Geeks On Call America, Inc. Area Development Agreement
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Geeks
On Call America, Inc.
GEEKS
ON CALL AMERICA, INC.
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Section
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Page
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1.
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GRANT
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1
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2.
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DEVELOPMENT
FEE
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2
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3.
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DEVELOPMENT
OBLIGATIONS
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2
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4.
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TERM
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3
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5.
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DUTIES
OF THE PARTIES
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3
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6.
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DEFAULT
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4
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7.
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TRANSFERS
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5
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8.
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COVENANTS
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8
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9.
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NOTICES
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9
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10.
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PERMITS
AND COMPLIANCE WITH LAWS
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10
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11.
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INDEPENDENT
CONTRACTOR AND INDEMNIFICATION
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10
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12.
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APPROVALS
AND WAIVERS
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10
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13.
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ENTIRE
AGREEMENT AND AMENDMENT
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10
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14.
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RELEASE
OF PRIOR CLAIMS
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11
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15.
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NON-WAIVER
OF BREACH
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11
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16.
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APPLICABLE
LAW
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11
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17.
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ACKNOWLEDGMENTS
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12
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18.
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GUARANTY
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12
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| EXHIBITS | ||
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EXHIBIT
A Development
Schedule
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EXHIBIT
B Guarantee
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EXHIBIT
C Franchise
Agreement
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GEEKS
ON CALL AMERICA, INC.
This
Area
Development Agreement (the “Agreement”) is entered into on ___________________,
20____ by and between Geeks On Call America, Inc. (the “Franchisor”), and
________________________, a _____________________________ corporation having
its
principal offices located at ________________________________________________
(the “Area Developer”).
WITNESSETH:
WHEREAS,
Franchisor has developed a method and concept (the “System”) to provide computer
support services using the System and the Marks (as both are defined below)
(the
“Franchised Business or Businesses”);
WHEREAS,
Franchisor identifies the System by means of certain trade names, service marks,
trademarks, logos, emblems, and indicia of origin, including but not limited
to,
the marks “1-800-905-GEEK” and “GEEKS ON CALL” and respective associated logos,
and such other trade names, service marks, and trademarks as are now designated
(and may hereinafter be designated by Franchisor in writing) for use in
connection with the System (the “Marks”); and
WHEREAS,
Area Developer wishes to obtain certain development rights to operate Franchised
Businesses under Franchisor’s System and wishes to obtain franchises from
Franchisor for that purpose.
NOW,
THEREFORE, the parties, in consideration of the undertakings and commitments
of
each party to the other party set forth herein, hereby agree as
follows:
1. GRANT
1.1 Franchisor
hereby grants development rights to Area Developer, and Area Developer hereby
accepts the obligation, pursuant to the terms and conditions of this Area
Development Agreement, to develop the number of Franchised Businesses as
specified in Exhibit A to this Agreement. Each Franchised Business for which
a
development right is granted hereunder shall be established and operated
pursuant to: (i) a separate Geeks On Call America, Inc. Franchise Agreement
(“Franchise Agreement”) to be entered into between Area Developer and Franchisor
in accordance with Section 3.1 below; and (ii) the development schedule set
forth in Paragraph 2 of Exhibit A attached hereto (the “Development Schedule”).
Each Franchised Business developed hereunder shall be located in the area
described in Paragraph 1 of Exhibit A, attached hereto (the “Development
Area”).
1.2 So
long
as Area Developer is in compliance with its obligations under this Agreement,
Franchisor shall not establish, nor license anyone other than Area Developer
to
establish a Franchised Business under the System in the Development Area, until
the last date specified in the Development Schedule. Franchisor retains all
rights not specifically granted to Area Developer, including, for example,
the
right: (i) to use and license others to use the System and Marks for the
operation of ▇-▇▇▇-▇▇▇-▇▇▇▇/Geeks On Call Franchised Businesses at any location
outside the Development Area; (ii) to acquire and operate businesses of any
kind
at any location within or outside of the Development Area (excluding Franchised
Businesses operated under the System within the Development Area); (iii) to
use
and license others to use the System and/or the Marks at any location within
or
outside of the Development Area other than for the operation of a
▇-▇▇▇-▇▇▇-▇▇▇▇/Geeks On Call Franchised Business; and (iv) to use and license
others to use marks other than the Marks in connection with the operation of
Franchised Businesses at any location within or outside of the Development
Area,
which Franchised Businesses are the same as, similar to, or different from
the
Franchised Businesses, all on terms and conditions as Franchisor deems
advisable, and without granting Area Developer any rights therein. Franchisor
may dispatch franchisees from neighboring territories to service customers
in
the Development Area as provided in the Franchise Agreements. Area Developer’s
rights within the Development Area are also subject to other franchisees’ rights
under Franchisor’s national/regional accounts program and
policies.
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1
1.3 This
Agreement is not a franchise agreement, and does not grant to Area Developer
any
right to use in any manner Franchisor’s Marks or System.
1.4 Area
Developer shall have no right under this Agreement to license others to use
in
any manner the Marks or the System.
2. DEVELOPMENT
FEE
2.1 In
consideration of the development rights granted herein, Area Developer has
paid
to Franchisor upon execution of this Agreement a development fee
of__________________ Dollars ($______________), receipt of which is hereby
acknowledged by Franchisor, which has been fully earned and is non-refundable
in
consideration of administrative and other expenses incurred by Franchisor and
for the development opportunities lost or deferred as a result of the rights
granted Area Developer herein.
2.2 Area
Developer shall pay Franchisor an initial franchise fee of Three Thousand
Dollars ($3,000) upon the execution of each Franchise Agreement for each
Franchised Business required to be developed under this Agreement.
3. DEVELOPMENT
OBLIGATIONS
3.1 Area
Developer (or an entity controlled by Area Developer (hereafter “Affiliate”))
shall execute a Franchise Agreement for each Franchised Business in a territory
approved by Franchisor in the Development Area as hereinafter provided (the
“Territory”). The Franchise Agreement for the first Franchised Business
developed hereunder shall be in the form of the Franchise Agreement attached
hereto as Exhibit C (the “First Franchise Agreement”). The Franchise Agreement
for each additional Franchised Business developed hereunder shall be in the
form
of the Franchise Agreement being offered generally by Franchisor at the time
each such Franchise Agreement is executed. The Franchise Agreement for each
Franchised Business shall be executed by Area Developer and submitted to
Franchisor within fifteen (15) days of its receipt from Franchisor. If the
Area
Developer is in full compliance with this Agreement, then, notwithstanding
anything to the contrary in any of the Franchise Agreements, the initial
franchise fee to be paid by Area Developer shall be Three Thousand Dollars
($3,000) for each Franchise Agreement executed by Area Developer or its
Affiliates for each Franchised Business to be located in the Development Area
during the term of this Agreement, less any credit that may be applied pursuant
to Section 2.2 above.
Franchisor’s
duty to offer or grant franchises is subject to the requirement to maintain
Franchise Offering Circulars and franchise registrations as required by law.
If
Franchisor may not lawfully offer or sell a franchise at a time Area Developer
desires to execute the Franchise Agreement, Franchisee’s and Area Developer’s
duties hereunder shall be deferred until such documents are amended and, if
applicable, approved for use, and delivered to Area Developer.
3.2 Recognizing
that time is of the essence, Area Developer agrees to satisfy the Development
Schedule. Failure by Area Developer to adhere to the Development Schedule,
shall
constitute a default under this Agreement as provided in Section 6.2
hereof.
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2
4. TERM
Unless
sooner terminated in accordance with the terms of this Agreement, the term
of
this Agreement and all rights granted hereunder shall expire on the date when
Area Developer has open and in operation all of the Franchised Businesses
required by the Development Schedule.
5. DUTIES
OF THE PARTIES
5.1 For
each
Franchised Business developed hereunder, Franchisor shall furnish to Area
Developer the following:
5.1.1 Such
developer training for Area Developer as Franchisor may deem
advisable.
