . . . . . . . . . . . . . . . . . . . 27
H. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . 27
I. NO LIABILITY TO OTHERS. . . . . . . . . . . . . . . . 27
J. CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . 27
K. MULTIPLE ORIGINALS. . . . . . . . . . . . . . . . . . 28
L. INJUNCTIVE RELIEF . . . . . . . . . . . . . . . . . . 28
M. ARBITRATION . . . . . . . . . . . . . . . . . . . . . 28
N. WAIVER OF PUNITIVE DAMAGES AND JURY TRIAL . . . . . . 29
O. SECURITY INTEREST . . . . . . . . . . . . . . . . . . 29
P. NO WITHHOLDING PAYMENTS DUE TO US . . . . . . . . . . 29
18. NOTICES AND PAYMENTS . . . . . . . . . . . . . . . . . . . 30
19. ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . 30
EXHIBITS
EXHIBIT A PRIMARY AREA OF PROMOTION
EXHIBIT B PREMISES
EXHIBIT C AGREEMENT FOR THE DESIGNATION OF AN OPERATING COMPANY
EXHIBIT D ARBITRATION
EXHIBIT E ANNUAL AND QUARTERLY PERFORMANCE CRITERIA
TUPPERWARE U.S., INC.
FRANCHISE AGREEMENT
This Franchise Agreement (this "Agreement") is being entered
as of , 19 (the "Agreement
Date"). The parties to this Agreement are
, as Franchisee (referred to in this Agreement as "you" or
"Franchisee"), and TUPPERWARE U.S., INC., a Delaware corporation,
as Franchisor (referred to in this Agreement as "we," "us" or the
"Company"). The principal place of business of TUPPERWARE U.S.,
INC. is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Your principal place of business is
1. INTRODUCTION AND DEFINITIONS.
We (and our Affiliates) manufacture and distribute, through
our authorized Tupperware distributors, a variety of products for
personal, family or household use which are identified by our
registered trademark TUPPERWARE and other trademarks. We have
achieved a high degree of public acceptance and goodwill for
TUPPERWARE Products as a result of their high quality and
widespread distribution. Tupperware distributors play an important
role in distributing TUPPERWARE Products to consumers through the
home party plan, personal demonstrations and other methods.
We and you are signing this Agreement because of our and your
mutual desire to establish a relationship as franchisor and
franchisee on the terms of this Agreement.
There are a number of terms used throughout this Agreement
that have particular meanings. These terms and their definitions
are as follows:
"Affiliate" - Any person, entity or company that directly or
indirectly owns or controls, is directly or indirectly owned or
controlled by or is under common control with the Company.
"Competing Products" - Plastic household products, including
food storage containers, food preparation and service products,
toys, cookware and housewares, similar to or competitive with
TUPPERWARE Products, which are manufactured or marketed by persons
other than us or our Affiliates.
"Confidential Information" - Our Marketing Methods, lists of
Consultants of Franchised Tupperware Distributorships and certain
other information that we may disclose from time to time during the
term of the Franchise, including information about upcoming
promotions, new product development and new distribution methods.
"Consultant" - An individual, acting as an independent
contractor, who has contracted with a Franchised Tupperware
Distributorship to sell TUPPERWARE Products to consumers under our
policies and procedures.
"Estimated Retail Sales" - The aggregate of the Company's
suggested retail prices for all TUPPERWARE Products purchased by
Consultants from the Franchised Distributorship for resale to
consumers.
"Franchise" - The rights we have granted you to operate a
Franchised Tupperware Distributorship under this Agreement.
"Franchised Distributorship" - The business you will operate
under this Agreement.
"Franchised Tupperware Distributorships" - The businesses we
license to distribute TUPPERWARE Products through Consultants using
the Marketing Methods.
"Home Party Plan and Personal Demonstrations" - The technique
of promoting and selling TUPPERWARE Products through demonstrations
arranged by Consultants at homes or other locations.
"Marketing Materials" - Supplies, goods and materials, other
than TUPPERWARE Products, that we make available to you and/or
Consultants to use in marketing TUPPERWARE Products, including,
without limitation, incentive merchandise, promotional materials
and sales aids and computer software programs.
"Marketing Methods" - The sales, purchasing, distribution,
marketing and administrative plans, systems, methods and techniques
we may require or authorize Franchised Tupperware Distributorships
to use from time to time, including, but not limited to, our direct
selling techniques for the home party plan and personal
demonstrations and the purchasing and distribution methods and
procedures that comprise the "Traditional," "Express," "Consultant
Direct" and/or other types of Franchised Tupperware
Distributorships. "Marketing Methods" also may include
administrative and financial controls; reporting systems; ordering
and purchasing systems; bookkeeping systems; billing procedures;
recruiting, retaining and motivating Consultants and instilling in
Consultants the "Sharing Opportunity" through Consultant sales
presentations, Consultant incentive programs and other means;
promoting the reputation, distribution and use of TUPPERWARE
Products; and general business operation and management.
"Operating Company" - A corporation through which you operate
the Franchised Distributorship under Section 13.G. of this
Agreement.
"Operating Manuals" - The "programs binder," "promotional
binder" and other materials which we lend you under Section 4.B. of
this Agreement, which we may revise and update from time to time,
through which we communicate to you the Marketing Methods and our
standards, specifications, requirements and/or recommendations for
operating the Franchised Distributorship.
"Premises" - The location and premises identified in Exhibit B
to this Agreement from which you will operate the Franchised
Distributorship (which may be your home).
"Primary Area of Promotion" - The geographic area described in
Exhibit A to this Agreement.
"Sales Force Goodwill" - The benefit and value of your
relationships with Consultants.
"Sharing Opportunity" - Our philosophy of marketing TUPPERWARE
Products through Franchised Tupperware Distributorships and
Consultants in a manner which enables them to realize their
potential and encourages them to introduce other persons to
participate in marketing TUPPERWARE Products.
"Trademarks" - The trademarks and service marks we own and use
to identify TUPPERWARE Products or the services of marketing
TUPPERWARE Products, including, but not limited to, the registered
trademarks TUPPERWARE , TUPPERCRAFT , TUPPERWAVE and TUPPERTOYS .
"Transfer" - (Defined in Section 13.B. of this Agreement.)
"TUPPERWARE Products" - (a) The proprietary lines of plastic
products for personal, family, household, commercial or industrial
use, including food preparation and service products, food storage
products, toys, cookware and housewares, manufactured by or for the
Company, identified by the TUPPERWARE trademark or other
trademarks the Company or its Affiliates own and marketed in whole
or in part through our Franchised Tupperware Distributorships; and
(b) other products for personal, family or household use marketed
in whole or in part through our Franchised Tupperware
Distributorships.
2. GRANT, ACCEPTANCE AND INITIAL TERM.
Subject to this Agreement's provisions, we hereby grant you
the right (the "Franchise") to own and operate a Franchised
Tupperware Distributorship (the "Franchised Distributorship") for
a period of time commencing on the Agreement Date and expiring on
December 31, 19 , unless sooner terminated as provided in this
Agreement. You accept the Franchise and agree that you will devote
your full time and attention and best efforts to the Franchised
Distributorship, use your best efforts to accomplish the purposes
of this Agreement and at all times faithfully, honestly and
diligently perform your obligations under this Agreement.
3. DISTRIBUTION RIGHTS AND PERFORMANCE CRITERIA.
During this Agreement's term, we will make available for sale
to you and/or Consultants TUPPERWARE Products for sale to
consumers. You agree to concentrate your promotional and
distribution efforts, and to use your best efforts to distribute
TUPPERWARE Products, within the Primary Area of Promotion using the
home party plan and personal demonstrations. We retain the right
in the Primary Area of Promotion and elsewhere to promote,
distribute and market all TUPPERWARE Products through any and all
methods of distribution we think best, including, but not limited
to, other Franchised Tupperware Distributorships, Tupperware
Distributorships that we and our Affiliates own and operate and
other channels of distribution. Your right to distribute
TUPPERWARE Products in the Primary Area of Promotion is
nonexclusive.
You acknowledge that we are granting you the nonexclusive
right to operate a Franchised Tupperware Distributorship with the
expectation that you will satisfy the annual and quarterly
performance criteria identified in Exhibit E. You agree that your
failure to satisfy the required criteria will allow (but not
obligate) us to terminate this Agreement, as provided in
Section 15.B. below.
4. GUIDANCE AND ASSISTANCE.
A. GUIDANCE AND ASSISTANCE.
We will communicate the Marketing Methods to you through
various means, including, but not limited to, the Operating
Manuals, advice letters, telephone consultations, audiotapes,
videotaped presentations and conferences for Franchised Tupperware
Distributorships. As noted in Section 1 above, Marketing Methods
are the sales, purchasing, distribution, marketing and
administrative plans, systems, methods and techniques we may
require or authorize Franchised Tupperware Distributorships to use
from time to time, including, but not limited to, our direct
selling techniques for the home party plan and personal
demonstrations and the purchasing and distribution methods and
procedures that comprise the "Traditional," "Express," "Consultant
Direct" and/or other types of Franchised Tupperware
Distributorships. We reserve the right to require you to change
your selling techniques and purchasing and distribution methods and
procedures. In these circumstances, your status as a Franchised
Tupperware Distributorship does not change. However, the
purchasing and distribution methods and procedures that you must
follow in operating your Franchised Distributorship may change.
"Marketing Methods" also may include administrative and financial
controls; reporting systems; ordering and purchasing systems;
bookkeeping systems; billing procedures; recruiting, retaining and
motivating Consultants and instilling in Consultants the "Sharing
Opportunity" through Consultant sales presentations, Consultant
incentive programs and other means; promoting the reputation,
distribution and use of TUPPERWARE Products; and general business
operation and management.
We may from time to time suggest pricing for TUPPERWARE
Products sold to Consultants with the understanding that these
suggestions are only our recommendations, that you are not required
to follow those suggestions and that your rights under this
Agreement will not be affected by your decision not to follow these
suggestions.
