Terms & Conditions

(a) Offer Combo Kitchen franchises to others for any site within or outsider your Territory regardless of how close the site is to Your Territory;

(b) Develop, operate, and franchise others to operate, any business concept except a Combo Kitchen Restaurant at any place, including within the Territory, and use the Marks or any other trademarks owned, licensed, or developed by Combo Kitchen or its Affiliates in connection with those concepts, even if such concepts sell products and services similar to, the same as or competitive with, the Proprietary Services; and

(c) Merge with, acquire or be acquired by, any business of any kind under other systems and/or other marks, which business may offer, sell, operate or distribute and/or license others to offer, sell, operate and distribute goods and services through franchised or non-franchised businesses, at wholesale or retail, within and outside the Territory.

(a) You and Your Related Parties are in Good Standing under this Agreement, and any other Agreement between Combo Kitchen and You, and You and Your Related Parties are in compliance with the Manual;

(b) You shall give Combo Kitchen written notice of Your election to renew not less than six (6) months nor more than twelve (12) months prior to the end of the then-current term;

(c) You and any Related Parties that have signed this Agreement shall have signed a copy of the then-current Franchise Agreement (except with respect to the renewal provisions thereof, which shall not supersede this Section 4.5) not less than thirty (30) days before the expiration of the then-current term, or thirty (30) days after You receive a signature-ready copy of the then-current Franchise Agreement from Combo Kitchen, whichever is later;

(d) You and Your Related Parties that are parties to this Agreement shall have executed a general release, in a form satisfactory to Combo Kitchen, of any and all claims against Combo Kitchen and its Related Parties affiliates successors and assigns and their respective directors, officers, shareholders, partners, agents, representatives, servants, and employees in their corporate and individual capacities, including, without limitation, claims arising under this Agreement, any other agreement between You and Combo Kitchen or its affiliates, and federal, state, and local laws and rules;

(e) You shall have paid a Renewal Fee of 10% of the initial franchise fee paid; and

5.1.1 Permitted Use

You may use the Trade Name and Marks only in the operation of the Combo Kitchen Restaurant within the Territory in accordance with the terms and conditions of this Agreement and subject to the limitations specified by Combo Kitchen in the Manual or otherwise in writing. You shall not, under any circumstances, use the Trade Name or any of the Marks, including “Combo Kitchen,” in any manner, in the name of your corporation, limited liability company, partnership or other legal entity. You may not license any third party to use Combo Kitchen’s Trade Name and Marks. You may not use the Trade Name or Marks on the internet, in any electronic advertising or social media, including but not limited to on Facebook®, Twitter®, Instagram®, YouTube® or other similar electronic advertising or social media without our prior written consent. You may not use any other trade name or marks at the Approved Location, or in connection with the Combo Kitchen Restaurant, without the express written consent and direction of Combo Kitchen. You shall refrain from engaging in any action (or failing to take any action) that causes or could cause damage to the Marks, the System, or the goodwill associated with the Marks.

Combo Kitchen has invested substantial time, energy, and money in the promotion and protection of its Trade Name and Marks as they exist on the Effective Date. However, You and Combo Kitchen recognize that rights in intangible property such as the Trade Name and Marks are often difficult to establish and defend, and that changes in the cultural and economic environment within which the System operates or third-party challenges to Combo Kitchen rights in the Marks may make changes in the Trade Name and Marks desirable or necessary. Combo Kitchen therefore reserves the right to change its Trade Name and Marks (although it has no present intention to do so) and the specifications for each when Combo Kitchen believes that such changes will benefit the Franchise Network. Combo Kitchen will do this in a manner that minimizes cost to You. You agree that You shall promptly conform, at Your own expense, to any such changes. If we discontinue our relationship with any of the Approved Brands which are included in your Combo Kitchen, you shall promptly remove that brand and its menu offerings from your list of offerings and immediately remove all advertisements/branding (including listings with all delivery platforms) related to that Approved Brand. In this case, you will replace that with another Approved Brand without any additional Initial Franchise Fee.

