THIS AGREEMENT is made and executed at ....................(Name of Place)on this ........day of ................ 20….
............................................................, a Company duly incorporated under the provisions of Companies Act, 1956 having its Registered Office at ............................................................................ ......, presently having ...................................................................................... as its Directors (hereinafter called “THE FRANCHISOR”) of the ONE PART
(2) ........................ .......................... and
(3) .......................................... having their office at ...., ...................................................................................., (hereinafter called “THE FRANCHISEE” ) of the Other Part;
WHEREAS the Franchisor is engaged in the business of Holistic Medicines, Promotive, Preventive, Curatives and Rehabilitative with research, education and deliver it through health care centres, diagnostic units, counseling, dispensaries, hospitals, evaluations, analysis, propagation, diffusion of knowledge, meditation and yoga in chronic, debilitating, disease e.g. AIDS, D. M. H.T. CAD, Cancer, Drug Addiction, Stress etc. and has been running various medical centres in connection therewith.
AND WHEREAS Franchisor is operating the aforesaid business in accordance with certain distinctive system, plan, utilizing and comprising certain proprietary marks, confidential information, standards specifications, techniques, identifying schemes and materials, insignia, arrangement, method and standard operational procedures and the Franchisor has represented of having expended substantial time, efforts and money in the development and implementation of the same.
AND WHEREAS Franchisor claims to have acquired expertise, vide experience, established substantial reputation and goodwill in the aforesaid business.
AND WHEREAS Franchisee having required desirous of having the Franchise in respect of the aforesaid activities in their premises.
AND WHEREAS the Franchisor were looking for appropriate persons for the expanding their activities.
AND WHEREAS the Franchisee have had discussions with the Franchisor and has ultimately agreed to inter alia, by making use of the furniture, fixtures, cabins and other paraphernalia including computers and its accessories belonging to the Franchisee from the ownership premises of the Franchisee at ....................................................................................... (hereinafter referred to as the “said Premises”) and the Franchisor has agreed to the same, upon the terms and conditions set out herein below:
NOW THIS AGREEMENT WITNESSETH as follows:-
In this Agreement the following expressions shall have the following meanings unless the context otherwise requires:
“BUSINESS” means the franchise business/profession of providing different types/methods of medical treatments and providing services in relation thereto but solely and absolutely at the costs, risks and consequences of the Franchisor.
“EXPIRY DATE” means date of expiry of the initial term of .... months granted and as set out in the clause .. below.
“FRANCHISE” - means sole and exclusive right to permit operation and providing of services by Medical Centre from the said premises.
“PRODUCTS” means all products supplied or made available by the Franchisor for effectively carrying on Franchise business from the said premises.
“SYSTEM” means the proprietory software system/distinctive business format and method developed and/or implemented by the Franchisor in connection with the operation of the Business of Medical Centre, utilizing and comprising the Proprietory Mark, and certain standard operational procedures, plans, discretions, specifications, methods, management and advertising techniques and identification schemes either developed by the Francisor itself or having obtained license from any other person or party in connection therewith.
“SERVICES” means business/activities relating to providing of different types/methods of medical treatments and providing services in relation thereto.
APPOINTMENT AND GRANT OF LICENCE.
The Franchisee hereby grants licence to the Franchisor and the Franchisor hereby accepts such licence to operate the Franchiese business in the said premises in the manner mentioned herein & under supervision & control of the Franchisee.
The Franchisee shall place or permit to be placed on the said premises a sign board which would indicate clearly the name of the Franchisor and/or it’s branch name, trade mark so as to enable general Public to know that the business carried on from the said premises is of the said Franchisor but on Franchise basis with the Franchisee and shall also permit all letterheads, bills, invoices and all other documents and literature used in connection with the Franchise Business to be printed and used but the Franchisor shall eminently show on sign board as well as such stationary the name of the Franchisee to indicate the said business is carried on under Franchise arrangement with the Franchisee. The Franchisor and the Franchisee admit, confirm and declare that the design of sign board and the stationary to be used in connection with the business of Medical Centre from the said premises shall be as per Annexure - “1” and “2” hereto.
COMMENCEMENT AND TERMS
This Agreement shall be deemed to have commenced from ....................2009 or at the end of the period of three months from the date hereof i.e. from .............. day of ........................ 2009 and may continue to remain in force for a period of 35 months only, unless and until determined in accordance with the terms hereof.