You agree to advise us promptly of any improvements to the
Marketing Methods and any new techniques, systems, devices, plans,
methods or programs for operating the Franchised Distributorship
developed by you or your employees or Consultants, which we then
will have the perpetual right to use and authorize others to use.
From time to time, we will hold national or regional conferences
for Franchised Tupperware Distributorships. You agree to attend,
at your own expense, our national conferences and conferences for
your region. These conferences will be held no more than six (6)
times each year. We may charge you reasonable fees to attend these
conferences.
B. OPERATING MANUALS.
We will lend you during the term of the Franchise one (1)
complete set of the Operating Manuals, containing the materials
(including, as applicable, written materials, audiotapes,
videotapes and computer software) that we generally lend to
Franchised Tupperware Distributorships to use in their operations.
The Operating Manuals contain mandatory and suggested standards and
operating procedures which we prescribe from time to time for
Franchised Tupperware Distributorships and information about your
other obligations under this Agreement. We may modify the
Operating Manuals from time to time to reflect changes in both
TUPPERWARE Products distributed through our Franchised Tupperware
Distributorships and any of the Marketing Methods. You agree to
keep your copy of the Operating Manuals current by immediately
substituting in or adding to them all modified or new pages or
other materials that we provide you from time to time. In the
event of a dispute about the contents of the Operating Manuals, the
master copy we maintain at our principal offices will control. You
may not at any time copy any part of the Operating Manuals without
our prior written consent.
5. MARKS.
A. OWNERSHIP AND GOODWILL OF MARKS.
You acknowledge that your right to use the Trademarks is
derived solely from this Agreement and limited to your operating
the Franchised Distributorship under this Agreement and all
applicable standards and operating procedures we prescribe from
time to time during the Franchise term. Your unauthorized use of
the Trademarks is a breach of this Agreement and an infringement of
our rights in the Trademarks. You acknowledge and agree that your
use of the Trademarks and any goodwill established by your use will
inure exclusively to our benefit and that this Agreement does not
confer any goodwill or other interest in the Trademarks on you
(other than the right to operate the Franchised Distributorship
under this Agreement). All provisions of this Agreement which
apply to the Trademarks will apply to any additional trademarks,
service marks and commercial symbols we authorize you to use during
this Agreement's term.
B. LIMITATIONS ON YOUR USE OF MARKS.
You agree to identify yourself as a Franchised Tupperware
Distributorship in the manner we prescribe. Each use of any of the
Trademarks must include the words "Authorized Distributor"
prominently displayed in the following format (or in another format
that we have previously approved in writing):
[NAME OF DISTRIBUTOR]
AUTHORIZED DISTRIBUTOR
OF TUPPERWARE BRAND PRODUCTS
You agree not to use any Trademark as part of any corporate or
legal business name, with any prefix, suffix or other modifying
words, terms, designs or symbols or in any modified form. You
agree not to use any Trademark or similar commercial symbol in
performing or selling any unauthorized services or products or in
any other manner we have not expressly authorized in writing. You
agree to display the Trademarks prominently in the manner we
prescribe on forms, invoices, stationery, business cards,
promotional materials and other advertising and marketing materials
and to use any notices of trademark and service ▇▇▇▇ registrations
that we specify. You may not use the Trademarks in any manner we
have not authorized.
C. DISCONTINUANCE OF USE OF MARKS.
If it becomes advisable at any time in our sole discretion for
us and/or you to modify or discontinue using any ▇▇▇▇ and/or use
one or more additional or substitute trade or service marks, you
agree to comply with our directions within a reasonable time after
receiving notice. We need not reimburse you for your expenses in
making these changes, for any loss of revenue attributable to any
modified or discontinued ▇▇▇▇ or for any expenditures you make to
promote a modified or substitute trademark or service ▇▇▇▇.
D. NOTIFICATION OF INFRINGEMENTS AND CLAIMS.
You agree to notify us immediately of any apparent
infringement of or challenge to your use of any Trademark and of
any claim by any person of any rights in any Trademark. We will
have sole discretion to take the action we deem appropriate and the
right to control exclusively any litigation or administrative or
other proceeding arising out of any infringement, challenge or
claim or otherwise relating to any Trademark. You agree to sign
any documents, give any assistance and perform any acts that our
attorneys deem necessary or advisable to protect and maintain our
interest in any litigation or proceeding related to any Trademark
or otherwise to protect and maintain our interests in the
Trademarks.
E. INDEMNIFICATION FOR USE OF MARKS.
We agree to reimburse you for all damages for which you are
held liable in any proceeding arising out of your authorized use of
any ▇▇▇▇ under this Agreement and for all costs you reasonably
incur in defending any such claim brought against you or any such
proceeding in which you are named as a party, if you have timely
notified us of the claim or proceeding and otherwise have complied
with this Agreement and our directions in responding to the claim
or proceeding. At our option, we may defend and control the
defense of any proceeding arising out of your use of any ▇▇▇▇ under
this Agreement.
6. RELATIONSHIP OF THE PARTIES/INDEMNIFICATION.
A. INDEPENDENT CONTRACTORS.
You acknowledge and agree that this Agreement does not create
a fiduciary relationship between you and us, that you are an
independent contractor and that nothing in this Agreement is
intended to make either party a general or special agent, joint
venturer, partner or employee of the other party for any purpose.
You agree to operate the Franchised Distributorship under your own
business name (which may not include or suggest any Trademark).
You agree to identify yourself conspicuously in all dealings with
customers, suppliers, public officials, employees, Consultants and
others as the owner of the Franchised Distributorship under a
Franchise Agreement with us and to place any other notices of
independent ownership that we may require from time to time on your
forms, business cards, stationery and advertising and other
materials.
B. NO LIABILITY FOR ACTS OF OTHER PARTY.
Except as this Agreement expressly authorizes, neither party
to this Agreement may make any express or implied agreements,
warranties, guarantees or representations or incur any debt in the
name or on behalf of the other party or represent to any person,
entity or government agency that the relationship between the
parties is other than that of franchisor and franchisee. We will
not be liable for any representations or warranties you make that
are not expressly authorized under this Agreement, for any
agreements you enter, for any of your actions or failures to act or
for your failure to comply fully with this Agreement. We will not
be liable for any damages to any person or property directly or
indirectly arising out of the Franchised Distributorship's
operation.
C. TAXES.
We will have no liability for any sales, use, service,
occupation, excise, gross receipts, income, property or other taxes
levied against you or your assets (or upon us) in connection with
the sales made or business conducted by you and/or Consultants,
payments you make to us under this or any related agreements or
payments we make to you under this Agreement (except our own income
taxes and any taxes we are required by law to collect from you on
purchases from us).
D. INDEMNIFICATION.
You agree to indemnify, defend and hold harmless us and our
Affiliates, and our respective shareholders, directors, officers,
employees, agents, successors and assigns (the "Indemnified
Parties"), against and to reimburse any one or more of the
Indemnified Parties for all claims, obligations and damages
described in this Paragraph, any and all taxes described in
Paragraph C of this Section and any and all claims and liabilities
directly or indirectly arising out of your operation of the
Franchised Distributorship or your breach of this Agreement. For
purposes of this indemnification, "claims" include all obligations,
judgments, settlements, damages (actual, consequential or
otherwise) and costs that an Indemnified Party reasonably incurs in
defending any claim against it, including, without limitation,
reasonable accountants', arbitrators', attorneys' and expert
witness fees, costs of investigation and proof of facts, court
costs, other expenses of litigation, arbitration or alternative
dispute resolution and travel and living expenses. Indemnified
Parties may defend any claims against them at your expense. This
indemnity will continue in full force and effect subsequent to and
notwithstanding this Agreement's expiration or termination.
7. FEES AND PAYMENTS.
A. INITIAL FEES.
You need not pay any initial fee or other type of franchise
fee in connection with entering into or performing under this
Agreement. You must, however, pay for goods and services you order
from us (as provided below).
B. TERMS OF SALE TO FRANCHISEE.
We will publish from time to time a price list for TUPPERWARE
Products and Marketing Materials available for sale to you and/or
Consultants according to our policies and procedures. You agree to
accept and pay for all TUPPERWARE Products, Marketing Materials and
other items you order from us according to the price list and the
applicable freight charges and shipping, handling and similar fees
we publish from time to time. We may impose any customer handling,
shipping and similar charges whenever we deem appropriate, and you
agree to pay these charges within the timeframe we specify. We
will deliver all TUPPERWARE Products, Marketing Materials and other
items ordered from us according to the procedures described in the
Operating Manuals or elsewhere. You agree to maintain your account
with us according to the terms of payment we establish with you
from time to time and within any line of credit that you establish
with us. If you fail to make any payments to us on or before their
due dates or otherwise to maintain your account with us according
to the payment terms we have established, we may require you to use
our designated accounting services until we believe, in our sole
discretion, that your failures have been corrected and are not
likely to recur. We will charge you our then current fee if you
use our designated accounting services. In addition, we have the
right not to sell any more TUPPERWARE Products to you until all
payments due are made or to condition any sale on your paying for
the TUPPERWARE Products before we ship them to you or others.
These rights are in addition to our other rights and remedies under
this Agreement and applicable law.
C. INTEREST ON LATE PAYMENTS.
All amounts which you owe us will, at our option, bear
interest after their due dates at the rate of one and one-half
percent (1.5%) per month or the highest contract rate of interest
permitted by law, whichever is less. This Paragraph is not our
agreement to accept any payments after they are due or our
commitment to extend credit to, or otherwise finance your operation
of, the Franchised Distributorship. Your failure to pay all
amounts when due is a ground for terminating this Agreement, as
provided in Section 15, despite this Paragraph's provisions.
D. APPLICATION OF PAYMENTS.
When we receive a payment from you, or money owed to you comes
into our possession, we will have the right to apply it as we see
fit in our sole discretion to any of your past due indebtedness to
us or our Affiliates, whether for purchases or other charges,
regardless of how you may designate a particular payment to be
applied.