5.1.2 Advertising Materials

You agree to submit to Combo Kitchen copies of all advertising materials that You propose to use at least two weeks before the first time they are broadcast or published. Combo Kitchen will review the materials within a reasonable time and will promptly notify You in writing as to whether it approves or rejects them. Combo Kitchen may not withhold its approval unreasonably. For purposes of this paragraph, advertising materials that differ from previously approved materials only in such variables as date or price will be considered to be previously approved. Even if Combo Kitchen approves specified materials, it may later withdraw its approval in its sole and absolute discretion, including, without limitation, if it reasonably believes this is necessary to make the advertising conform to changes in the System or to correct unacceptable features of the advertising, including any misrepresentation in the advertising material.

5.2 Quality Control

5.2.1 Compliance with Manual

You shall operate Your Combo Kitchen business in complete compliance with the standards and specifications, as set forth in the Manual, or otherwise in writing. Combo Kitchen may make changes to any of these standards and specifications, at any time, in Combo Kitchen’s sole and absolute discretion. Such changes may necessitate the purchase of equipment, supplies furnishings or other goods, completion of additional training by Your employees, or other cost to You. You shall promptly conform to the modified standards and specifications at Your own expense. You shall, at all times, keep Your copy of the Manual current (by, for example, inserting in it revised pages given to You by Combo Kitchen and deleting superseded pages, or downloading from Combo Kitchen’s website, the current version of the Manual upon notification of any revision to the Manual). If there is any dispute as to the requirements of the Manual at any point in time, the terms of the master copy of the Manual maintained by Combo Kitchen will control.

You shall at all times treat the Manual, any other manuals created for or approved for use in the operation of the Combo Kitchen Restaurant, and the information contained therein as confidential, and shall use all reasonable efforts to maintain such information as secret and confidential. Except for those portions of the Manual that Combo Kitchen designates, in writing, as appropriate for copying and use at the Combo Kitchen Restaurant, You shall not, at any time, copy, duplicate, record, or otherwise reproduce the foregoing materials, in whole or in part, nor otherwise make the same available to any third party without our prior written consent.

5.2.2 Required Products and Services

You must offer all of the products and services we designate for each Approved Brand you operate in your franchise. You must offer all menu items we or our Approved Brands designate for each Approved Brand you select to operate in your business. We have the right to modify these menu items from time-to-time, at our sole discretion. You may not offer or sell any other menu items, product or service without our prior written consent. You must use the proprietary and nonproprietary techniques, materials and supplies we designate in the Manual. You must provide all services (including Proprietary Services) in accordance with the standards and specifications set forth in the Manual. You must, at all times, maintain sufficient staff, materials and supplies to meet reasonably anticipated customer demand and your staff must be able to meet demands for all Approved Brands you operate in your franchise. If we discontinue our relationship with any of our Approved Brands or if we decide at our discretion not to offer an Approved Brand in our system, you agree to discontinue to offer menu items from that Approved Brands in your business and to remove all related marketing and advertising material related to that Approved Brand and to remove the Approved Brand from all food delivery platforms. We would offer you another Approved Brand to replace the Approved Brand being removed from your business at no additional cost.

5.2.3 Inspections.

In an effort to advance the protection and enhancement of the Combo Kitchen brand and the Marks, Combo Kitchen and/or its designated agents or representatives may conduct periodic quality control and records inspections of the Combo Kitchen Restaurant at any time during the Term. Inspections may be made with or without prior notice. You shall take such steps as may be necessary to correct immediately any deficiencies detected during any such inspection. If any inspection reveals that you are not in compliance with any provision of this Agreement, the Manual, or any of Combo Kitchen’s standards and/or specifications, you shall be deemed in breach of your obligations under this Agreement and Combo Kitchen shall have the right to terminate this Agreement as provided under Section 10.2 of this Agreement, if you fail to cure the breach before the expiration of all applicable notice and cure periods. You further agree that You will reimburse Combo Kitchen for its representative’s time and travel expenses if an additional inspection at the Combo Kitchen Restaurant is required when a violation has occurred and You have not corrected the violation.