5.2 Area
Developer accepts the following obligations:
5.2.1 An
Area
Developer which is a corporation shall comply, except as otherwise approved
in
writing by Franchisor, with the following requirements throughout the term
of
this Agreement:
5.2.1.1
Area Developer shall furnish Franchisor with its Articles of Incorporation,
Bylaws, other governing documents, any other documents Franchisor may reasonably
request, and any amendments thereto;
5.2.1.2
Area Developer shall confine its activities, and its governing documents, if
any, shall at all times provide that its activities are confined, exclusively
to
the management and operation of the business contemplated hereunder, including
the establishment and operation of the Franchised Businesses to be developed
hereunder;
5.2.1.3
Area Developer shall maintain stop transfer instructions against the transfer
on
its records of any voting securities and shall issue no certificates for voting
securities upon the face of which the following printed legend does not legibly
and conspicuously appear:
The
transfer of this stock is subject to the terms and conditions of an Area
Development Agreement with Geeks On Call America, Inc. dated _____________.
Reference is made to the provisions of said Area Development Agreement and
to
the Articles and Bylaws of this Corporation.
5.2.1.4
Area Developer shall maintain a current list of all owners of record and all
beneficial owners of any class of voting stock of Area Developer and shall
furnish the list to Franchisor upon request.
5.2.2 An
Area
Developer which is a partnership or a limited liability company shall comply,
except as otherwise approved in writing by Franchisor, with the following
requirements throughout the term of this Agreement:
5.2.2.1
Area Developer shall furnish Franchisor with its partnership agreement or
membership agreement as well as such other documents as Franchisor may
reasonably request, and any amendments thereto; and
5.2.2.2
Area Developer shall prepare and furnish to Franchisor, upon request, a list
of
all general and limited partners and all members in Area
Developer.
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3
5.2.3 Area
Developer shall at all times preserve in confidence any and all materials and
information furnished or disclosed to Area Developer by Franchisor, and shall
disclose such information or materials only to such of Area Developer’s
employees or agents who must have access to it in connection with their
employment. Area Developer shall not at any time, without Franchisor’s prior
written consent, copy, duplicate, record, or otherwise reproduce such materials
or information, in whole or in part, nor otherwise make the same available
to
any unauthorized person.
5.2.4 Area
Developer shall comply with all requirements of federal, state and local laws,
rules and regulations.
5.2.5 Upon
the
opening of Area Developer’s fifth (5th) Franchised Business, and for each
multiple thereof, Area Developer shall employ at least one full-time supervisor,
who shall meet such standards as may be reasonably imposed by Franchisor in
the
Operations Manual or otherwise in writing to supervise and coordinate the
operation of the Franchised Business. Area Developer shall ensure that at least
one full-time supervisor has an equity ownership in the Franchised
Business.
5.2.6 Area
Developer shall provide Franchisor with annual unaudited balance sheets and
statements of financial condition.
6. DEFAULT
6.1 Area
Developer shall be deemed to be in default under this Agreement, and all rights
granted herein shall automatically terminate without notice to Area Developer,
if Area Developer shall become insolvent or makes a general assignment for
the
benefit of creditors; or if a petition in bankruptcy is filed by Area Developer
or such a petition is filed against and not opposed by Area Developer; or if
Area Developer is adjudicated a bankrupt or insolvent; or if a ▇▇▇▇ in equity
or
other proceeding for the appointment of a receiver of Area Developer or other
custodian for Area Developer’s business or assets is filed and consented to by
Area Developer; or if a receiver or other custodian (permanent or temporary)
of
Area Developer’s assets or property, or any part thereof, is appointed by any
court of competent jurisdiction; or if proceedings for a composition with
creditors under any state or federal law should be instituted by or against
Area
Developer; or if a final judgment remains unsatisfied or of record for thirty
(30) days or longer (unless supersedeas bond is filed); or if Area Developer
is
dissolved; or if execution is levied against Area Developer’s business or
property; or if suit to foreclose any lien or mortgage against the premises
or
equipment of any Franchised Business developed hereunder is instituted against
Area Developer and not dismissed within thirty (30) days; or if the real or
personal property of Area Developer shall be sold after levy thereupon by any
sheriff, marshal or constable.
6.2 If
Area
Developer fails to meet its obligations under the Development Schedule, such
action shall constitute a default under this Agreement, upon which Franchisor,
in its discretion, may terminate the rights granted in Section 1.2 hereof,
effective fifteen (15) days following notice from Franchisor.
6.3 Except
as
otherwise provided in Sections 6.1 and 6.2 above, if Area Developer fails to
comply with any material term and/or condition of this Agreement, or fails
to
comply with the terms and/or conditions of any Franchise Agreement between
the
Area Developer (or a person or entity affiliated with or controlled by the
Area
Developer) and the Franchisor, such action shall constitute a default under
this
Agreement. Upon the occurrence of any such default, Franchisor may terminate
this Agreement by giving written notice of termination stating the nature of
such default to Area Developer at least fifteen (15) days prior to the effective
date of termination; provided, however, that Area Developer may avoid
termination by immediately initiating a remedy to cure such default, curing
it
to Franchisor’s satisfaction, and by promptly providing proof thereof to
Franchisor within the fifteen (15)-day period. If any such default is not cured
within the specified time, or such longer period as applicable law may require,
this Agreement and all rights granted hereunder (including but not limited
to,
the right to develop new Franchised Businesses shall terminate without further
notice to Area Developer effective immediately upon the expiration of the
fifteen (15)-day period or such longer period as applicable law may
require.
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6.4 Upon
termination of this Agreement, Area Developer shall have no right to establish
or operate any Franchised Business for which a Franchise Agreement has not
been
executed by Franchisor at the time of termination. Thereafter, Franchisor shall
be entitled to establish, and to license others to establish, Franchised
Businesses in the Development Area except as may be otherwise provided under
any
Franchise Agreement which has been executed between Franchisor and Area
Developer.
6.5 No
default under Section 3.2 of this Area Development Agreement shall constitute
a
default under any Franchise Agreement between the parties hereto.
6.6 No
right
or remedy herein conferred upon or reserved to Franchisor is exclusive of any
other right or remedy provided or permitted by law or equity.
7.
TRANSFERS
7.1 Franchisor
may assign this Agreement to an assignee who agrees to remain bound by its
terms, without obtaining Area Developer’s approval. Neither Area Developer nor
an owner with an interest in this Agreement (collectively “transferor”) may
sub-license or sub-franchise its rights granted by this Agreement. Area
Developer’s interest under this Agreement or its ownership in the Area Developer
entity may be transferred or assigned only if transferor complies with the
following provisions. No interest may be transferred unless or until Area
Developer and the transferor are in full compliance with this Agreement. No
right to execute a Franchise Agreement may be assigned apart from an assignment
of all of Area Developer’s rights to execute Franchise Agreements under this
Agreement.
7.2 If
a
transferor has received and desires to accept a signed, bona fide offer to
purchase or otherwise transfer an interest in Area Developer’s business or any
interest in this Agreement or the Area Developer entity, the transferor shall
grant Franchisor the option (the “Right of First Refusal”) to purchase
transferor’s business or interest in the Area Developer as hereinafter provided.
7.3 If
the
transferor desires to make a transfer, such person or entity must comply with
the following terms, conditions and procedures to effectuate a valid
transfer:
7.3.1 If
any
proposed assignment of any rights under this Agreement, or if any other transfer
which, when aggregated with all previous transfers, would, in Franchisor’s
reasonable opinion result in the transfer of effective control over the
ownership of this Agreement and/or operation of Area Developer’s business, a
material part of Area Developer’s assets or the Area Developer entity, the
transferee must apply for an Area Development Agreement and must meet all of
Franchisor’s then current standards and requirements for becoming an Area
Developer (which standards and requirements need not be written).