8. CONFIDENTIAL INFORMATION.
You acknowledge and agree that the Confidential Information
gives us, our Franchised Tupperware Distributorships and
Consultants a competitive benefit. Confidential Information is
confidential, may include our trade secrets and is disclosed to you
solely on the condition that you agree, and you do agree, that you:
(1) will not use the Confidential Information other than in
operating the Franchised Distributorship;
(2) will maintain the absolute confidentiality of the
Confidential Information;
(3) will not make unauthorized copies of any records (in
written, electronic or other form) disclosing the Confidential
Information; and
(4) will adopt and implement all reasonable procedures we
prescribe from time to time to prevent disclosure of the
Confidential Information, including, but not limited to,
restrictions on disclosure to Consultants and employees and using
nondisclosure and/or noncompetition agreements we prescribe for
Consultants or employees who have access to the Confidential
Information.
The restrictions on your disclosure and use of the
Confidential Information will not apply to the following:
(a) disclosure or use of information, methods or techniques which
are generally known and used by other businesses selling household
products through personal demonstrations or methods similar to the
home party plan (as long as the general knowledge is not due to
your disclosure and the disclosure or use otherwise is not
prohibited by this Agreement), if you have first given us written
notice of your intended disclosure and/or use; and (b) disclosure
of the Confidential Information in legal proceedings when you are
legally required to disclose it, if you have first given us the
opportunity to obtain an appropriate legal protective order or
other assurance satisfactory to us that the information required to
be disclosed will be treated confidentially.
9. EXCLUSIVE RELATIONSHIP.
You agree that you will use your best efforts to promote, sell
and distribute through the Franchised Distributorship all
TUPPERWARE Products. You agree not to promote, offer, sell or
otherwise distribute through the Franchised Distributorship any
products or services other than TUPPERWARE Products without our
prior written approval.
You agree that we could not protect the Confidential
Information against unauthorized use or disclosure or encourage a
free exchange of ideas and information among our Franchised
Tupperware Distributorships if they and their immediate family
members could hold interests in or perform services for any
businesses marketing Competing Products or using marketing methods
similar to the Marketing Methods. We have entered this Agreement
with you on the express condition that, during its term, neither
you nor any member of your immediate family will have any direct or
indirect interest as a disclosed or beneficial owner in, or perform
services as a director, officer, manager, employee, consultant,
representative or agent for: (a) any business or association which
promotes or sells Competing Products; or (b) any business or
association that franchises, licenses or develops businesses in the
United States or Canada that promote or sell Competing Products; or
(c) any business or association that sells goods for household use,
other than Competing Products, using methods similar to the
Marketing Methods (including the home party plan and personal
demonstrations); or (d) any business or association that
franchises, licenses or develops businesses in the United States or
Canada that promote or sell goods for household use, other than
Competing Products, using methods similar to the Marketing Methods
(including the home party plan and personal demonstrations).
10. IMAGE AND OPERATING PROCEDURES.
A. PREMISES.
You agree to operate the Franchised Distributorship at and
from the Premises (as described in Exhibit B to this Agreement),
which may be your home. You represent that the Premises are
suitable and adequate for your storage needs for TUPPERWARE
Products and Marketing Materials and for operating the Franchised
Distributorship (other than holding Consultant sales
presentations).
If the Premises are not your home, you agree to maintain the
Premises in good condition, repair, cleanliness and neatness. You
acknowledge that we have an interest in the location of the
Premises and agree in all cases that you will not relocate the
Premises or use any other premises as office or storage facilities
for the Franchised Distributorship without our prior written
approval. However, you may hold sales presentations for
Consultants at suitable locations away from the Premises. If you
operate your Franchised Distributorship from your home, you must
conduct sales presentations at appropriate meeting spaces outside
your home.
B. TUPPERWARE CONSULTANTS.
You acknowledge and agree that our method of distributing
TUPPERWARE Products through Franchised Tupperware Distributorships
has been based primarily upon the promotion and sale of TUPPERWARE
Products by Consultants appointed by our Franchised Tupperware
Distributorships according to our policies and Marketing Methods.
You understand the importance of recruiting and rewarding
Consultants using the Marketing Methods and agree that you will
fully and faithfully follow the Marketing Methods in all aspects of
recruiting, rewarding, motivating and otherwise dealing with
Consultants. You agree to coordinate the promotional and sales
activities of all Consultants you appoint and to use your best
efforts to instill in Consultants the "Sharing Opportunity." You
may enter into Consultant contracts only with persons of good
character who have sufficient aptitude to be Consultants and
otherwise meet our standards and must make available to all
Consultants the Marketing Materials that we recommend for
Consultants. You agree not to deviate in any way from the
Marketing Methods (including policies and incentive programs
pertaining to the recruitment of and relations with Consultants)
without our prior written approval. You agree to follow our
instructions concerning the release of new TUPPERWARE Products and
beginning promotions and related sales and marketing programs.
C. STANDARDS AND PROCEDURES.
You acknowledge that operating the Franchised Distributorship
under our standards of service and quality and according to the
"Sharing Opportunity" is important to us, our other Franchised
Tupperware Distributorships and Consultants. We will endeavor to
maintain high standards of quality and service for all Franchised
Tupperware Distributorships. To this end, you agree to cooperate
with us by maintaining those high standards of quality and service
in operating the Franchised Distributorship. You agree to comply
with all mandatory standards and operating procedures relating to
the distribution of TUPPERWARE Products, recruitment of and
relations with Consultants and operation of the Franchised
Distributorship, whether or not part of the Marketing Methods. You
agree to participate in any national promotions that we conduct
(although you may determine the prices at which you sell TUPPERWARE
Products). Any mandatory standards and operating procedures
(whether or not part of the Marketing Methods) that we prescribe
from time to time in the Operating Manuals, or otherwise
communicate to you in writing, will be considered provisions of
this Agreement as if fully set forth in this Agreement. All
references to "this Agreement" include all of these mandatory
standards and operating procedures.
D. MAINTENANCE AND REFURBISHING OF PREMISES AND VEHICLES.
You agree to maintain the condition and appearance of the
Premises (if your Franchised Distributorship is not home-based) and
any vehicles (regardless of the location of your Franchised
Distributorship) used in the Franchised Distributorship under our
standards and to effect any interior and exterior cleaning, repair,
maintenance and refurbishing of the Premises and vehicles,
including periodic painting and decorating and replacement of worn
out or obsolete furniture, furnishings, equipment and signs, that
we reasonably require from time to time.
E. COMPLIANCE WITH LAWS AND GOOD BUSINESS PRACTICES.
You agree to secure and maintain in force in your name all
required licenses, permits and certificates relating to the
operation of the Franchised Distributorship. You agree to operate
the Franchised Distributorship in full compliance with all
applicable laws, ordinances and regulations, including, without
limitation, all government regulations relating to workers'
compensation insurance, unemployment insurance and withholding and
paying federal, state and local taxes. All advertising and
promotion you use must be completely factual and in good taste (in
our judgment), conform to high standards of ethical advertising and
be approved by us in writing before you use them. You may not use
any materials that we have disapproved or have not yet authorized
for release to Consultants and the public. In all your dealings
with us, Consultants, customers, potential customers and public
officials, you must adhere to high standards of honesty, integrity,
fair dealing and ethical conduct. You agree to refrain from any
business or advertising practice that may harm us or the goodwill
associated with the Trademarks, Consultants or other Franchised
Tupperware Distributorships. You must notify us in writing within
five (5) days after the commencement of any action, suit or
proceeding, or the issuance of any order, writ, injunction, awards
or decree of any court, agency or other governmental unit, which
may adversely affect our, your or any other Franchised Tupperware
Distributorship's operation, financial condition or reputation.
F. FORMS AND INVOICES.
You agree to use the invoices, purchase orders and other forms
that we approve. You must obtain the forms from us or suppliers we
approve to produce them using the Trademarks.
G. CUSTOMER RELATIONS/WARRANTIES.
You agree to provide prompt and conscientious service to all
consumers serviced through the Franchised Distributorship and all
Consultants and to use your best efforts to make or cause prompt
delivery of TUPPERWARE Products and Marketing Materials to
Consultants and/or consumers. You agree to respond to customer
complaints and inquiries promptly and courteously and to comply
strictly with policies and procedures we prescribe relating to
customer service and warranties for TUPPERWARE Products.
H. INSURANCE.
During the term of the Franchise, you must maintain in force,
under insurance policies issued by carriers acceptable to us,
comprehensive general and motor vehicle liability insurance against
claims for bodily injury, death and property damage caused by or
occurring in connection with the Franchised Distributorship's
operation, and insuring the Premises and any of your vehicles,
under one or more insurance policies containing the minimum
liability coverage we prescribe from time to time. We may
periodically increase the amounts of coverage required under these
insurance policies and require different or additional insurance at
any time, including excess liability insurance, to reflect
inflation, identification of new risks, changes in law or standards
of liability, higher damage awards or other relevant changes in
circumstances. These insurance policies must insure you, name us
as an additional insured and provide for thirty (30) days' prior
written notice to us of a policy's material modification,
cancellation or expiration. We will pay or credit your account
with us for the costs of naming us as an additional insured.
I. COMPUTER.
You must use in operating the Franchised Distributorship the
brands, models and types of computer hardware, peripheral equipment
and software that we prescribe from time to time. We may require
you to obtain specified items and may modify specifications for and
components of this computer system from time to time. Our
modification of specifications for the computer system's components
may require you to incur costs to purchase, lease and/or license
new or modified computer hardware and/or software and to obtain
service and support during this Agreement's term. You agree to
incur the costs of obtaining the computer hardware and software
comprising the computer system (or additions or modifications).
You acknowledge that any computer software developed by or for us
is our property, that you may use that software only in the manner
we authorize and that you may not copy, duplicate or modify the
software without our prior written consent.
11. REPORTS AND FINANCIAL STATEMENTS.
You agree to furnish us each week on the day we designate, in
the form we prescribe from time to time, a report of your and the
Consultants' activities and sales for the preceding week and any
other data, information and supporting records that we require.