5.2.4 Computer System Requirements

You shall purchase and maintain a computer and point-of-sale system, as designated by Combo Kitchen (the “POS System”), to be used in the operation of the Combo Kitchen Restaurant and for reporting purposes. You shall comply with the following provisions relating to the POS System:

(a) You shall update and upgrade the POS System as designed by Combo Kitchen. Combo Kitchen may require you to enter into a separate maintenance and/or support agreement for your POS System, at any time, at your sole cost and expense;

(b) You shall record all sales at or from the Combo Kitchen Restaurant at the time of sale, in accordance with Combo Kitchen’s procedures, on the POS System;

(c) You shall comply with such requirements determined by Combo Kitchen, from time-to-time, regarding maintenance, training, storage and safeguarding of data, records, reports, and other matters relative to the POS System; and

(d) Combo Kitchen has the right to independently access any and all information on your POS System, at any time, without first notifying you. Without limiting the generality of the foregoing, you shall, at your sole cost and expense, permit Combo Kitchen immediate access to your POS System, electronically or otherwise, at all times, without prior notice to you. Combo Kitchen shall have the right to use the information accessed on the POS System in any manner Combo Kitchen determines, including the right to use any and all such information in Combo Kitchen’s Franchise Disclosure Document, and to share financial statements, including profit and loss statements, with other System franchisees.

COMBO KITCHEN MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY MATERIALS. COMBO KITCHEN DISCLAIMS ANY AND ALL WARRANTIES RELATED TO THE COMPUTER SYSTEM, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, INTEROPERABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, OR THOSE ARISING FROM TRADE USAGE OR COURSE OF DEALING. COMBO KITCHEN DOES NOT WARRANT THAT THE COMPUTER SYSTEM WILL BE FREE FROM DEFECTS OR THAT USE OF THE COMPUTER SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE.

IN NO EVENT WILL COMBO KITCHEN BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, ANY DAMAGES ASSOCIATED WITH LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF DATA OR LOSS OF PROFITS) ARISING OUT OF OR IN ANY WAY RELATED TO THE COMPUTER SYSTEM OR ITS USE.

5.2.5 Data Security

You shall use your best efforts to protect your customers against any and all data breaches and cyber-events, including, without limitation, identity theft or theft of personal information (a “Data Security Breach”). If a Data Security Breach occurs, in the interest of protecting the goodwill associated with the Combo Kitchen brand and franchise system, Combo Kitchen hereby reserves the right to (but does not undertake the obligation to) directly or through its designee, perform or control any and all aspects of the response to such Data Security Breach, including, without limitation, the investigation, containment and resolution of the event and all communications with the franchise system, vendors and suppliers, customers, law enforcement agencies, regulatory authorities and the general public. You hereby acknowledge and agree that a Data Security Breach and/or any response to a Data Security Breach may impact operations of the Restaurant, including, without limitation, interruption in operations. You hereby acknowledge and agree that neither Combo Kitchen nor any of its parents, affiliates, subsidiaries, owners, officers, directors, or employees shall be liable to You for any damages arising out of or resulting from any Data Security Breach or any action or inaction in response to a Data Security Breach. You shall at all times be compliant with all Payment Card Industry Data Security Standards, any and all requirements imposed by all applicable payment processors and payment networks, including credit card and debit card processors, and any and all state and federal laws, rules and regulations relating to data privacy, data security and security breaches. You hereby acknowledge and agree that if Combo Kitchen engages or designates a third party service provider to administer a data security program, you will be required to comply with the requirements of such service provider. It is your responsibility to ensure that you operate the Restaurant at all times in compliance with all aforementioned laws, rules, regulations and requirements and you are strongly encouraged to engage legal, and data security professionals, including insurance providers to ensure your full compliance and adequate protection.

5.3.1 Local Advertising

You shall spend an amount equal to at least one percent (1%) of your Gross Revenues per month on local marketing, advertising and promotion in such manner as Combo Kitchen may, in its sole discretion, direct in the Manual or otherwise in writing from time-to-time. Upon Combo Kitchen’s request, You shall provide satisfactory evidence of its local advertising and promotion expenditures in such manner as Combo Kitchen shall direct in the manual or otherwise in writing from time-to-time.