7.4 Regardless
of the degree of control which would be affected by a proposed
transfer:
7.4.1 The
proposed transferor shall first notify Franchisor in writing of any bona fide
proposed transfer and set forth a complete description of all terms and fees
of
the proposed transfer in a manner Franchisor prescribes, including the
prospective transferee’s name, address, financial qualifications and previous
five (5) years’ business experience;
7.4.2 The
transferor shall provide Franchisor with a copy of any written offer or
agreement to purchase, signed by the proposed transferee, together with copies
of any documents referenced in the offer or agreement, including notes and
security agreements. If all material terms of the proposed sale are not
described in the offer or agreement, the transferor shall provide details of
all
such terms in its submission to Franchisor, accompanied by the proposed
transferee’s written agreement to the terms.
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5
7.4.3 The
proposed transferor shall provide Franchisor with any additional information,
agreements, certifications or documents Franchisor requests for use in its
evaluation of whether to approve the transfer or to exercise its Right of First
Refusal.
7.4.4 Upon
receipt of Franchisor’s request, the proposed transferor shall promptly provide
Franchisor with access to any property, documents or records relevant to the
transaction and to the interest which is the subject of the transfer. Once
Franchisor has received all materials submitted by the proposed transferor
and
has reviewed all property, records and documents Franchisor has requested,
within thirty (30) days Franchisor shall notify the transferor of Franchisor’s
decision to exercise its right to acquire all or any part of the interest being
transferred, and the conditions, if any, under which Franchisor will approve
the
proposed transfer.
7.4.5 If
the
transferor’s interest in Area Developer, the Area Developer’s business or in
this Agreement is being offered in combination with one or more other items,
Franchisor has the right to purchase the interest it selects at the price and
under the terms offered or agreed to by the transferor. Regardless of whether
the offer establishes different prices for different interests to be
transferred, Franchisor may establish a fair value for the interest it selects
to acquire, based either upon the prices paid for similar interests in arm’s
length transactions during the previous two (2)-year period before the date
of
the proposed transfer, or on other reasonable criteria.
7.4.6 If
non-monetary consideration is offered, Franchisor may pay the cash equivalent
of
the non-monetary consideration offered. If such non-monetary consideration
includes the employment of the transferor, Franchisor may require the transferor
to perform the proposed services on substantially the same terms as those
offered by the proposed transferee. At Franchisor’s option, Franchisor may agree
not to pay the agreed compensation for the services to be performed by the
transferor, and decline the services to be performed under the terms of the
offer. If Franchisor elects this option, Franchisor may set off against any
amount due for services to be rendered by the transferor, any income to be
received by the transferor for services performed by others during the period
when the transferor had agreed to perform services for Franchisor. Neither
Franchisor nor its assignee shall be liable for paying any brokerage commission
on the value of the interest transferred.
7.4.7 If
Franchisor exercises its Right of First Refusal, the transferor shall transfer
the interest to Franchisor or to Franchisor’s assignee pursuant to an agreement
to purchase which contains the material terms to which the transferor and the
proposed transferee had agreed. However, if the offer or proposed purchase
contract has omitted any terms customarily addressed in a transfer of an
interest of the type which is the subject of the transaction, Franchisor may
supply those terms in the purchase agreement and related documents.
7.4.8 If
Franchisor or its assignee fails to exercise the option to purchase the interest
sought to be transferred, Franchisor shall, within thirty (30) days after
receipt of the notice of the proposed transfer, notify the proposed transferor
in writing of its approval or disapproval of the prospective transferee.
7.5 A
transfer to a “Controlled Entity” will not trigger the Right of First Refusal. A
“Controlled Entity” is an entity in which the transferor(s) is/are the
beneficial owner(s) of one hundred percent (100%) of each class of voting
ownership interest in the Area Developer entity. At the time of the desired
transfer of interest to a Controlled Entity, the transferor must notify
Franchisor in writing of the name of the Controlled Entity. Franchisor only
will
approve a transfer to a Controlled Entity after all its beneficial owners have
signed a personal guaranty of the Controlled Entity’s obligations to Franchisor
in a form which Franchisor prescribes. Franchisor does not charge a transfer
fee
for this change.
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6
7.6 A
transfer of interest among the owners of an Area Developer entity will not
trigger the Right of First Refusal, provided that only the percentage of
ownership, rather than the identity of the owners, is changing. At the time
of
the desired transfer of interest within an entity, the transferor must notify
Franchisor in writing of the name and address of each officer, director
shareholder, member, partner or similar owner of an interest and their
respective ownership interest before and after the transfer. Franchisor does
not
charge a transfer fee for this transfer.
7.7 If
Franchisor does not exercise its Right of First Refusal, the transferor may
transfer this Area Development Agreement or ownership interest herein according
to the terms set forth in the Notice, provided that Area Developer and the
transferor satisfy the conditions in Sections 7.8 through 7.13 below and
complete the sale within ninety (90) days from the day on which Franchisor
receives the Notice. If Area Developer does not conclude the proposed transfer
within the ninety (90)-day period, the Right of First Refusal granted to
Franchisor hereunder shall continue in full force and effect.
7.8 The
proposed transferee(s) must complete Franchisor’s then current franchise
application and pass Franchisor’s application screening using Franchisor’s then
current qualifications, which need not be written.
7.9 The
proposed transferee(s) must sign Franchisor’s then current amendment forms
and/or franchise agreement, as required by Franchisor, and must personally
assume and be bound by all of the terms, covenants and conditions
therein.
7.10 The
proposed transferee(s) must attend and successfully complete Franchisor’s
Operations Training.
7.11 The
transferor must sign Franchisor’s then current transfer and release forms and
pay Franchisor a transfer fee of Five Thousand Dollars ($5,000).
7.12 Offer
of Securities by Area Developer.
All
materials required for any offer or sale of securities of Area Developer (or
any
entity that owns or is affiliated with Area Developer) by federal or state
law
shall be submitted to Franchisor for review, approval, and consent prior to
their being filed with any government agency; and any materials to be used
in
any exempt offering shall be submitted to Franchisor for review, approval,
and
consent prior to their use. No Area Developer offering shall imply (by use
of
the Marks or otherwise) that Franchisor is participating as an underwriter,
issuer or offeror of Area Developer’s or Franchisor’s securities; and
Franchisor’s review of any offering shall be limited solely to the subject of
the relationship between Area Developer and Franchisor. Area Developer and
the
other participants in the offering must fully indemnify Franchisor in connection
with the offering. For each proposed offering, Area Developer shall pay
Franchisor a non-refundable fee of Fifteen Thousand Dollars ($15,000) in order
to reimburse Franchisor for its reasonable costs and expenses associated with
reviewing the proposed offering, including, without limitation, legal and
accounting fees. Area Developer shall give Franchisor written notice at least
thirty (30) days prior to the date of commencement of any offering or other
transaction covered by this Section 7.12. Any such offering shall be subject
to
Franchisor’s Right of First Refusal, as set forth in Sections 7.2 and 7.4
hereof.
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7.13 Non-Waiver
of Claims.
Franchisor’s
consent to a transfer of any interest in this Agreement granted herein shall
not
constitute a waiver of any claims it may have against the transferring party,
nor shall it be deemed a waiver of Franchisor’s right to demand exact compliance
with any of the terms of this Agreement by the transferee. Franchisor may
disapprove any transfer which may constitute a subdivision of the Territory
or
the granting of subfranchises.
8. COVENANTS
8.1 Area
Developer covenants that during the term of this Agreement, except as otherwise
approved in writing by Franchisor, Area Developer (or, if Area Developer is
a
corporation, limited liability company or partnership, a principal of Area
Developer approved by Franchisor (“Principal”)) shall devote full time, energy
and best efforts to the management and operation of the business contemplated
hereunder, including the establishment and operation of the Franchised
Businesses to be developed hereunder.