OBLIGATIONS OF FRANCHISOR
In connection with the commencement of the Medical Centre from the said premises under the auspicious of the Franchisee, the Franchisor agrees and undertakes the following:
To provide to the Franchisee and at the said premises, necessary guidance, which the Franchisee admits of having received and implemented by making use of the already available furniture, Fixtures, 5 air conditioners, cabins, computers and it’s accessories lying in the said premises by giving the same a facelift and re-aligning the same for providing appropriate and suitable furniture, fixtures etc., in the said premises including Receptionist table, two cabins for the Doctors, sittings for visitors, Punchakarma i.e. Steam and Herbal table and also massage table, changing room bathroom and hall for mediation as well as providing for other furniture of the said premises, which would be convenient and suitable for having the business of Medical Centre therein.
To provide at the said premises at their own costs, risks and consequences personnel to render services of medical treatment and other services incidental and consequential thereto including the Doctors etc., and to comply with the provisions of all relevant rules, regulations, laws including payment of salaries, wages, bonus, ex-gratia, contribution to Provident Fund, ESIC, Professional Tax, gratuity, compensation of any nature whatsoever etc., as may be applicable and payable pursuant to the provisions of law, rules and regulations of any Public body, Government, State of Central.
To undertake such marketing, publicity and advertising activities prior to the commencement of the Business and to continue with the same all throughout during the subsistence of this Agreement and/or renewal thereof, as the Franchisor shall consider necessary for promoting the Medical Center/Franchise business from the said Premises.
To provide such assistance as the Franchisor shall deem appropriate in connection with the Medical Center and Franchise business to be conducted from the said premises including on-site supervision, consultation and advice concerning pre-opening and lauch activities.
To supply and arrange for at the said premises at the commencement of the Franchise Business with the equipment/consumables and other materials as may be required for the Franchise business, and successful as well effective running of Medical Center from the said premises, without any obligation on the part of the franchisee to pay and/or account for the same.
OBLIGATIONS TO FRANCHISOR
The Franchisor agrees at all times during the continuance of this Agreement:
To obtained from all concerned authorities, licences, permits, registrations etc., in connection with, inter alia, excise duty, drugs, sale tax, municipal disposable licence for disposable, service tax, professional tax, provident fund, Employees State Insurance, Shop & Establishment and all other Municipal or other licences etc., in connection with the Franchise business at their sole costs, risks, responsibilities and consequences in their own name and with no right of reimbursement in connection therewith from the Franchisee.
To provide the Personnel, employees, servants, Doctors, Accountants, Clerks, Nurses etc., to be employed by the Franchisor at their own costs and consequences with no right of reimbursement whatsoever from the Franchisee, for rendering services at the said premises with advice, knowledge and guidance relating to the management, finance, promotion and methods of operation to be employed in connection with the System and to provide reasonable facilities for consultations with the Franchisee in connection with any problems relating to the system from time to time arising with a view to assisting and enlarging the business of the said Medical Center of the said premises.
To ensure the compliance of all laws including the laws relating to employment with respect to their employees and pay their salaries, wages, bonus, provident fund, professional tax, service tax and statutory or other dues from time to time.
To ensure and pay all moneys due to the Franchisee as agreed and provided herein.
OBLIGATIONS OF FRANCHISEE:
The Franchisee agrees as follows:
Upon the execution of this Agreement and prior to the commencement of the Business or thereafter any time during the subsistence hereof, permit the Franchisor to obtain license, permits, registration, etc., as may be necessary under the provisions of any existing law, rules, regulations, and which the Franchisor is obliged as provided in Clause 6.1 above, and also incidental and consequential thereto but in the name of the Franchisor of the sole risks, costs and consequences of the Franchisor with no obligation whatsoever to reimburse the Franchisor in connection therewith and/or incidental and/or consequential thereto and in connection therewith to subscribe signatures, granting consent and/or it’s no objections, as may be required by the Franchisor.
To comply with all advice and instructions given by the Franchisor, provided the same are in consonance with whatever is provided herein.
To ensure that the rent in connection with the said premises are paid regularly and no deliberate Act or omission takes place on the part of the Franchises so as to endanger the tenancy, and/or occupation rights of the Franchisee in connection with the said premises during the subsistence hereof.
To ensure and make it convenient to open the said premises on every day without any delay but not in any manner so as to constitute any irregularity of the provisions of any laws including the Shop and Establishment Act in the rules and regulations framed thereunder.