5.3.2 Brand Fund Contribution

You shall pay to Combo Kitchen a fee to contribute to the expense of regional advertising, marketing and promotion undertaken by Combo Kitchen for the benefit of the System in accordance with the manual or as otherwise stated in writing from time-to-time. The Brand Fund has not been established yet but when it is established, with a 30 day notice to you, you are required to begin contributing an amount equal to one-percent (1%) of your Gross Revenues to this Fund.

5.3.3 Websites

Unless otherwise approved in writing by Combo Kitchen, You shall not establish a separate Website. However, Combo Kitchen shall have the right to require that You have one or more references or webpage(s), as designated and approved in advance by Combo Kitchen, within Combo Kitchen’s principal Website, which is currently www.combokitchen.com (“Our Website”). The term “Website” means an interactive electronic document contained in a network of computers linked by communications software, commonly referred to as the Internet or World Wide Web, including, but not limited to, any account, page, or other presence on a social or business networking media site, such as Facebook, Twitter, Linked In, and on-line blogs and forums (“Networking Media Sites”). Combo Kitchen shall have the right to require that You not have any Website other than the webpage(s), if any, made available on Our Website.

5.3.4 Changes to Technology

You acknowledge and agree that changes to technology are dynamic and not predictable within the term of this Agreement. In order to provide for inevitable but unpredictable changes to technological needs and opportunities, You agree that Combo Kitchen shall have the right to establish, in writing, reasonable new standards for the implementation of technology in the System; and You agree that You shall abide by those reasonable new standards established by Combo Kitchen as if this Agreement were periodically revised by Combo Kitchen for that purpose.

5.4 Signs

If you select to offer the menu items from the Approved Brands for your dine-in customers, then you shall permanently display, at Your own expense, in Your Combo Kitchen Restaurant, Combo Kitchen signs of any nature, form, color, number, location and size, and containing any legends, that Combo Kitchen has designated in the Manual or otherwise in writing. Combo Kitchen has the right to require you to change, modify, update upgrade and/or change any and all signs used in connection with the operation of your Combo Kitchen Restaurant at any time upon written notice to you.

5.4.1 Marketing Materials

All marketing and promotion by You shall be in such media and of such type and format as
Combo Kitchen may approve, shall be conducted in a dignified manner and shall conform to such standards and requirements as Combo Kitchen may specify. You shall not use any advertising or promotional plans or materials unless and until You have received written approval from Combo Kitchen You shall provide satisfactory evidence of Your local advertising and promotion expenditures in such as a manner as Combo Kitchen shall direct in the Manual or otherwise in writing from time-to-time. Combo Kitchen may make available to You, from time-to-time, at Your expense, such promotional materials, including newspaper mats, coupons, merchandising materials, point-of-purchase materials, special promotions, and similar advertising and promotional maters.

5.4.2 Promotions

You acknowledge that periodic rebates, give-a-ways, and other promotions and programs are an integral part of the System. Accordingly, You, at your sole cost and expense, shall, from time-to-time, issue and offer such rebates, give-a-ways, and promotions, in accordance with any reasonable advertising programs established by Combo Kitchen, and shall further honor such rebates, give-a-ways, and promotions, issued by Combo Kitchen, as long as all of the above does not contravene regulations and laws of appropriate government agencies.

5.5.1 Records

You shall record all sales and all receipts of revenue on individual serial-numbered receipts. Bank Deposits must validate all receipts. You shall retain daily sales reporting forms and accompanying records for at least three (3) years after the date of sale (or for a longer period if required by state or local law). You shall retain all other records and receipts used in the ordinary course of business. You shall furnish all records to Combo Kitchen upon request.

5.5.2 Reports

Upon our request and only if we cannot access your sales data, you shall submit to Combo Kitchen, on or before the fifteenth (15th) day following the end of each month, financial reports on the income and expenses of the Combo Kitchen Restaurant in the format specified in the Manual. You shall also submit to Combo Kitchen, at the time of filing, copies of all federal state and local income, sales, and property tax returns. Combo Kitchen will use this data to confirm that You are complying with Your obligations under this Agreement, and to formulate earnings and expense information for possible disclosure to prospective franchisees.