8.2 Area
Developer specifically acknowledges that, pursuant to this Agreement, Area
Developer shall receive valuable specialized training and confidential
information, including, without limitation, a manual and other information
regarding the site selection, operational, sales, promotional and marketing
methods and techniques of Franchisor and the System, and that Area Developer
has
the exclusive right and obligation to develop the Development Area. Area
Developer covenants that during the term of this Agreement, except as otherwise
approved in writing by Franchisor, Area Developer shall not, either directly
or
indirectly, for itself, or through, on behalf of, or in conjunction with any
person, persons, partnership or corporation:
8.2.1 Divert
or
attempt to divert any business or customer of any Franchised Business using
the
System to any competitor, by direct or indirect inducement or otherwise, or
do
or perform, directly or indirectly, any other act injurious or prejudicial
to
the goodwill associated with Franchisor’s Marks and the System;
and/or
8.2.2 Unless
released in writing by the employer, employ or seek to employ any person who
is
at that time employed by Franchisor or by any other franchisee or area developer
of Franchisor, or otherwise directly or indirectly induce such person to leave
his or her employment.
8.3 Area
Developer covenants that, except as otherwise approved in writing by Franchisor,
Area Developer shall not, during the term of this Agreement, either directly
or
indirectly, for itself, or through, on behalf of, or in conjunction with any
person, persons, partnership or corporation, own, maintain, operate, engage
in
or have any interest in any business which is the same as or similar to the
business contemplated hereunder which is located in whole or in part within
the
Development Area, other than those Franchised Businesses provided for in the
Development Schedule; and shall not for a continuous uninterrupted period of
two
(2) years from the date of: (a) a transfer permitted under Section 7, above;
(b)
the expiration or termination of this Agreement (regardless of the cause for
termination); or (c) a final order of a duly authorized arbitrator, panel of
arbitrators, or a court of competent jurisdiction (after all appeals have been
taken) with respect to any of the foregoing or with respect to the enforcement
of this Section 8.3; either directly or indirectly, for itself, or through,
on
behalf of, or in conjunction with any persons, partnership or corporation,
own,
maintain, operate, engage in or have any interest in any business which
develops, finances or offers computer support services and which business is,
or
is intended to be conducted within the Development Area or within a ten
(10)-mile radius of any Franchised Business then using the System, or the
Development Area.
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8.4 Section
8.3 hereof shall not apply to ownership by Area Developer of less than a one
percent (1 %) beneficial interest in the outstanding equity securities of any
publicly-held corporation. As used in this Agreement, the term “publicly-held
corporation” shall be deemed to refer to a corporation which has securities that
have been registered under the federal Securities and Exchange Act of
1934.
8.5 At
Franchisor’s request, Area Developer shall require and obtain execution of
covenants similar to those set forth in this Section 8 (including covenants
applicable upon the termination of a person’s relationship with Area Developer)
from any or all of the following persons: (1) all officers, directors and
holders of a beneficial interest of five percent (5%) or more of the securities
of Area Developer, and of any corporation directly or indirectly controlling
Area Developer, if Area Developer is a corporation or other entity; and (2)
the
general partners (including any corporation, and the officers, directors and
holders of a beneficial interest of five percent (5%) or more of the securities
of any corporation which controls, directly or indirectly, any general partner),
if Area Developer is a partnership. Every covenant required by this Section
8.5
shall be in a form satisfactory to Franchisor, including, without limitation,
specific identification of Franchisor as a third party beneficiary of such
covenants with the independent right to enforce them. Failure by Area Developer
to obtain execution of a covenant required by this Section 8.5 shall constitute
a default under Section 6.2 hereof.
8.6 The
parties agree that each of the foregoing covenants shall be construed as
independent of any other covenant or provision of this Agreement. If all or
any
portion of a covenant in this Section 8 is held unreasonable or unenforceable
by
a court or agency having valid jurisdiction in an unappealed final decision
to
which Franchisor is a party, Area Developer expressly agrees to be bound by
any
lesser covenant subsumed within the terms of such covenant that imposes the
maximum duty permitted by law, as if the resulting covenant were separately
stated in and made a part of this Section 8.
8.7 Area
Developer understands and acknowledges that Franchisor shall have the right,
in
its sole discretion, to reduce the scope of any covenant set forth in this
Section 8, or any portion thereof, without Area Developer’s consent, effective
immediately upon receipt by Area Developer of written notice thereof; and Area
Developer agrees that it shall comply forthwith with any covenant as so
modified, which shall be fully enforceable notwithstanding the provisions of
Section 13 hereof.
8.8 Area
Developer expressly agrees that the existence of any claims it may have against
Franchisor, whether or not arising from this Agreement, shall not constitute
a
defense to the enforcement by Franchisor of the covenants in this Section 8.
Area Developer agrees to pay all costs and expenses (including reasonable
attorneys’ fees) incurred by Franchisor in connection with the enforcement of
this Section 7, and any of Franchisor’s other rights under this
Agreement.
8.9 Area
Developer acknowledges that Area Developer’s violation of the terms of this
Section 8 would result in irreparable injury to Franchisor for which no adequate
remedy at law may be available, and Area Developer accordingly consents to
the
issuance of an injunction prohibiting any conduct by Area Developer in violation
of the terms of this Section 8.
9. NOTICES
Any
notice or request hereunder must be given by mail or courier, postage fully
prepaid, or delivered personally or by facsimile, to our President at our World
Headquarters, presently ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Telephone: (▇▇▇) ▇▇▇-▇▇▇▇.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇. Any such notice may also be given to you in the
same
manner at the address indicated below the Area Developer’s signature on this
Agreement. Either party may change the address at which it shall receive notices
by sending a notice to the other party as provided in this
section.
Page
9
10. PERMITS
AND COMPLIANCE WITH LAWS
10.1 Area
Developer shall comply with all federal, state, and local laws, rules, and
regulations, and shall timely obtain any and all permits, certificates or
licenses necessary for the full and proper conduct of the business contemplated
under this Agreement.
10.2 Area
Developer shall notify Franchisor in writing within five (5) days of the
commencement of any action, suit, or proceeding, and of the issuance of any
order, writ, injunction, award, or decree of any court, agency, or other
governmental instrumentality, which may adversely affect the operation or
financial condition of Area Developer and/or any Franchised Business established
pursuant to this Agreement.
11. INDEPENDENT
CONTRACTOR AND INDEMNIFICATION
11.1 Area
Developer is an independent contractor. Area Developer is not Franchisor’s
agent, partner, employee or a participant in a joint venture and has no
authority to hold out as such to third parties. Area Developer does not have
any
authority to bind or obligate Franchisor. Franchisor is not and shall not be
liable for any act, omission, debt or other obligation of Area
Developer.
11.2 Area
Developer is responsible for all loss or damage and for all contractual
liability to third parties arising out of or incurred in connection with the
operation of the Area Developer’s business and for all claims or demands for
damage directly or indirectly related thereto. Area Developer agrees to defend,
indemnify and hold harmless Franchisor and its employees of and from and with
respect to any such claim, loss or damage.
12. APPROVALS
AND WAIVERS
12.1 Whenever
this Agreement requires the prior approval or consent of Franchisor, Area
Developer shall make a timely written request to Franchisor therefor, and such
approval or consent must be obtained in writing. A request for approval shall
be
deemed denied unless or until Franchisor grants its written
approval.
12.2 Franchisor
makes no warranties or guarantees upon which Area Developer may rely, and
assumes no liability or obligation to Area Developer, by providing any waiver,
approval, consent, or suggestion to Area Developer in connection with this
Agreement, or by reason of any neglect, delay or denial of any request
therefor.
12.3 No
delay,
waiver, omission or forbearance on the part of Franchisor to exercise any right,
option, duty, or power arising out of any breach or default by Area Developer
under any of the terms, provisions, covenants, or conditions hereof, shall
constitute a waiver by Franchisor to enforce any such right, option, duty,
or
power as against Area Developer, or as to subsequent breach or default by Area
Developer. Subsequent acceptance by Franchisor of any payments due to it
hereunder shall not be deemed to be a waiver by Franchisor of any preceding
breach by Area Developer of any terms, provisions, covenants, or conditions
of
this Agreement.