To use only such letterheads, invoices, signs, display materials, promotional literature, equipment and other items in connection with the Franchise Business, as shall be approved in writing and to desist from the use of display of any signs, materials or objects at the said premises, save and except that of the Franchisor and the Franchisee itself.
Diligently to endeavour to promote and increase the Franchise Business and co-operate with the Franchisor in this regard.
To promote and preserve the goodwill and reputation of the Franchisor and not to do or omit to do any Act or commission or omission so as to adversely affect the reputation of the Franchisor amongst the cliental/patrons.
To permit the Franchisor and its representatives, employees etc., without any further authority save that hereby irrevocably given at reasonable times and upon reasonable notice to enter upon the said Premises.
To pay regularly the electricity charges and telephone bills on or before their respective due dates and to ensure that the same are not disconnected on account of default in payment in connection therewith.
The Franchisor shall provide requisite training to the Doctors, Nurses, Clerks, Receptionists, Accountants, etc., as may be deputed or employed by them for rendering services of Medical Centre at the said premises, as it is clearly understood and agreed by and between the parties that any claim for compensation, damages etc., made or any liability arising on account of any negligence, default or lapse in providing service at the said Medical Centre shall be to the Account of the Franchisor and the Franchisee shall not be liable and/or responsible in connection therewith in any manner whatsoever. The Franchisor shall indemnify and keep indemnified the Franchisee in connection therewith for all times to come.
PAYMENT ARRANGEMENT BY THE FRANCHISOR TO THE FRANCHISEE:
The Franchisor shall arrange to open an account with the Bank for the purpose of depositing the daily proceeds of the Sales reailsation and/or fees received.
The Franchisor shall make payment to the Franchisee for the period of first six months from 30/3/04 every month in advance on or before the 10th day of the current month, an amount of Rs.20,000/- (Rupees twenty thousand only) per month by way of reimbursement towards the wear and tear/depreciation of the furniture, fixtures, computers and their accessories, cabins etc., being and lying in the said premises and permitted to be used by the Franchisee to the Franchisor for the said business of the Medical Centre at the said premises, and the actual amounts payable towards reimbursement of the electricity charges, telephone charges, rental of the said premises and the insurance premium and the time and effort which the Franchisee shall devote at the said premises in connection with the said franchise business. It is specifically agreed that the said monthly payment of Rs.20,000/- per month shall be increased to Rs.50,000/- (Rupees fifty thousand only) for the next ............ months and there will be addition of Rs.1,000/- per month on expiry of the said further period of ............ months. Thus on expiry of ..............months from the date hereof, the monthly payment shall be Rs.50,000/-(Rupees fifty thousand only). It is expressly agreed by and between the parties hereto that the Franchisee save and except as stated herein shall not be entitled to any share in the profit out of the business of the Medical Centre to be carried on from the said premises. Provided further that the Franchisee shall be entitled to 20% of gross receipts. It is made clear that is 20% of gross receipt is less than the minimum payment of the Franchisor shall make the same good to the Franchise forthwith. However there will be no deduction in case the said 20% of gross receipt is less then the minimum. Similarly the Franchisee shall not be liable and/or responsible any loss suffered in the said business. The profit and loss shall be solely to the account of the Franchisor and it will be the Franchisor, who shall be entitled to enjoy the profit and/or bear the burden of the loss sustained, to the exclusion of the Franchisee.
For the purpose of ensuring the gross receipt it is agreed that the nominee of the franchisee will receive the payment to be made in respect of Franchiser’s business.
In the event of any default by the Franchisor in making payment of the monthly amounts referred to above, on their respective due date and such payment remaining outstanding for a period of 15 days, the Franchisee shall be entitled to terminate this Franchisee Agreement and prevent the Franchisor and its servants, agents, representatives etc., from entering into the said premises.
Provided further that till the Franchiser remove themselves from the premises of the Frenchisee the Franchisor will be liable to pay double the minimum payments till the premises are cleared.
The Franchisee shall obtain insurance cover in respect of the said premises and all other furniture, fixtures and other paraphernalia of said Medical Centre in the said premises.