5.6.1 Minimum Insurance Requirements

You shall procure, prior to the commencement of any activities or operations under this Agreement, and shall maintain in full force and effect at all times during the term of this Agreement (and for such period thereafter as is necessary to provide the coverages required hereunder for events having occurred during the term of this Agreement), at Your expense, an insurance policy or policies protecting You, Combo Kitchen, and their respective officers, directors, partners, agents and employees against any demand or claim with respect to personal injury, death or property damage, business interruption, or any loss, liability or expense whatsoever arising or occurring upon or in connection with the Restaurant, including, but not limited to, comprehensive general liability insurance, property insurance (including, but not limited to, fire, vandalism, and malicious mischief insurance for the replacement value of the Combo Kitchen Restaurant and its contents), casualty insurance, business interruption insurance, statutory workers’ compensation insurance, employer’s liability insurance, product liability insurance, and automobile insurance coverage for all vehicles used in connection with the operation of Restaurant, if applicable. Such policy or policies shall be written by a responsible carrier or carriers acceptable to Combo Kitchen, shall name Combo Kitchen and its subsidiaries and affiliates as additional insureds, shall provide for Combo Kitchen to receive notice upon cancellation or any event of default, including non-payment, and shall provide at least the types and minimum amounts of coverage specified in the Manual. Combo Kitchen shall have the right, from time-to-time, to make such changes in minimum policy limits and endorsements in the Manual or otherwise in writing as it may determine in its reasonable discretion.

5.6.2 Non-Waiver

Your obligation to obtain and maintain the policy or policies in the amounts specified in the Manual shall not be limited in any way by reason of any insurance that may be maintained by
Combo Kitchen, nor shall Your performance of that obligation relieve you of liability under the indemnity provisions set forth in Section 8.5 of this Agreement.

5.6.3 Franchisor Entitled to Recover

All public liability and property damage policies shall contain a provision that Combo Kitchen, although not named as an insured, shall nevertheless be entitled to recover under such policies on any loss occasioned to Combo Kitchen or its agents or employees by reason of the negligence of You or your agents or employees.

5.6.4 Certificates of Insurance

Prior to the commencement of any operations under this Agreement, and thereafter at least thirty (30) days prior to the expiration of any policy, You shall deliver to Combo Kitchen Certificates of Insurance evidencing the proper types and minimum amounts of coverage. All Certificates shall expressly provide that no less than thirty (30) days’ prior written notice shall be given Combo Kitchen in the event of material alteration to or cancellation of the coverages evidenced by such Certificates.

5.6.5 Right to Procure Insurance

Should You, for any reason, fail to procure or maintain the insurance required by this Agreement, as such requirements may be revised from time-to-time by Combo Kitchen in the Manual or otherwise in writing, Combo Kitchen shall have the right and authority (but not the obligation) to procure and maintain such insurance in Your name and to charge same to You, which charges, together with Our reasonable expenses in so acting, shall be payable by You immediately upon notice. The foregoing remedies shall be in addition to any other remedies Combo Kitchen may have under this Agreement, or at law or in equity.

5.7.1 Compliance with Law

You shall comply with all federal, state and local laws and regulations pertaining directly or indirectly to the Combo Kitchen Restaurant. You shall keep current and legally compliant all licenses, permits, bonds, contracts, and deposits made to or required by any government agency in connection with the operation of the Combo Kitchen Restaurant. You are responsible for compliance with all requirements imposed by applicable law rule, or regulation.

6.6.1 In-Term Covenants

(a) During the Term, You shall not, directly or indirectly, for yourself or through, on behalf of, or in conjunction with any person or entity, own, maintain, operate, engage in, consult with, provide any assistance to, or have any interest (direct or indirect) in a Competitive Business (as defined below).

(b) You shall not divert or attempt to divert any business, client, or potential client of the Combo Kitchen Restaurant or any other System restaurant to any competitor, by direct or indirect inducement or otherwise, or to do or perform, directly or indirectly, any other act, injurious or prejudicial, to the goodwill associated with the Marks or the System.

The term “Competitive Business” shall mean any and all businesses that are competitive with
Combo Kitchen Restaurants, including, without limitation any business that operates a ghost kitchen concept, food hall or a quick-service restaurant serving foods similar to any of the menu items you serve that are included in any of the Approved Brands you operate in your business, or any similar food service business.