13. ENTIRE
AGREEMENT AND AMENDMENT
13.1 This
Agreement is the entire agreement between Area Developer and Franchisor. This
Agreement supersedes all other prior oral and written agreements and
understandings between Area Developer and Franchisor with respect to the subject
matter herein.
Page
10
13.2 No
modifications to this Agreement shall have any effect unless such modification
is in writing and signed by Area Developer and by Franchisor’s authorized
officer.
14. RELEASE
OF PRIOR CLAIMS
By
executing this Agreement, the undersigned entity, if any, and all individuals,
on behalf of themselves and Area Developer and their heirs, legal
representatives, successors and assigns, and each assignee of this Agreement,
hereby forever release and discharge Franchisor, its past and present employees,
agents, officers and directors, including Franchisor’s parent, subsidiary and
affiliated corporations, their respective past and present employees, agents,
officers and directors, from any and all claims relating to or arising out
of
any Area Development Agreement, Franchise Agreement or other agreement or
relationship, between the parties executed prior to the date of this Agreement,
and all other claims relating to any dealings between any of the parties.
However, this release does not apply to Franchisor’s renewal obligations, as
contained in any prior or other area development agreement, or to any duty
it
may have to comply with franchise sales laws applicable to this
transaction.
15. NON-WAIVER
OF BREACH
The
failure of either party hereto to enforce any one or more of the terms or
conditions of this Agreement shall not be deemed a waiver of such terms or
conditions or of either party’s rights thereafter to enforce each and every term
and condition of this Agreement.
16. APPLICABLE
LAW
16.1 Virginia
Law.
This
Agreement takes effect upon its acceptance and execution by Franchisor, and
shall be interpreted and construed exclusively under the laws of the
Commonwealth of Virginia, which laws shall prevail in the event of any conflict
of law (without regard to, and without giving effect to, the application of
Virginia choice of law rules); provided, however, that if the covenants in
Section 8 of this Agreement would not be enforceable under the laws of Virginia,
and Area Developer is located outside of Virginia, then such covenants shall
be
interpreted and construed under the laws of the state in which the Area
Developer’s principal place of business is located. Nothing in this Section 16.1
is intended by the parties to subject this Agreement to any franchise or similar
law, rule, or regulation of the Commonwealth of Virginia to which this Agreement
would not otherwise be subject.
16.2 Jurisdiction
and Venue.
In any
suit brought by Franchisor, which in any way relates to or arises out of this
Agreement, or any of the dealings of the parties hereto, Area Developer consents
to venue and personal jurisdiction in the state and federal court of the city
or
county of Franchisor’s World Headquarters, presently state courts and/or the
United States District Court located in Norfolk, Virginia. In any suit brought
against Franchisor, including Franchisor’s present and former employees and
agents, which in any way relates to or arises out of this Agreement, or any
of
the dealings of the parties hereto, venue shall be proper only in the federal
court located nearest Franchisor’s World Headquarters (presently the United
States District in Norfolk, Virginia), or if neither federal subject matter
nor
diversity jurisdiction exists, in the city or county state court located where
Franchisor’s World Headquarters is (presently the City of Norfolk,
Virginia).
16.3 Jury
Waiver. In
any
trial between any of the parties hereto, including present and former employees
and agents of Franchisor, Area Developer and Franchisor agree to waive Area
Developer’s and Franchisor’s rights to a jury trial, and instead have such
action tried by a judge.
16.4 Class
Action Waiver.
Area
Developer agrees that any claim it may have against Franchisor, including
Franchisor’s past and present affiliates, officers, directors, employees and
agents, must be brought individually and Area Developer shall not join such
claim with claims of any other person or entity or bring, join or participate
in
a class action against Franchisor.
Page
11
16.5 Compensatory
Damages.
In any
lawsuit, dispute or claim between or against any of the parties hereto,
including present and former affiliates, officers, directors, agents and
employees of ours, you and we agree to waive our rights, if any, to seek or
recover punitive damages.
17. ACKNOWLEDGMENTS
Area
Developer acknowledges that it has read Franchisor’s Franchise Offering Circular
and this Agreement and that Area Developer has been given the opportunity to
clarify any provision that it does not understand. Area Developer further
acknowledges that it has independently investigated the business offered
hereunder and bases its decision to enter into this Agreement solely on such
investigation. Area Developer acknowledges that Franchisor’s representatives are
not authorized to make and have not made any representations as to Area
Developer’s likely revenues, expenses, profits or success, and Area Developer is
not relying on any such representations.
18. GUARANTY
The
Area
Developer, and if it is an entity, all its officers, directors, partners and
members, agree to perform all the obligations in and relating to this Agreement,
including, but not limited to, the obligation to make payments specified herein,
pay any other debts due Franchisor. Likewise, for and in consideration of this
Agreement, the signatures of the individual(s) below also constitute their
personal joint and several guaranty to perform all the obligations in and
relating to this Agreement, including, but not limited to, the obligation to
make payments specified herein, pay any other debts due Franchisor, and the
duty
to comply with the transfer procedures and covenants set forth in Sections
7 and
8. The Guarantors waive presentment, demand or notice of non-performance and
the
right to require Franchisor to proceed against the other
Guarantors.
Page
12
IN
WITNESS WHEREOF,
the
parties hereto have duly executed and delivered this Agreement in duplicate
on
the day and year first above written.
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GEEKS
ON CALL AMERICA, INC.
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FRANCHISOR:
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AREA
DEVELOPER:
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Notices
to Franchisor:
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By:
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Geeks
On Call America, Inc.
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▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
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Name:
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▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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Notices
to Area Developer:
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Fax:
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Page
13
GEEKS
ON CALL AMERICA, INC.
AREA
DEVELOPMENT AGREEMENT
EXHIBIT
A
DEVELOPMENT
SCHEDULE
1.
Each
Franchised Business developed under this Area Development Agreement shall be
located in the following area (the “Development Area,” as more specifically
described in Section 1.1 of this Agreement):
2.
Recognizing that time is of the essence, Area Developer agrees to satisfy the
development schedule set forth below:
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By
Date:
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Cumulative
Total Number of Franchised Businesses Which Area
Developer
Shall Have Opened and in Operation:
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INITIALED:
FRANCHISOR:
___ AREA
DEVELOPER: ___
GEEKS
ON CALL AMERICA, INC.
AREA
DEVELOPMENT AGREEMENT
EXHIBIT
B
GUARANTEE
As
an
inducement to Geeks On Call, America, Inc. (“Franchisor”) to execute the Geeks
On Call America, Inc. Area Development Agreement between Franchisor and
______________________________________ (“Area Developer”) dated ______________,
20_____ (the “Agreement”), the undersigned hereby agree to defend, indemnify and
hold Franchisor, Franchisor’s affiliates, and their respective officers,
directors, employees, and agents harmless against any and all losses, damages,
liabilities, costs, and expenses (including, but not limited to, reasonable
attorney’s fees, reasonable costs of investigation, court costs, and arbitration
fees and expenses) resulting from, or arising out of or in connection with
any
failure by Area Developer to perform any obligation of Area Developer under
the
Agreement, any amendment thereto, or any other agreement executed by Area
Developer referred to therein.
The
undersigned hereby acknowledge and agree to be individually bound by all of
the
covenants contained in Section 8 of the Agreement.
This
Guarantee shall terminate upon the termination or expiration of the Agreement,
except that all obligations and liabilities of the undersigned which arose
from
events which occurred on or before the effective date of such termination shall
remain in full force and effect until satisfied or discharged by the
undersigned, and all covenants which by their terms continue in force after
the
expiration or termination of the Agreement shall remain in force according
to
their terms. Upon the death of an individual guarantor, the estate of such
guarantor shall be bound by this Guarantee, but only for obligations hereunder
existing at the time of death; the obligations of the other guarantors shall
continue in full force and effect.