The Franchisor ……………………………. at the said premises and the actual amounts payable towards reimbursement of the electricity charges, telephone charges, rental of the said premises and the insurance premium and the time and effort which the Franchisee shall devote at the said premises in connection with the said …………………. Provided further that the franchisee shall be entitled to ....% of gross receipts. It is made clear that if ....% of gross receipt is more than the minimum payment the Franchisor shall make the same good to the Franchisee forthwith. However there will be no deduction in case the said ....% of gross receipt is less than the minimum. Similarly the Franchisee ………
For the purpose of ensuring the gross receipt it is agreed that the nominee of the Franchisee will receive the payment to be made in respect of Franchisers business.
Provided further that till the Franchiser remove themselves from the premises of the Franchisee, the Franchiser will be liable to pay double the minimum payments till the premises are cleared.
EFFECT OF TERMINATION
The Franchisor shall at the end of the agreed period and/or termination of this agreement for any reason whatsoever remove themselves from the said premises alongwith their belongings.
It is clearly agreed and understood that the Franchisee has not created any right, title and/or interest in favour of the franchisor or any of its directors, agents, servants, employees in connection with the said premises or any part or portion thereof.
The Franchisor shall not be entitled to and the Franchisee shall be under no obligation to make any addition and/or alteration of any nature in the said premises and the Franchisor covenants with the Franchisee that without obtaining permission in writing of the Franchisee, they shall not make any addition or alteration of any nature whatsoever or any structural addition or alteration in the said premises.
The Franchisee acknowledges that goodwill and the rights in the trade marks if any, vest in the Franchisor and should the Franchisee acquire any right, goodwill as a result of use of the said trade marks either in accordance with this agreement, or otherwise howsoever, the Franchisee shall assign such rights to the Franchisor who are the Proprietors/owners of the trade marks, without any payment but at the costs of the Franchisor upon the expiration or termination of this Agreement.
The Franchisee undertakes to treat all the information arising out of or in the course of this Agreement and also information contained in the Franchise System or activity relating to the Business or any variation or amendment thereof notified by the Franchisor from time to time (hereinafter referred to as confidential information) and shall not disclose to any person.
The Franchisee further undertakes that the Franchisee shall not use the confidential information for any purpose other than the purpose for which this Agreement has been entered into and take all reasonable precaution/efforts to put stop to misuse of the information.
SALE OF BUSINESS
The Franchisee shall have no right to transfer the franchise without the Franchisor’s consent.
Neither the Franchisee nor the individuals (either a sole proprietor/partner/associate) shall during the subsistence of this Agreement.:
Carry on any business competing with that of the Francise business.
Use or disclose Confidential information for any purpose other than the purpose set out in this Agreement.
In the event of any partner of the Franchisee or the Franchisor itself becoming Insolvent, this Agreement shall stand determined/terminated. However the death or insanity of any one partner of the Franchisee shall not have the effect of terminating this Agreement.
If any of the Directors of the Franchisor are adjudicated insolvent, or become insane or more found guilty of moral turpitude or any two of the present Directors of the Franchisor, resign or for any reason cease to be the Director or the Franchisor is ordered to be wound up, this Agreement shall stand terminated without any further reference or recourse.
If the Franchisor commits any breach in payment of the monthly amounts provided herein or commits any incurable breach of a material provision of this Agreement, this Agreement shall stand terminated without any further reference or recourse.
If the Franchisor fails to remedy a breach complained of within a specified time, this Agreement shall stand terminated without any further reference or recourse.
If the Franchisor commits repeated breach of any of the provisions of the Agreement and/or breach of any of the provisions of Municipal Law and/or law relating to conducting of Medical Centres, this Agreement shall stand terminated without any further reference or recourse. The Franchisor shall at the end of the agreed period and/or termination of this agreement for any reason whatsoever remove themselves from the said premises alongwith their belongings.
The Franchisor shall indemnify and keep indemnified the Franchisee and it’s partners for all times to come against any loss, damages, compensation, cost or expenses incurred by the Franchisee arising from any act of omission or commission, neglect or default of the Franchisor, its agents, employees, licensees or customers and any penalty, fine etc. imposed by any authority in connection with the Franchise business and/or any claim for any loss, damages or compensation made by any person in connection with the business of Medical Centre conducted at the said premises.
The Franchisee shall not be liable for any damages or claim arising in contract or any claim from the Customer/client/patient/patron or by the third party arising out of the use of the availment of service provided at the said Medical Centre or any other services provided or sale made or omission in connection therewith by the Franchisor and/or it’s agents, employees, licensees or customers in connection with the franchise business carried on from the said premises. The Franchisor agrees and undertakes to indemnify and keep indemnified the Franchisee and it’s partners in connection therewith for all times to come. Similarly the Franchisee and/or it’s partners shall not be liable or responsible in any manner in the event of any casualty or loss of life or any disability of permanent nature or otherwise caused to any person or persons on availing of services of the Medical Centre at the said premises. The Franchisor shall indemnify and keep indemnified the Franchisee and it’s partners for all times to come in connection therewith.