Upon written notice, we may require you to prepare and submit to us
monthly and annual financial statements (including a balance sheet
and a profit and loss statement) reflecting the Franchised
Distributorship's operation and financial condition. You must
verify and sign each report and financial statement in the manner
we prescribe. As noted in Section 7.B. above, we may require you
to use our designated accounting services under certain
circumstances.
12. INSPECTIONS AND AUDITS.
A. COMPANY'S RIGHT TO INSPECT.
To determine whether you are complying with this Agreement,
the Marketing Methods and any other specifications, standards,
operating procedures and policies that we prescribe for operating
Franchised Tupperware Distributorships, to assess the service being
provided to Consultants and retail customers in the area served by
the Franchised Distributorship and to engage in market research and
testing, and in connection with our exercising our other rights
under this Agreement and conducting our business, we have the right
at any reasonable time to:
(1) inspect the Premises (unless it is your home) and
all vehicles and facilities used in operating the Franchised
Distributorship;
(2) contact, interview, observe and videotape you,
Consultants and employees while they conduct business;
(3) contact and interview hostesses and guests of
Tupperware parties held by Consultants; and
(4) take an inventory of any TUPPERWARE Products and
Marketing Materials in your possession and remove samples of
them for inspection and testing.
You agree to cooperate fully with our representatives making
these inspections, observations or interviews.
B. COMPANY'S RIGHT TO AUDIT.
We may at any time during business hours, upon forty-eight
(48) hours' prior notice to you, inspect and audit, or cause to be
inspected and audited, the business records, bookkeeping and
accounting records, sales, use and other tax records and returns
and other records of the Franchised Distributorship and any
Operating Company. You agree to cooperate fully with our
representatives and any independent accountants we hire to conduct
any inspection or audit.
13. TRANSFER.
A. BY COMPANY.
This Agreement is fully transferable by us and will inure to
the benefit of any transferee or other legal successor to our
interests in it.
B. FRANCHISEE MAY NOT TRANSFER WITHOUT APPROVAL OF COMPANY.
You understand and acknowledge that the rights and duties
created by this Agreement are personal to you and that we have
entered this Agreement with you in reliance upon your individual
(or collective) character, skill, aptitude, attitude, business
ability and financial capacity. Accordingly, neither this
Agreement, the Franchise (or any interest in the Franchise), any
ownership interest in an Operating Company nor the Franchised
Distributorship (or any interest in it) may be transferred without
our prior written approval. Any transfer without this approval is
a breach of this Agreement and conveys no rights to or interests in
this Agreement, the Franchise, the Operating Company or the
Franchised Distributorship. A transfer of this Agreement and the
Franchise (or any interest in them) may be made only with a
transfer of the Franchised Distributorship. As used in this
Agreement, the term "transfer" includes the voluntary, involuntary,
direct or indirect assignment, sale, gift or other disposition of
any interest in:
(1) this Agreement;
(2) the Franchise;
(3) the Franchised Distributorship or any of its
essential assets, including, without limitation, sales force
goodwill (other than sales or other dispositions of inventory
in the normal course of business); or
(4) the ownership of an Operating Company.
An assignment, sale or other disposition includes, without
limitation:
(a) the transfer of an interest in this Agreement, the
Franchise, the Franchised Distributorship or an Operating
Company in a divorce, dissolution or insolvency proceeding or
otherwise by operation of law;
(b) the transfer of an interest in this Agreement, the
Franchise, the Franchised Distributorship or an Operating
Company, in the event of your death, by will, declaration of
or transfer in trust or under the laws of intestate
succession;
(c) the transfer of ownership of a partnership interest
or capital stock in an Operating Company;
(d) merger or consolidation or issuance of additional
securities representing an ownership interest in an Operating
Company;
(e) any sale of common stock, or any security
convertible to common stock, of an Operating Company; and
(f) pledge of this Agreement or the Franchised
Distributorship's assets as security, foreclosure upon the
Franchised Distributorship or any of its assets or your
transfer, surrender or loss of possession, control or
management of the Franchised Distributorship.
C. CONDITIONS FOR APPROVAL OF TRANSFER.
If you are fully complying with this Agreement, then, subject
to the other provisions of this Section 13, we will not
unreasonably withhold our approval of a transfer that meets all the
applicable requirements of this Agreement. The proposed transferee
must be an individual of good character and otherwise meet our then
applicable standards and criteria for new owners of Franchised
Distributorships. If the transfer is of this Agreement or a
controlling interest in the Franchised Distributorship, or is one
of a series of transfers (regardless of the period of time over
which these transfers take place) which taken together would
constitute the transfer of this Agreement or a controlling interest
in the Franchised Distributorship, we may impose additional
conditions. The conditions that we may require you and/or the
transferees (as applicable) to satisfy before, or concurrently
with, the effective date of the transfer are:
(a) The transferee must have sufficient business
experience, aptitude and financial resources to operate the
Franchised Distributorship;
(b) You must pay any amounts owed for purchases from us
and our Affiliates and all other amounts owed to us or our
Affiliates which then are unpaid;
(c) The transferee must complete to our satisfaction any
orientation program we then require for Franchised Tupperware
Distributorships;
(d) The transferee must assume and agree to be bound by
all terms and conditions of this Agreement for the remainder
of its term or, at our option, sign our then current form of
franchise agreement (which may provide for different rights
and obligations than those provided in this Agreement) for a
term equal to the remaining term under this Agreement;
(e) You (and each owner of an interest in the Operating
Company) must execute a general release, in a form
satisfactory to us, of any and all claims against us, our
Affiliates and our and their respective officers, directors,
employees and agents;
(f) We must have reviewed the material terms and
conditions of the transfer to determine to our satisfaction
(without representing to you or the transferee) that the price
and terms of payment are not so burdensome as to affect
adversely the transferee's operation of the Franchised
Distributorship (this does not apply to transfers by gift,
bequest or inheritance);
(g) If you or any shareholder in an Operating Company
finances any part of the sale price of the transferred
interest, you and/or that shareholder must agree that all of
the transferee's obligations under any promissory notes,
agreements or security interests that you or your owners have
reserved in the assets of the Franchised Distributorship will
be subordinate to the transferee's obligations to pay amounts
owed to us and our Affiliates for purchases and other items
and otherwise to comply with this Agreement and any other
agreements with us; and
(h) You (and each owner of an interest in the Operating
Company) must, for a two (2) year period commencing on the
effective date of the transfer, comply with the restrictions
set forth in Section 16.D. below.
If two or more persons own the Franchised Distributorship, we
granted the Franchise to you based on the collective qualifications
of all owners. Accordingly, if one owner proposes to transfer its
interest, we also may require the transferee to possess
qualifications and experience which, when combined with the
qualifications and experience of the remaining owner(s), will meet
our standards and expectations regarding the Franchised
Distributorship's overall management and operation.
D. DEATH OR INCAPACITY OF FRANCHISEE.
If you die or become permanently incapacitated, your personal
representative must transfer your interest in this Agreement, the
Franchise and the Franchised Distributorship to a third party (whom
we approve) within a reasonable time, not to exceed nine (9) months
from the date of death or permanent incapacity. The transfer will
be subject to all the terms and conditions applicable to transfers
contained in this Section 13. Failure to dispose of the interest
in this Agreement, the Franchise and the Franchised Distributorship
within this period of time will be a breach of this Agreement. The
term "permanently incapacitated" means a mental or physical
disability, impairment or condition that is reasonably expected to
prevent or actually does prevent you from managing and operating
the Franchised Distributorship for ninety (90) days or more. Until
your interest in this Agreement, the Franchise and the Franchised
Distributorship is transferred as required, we have the right (but
not the obligation) to appoint a manager to operate the Franchised
Distributorship (even if there is another living owner). You must
reimburse us for our expenses of providing management services. We
may cease providing those services at any time.
We also have the right (but not the obligation) to appoint a
manager to operate the Franchised Distributorship (even if there is
another living owner) if you become "incapacitated," although not
permanently incapacitated. The term "incapacitated" means a mental
or physical disability, impairment or condition that is reasonably
expected to prevent or actually does prevent you from managing and
operating the Franchised Distributorship for any period of time.
You must reimburse us for our expenses of providing management
services, which we may cease providing at any time.
E. EFFECT OF CONSENT TO TRANSFER.
Our consent to a proposed transfer under this Section 13 will
not be a guarantee of the transferee's success or a waiver of any
claims we may have against you or of our right to demand the
transferee's exact compliance with this Agreement.
F. COMPANY'S RIGHT OF FIRST REFUSAL.
If you at any time determine to sell an interest in this
Agreement, the Franchise or the Franchised Distributorship, you
must obtain a bona fide, executed written offer from a responsible
and fully disclosed purchaser and immediately submit a true and
complete copy of the offer (and any proposed "side" or ancillary
agreements) to us. The offer must apply only to an interest in
this Agreement, the Franchise or the Franchised Distributorship.
It may not include the purchase of any other property or rights,
but, if the offeror proposes to buy any other property or rights
from you under a separate offer, the price and terms of purchase
offered to you for the interest in this Agreement, the Franchise or
the Franchised Distributorship must reflect the bona fide price
offered for that interest and not reflect any value for any other
property or rights. We will have the right, exercisable by written
notice delivered to you within thirty (30) days after we receive
both an exact copy of the offer and all other information we
request, to purchase the interest for the price and on the terms
and conditions contained in the offer, provided that we may
substitute cash for any form of payment proposed in the offer, our
credit will be deemed equal to the credit of any proposed purchaser
and we will have not less than sixty (60) days to prepare for
closing. We may purchase the interest subject to all customary
representations and warranties given by the seller of the assets of
a business (including, without limitation, representations and
warranties as to ownership and condition of and title to assets;
liens and encumbrances relating to the assets; validity of
contracts; and liabilities affecting the assets). If we do not
exercise our right of first refusal, you may complete the sale to
the purchaser on the exact terms of the original offer, subject to
our approval of the transfer as provided in Paragraphs B and C of
this Section. However, if the sale to the purchaser is not
completed within ninety (90) days after delivery of the offer to
us, or if there is a material change in the terms of the sale
(which you agree promptly to communicate to us), we will have an
additional right of first refusal for thirty (30) days following
either the expiration of the ninety (90) day period or notice to us
of the material change(s) in the terms of the sale, either on the
terms originally offered or the modified terms, at our option.