Unless
specifically stated otherwise, the terms used in this Guarantee shall have
the
same meaning as in the Agreement, and shall be interpreted and construed in
accordance with Section 8 of the Agreement. This Guarantee shall be interpreted
and construed under the laws of the Commonwealth of Virginia. In the event
of
any conflict of law, the laws of Virginia shall prevail (without regard to,
and
without giving effect to, the application of Virginia conflict of law rules).
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, each of the undersigned has signed this Guarantee as of the
date of the Agreement.
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GUARANTOR(S)
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(Seal)
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, Individually
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Name:
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Address:
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(Seal)
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, Individually
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Name:
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Address:
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(Seal)
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, Individually
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Name:
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Address:
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(Seal)
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, Individually
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Name:
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Address:
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GEEKS
ON CALL AMERICA, INC.
AREA
DEVELOPMENT AGREEMENT
EXHIBIT
C
FRANCHISE
AGREEMENT
The
form
of Franchise Agreement currently offered by Franchisor is attached.
AREA
DEVELOPMENT AGREEMENT
STATE
SPECIFIC AMENDMENTS
AMENDMENT
TO GEEKS ON CALL AMERICA, INC.
AREA
DEVELOPMENT AGREEMENT
FOR
THE STATE OF CALIFORNIA
The
Geeks
On Call America, Inc. Area Development Agreement between ____________________
(“Area Developer” or “You”) and Geeks On Call America, Inc. (“Franchisor”) dated
________________ (the “Agreement”) shall be amended by the addition of the
following language, which shall be considered an integral part of the Agreement
(the “Amendment”):
CALIFORNIA
LAW MODIFICATIONS
1. The
California Department of Corporations requires that certain provisions contained
in franchise documents be amended to be consistent with California law,
including the California Franchise Investment Law, CAL. CORPORATIONS CODE
Section 31000 et seq.,
and
the California Franchise Relations Act, CAL. BUS. & PROF. CODE Section
20000 et seq.
To the
extent that the Agreement contains provisions that are inconsistent with the
following, such provisions are hereby amended:
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a.
|
California
Business and Professions Code Sections 20000 through 20043 provide
rights
to You concerning nonrenewal and termination of the Agreement. The
Federal
Bankruptcy Code also provides rights to You concerning termination
of the
Agreement upon certain bankruptcy-related events. To the extent the
Agreement contains a provision that is inconsistent with these laws,
these
laws shall control.
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b.
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If
the Area Developer is required in the Agreement to execute a release
of
claims, such release shall exclude claims arising under the California
Franchise Investment Law and the California Franchise Relations
Act.
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c.
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If
the Agreement requires payment of liquidated damages that is inconsistent
with California Civil Code Section 1671, the liquidated damage clause
may
be unenforceable.
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d.
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If
the Agreement contains a covenant not to compete which extends beyond
the
expiration or termination of the Agreement, the covenant may be
unenforceable under California law.
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e.
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If
the Agreement requires litigation, arbitration or mediation to be
conducted in a forum other than the State of California, the requirement
may be unenforceable under California
law.
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f.
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If
the Agreement requires that it be governed by a state’s law, other than
the State of California, such requirement may be
unenforceable.
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2. Each
provision of this Amendment shall be effective only to the extent that the
jurisdictional requirements of the California law applicable to the provisions
are met independent of this Amendment. This Amendment shall have no force or
effect if such jurisdictional requirements are not met.
3. As
to any
state law described in this Amendment that declares void or unenforceable any
provision contained in the Agreement, the Franchisor reserves the right to
challenge the enforceability of the state law by, among other things, bringing
an appropriate legal action or by raising the claim in a legal action or
arbitration that you have initiated.
Page
1
IN
WITNESS WHEREOF,
the
parties hereto have duly executed and delivered this Amendment to the Area
Development Agreement on the same day that the Area Development Agreement was
executed.
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GEEKS
ON CALL AMERICA, INC.
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||||
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FRANCHISOR:
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AREA
DEVELOPER:
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Notices
to Franchisor:
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By:
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Geeks
On Call America, Inc.
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▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Name:
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▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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Title:
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Notices
to Area Developer:
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Attention:
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Fax:
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Page
2
AMENDMENT
TO GEEKS ON CALL AMERICA, INC.
AREA
DEVELOPMENT AGREEMENT
FOR
THE STATE OF ILLINOIS
The
Geeks
On Call America, Inc. Area Development Agreement between
________________________ (“Area Developer” or “You”) and Geeks On Call America,
Inc. (“Franchisor”) dated ________________ (the “Agreement”) shall be amended by
the addition of the following language, which shall be considered an integral
part of the Agreement (the “Amendment”):
ILLINOIS
LAW MODIFICATIONS
1. The
Illinois Attorney General’s Office requires that certain provisions contained in
franchise documents be amended to be consistent with Illinois law, including
the
Franchise Disclosure Act of 1987, 815 ILCS 705/1-44 (1994). To the extent that
this Agreement contains provisions that are inconsistent with the following,
such provisions are hereby amended:
a. 815
ILCS
705/19 and 705/20 provide rights to You concerning nonrenewal and termination
of
this Agreement. If this Agreement contains a provision that is inconsistent
with
the Act, the Act shall control.
b. If
the
Area Developer is required in this Agreement to execute a release of claims
or
to acknowledge facts that would negate or remove from judicial review any
statement, misrepresentation or action that would violate the Act, or a rule
of
order under the Act, such release shall exclude claims arising under the
Illinois Franchise Disclosure Act, and such acknowledgments shall be void with
respect to claims under the Act and are hereby deleted.
c. If
this
Agreement requires litigation to be conducted in a forum other than the State
of
Illinois, the requirement is void under the Illinois Franchise Disclosure
Act.
d. If
this
Agreement requires that it be governed by a state’s law, other than the State of
Illinois, Illinois law will control.
e. Any
condition, stipulation or provision purporting to bind any person acquiring
any
franchise to waive compliance with any provision of the Illinois Franchise
Disclosure Act or any other law of the State of Illinois is void.
2. Each
provision of this Amendment shall be effective only to the extent that the
jurisdictional requirements of the Illinois Franchise Disclosure Act, with
respect to each such provision, are met independent of this Amendment. This
Amendment shall have no force or effect if such jurisdictional requirements
are
not met.
3. As
to any
state law described in this Amendment that declares void or unenforceable any
provision contained in the Agreement, the Franchisor reserves the right to
challenge the enforceability of the state law by, among other things, bringing
an appropriate legal action or by raising the claim in a legal action or
arbitration that you have initiated.
Page
1
IN
WITNESS WHEREOF,
the
parties hereto have duly executed and delivered this Amendment to the Area
Development Agreement on the same day that the Area Development Agreement was
executed.
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GEEKS
ON CALL AMERICA, INC.
|
||||
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FRANCHISOR:
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AREA
DEVELOPER:
|
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By:
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By:
|
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Name:
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Name:
|
|||
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Title:
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Title:
|
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Notices
to Franchisor:
|
By:
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Geeks
On Call America, Inc.
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||||
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▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Name:
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▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||||
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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Title:
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Notices
to Area Developer:
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Attention:
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Fax:
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Page
2
AMENDMENT
TO GEEKS ON CALL AMERICA, INC.
AREA
DEVELOPMENT AGREEMENT
FOR
THE STATE OF MARYLAND
The
Geeks
On Call America, Inc. Area Development Agreement between ____________________
(“Area Developer” or “You”) and Geeks On Call America, Inc. (“Franchisor”) dated
________________ (the “Agreement””) shall be amended by the addition of the
following language, which shall be considered an integral part of the Agreement
(the “Amendment”):
MARYLAND
LAW MODIFICATIONS
1. The
Maryland Securities Division requires that certain provisions contained in
franchise documents be amended to be consistent with Maryland law, including
the
Maryland Franchise Registration and Disclosure Law, Md. Code ▇▇▇., Bus. Reg.