Nothing in this Agreement shall be construed as making the parties partners or joint ventures or render any party liable for any of the Debts or obligations of any other party. Similarly nothing in this Agreement shall be construed to mean creation of tenancy/sub-tenancy or license in favour of the Franchisor by the Franchisee in respect of or in connection with the said premises or any other right, title or interest with whatsoever description in the said premises or any part or portion thereof.
None of the parties to this Agreement shall be responsible to any other party for any delay in performance or non-performance due to Force Majeure, but the affected party shall promptly upon the occurrence of any such event, inform the other party in writing, stating that such cause has delayed or prevented it’s performance hereunder and thereafter such party shall take all action within its power to comply with the terms of this Agreement as fully, effectually and promptly as possible.
The failure of any party at any time to enforce any of the provisions of this Agreement or to exercise any right under this Agreement shall in no way affect such party’s right or constitute any waiver of such right, unless such party waives such right expressly in writing.
The headings of the clauses are inserted for convenience only and shall not affect the construction of this Agreement.
The termination of this Agreement (for whatsoever reason) shall not terminate any provision which is expressly or by implication provided to come into or continue in force after such termination and shall be without prejudice to the accrued rights and liabilities and other remedies of the parties to this Agreement.
If any clause or paragraph of this Agreement is held invalid or is otherwise rendered unenforceable, the remainder of the Agreement shall not also be invalidated or rendered unenforceable, unless in the reasonable opinion of the Franchisee, the purposed of this Agreement is frustrated as a result thereof.
No modification, alteration or waiver of any of the provisions of this Agreement shall be effective unless evidenced in writing and signed by or on behalf of the parties hereto.
Any sums payable by the Franchisor and not paid by the due date for payment shall bear interest on demand at 21% per annum from the date payment becomes due until the payment thereof.
The above referred premises belonging to Mr. Dharmendra D. Goradia and others who are Franchesees, renovation work shall be carried on by the Franchisor M/s. Medic leg India Pvt. Ltd., at their expenses from Ram Navami Tuesday the 30th March, 2009 which shall be completed within a maximum period of three months, when inauguration ceremony shall take place.
M/s. Medic leg India Pvt. Ltd., shall reimburse the actual payment as per the society’s monthly bill to the Franchisee till the opening ceremony shall take place.
Both parties have signed hereunder this Memorandum of Understanding after knowing the implication of the agreement thoroughly.
Any notice or consent required to be given to any party in connection with this Agreement shall be in writing and shall be sent by registered post with acknowledgement due at the address of such party as mentioned below:
However in the event of such party already having given intimation in writing by Registered Post with A.D. intimating and giving change of its address, then any notice or communication forwarded to such party by Registered Post with A.D. at such changed address shall be deemed to have been received by such party and the same shall be binding on such party.
Every disputes, differences or question which may at any time arise between the parties hereto or any persons claiming under them, touching orarising out of or in respect of this Memorandum of Understanding and/or any other document or documents that may be executed pursuant thereto by and between the parties hereto shall be referred to the Arbitration of one arbitrator to be appointed jointly by the parties failing which to the Arbitration of Three Arbitrators in accordance with the provisions of the Arbitration & Conciliation Act 1996 modification thereof. The rbitrator/Arbitrators shall have summary powers.
This Agreement is subject to the jurisdiction of the Courts in Bombay only.
AGREEMENT IN DUPLICATE
The Agreement is made and executed in duplicate, the original whereof shall be retained by the Franchisee and the duplicate by the Franchisor.
IN WITNESS whereof the parties hereto have hereunto set their respective hands on the day, month and the year hereinabove written.
Signed and delivered Signed and delivered
by the Board of Directors of by the Partners on behalf of
the Franchisor the Franchisee
In the presence of
1. Signature .................................... 1. Signature ................................
Name ........................................ Name......................................
Address .................................... Address ..................................
2. Signature .................................. 2. Signature ................................
Name ...................................... Name......................................
Address .................................. Address ..................................
Dated this ........ day of .................... 20…..
………..… THE FRANCHISOR
……… … THE FRANCHISEE