G. OPERATION THROUGH A CORPORATION.
If you wish to operate the Franchised Distributorship through
a corporation (referred to as the "Operating Company"), we will
allow you to do so under certain conditions. You (and, if the
Franchisee is more than one individual, all individuals
collectively) must at all times own not less than seventy percent
(70%) of the equity interests in the Operating Company, have at
least the percentage of voting power in the Operating Company
needed to authorize a transfer of substantially all of its assets,
have the power to control the operation and transfer of the
Franchised Distributorship and be the Operating Company's principal
officers. The Franchised Distributorship must be the only business
that the Operating Company conducts and must be operated solely by
the Operating Company. The Operating Company must assume all your
liabilities and obligations under or relating to the Franchised
Distributorship, but you will be jointly and severally liable for
all of the Operating Company's obligations. You may operate the
Franchised Distributorship through an Operating Company only under
a separate written agreement with us in the form we require. Under
that agreement, you will retain all renewal rights, and the
Operating Company will not have any renewal rights of its own. If
you renew by signing a new franchise agreement and related
documents, you must sign them, and the Operating Company may
continue operating the Franchised Distributorship only if we, you
and the Operating Company sign a new agreement containing the terms
and conditions we then prescribe.
H. COMPLIANCE WITH STATE AND FEDERAL LAWS.
You agree that, in any proposed transfer of an interest in
this Agreement, the Franchise, the Franchised Distributorship or an
Operating Company, you will comply, and assist us in complying,
with any laws that apply to the transfer, including state and
federal laws governing the offer and sale of franchises.
14. RENEWAL OF FRANCHISE.
This Agreement will be renewed automatically for a renewal
period of one (1) year when its initial term or then current
renewal period expires unless:
(a) You have given us written notice, not less than
ninety (90) days before the end of the initial term or then
current renewal period, that you elect not to renew the
Franchise; or
(b) We have given you written notice, not less than
ninety (90) days before the end of the initial term or then
current renewal period, that we will renew the Franchise only
on the condition that you execute the standard form of
franchise agreement and ancillary agreements we then are using
for renewing or granting franchises for Franchised Tupperware
Distributorships (modified as appropriate to reflect that it
pertains to the renewal of a franchise), which may contain
terms and conditions materially different from those contained
in this Agreement; or
(c) We have given you written notice, not less than
ninety (90) days before the end of the initial term or then
current renewal period, that we will not renew the Franchise
due to your failure to comply substantially with this
Agreement during the initial term or then expiring renewal
period; or
(d) Both we and you agree not to renew the Franchise.
If renewal of the Franchise is subject to subparagraph (b)
above, you must sign and deliver to us, within thirty (30) days
after you receive them, the form of franchise agreement and
ancillary agreements we then are using, which may include, without
limitation, general releases of any and all claims against us and
our Affiliates and our and their respective shareholders, officers,
directors, employees and agents.
We may extend the term of this Agreement for the period of
time necessary to give you the notice of nonrenewal required by
this Agreement or applicable law.
15. TERMINATION.
A. BY FRANCHISEE.
You may terminate this Agreement at any time, with or without
cause, by giving us not less than sixty (60) days' prior written
notice of your election to terminate. We and you also may
terminate this Agreement at any time by mutual consent.
B. BY COMPANY.
This Agreement will terminate immediately upon delivery of
written notice of termination to you if you, any owner of an
Operating Company or, as appropriate, the Franchised
Distributorship:
(1) fails to satisfy the annual or quarterly performance
criteria within the Primary Area of Promotion, as provided in
Section 3 and Exhibit E;
(2) abandons, or surrenders or transfers control of, the
Franchised Distributorship's operation without our prior
written approval;
(3) makes any material misrepresentation or omission in
applying for the Franchise or operating the Franchised
Distributorship;
(4) is convicted by a trial court of, or pleads no
contest to, a felony or other crime or offense;
(5) engages in any dishonest or unethical conduct that
is likely to affect adversely the reputation of your
Franchised Distributorship, us, TUPPERWARE Products or any
other Franchised Tupperware Distributorship;
(6) interferes with our inspection or audit rights, as
provided in Section 12 of this Agreement;
(7) fails to make the required transfer upon death or
permanent incapacity;
(8) fails to pay when due any federal or state income,
sales or other taxes due on the Franchised Distributorship's
operation, unless you are in good faith contesting your
liability for these taxes;
(9) makes any unauthorized use of the Marks or any
unauthorized use or disclosure of the Operating Manuals or
other Confidential Information;
(10) makes an unauthorized transfer of any interest in
this Agreement, the Franchise, the Franchised Distributorship
or an Operating Company; or
(11) (i) fails on three (3) or more separate occasions
within any period of six (6) consecutive months to submit when
due reports or other data, information or supporting records,
to pay when due amounts owed for purchases from us or our
Affiliates or other items or otherwise to comply with this
Agreement, whether or not any of these failures to comply are
corrected after you receive notice of default, or (ii) fails
on two (2) or more separate occasions within any period of six
(6) consecutive months to comply with the same obligation
under this Agreement, whether or not the failures are
corrected after you receive notice of default.
In addition to these grounds for terminating the Agreement
immediately without your having an opportunity to cure, this
Agreement will terminate without further action by us or notice to
you if you:
(a) fail (i) to comply strictly with our customer
service and warranty requirements or (ii) to follow our
instructions concerning the release of new TUPPERWARE Products
and beginning promotions and related sales and marketing
programs and do not correct the failures in subparagraphs (i)
or (ii) within seven (7) days after written notice of the
failure is delivered to you; or
(b) fail to make payments of any amounts due to us or
our Affiliates for purchases or any other reason and do not
correct the failure within ten (10) days after written notice
of the failure is delivered to you; or
(c) fail to comply with any other provision of this
Agreement or any mandatory standard or operating procedure we
prescribe and do not correct the failure within thirty (30)
days after written notice of the failure to comply is
delivered to you.
C. OUR OTHER RIGHTS UPON DEFAULT.
In addition to and without limiting our other rights and
remedies if you default under this Agreement, we have certain
rights that we may exercise in our sole discretion after we give
you any notice of your default under this Agreement and until the
default is fully cured. Our rights include (but are not limited
to) the following:
(a) the right to condition the shipment or sale of goods
to you on our receipt of full payment for the goods with your
order;
(b) the right to suspend any and all services provided
on a fee for service basis if we do not receive full payment
for the services in advance;
(c) the right to manage the Franchised Distributorship
for you, as provided below;
(d) the right to prohibit you and your agents and
employees from attending any and all meetings, conferences or
training sessions we hold or sponsor; and
(e) the right to suspend the dissemination to you of any
and all publications, materials or updated information for
Franchised Distributorships.
Our exercising the rights under this Paragraph will not be a
defense for you to our enforcement of any provision of this
Agreement or suspend or release you from or waive any obligation
that you otherwise would owe to us or our Affiliates.
If we have the right to assume the management of the
Franchised Distributorship, we have sole discretion to determine
whether to exercise that right and when to cease our management.
You agree to cooperate fully with us if we exercise our management
right. Our management of the Franchised Distributorship under this
Paragraph will be as your agent on your behalf and not as a partner
or joint venturer with you. As manager, we may do all things
necessary or appropriate to operate the Franchised Distributorship
under this Agreement, including to control all receipts and
disbursements of the Franchised Distributorship. We will not be a
fiduciary but will have a duty only to utilize our reasonable
efforts to manage the Franchised Distributorship under this
Agreement. We will not be liable to you or any third party for any
debts, losses or obligations the Franchised Distributorship incurs
during our management or otherwise.
16. RIGHTS AND OBLIGATIONS OF COMPANY AND FRANCHISEE UPON
TERMINATION OR EXPIRATION OF THE FRANCHISE.
A. PAYMENT OF AMOUNTS OWED TO COMPANY.
You agree to pay us within fifteen (15) days after this
Agreement terminates or expires, or on any later date that the
amounts due to us are determined, any amounts owed for purchases
from us or our Affiliates and all other amounts owed to us or our
Affiliates which then are unpaid.
B. TRADEMARKS.
You agree that, after this Agreement terminates or expires;
you will:
(1) not directly or indirectly at any time or in any
manner identify yourself or any business as our current or
former franchisee or licensee or as otherwise associated with
us, use any of the Trademarks or any colorable imitation of a
Trademark in any manner or for any purpose or use for any
purpose any trade name, trademark or service ▇▇▇▇ or other
commercial symbol that suggests or indicates a connection or
association with us;
(2) remove all of the Trademarks from any facilities and
vehicles you have used and return to us or destroy all
invoices, purchase orders, advertising and marketing
materials, forms and other materials containing any Trademark
or otherwise identifying or relating to a Franchised
Tupperware Distributorship;
(3) take any action that may be required to cancel all
fictitious or assumed name or equivalent registrations
relating to your use of any Trademark; and
(4) within thirty (30) days after this Agreement
terminates or expires, give us evidence satisfactory to us of
your compliance with these obligations.
C. RETURN OF CONFIDENTIAL MATERIAL.
You agree that, after this Agreement terminates or expires,
you will immediately cease using in any business or otherwise the
Confidential Information disclosed to you under this Agreement and
return to us all copies of the Operating Manuals which we have
loaned you and any other materials that contain any Confidential
Information, including computer software.
D. NONSOLICITATION AND NONCOMPETITION.
To protect our Confidential Information and the goodwill
associated with Franchised Tupperware Distributorships, you agree
that for a period of two (2) years beginning on the date this
Agreement terminates or expires:
(1) you will not, directly or indirectly, solicit any
person who was your Consultant during any part of the year
preceding the date of termination or expiration to engage as
an employee or independent contractor in any business which
promotes, distributes or sells (a) Competing Products or
(b) consumer goods or services (other than Competing Products)
using methods similar to the Marketing Methods (including the
home party plan and personal demonstrations); and
(2) you will not, directly or indirectly, on your own
account or otherwise, engage in any business or activity
involving the promotion, distribution or sale of (a) Competing
Products or (b) goods or services (other than Competing
Products) in whole or in part through the use of methods
similar to the Marketing Methods (including the home party
plan and personal demonstrations).