‘‘
14-201 -
14-233 (1998 Repl. Vol. & Supp. 2002). To the extent that this Agreement
contains provisions that are inconsistent with the following, such provisions
are hereby amended:
|
a.
|
The
Area Developer is required in this Agreement to execute a release
of
claims or to acknowledge facts that would negate or remove from judicial
review any statement, misrepresentation or action that would violate
the
Act, or a rule or order under the Act. Such release shall exclude
claims
arising under the Maryland Franchise Registration and Disclosure
Law, and
such acknowledgments shall be void with respect to claims under the
Law.
|
|
b.
|
This
Agreement requires litigation to be conducted in a forum other than
the
State of Maryland. Such requirement shall not be interpreted to limit
any
rights Area Developer may have under Sec. 14-216 (c)(25) of the Maryland
Franchise Registration and Disclosure Law to bring suit in the state
of
Maryland.
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c.
|
Pursuant
to COMAR 02.02.08.16L, the general release required as a condition
of
renewal, sale and/or assignment/transfer shall not apply to any liability
under the Maryland Franchise Registration and Disclosure
Law.
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d.
|
This
Agreement is hereby amended to reflect that any claims arising under
the
Maryland Franchise Registration and Disclosure Law must be brought
within
3 years after the grant of the
franchise.
|
|
e.
|
Section
14-226 of the Maryland Franchise Registration and Disclosure Law
prohibits
a franchisor from requiring a prospective franchisee or area developer
to
assent to any release, estoppel or waiver of liability as a condition
of
purchasing a franchise. This Agreement requires prospective Area
Developers to disclaim the occurrence and/or acknowledge the
non-occurrence of acts that would constitute a violation of the Maryland
Franchise Law. Such representations are not intended to nor shall
they act
as a release, estoppel or waiver of any liability incurred under
the
Maryland Franchise Registration and Disclosure Law resulting from
the
offer or sale of the franchise.
|
2. Section
2
of the Agreement is deleted in its entirety and replaced with the
following:
2. DEVELOPMENT
FEE
2.1 In
consideration of the development rights granted herein, Area Developer shall
pay
to Franchisor upon completion of Franchisor’s material
pre-opening
obligations and when Area Developer is ready to commence operations of its
first
Franchised Business, a development fee of__________________ Dollars
($______________), which shall be deemed fully earned and non-refundable upon
receipt in consideration of administrative and other expenses incurred by
Franchisor and for the development opportunities lost or deferred as a result
of
the rights granted Area Developer herein.
Page
1
2.2 Area
Developer shall pay Franchisor an initial franchise fee for the first Franchised
Business to be opened upon completion of Franchisor’s material
pre-opening
obligations and when Area Developer is ready to commence operations of its
first
Franchised Business. Thereafter, Area Developer shall pay Franchisor the
Franchise Fee for each additional Franchised Business upon execution of the
Franchise Agreement for such Franchised Business, pursuant to and in accordance
with this Agreement and each such Franchise Agreement.
3. Each
provision of this Amendment shall be effective only to the extent that the
jurisdictional requirements of the Maryland Franchise Registration and
Disclosure Law, with respect to each such provision, are met independent of
this
Amendment. This Amendment shall have no force or effect if such jurisdictional
requirements are not met.
3. As
to any
state law described in this Amendment that declares void or unenforceable any
provision contained in the Agreement, the Franchisor reserves the right to
challenge the enforceability of the state law by, among other things, bringing
an appropriate legal action or by raising the claim in a legal action or
arbitration that you have initiated.
IN
WITNESS WHEREOF,
the
parties hereto have duly executed and delivered this Amendment to the Area
Development Agreement on the same day that the Area Development Agreement was
executed.
|
GEEKS
ON CALL AMERICA, INC.
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||||
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FRANCHISOR:
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AREA
DEVELOPER:
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By:
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By:
|
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|
Name:
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Name:
|
|||
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Title:
|
Title:
|
|||
|
Notices
to Franchisor:
|
By:
|
|||
|
Geeks
On Call America, Inc.
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||||
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Name:
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|||
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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||||
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Title:
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|||
Notices
to Area Developer:
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Attention:
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Fax:
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Page
2
AMENDMENT
TO GEEKS ON CALL AMERICA, INC.
AREA
DEVELOPMENT AGREEMENT
FOR
THE STATE OF MINNESOTA
The
Geeks
On Call America, Inc. Area Development Agreement between ____________________
(“Area Developer” or “You”) and Geeks On Call America, Inc. (“Franchisor”) dated
________________ (the “Agreement””) shall be amended by the addition of the
following language, which shall be considered an integral part of the Agreement
(the “Amendment”):
MINNESOTA
LAW MODIFICATIONS
1. The
general release requirements under Section 14 of the Agreement are not
applicable to Minnesota area developers.
2. Section
16.1 is amended with the addition of the following sentence at the end of the
paragraph:
|
Notwithstanding
the foregoing, nothing in this Agreement shall abrogate or reduce
any of
your rights as provided for in Minnesota Statutes, Chapter 80C or
your
rights to any procedure, forum or remedies provided for by the laws
of the
jurisdiction.
|
3. Section
16.2 is deleted in its entirety and replaced with the following:
|
|
b.
Jurisdiction
and Venue.
In
any suit brought by Franchisor, which in any way relates to or
arises out
of this Agreement, or any of the dealings of the parties hereto,
Area
Developer consent to venue and personal jurisdiction in the state
courts
and/or the United States District Court located in St. ▇▇▇▇, Minnesota.
In
any suit brought against Franchisor, including our present and
former
employees and agents, which in any way relates to or arises out
of this
Agreement, or any of the dealings of the parties hereto, venue
will be
proper only in the above-named federal court, or if neither federal
subject matter or diversity jurisdiction exists, in the city or
county
state court located in St. ▇▇▇▇,
Minnesota.
|
4. Section
16.3 is deleted in its entirety.
5. Each
provision of this Amendment shall be effective only to the extent that the
jurisdictional requirements of the Minnesota Statutes Chapter 80C, with respect
to each such provision, are met independent of this Amendment. This Amendment
shall have no force or effect if such jurisdictional requirements are not
met.
6. As
to any
state law described in this Amendment that declares void or unenforceable any
provision contained in the Agreement, the Franchisor reserves the right to
challenge the enforceability of the state law by, among other things, bringing
an appropriate legal action or by raising the claim in a legal action or
arbitration that you have initiated.
Page
1
IN
WITNESS WHEREOF,
the
parties hereto have duly executed and delivered this Amendment to the Area
Development Agreement on the same day that the Area Development Agreement was
executed.
|
GEEKS
ON CALL AMERICA, INC.
|
||||
|
FRANCHISOR:
|
AREA
DEVELOPER:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Notices
to Franchisor:
|
By:
|
|||
|
Geeks
On Call America, Inc.
|
||||
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
Name:
|
|||
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||||
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Title:
|
|||
Notices
to Area Developer:
|
Attention:
|
|
|
Fax:
|
|
Page
2
AMENDMENT
TO GEEKS ON CALL AMERICA, INC.
DEVELOPMENT
AGREEMENT
FOR
THE STATE OF NEW YORK
The
Geeks
On Call America, Inc. Area Development Agreement between ____________________
(“Area Developer” or “You”) and Geeks On Call America, Inc. (“Franchisor”) dated
________________ (the “Agreement””) shall be amended by the addition of the
following language, which shall be considered an integral part of the Agreement
(the “Amendment”):
NEW
YORK LAW MODIFICATIONS
1. The
New
York Department of Law requires that certain provisions contained in franchise
documents be amended to be consistent with New York law, including the General
Business Law, Article 33, Sections 680 through 695 (1989). To the extent that
the Agreement contains provisions that are inconsistent with the following,
such
provisions are hereby amended:
|
a.
|
If
the Agreement requires Area Developer to execute a release of claims
or to
acknowledge facts that would negate or remove from judicial review
any
statement, misrepresentation or action that would violate the General
Business Law, or any regulation, rule or order under the Law, such
release
shall exclude claims arising under the New York General Business
Law,
Article 33, Section 680 through 695 and the regulations promulgated
thereunder, and such acknowledgments shall be void. It is the intent
of
this provision that non-waiver provisions of Sections 687.4 and 687.5
of
the General Business Law be
satisfied.
|
|
b.
|
If
the Agreement requires that it be governed by a state's law, other
than
the State of New York, the choice of law provision shall not be considered
to waive any rights conferred upon the Area Developer under the New
York
General Business Law, Article 33, Sections 680 through
695.
|
2. Each
provision of this Amendment shall be effective only to the extent that the
jurisdictional requirements of the New York General Business Law, with respect
to each such provision, are met independent of this Amendment. This Amendment
shall have no force or effect if such jurisdictional requirements are not
met.