E. COMPANY OPTION TO PURCHASE PRODUCTS.
When this Agreement terminates or expires, we have the right
to purchase all or any part of your inventory of TUPPERWARE
Products and Marketing Materials. The purchase price will be our
then current price (but not to exceed the amount you originally
paid for the inventory) to Franchised Tupperware Distributorships
for the TUPPERWARE Products and Marketing Materials that are part
of our then current line and our then current standard repurchase
allowance for obsolete TUPPERWARE Products and Marketing Materials.
F. CONTINUING OBLIGATIONS.
All obligations of this Agreement (whether yours or ours)
which expressly or by their nature survive the expiration or
termination of this Agreement will continue in full force and
effect after the expiration or termination until they are satisfied
in full or by their nature expire.
17. ENFORCEMENT.
A. SEVERABILITY AND SUBSTITUTION OF VALID PROVISIONS.
The provisions of this Agreement are deemed to be severable.
If any court, agency or other tribunal with proper jurisdiction in
a proceeding to which we are a party holds, in a final unappealable
ruling, that any part of this Agreement is invalid or conflicts
with any applicable law, that ruling will not affect that part of
this Agreement unless and until: (1) if you are party to that
proceeding, the time for appeal expires; or (2) if you are not a
party to that proceeding, we give you written notice that we will
not enforce that part of this Agreement and/or will modify this
Agreement according to the ruling. In either case, we and you
agree that the only effect of the ruling and our nonenforcement of
the invalid or unenforceable part of this Agreement will be that
the invalid part(s) will be deleted from this Agreement or modified
according to the ruling, and the parts of this Agreement which are
meaningful after the deletion or modification of the invalid part
will continue to be effective and bind you and us.
To the extent that either Section 9 or Section 16.D. is deemed
unenforceable because of its scope in terms of area, activity
prohibited or length of time, you agree that the unenforceable
provision will be deemed modified or limited to the extent and in
the manner necessary to make that particular provision valid, and
to make your obligations enforceable to the fullest extent
possible, under the laws applicable to the covenant's validity.
If any provision of this Agreement is inconsistent with any
law applicable to this Agreement or the Franchise which requires a
greater advance notice of the termination or nonrenewal of this
Agreement than is required under this Agreement, or the taking of
some other action which is not required by this Agreement, then
both parties will comply with the requirements of that law as if
they were substituted for the inconsistent provision of this
Agreement or added to this Agreement. If any law applicable to
this Agreement or the Franchise makes any provision of this
Agreement (including any mandatory specification, standard or
operating procedure we prescribe) invalid or unenforceable, then we
will have the right, in our sole discretion, to modify that
provision to the extent necessary to make it valid and enforceable.
You agree to be bound by each provision of this Agreement to the
greatest extent to which you may lawfully be bound.
B. WAIVER.
(1) Unilateral Waiver. Either you or we may, by written
notice, unilaterally waive or reduce any obligation of or
restriction on the other party under this Agreement. The waiver or
reduction may be revoked at any time for any reason on ten (10)
days' written notice.
(2) No Guarantees. If we give you any waiver, approval,
consent or suggestion, or if we delay our response or deny any
request for waiver, approval or consent, we will not be deemed to
have made any warranties or guarantees on which you may rely and
will not assume any liability or obligation to you.
(3) No Waiver. If at any time we do not exercise a right
available under this Agreement or do not insist on your compliance
with the terms of the Agreement, or if a custom or practice
develops which is inconsistent with this Agreement, we will not
have waived the right to demand compliance with any of the terms of
this Agreement at a later time. Similarly, the waiver of any
particular breach or series of breaches under this Agreement or of
any term in any other agreement between you and us will not affect
our rights with any later breach. It will not be a waiver of any
breach of this Agreement for us to accept payments which are due to
us under this Agreement. Any agreement that we have, or any action
that we take, with another Franchised Tupperware Distributorship
will have no effect on our rights under this Agreement or any
action we take with you.
C. CUMULATIVE REMEDIES.
The rights and remedies that this Agreement grants to either
party will not prohibit either party from exercising any other
right or remedy provided under this Agreement or permitted by law
or equity.
D. WRITTEN CONSENTS FROM COMPANY.
Whenever this Agreement requires our advance approval or
consent, you agree to make a timely written request for it. Our
approval or consent will not be valid unless it is in writing.
E. COSTS AND ATTORNEYS' FEES.
If we or any of our Affiliates incurs expenses due to your
failure to comply with this Agreement or to pay any amounts due to
us or our Affiliates, or for any other reason due to your actions
or inactions, you agree to reimburse us and our Affiliates for any
of the costs and expenses that we incur, including, without
limitation, reasonable accounting, attorneys', arbitrators' and
related fees.
F. GOVERNING LAW/CONSENT TO JURISDICTION.
ALL MATTERS RELATING TO ARBITRATION WILL BE GOVERNED
EXCLUSIVELY BY THE FEDERAL ARBITRATION ACT (9 U.S.C. Section 1 ET SEQ.).
EXCEPT TO THE EXTENT GOVERNED BY THE FEDERAL ARBITRATION ACT, THE
UNITED STATES TRADEMARK ACT OF 1946 (▇▇▇▇▇▇ ACT, 15 U.S.C. SECTIONS
1051 ET SEQ.), OR OTHER FEDERAL LAW, THIS AGREEMENT, THE FRANCHISE
AND THE RELATIONSHIP BETWEEN US AND YOU WILL BE GOVERNED BY THE
LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO ITS CONFLICT OF
LAWS PRINCIPLES, EXCEPT THAT ANY FLORIDA LAW REGULATING THE SALE OF
FRANCHISES OR GOVERNING THE RELATIONSHIP OF A FRANCHISOR AND ITS
FRANCHISEE WILL NOT APPLY UNLESS ITS JURISDICTIONAL REQUIREMENTS
ARE MET INDEPENDENTLY WITHOUT REFERENCE TO THIS PARAGRAPH.
YOU AGREE THAT WE MAY INSTITUTE ANY ACTION ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR OUR RELATIONSHIP THAT IS NOT REQUIRED
TO BE ARBITRATED IN ANY STATE OR FEDERAL COURT OF GENERAL
JURISDICTION IN THE STATE OF FLORIDA, AND YOU IRREVOCABLY SUBMIT TO
THE JURISDICTION OF THOSE COURTS AND WAIVE ANY OBJECTION YOU MAY
HAVE TO EITHER THE JURISDICTION OF OR VENUE IN THOSE COURTS.
G. BINDING EFFECT.
This Agreement is binding on and will inure to the benefit of
our successors and assigns and will be binding on and inure to the
benefit of your permitted successors, assigns, heirs, executors and
administrators.
H. ENTIRE AGREEMENT.
This Agreement, including the introduction and exhibits to it,
together with our Operating Manuals and other policies, constitutes
the entire agreement between you and us, and there are no other
oral or written understandings or agreements between you and us
concerning the subject matter of this Agreement. This Agreement
may be modified only by a written agreement signed by both you and
us.
I. NO LIABILITY TO OTHERS.
We will not, because of this Agreement or any approvals,
advice or services provided to you, be liable to any person or
legal entity who is not a party to this Agreement, and no other
party will have any rights because of this Agreement.
J. CONSTRUCTION.
All headings of the various sections and paragraphs of this
Agreement are for convenience only and do not affect the meaning or
construction of any provision. All references in this Agreement to
masculine, neuter or singular usage will be construed to include
the masculine, feminine, neuter or plural usages wherever
applicable. If two or more persons are the Franchisee, their
obligations and liabilities under this Agreement will be joint and
several, and the Franchisee will be deemed to be a general
partnership. A reference to "you" or "franchisee" includes each
individual partner and the partnership. Except where this
Agreement expressly requires that we reasonably approve or not
unreasonably withhold our approval of any of your actions or
requests, we have the absolute right to refuse any of your requests
or to withhold our approval of any of your actions or omissions.
K. MULTIPLE ORIGINALS.
The parties may execute multiple copies of this Agreement, and
each executed copy will be deemed an original.
L. INJUNCTIVE RELIEF.
Notwithstanding anything to the contrary contained in Section
17.M., each party has the right in a proper case to seek temporary
restraining orders and temporary or preliminary injunctive relief
from a court of competent jurisdiction. In that case, the parties
will contemporaneously submit their dispute for arbitration on the
merits according to Section 17.M.
M. ARBITRATION.
EXCEPT FOR CLAIMS RELATING TO THE VALIDITY OR OWNERSHIP OF THE
TRADEMARKS, AND EXCEPT AS WE MAY ELECT TO COLLECT AMOUNTS DUE UNDER
ANY PROMISSORY NOTE IN A JUDICIAL PROCEEDING, ALL CONTROVERSIES,
DISPUTES OR CLAIMS BETWEEN US (AND OUR AFFILIATES AND OUR
RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES)
AND YOU (YOUR OWNERS, AFFILIATES AND EMPLOYEES, IF APPLICABLE)
ARISING OUT OF OR RELATED TO:
(a) THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE
PARTIES OR ANY PROVISION OF ANY OF THESE AGREEMENTS;
(b) THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT;
(c) THE VALIDITY OF THIS AGREEMENT OR ANY OTHER
AGREEMENT BETWEEN THE PARTIES OR ANY PROVISION OF ANY OF THESE
AGREEMENTS; OR
(d) ANY STANDARD, SPECIFICATION OR OPERATING PROCEDURE
RELATING TO THE FRANCHISED DISTRIBUTORSHIP'S OPERATION
MUST BE SUBMITTED FOR ARBITRATION. ANY PARTY WITH A CLAIM SUBJECT
TO ARBITRATION MUST NOTIFY THE OTHER PARTY IN WRITING OF THE CLAIM
BEFORE SUBMITTING THE CLAIM FOR ARBITRATION TO ANY FORUM. IF THE
PARTIES HAVE NOT AGREED ON THE RESOLUTION OF THE DISPUTE WITHIN TEN
(10) DAYS AFTER DELIVERY OF THE NOTICE, THE CLAIM MAY BE SUBMITTED
FOR ARBITRATION ON DEMAND OF EITHER PARTY. ANY AND ALL ARBITRATION
PROCEEDINGS WILL BE GOVERNED BY THE PROVISIONS SET FORTH IN EXHIBIT
D, WHICH IS A PART OF THIS AGREEMENT.
N. WAIVER OF PUNITIVE DAMAGES AND JURY TRIAL.
EXCEPT FOR YOUR OBLIGATION TO INDEMNIFY US UNDER SECTION 6.D.
AND CLAIMS WE BRING AGAINST YOU FOR YOUR UNAUTHORIZED USE OF THE
MARKS OR UNAUTHORIZED USE OR DISCLOSURE OF ANY CONFIDENTIAL
INFORMATION, WE AND YOU WAIVE TO THE FULLEST EXTENT PERMITTED BY
LAW ANY RIGHT TO OR CLAIM FOR ANY PUNITIVE OR EXEMPLARY DAMAGES
AGAINST THE OTHER AND AGREE THAT, IN THE EVENT OF A DISPUTE BETWEEN
US AND YOU, THE PARTY MAKING A CLAIM WILL BE LIMITED TO EQUITABLE
RELIEF AND TO RECOVERY OF ANY ACTUAL DAMAGES IT SUSTAINS.
WE AND YOU IRREVOCABLY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY
EITHER OF US.
O. SECURITY INTEREST.
As security for your performing your obligations under this
Agreement, including paying us or our Affiliates for purchases, you
hereby grant us a security interest in: (1) all of the goods,
equipment, inventory, accounts, accounts receivable, general
intangibles (including, but not limited to, goodwill of the
Franchised Distributorship), instruments, documents and chattel
paper of the Franchised Distributorship, both presently owned and
hereafter acquired; (2) all accessories, substitutions, additions,
replacements, parts and accessions affixed to or used with any of
these; and (3) the products and proceeds of any and all of these.
You agree to execute any other documents we reasonably request to
further document, perfect and record our security interest. If you
default on any of your obligations under this Agreement, we may
exercise all rights of a secured creditor granted to us by law in
addition to our other rights under this Agreement and applicable
law.
P. NO WITHHOLDING PAYMENTS DUE TO US.
You agree that you will not withhold payment of any amounts
owed to us or our Affiliates on the grounds of our alleged
nonperformance of any of our obligations under this Agreement or
for any other reason whatsoever.
18. NOTICES AND PAYMENTS.
All written notices and reports permitted or required to be
delivered by the provisions of this Agreement or the Operating
Manuals will be deemed delivered at the earliest of the following
times: (a) the time delivered by hand, (b) one (1) business day
after transmission by telegraph, telecopy or other electronic
system or after placement with a commercial courier service for
next business day delivery, or (c) three (3) business days after
placement in the United States Mail by Registered or Certified
Mail, Return Receipt Requested, postage prepaid. All notices and
reports must be addressed to the party to be notified at its most
current principal business address of which the notifying party has
been notified. You agree to send all payments and required reports
to us at any address(es) we designate to you in writing. Any
required payment or report which we do not actually receive at the
correct address during regular business hours on the date due (or
postmarked by postal authorities at least two (2) days before it is
due) will be deemed delinquent.
19. ACKNOWLEDGEMENTS.
You acknowledge that you have received and have had the
opportunity to review, for not less than ten (10) business days, a
copy of our franchise offering circular describing certain
information about us and the terms of the Tupperware Franchise
Agreement. You acknowledge that you have read this Agreement and
our franchise offering circular and understand and accept the
terms, conditions and covenants contained in this Agreement as
being reasonably necessary to maintain our high standards of
quality and service and the uniformity of those standards for all
Franchised Tupperware Distributorships. You acknowledge that you
have conducted an independent investigation of the business venture
contemplated by this Agreement and recognize that it involves
business risks and that the venture's success is largely dependent
upon your business abilities. We have not made, and you
acknowledge that you have not received or relied upon, any
guarantee, express or implied, as to the revenue, profits or
likelihood of success of the Franchised Distributorship. You
acknowledge that you have not received or relied on any
representations about the Franchise or the Franchised
Distributorship by us or our officers, directors, employees or
agents that are contrary to the statements made in our franchise
offering circular or the terms of this Agreement.
The parties to this Agreement now execute and deliver this
Agreement as of the Agreement Date.
TUPPERWARE U.S., INC.,
a Delaware corporation FRANCHISEE (Print Name)
FRANCHISEE (Signature)
▇▇▇▇▇▇ ▇▇▇▇▇, President
FRANCHISEE (Print Name)
FRANCHISEE (Signature)
EXHIBIT A
TO THE FRANCHISE AGREEMENT
DATED ________________________ BY AND BETWEEN
TUPPERWARE U.S., INC.
AND ______________________________
The Primary Area of Promotion referred to in Section 1 of the
Agreement is:
TUPPERWARE U.S., INC.,
a Delaware corporation FRANCHISEE (Print Name)
FRANCHISEE (Signature)
▇▇▇▇▇▇ ▇▇▇▇▇, President
FRANCHISEE (Print Name)
FRANCHISEE (Signature)
EXHIBIT B
TO THE FRANCHISE AGREEMENT
DATED BY AND BETWEEN
TUPPERWARE U.S., INC.
AND ______________________________
The Premises are located at:
TUPPERWARE U.S., INC.,
a Delaware corporation FRANCHISEE (Print Name)
FRANCHISEE (Signature)
▇▇▇▇▇▇ ▇▇▇▇▇, President
FRANCHISEE (Print Name)
FRANCHISEE (Signature)
EXHIBIT C
AGREEMENT FOR THE
DESIGNATION OF AN OPERATING COMPANY
This Agreement is made and entered into this _____ day of
_________________, 19__ by and among TUPPERWARE U.S., INC., a
Delaware corporation ("Franchisor"),
(collectively, "Owner") and
_________________________________________________, a
____________________ corporation (the "Operating Company").
1. Recitals. Franchisor and Owner entered into that certain
TUPPERWARE Franchise Agreement dated __________________________,
19__ (the "Franchise Agreement") for Owner to operate a Franchised
TUPPERWARE Distributorship (the "Distributorship") from premises
located at ____________________________________. The Franchise
Agreement is incorporated into and made a part of this Agreement.
Owner wishes to operate the Distributorship through the Operating
Company. Franchisor is willing to permit Owner to operate the
Distributorship through the Operating Company on the conditions set
forth in this Agreement.
2. Representations To Franchisor. Owner and the Operating
Company jointly and severally represent and warrant to Franchisor
that now and at all times during the term of the Franchise
Agreement:
(a) Owner is and will be the owner of not less than
seventy percent (70%) of the equity interests in the Operating
Company;
(b) Owner has and will have at least the percentage of
voting power of the Operating Company's capital stock that may
be required under applicable law and the articles of
incorporation, bylaws and other documents relating to the
Operating Company's governance to authorize a transfer of
substantially all of the Operating Company's assets;
(c) Owner has and will have the right and power to
control the Operating Company and the Distributorship's
operation and transfer;
(d) Owner will be the Operating Company's chief
executive and operating officers;
(e) the Operating Company is duly incorporated and
validly existing and is and will be duly authorized and
qualified to do business and in good standing in each state in
which it transacts business; and
(f) the sole business the Operating Company will conduct
will be the operation of the Distributorship.
Owner and the Operating Company jointly and severally
represent and warrant to Franchisor that Exhibit A to this
Agreement is a complete and accurate description of certain
information about the Operating Company and its shareholders,
directors and officers. Except to the extent that the Franchise
Agreement restricts transfers of ownership interests in the
Operating Company, Owner and the Operating Company agree to notify
Franchisor in writing of any change in the information in Exhibit A
not later than thirty (30) days after the change occurs.
Owner and the Operating Company further represent and warrant
to Franchisor that the only consideration that the Operating
Company is giving Franchisor for the rights granted to the
Operating Company is the Operating Company's agreement to assume
and perform all of Owner's obligations under the Franchise
Agreement.
3. Operation Solely by Operating Company. Franchisor and
Owner agree that the Distributorship will be operated solely by the
Operating Company and no other person during the term of the
Franchise Agreement.
4. Rights Retained Solely By Owner. Owner and the Operating
Company acknowledge and agree that Owner retains, and is the only
person or entity who may exercise, all renewal rights under the
Franchise Agreement. The Operating Company has no rights under the
Franchise Agreement concerning renewal. If Franchisor and Owner
renew the franchise by signing a new franchise agreement, as
provided in subparagraph (b) of Section 14 of the Franchise
Agreement, the Operating Company will have no further rights under
this Agreement. In order for the Operating Company to continue
operating the Distributorship, the parties must execute a new
agreement similar to this Agreement or on the form that Franchisor
then requires for a corporation's operation of a Franchised
TUPPERWARE Distributorship.
5. Liability Of Owner And The Operating Company. The
Operating Company hereby assumes, jointly and severally with Owner,
all of Owner's liabilities now existing or hereafter arising under
or relating to the Franchise Agreement or the operation of the
Distributorship. The Operating Company agrees to perform, observe
and fulfill all of Owner's covenants and obligations as the
franchisee under the Franchise Agreement and in any dealings with
Franchisor or third parties relating to the Franchise Agreement,
whether arising before or after the date of this Agreement.
Owner acknowledges that this Agreement does not and will not
relieve Owner of any of Owner's liabilities and obligations under
the Franchise Agreement or the operation of the Distributorship,
now existing or hereafter arising, including, but not limited to,
payment for all goods and services the Operating Company orders
from the Franchisor or its Affiliates.