3. As
to any
state law described in this Amendment that declares void or unenforceable any
provision contained in the Agreement, the Franchisor reserves the right to
challenge the enforceability of the state law by, among other things, bringing
an appropriate legal action or by raising the claim in a legal action or
arbitration that you have initiated.
Page
1
IN
WITNESS WHEREOF,
the
parties hereto have duly executed and delivered this Amendment to the Area
Development Agreement on the same day that the Area Development Agreement was
executed.
|
GEEKS
ON CALL AMERICA, INC.
|
||||
|
FRANCHISOR:
|
AREA
DEVELOPER:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Notices
to Franchisor:
|
By:
|
|||
|
Geeks
On Call America, Inc.
|
||||
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
Name:
|
|||
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||||
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Title:
|
|||
Notices
to Area Developer:
|
Attention:
|
|
|
Fax:
|
|
Page
2
AMENDMENT
TO GEEKS ON CALL AMERICA, INC.
AREA
DEVELOPMENT AGREEMENT
FOR
THE STATE OF NORTH DAKOTA
The
Geeks
On Call America, Inc. Area Development Agreement between ____________________
(“Area Developer” or “You”) and Geeks On Call America, Inc. (“Franchisor”) dated
________________ (the “Agreement””) shall be amended by the addition of the
following language, which shall be considered an integral part of the Agreement
(the “Amendment”):
NORTH
DAKOTA LAW MODIFICATIONS
1. To
the
extent that any provision of Section 9 or Section 10 of the Agreement is
contrary to Section 9-08-06 of the North Dakota Century Code, such provision
may
be limited or invalid under that statute. The general release requirements
under
Section 14 of the Agreement are not applicable to North Dakota area developers.
2. Section
16.1 is amended with the addition of the following sentence at the end of the
paragraph:
|
Notwithstanding
the foregoing, nothing in this Agreement shall abrogate or reduce
any of
your rights as provided for in North Dakota Century Code Sections
51-19-01
et seq., or your rights to any procedure, forum or remedies provided
for
by the laws of North Dakota.
|
3. Section
16.2 is deleted in its entirety and replaced with the following:
|
|
b.
Jurisdiction and Venue. In any suit brought by Franchisor,
which
in any way relates to or arises out of this Agreement, or any of
the
dealings of the parties hereto, Area Developer consent to venue
and
personal jurisdiction in the state courts and/or the United States
District Court located in Bismarck, North Dakota. In any suit brought
against Franchisor, including our present and former employees
and agents,
which in any way relates to or arises out of this Agreement, or
any of the
dealings of the parties hereto, venue will be proper only in the
above-named federal court, or if neither federal subject matter
or
diversity jurisdiction exists, in the city or county state court
located
in Bismarck, North Dakota.
|
4. Sections
16.3 and 16.5 are deleted in its entirety. The last sentence of Section 8.8
is
deleted in its entirety and replaced with the following:
Area
Developer agrees to pay all costs and expenses (including reasonable attorneys’
fees) incurred by Franchisor in connection with the enforcement of this Section
7, and any of Franchisor’s other rights under this Agreement.
5. Each
provision of this Amendment shall be effective only to the extent that the
jurisdictional requirements of the North
Dakota Century Code Sections 51-19-01 et seq., with
respect to each such provision, are met independent of this Amendment. This
Amendment shall have no force or effect if such jurisdictional requirements
are
not met.
6. As
to any
state law described in this Amendment that declares void or unenforceable any
provision contained in the Agreement, the Franchisor reserves the right to
challenge the enforceability of the state law by, among other things, bringing
an appropriate legal action or by raising the claim in a legal action or
arbitration that you have initiated.
Page
1
IN
WITNESS WHEREOF,
the
parties hereto have duly executed and delivered this Amendment to the Area
Development Agreement on the same day that the Area Development Agreement was
executed.
|
GEEKS
ON CALL AMERICA, INC.
|
||||
|
FRANCHISOR:
|
AREA
DEVELOPER:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Notices
to Franchisor:
|
By:
|
|||
|
Geeks
On Call America, Inc.
|
||||
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
Name:
|
|||
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||||
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Title:
|
|||
Notices
to Area Developer:
|
Attention:
|
|
|
Fax:
|
|
Page
2
AMENDMENT
TO GEEKS ON CALL AMERICA, INC.
DEVELOPMENT
AGREEMENT
FOR
THE STATE OF WASHINGTON
The
Geeks
On Call America, Inc. Area Development Agreement between ____________________
(“Area Developer” or “You”) and Geeks On Call America, Inc. (“Franchisor”) dated
________________ (the “Agreement””) shall be amended by the addition of the
following language, which shall be considered an integral part of the Agreement
(the “Amendment”):
WASHINGTON
LAW MODIFICATIONS
1. The
Director of the Washington Department of Financial Institutions requires that
certain provisions contained in franchise documents be amended to be consistent
with Washington law, including the Washington Franchise Investment Protection
Act, WA Rev. Code §§ 19.100.010 to 19.100.940 (1991). To the extent that the
Agreement contains provisions that are inconsistent with the following, such
provisions are hereby amended:
|
a.
|
Washington
Franchise Investment Protection Act provides rights to You concerning
termination of the Agreement. If the Agreement contains a provision
that
is inconsistent with the Act, the Act will
control.
|
|
b.
|
If
the Area Developer is required in the Agreement to execute a release
of
claims, such release shall exclude claims arising under the Washington
Franchise Investment Protection Act; except when the release is executed
under a negotiated settlement after the Agreement is in effect and
where
the parties are represented by independent counsel. If there are
provisions in the Agreement that unreasonably restrict or limit the
statute of limitations period for claims brought under the Act, or
other
rights or remedies under the Act, those provisions may be
unenforceable.
|
|
c.
|
If
the Agreement requires litigation, arbitration or mediation to be
conducted in a forum other than the State of Washington, the requirement
may be unenforceable under Washington law. Arbitration involving
a
franchise purchased in the State of Washington must either be held
in the
State of Washington or in a place mutually agreed upon at the time
of the
arbitration, or as determined by the arbitrator.
|
|
d.
|
If
the Agreement requires that it be governed by a state's law, other
than
the State of Washington, and there is a conflict between the law
and the
Washington Franchise Investment Protection Act, the Washington Franchise
Investment Protection Act will
control.
|
2. Each
provision of this Amendment shall be effective only to the extent that the
jurisdictional requirements of the Washington law applicable to the provision
are met independent of this Amendment. This Amendment shall have no force or
effect if such jurisdictional requirements are not met.
3. As
to any
state law described in this Amendment that declares void or unenforceable any
provision contained in the Agreement, the Franchisor reserves the right to
challenge the enforceability of the state law by, among other things, bringing
an appropriate legal action or by raising the claim in a legal action or
arbitration that you have initiated.
IN
WITNESS WHEREOF,
the
parties hereto have duly executed and delivered this Amendment to the Area
Development Agreement on the same day that the Area Development Agreement was
executed.
|
GEEKS
ON CALL AMERICA, INC.
|
||||
|
FRANCHISOR:
|
AREA
DEVELOPER:
|
|||
|
By:
|
By:
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Notices
to Franchisor:
|
By:
|
|||
|
Geeks
On Call America, Inc.
|
||||
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
Name:
|
|||
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||||
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Title:
|
|||
Notices
to Area Developer:
|
Attention:
|
|
|
Fax:
|
|