IN WITNESS WHEREOF the undersigned have executed this
Agreement this _____ day of __________________, 19____.
OWNER:
(Signature)
(Print Name)
(Signature)
(Print Name)
TUPPERWARE U.S., INC., OPERATING COMPANY:
a Delaware corporation
a corporation
▇▇▇▇▇▇ ▇▇▇▇▇, President
(Print Name)
By:
Title:
ATTACHMENT A
INFORMATION ABOUT THE OPERATING COMPANY
1. NAME OF OPERATING COMPANY
Full name of operating company:
State of incorporation:
Date of incorporation:
Other name(s) under which it conducts business:
State in which qualified to do business:
Name and address of Registered Agent in state of incorporation:
2. SHAREHOLDER INFORMATION
Name of Shareholder Number of Shares Held* Percentage Ownership
3. DIRECTORS AND OFFICERS
Name of Director/Officer Position(s) Held
*If there is more than one class of stock, the information must
reflect the kind of shares held.
EXHIBIT D
ARBITRATION
ANY CONTROVERSY, DISPUTE OR CLAIM SUBMITTED FOR ARBITRATION
MUST BE SUBMITTED FOR ARBITRATION TO THE ORLANDO, FLORIDA OFFICE OF
THE AMERICAN ARBITRATION ASSOCIATION ON DEMAND OF EITHER PARTY.
THE ARBITRATION PROCEEDINGS WILL BE CONDUCTED UNDER THIS AGREEMENT
IN ORLANDO, FLORIDA, OR ANY OTHER PLACE AS MAY BE MUTUALLY AGREED
UPON BY THE PARTIES, AND HEARD IN ACCORDANCE WITH THE THEN CURRENT
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION, EXCEPT AS THESE RULES ARE MODIFIED BY THIS AGREEMENT.
ALL MATTERS WITHIN THE SCOPE OF THE FEDERAL ARBITRATION ACT (9
U.S.C. Section 1 ET SEQ.) WILL BE GOVERNED BY IT AND NOT BY ANY STATE
ARBITRATION LAW.
EXCEPT AS LIMITED BY THIS AGREEMENT, THE ARBITRATOR WILL HAVE
THE RIGHT TO AWARD OR INCLUDE IN HIS OR HER AWARD ANY RELIEF WHICH
HE OR SHE DEEMS PROPER IN THE CIRCUMSTANCES, INCLUDING, WITHOUT
LIMITATION, MONEY DAMAGES (WITH INTEREST ON UNPAID AMOUNTS FROM THE
DATE DUE), SPECIFIC PERFORMANCE, INJUNCTIVE RELIEF AND ATTORNEYS'
FEES AND COSTS (ACCORDING TO SECTION 17.E. OF THIS AGREEMENT),
PROVIDED THAT THE ARBITRATOR WILL NOT HAVE AUTHORITY TO AWARD
EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT AS PROVIDED IN SECTION 17.N.,
OR TO ORDER EITHER PARTY TO CONTINUE OR REINSTATE A RELATIONSHIP
THAT HAS EXPIRED OR THAT THE OTHER PARTY HAS SOUGHT TO TERMINATE
ACCORDING TO THE PROVISIONS OF THIS AGREEMENT AND ANY APPLICABLE
LAW. THE AWARD AND DECISION OF THE ARBITRATOR WILL BE CONCLUSIVE
AND BINDING UPON ALL PARTIES, AND JUDGMENT UPON THE AWARD MAY BE
ENTERED IN ANY COURT OF COMPETENT JURISDICTION. THE PARTIES AGREE
THAT, IN ARBITRATIONS UNDER THIS AGREEMENT, NO EVIDENCE OF
ARBITRATION AWARDS IN OTHER CASES MAY BE INTRODUCED INTO EVIDENCE
OR CONSIDERED BY THE ARBITRATOR. THE PARTIES AGREE TO BE BOUND BY
THE PROVISIONS OF ANY LIMITATION ON THE PERIOD OF TIME IN WHICH
CLAIMS MUST BE BROUGHT UNDER APPLICABLE LAW. THE PARTIES FURTHER
AGREE THAT, IN ANY ARBITRATION PROCEEDING, EACH MUST SUBMIT OR FILE
ANY CLAIM WHICH WOULD CONSTITUTE A COMPULSORY COUNTERCLAIM (AS
DEFINED BY RULE 13 OF THE FEDERAL RULES OF CIVIL PROCEDURE) WITHIN
THE SAME PROCEEDING AS THE CLAIM TO WHICH IT RELATES; OTHERWISE,
THAT CLAIM WILL BE FOREVER BARRED.
ARBITRATION UNDER THIS AGREEMENT MAY BE CONDUCTED ONLY ON AN
INDIVIDUAL, AND NOT A CLASS-WIDE, BASIS. AN ARBITRATION PROCEEDING
BETWEEN THE PARTIES (INCLUDING OWNERS AND AFFILIATES AND OTHERS AS
PROVIDED IN THIS PARAGRAPH) MAY NOT BE CONSOLIDATED WITH ANY OTHER
ARBITRATION PROCEEDING INVOLVING THE COMPANY AND ANY OTHER PERSON.
THE PROVISIONS OF THIS AGREEMENT CONCERNING ARBITRATION ARE
INTENDED TO BENEFIT AND BIND CERTAIN THIRD PARTY NON-SIGNATORIES
IDENTIFIED IN SECTION 17.M. AND WILL CONTINUE IN FULL FORCE AND
EFFECT SUBSEQUENT TO AND NOTWITHSTANDING THE EXPIRATION OR
TERMINATION OF THIS AGREEMENT.
TUPPERWARE U.S., INC.,
a Delaware corporation FRANCHISEE (Print Name)
FRANCHISEE (Signature)
▇▇▇▇▇▇ ▇▇▇▇▇, President
FRANCHISEE (Print Name)
FRANCHISEE (Signature)
EXHIBIT E
TO THE FRANCHISE AGREEMENT
DATED
BY AND BETWEEN
TUPPERWARE U.S., INC.
AND
ANNUAL AND QUARTERLY PERFORMANCE CRITERIA
You must demonstrate your ability to grow sales during each
year of operation. If you were not an existing Franchised
Tupperware Distributor before signing this Agreement, your
Franchised Distributorship's Estimated Retail Sales within the
Primary Area of Promotion during the yearly period beginning
, 19 and ending , 19
were $ . You agree, as provided in Section 3 of
the Agreement, to increase your Estimated Retail Sales within the
Primary Area of Promotion over this amount by the first anniversary
date of this Agreement. If you do not satisfy this requirement, we
will have the right, but not the obligation, to terminate the
Agreement under Section 15.B.
In addition, if at any time after the first anniversary date
of this Agreement the growth in your Franchised Distributorship's
Estimated Retail Sales within the Primary Area of Promotion during
a three (3) month period falls ten percent (10%) or more below the
average regional estimated retail sales growth during that same
period, we have the right to give you a three (3) month period of
business planning and coaching to help you improve your
performance, defined as increased sales force recruiting and
manager promoting within the Primary Area of Promotion, over the
levels in the same three (3) month period during the previous
calendar year. If you fail by the end of this three (3) month
period to increase sales force recruiting and manager promoting
within the Primary Area of Promotion over the levels in the same
three (3) month period during the previous calendar year, we will
have the right, but not the obligation, to terminate the Franchise
Agreement. If you satisfy this performance criteria, we will give
you additional coaching for a second three (3) month period to help
you increase your Estimated Retail Sales within the Primary Area of
Promotion, consistent with regional, area and national averages,
over your levels of Estimated Retail Sales within the Primary Area
of Promotion in the same three (3) month period during the previous
calendar year. We will measure sales performance using the
consistent averages derived from the Tupperware Regional Weekly
Sales Analysis, the Formula to Grow Sales and long and short term
objectives. If you do not satisfy this Estimated Retail Sales
requirement within the Primary Area of Promotion by the end of the
second three (3) month coaching period, we will have the right, but
not the obligation, to terminate the Franchise Agreement.
If you were an existing Franchised Tupperware Distributor
before signing this Agreement, you agree that you will increase
your Franchised Distributorship's Estimated Retail Sales within the
Primary Area of Promotion over its Estimated Retail Sales within
the Primary Area of Promotion during the preceding calendar year.
You agree to increase your Estimated Retail Sales within the
Primary Area of Promotion during the course of each year consistent
with area, regional and national averages. If at any time the
growth in your Franchised Distributorship's Estimated Retail Sales
within the Primary Area of Promotion during a three (3) month
period falls ten percent (10%) or more below the average regional
estimated retail sales growth during that same period, we have the
right to give you a three (3) month period of business planning and
coaching to help you improve your performance, defined as increased
sales force recruiting and manager promoting within the Primary
Area of Promotion, over the levels in the same three (3) month
period during the previous calendar year. If you fail by the end
of this three (3) month period to increase sales force recruiting
and manager promoting within the Primary Area of Promotion over the
levels in the same three (3) month period during the previous
calendar year, we will have the right, but not the obligation, to
terminate the Franchise Agreement. If you satisfy this performance
criteria, we will give you additional coaching for a second three
(3) month period to help you increase your Estimated Retail Sales
within the Primary Area of Promotion, consistent with regional,
area and national averages, over your levels of Estimated Retail
Sales within the Primary Area of Promotion in the same three (3)
month period during the previous calendar year. We will measure
sales performance using the consistent averages derived from the
Tupperware Regional Weekly Sales Analysis, the Formula to Grow
Sales and long and short term objectives. If you do not satisfy
this Estimated Retail Sales requirement within the Primary Area of
Promotion by the end of the second three (3) month coaching period,
we will have the right, but not the obligation, to terminate the
Franchise Agreement.
TUPPERWARE U.S., INC.,
a Delaware corporation FRANCHISEE (Print Name)
FRANCHISEE (Signature)
▇▇▇▇▇▇ ▇▇▇▇▇, President
FRANCHISEE (Print Name)
FRANCHISEE (Signature)