6.6.2 Post-Term Covenants

You may not, for a continuous, uninterrupted period commencing upon the expiration, transfer or termination of this Agreement (regardless of the cause for termination), and continuing for two (2) years thereafter, either directly or indirectly, for yourself, or through, on behalf of, or in conjunction with any person, persons (including your spouse or any immediate family member, or the spouse or any immediate family member of any personal guarantor of this Agreement), partnership, limited liability company or corporation, own, maintain, operate, engage in, provide any assistance to, or have any interest in, any Competitive Business that is located: (i) at the Combo Kitchen Restaurant; (ii) within twenty-five (25) miles of the Combo Kitchen Restaurant; or (iii) within twenty-five (25) miles of any other System restaurant located then in existence or under construction.

6.6.3 Miscellaneous

You agree that the length of time in Section 8.6.2 will be tolled for any period during which you are in breach of the covenant or any other period during which Combo Kitchen seeks to enforce this Agreement. The parties agree that the foregoing covenants shall be construed as independent of any other covenant or provision of this Agreement. If any court of competent jurisdiction determined that the geographic limits, time period or line of business defined by this Section 8 (inclusive of all subsections) is unreasonable, the parties agree that such a court of competent jurisdiction may determine an appropriate limitation to accomplish the intent and purpose of this Section and the parties, and each of them, agree to be bound by such determination.

(c) That the transferor shall have executed a general release, in a form prescribed by Combo Kitchen, of any and all claims against Combo Kitchen and its affiliates, and their respective officers, directors, agents, shareholders, and employees;

(d) That the transferor (and, if the transferee is other than an individual, such owners of a beneficial interest in the transferee as Combo Kitchen may request) demonstrate to Combo Kitchen’s satisfaction that it meets Combo Kitchen’s educational, managerial and business standards; possesses a good moral character, business reputation and credit rating; has the aptitude and ability to operate the Combo Kitchen Restaurant (as may be evidenced by prior related business experience or otherwise); and has adequate financial resources and capital to operate the Combo Kitchen Restaurant, taking into consideration the purchase price paid by the transferee for the Combo Kitchen Restaurant; and has not operated a business in competition with Combo Kitchen;

(e) That (1) at Combo Kitchen’s option, (a) the transferee (and, if the transferee is other than an individual, such owners of a beneficial interest in the transferee as Combo Kitchen may request) enter into a written assignment, in a form satisfactory to Combo Kitchen, assuming and agreeing to discharge all of Your obligations under this Agreement, or (b) the transferee(s) execute, for a term ending on the expiration date of this Agreement and with such renewal term(s) as may be provided by this Agreement, the Combo Kitchen’s then-current form of Franchise Agreement and other ancillary agreements as Franchisor may require for the Combo Kitchen Restaurant, which agreements shall supersede this Agreement in all respects, and the terms of which may differ from the terms of this Agreement, including, without limitation, higher royalty fees, advertising contributions, or other fees, and a smaller or modified Territory, except that the transferee shall not be required to pay any initial franchise fee; and (2) the transferee’s principal guaranty the performance of all such obligations in writing in a form satisfactory to Combo Kitchen;

(f) That You remain liable for all of the obligations to Combo Kitchen in connection with the Combo Kitchen Restaurant which arose prior to the effective date of the transfer and execute any and all instruments reasonable requested by Combo Kitchen to evidence such liability;

(g) That the transferee (or, if the transferee is a corporation, partnership or limited liability company, a principal of the transferee acceptable to Combo Kitchen) and the transferee’s manager (if transferee or transferee’s principal will not manage the Combo Kitchen Restaurant), at the transferee’s expense, have successfully completed any training programs then in effect upon such terms and conditions as Combo Kitchen may reasonably require and pay Combo Kitchen the then-current training fee;

(h) Combo Kitchen approves the terms and conditions of the transfer agreement between transferor and transferee; and

(i) You pay to Combo Kitchen a transfer fee of twenty-five (25%) of the then-current franchise fee at the time of transfer or five percent (5%) of the sales price, whichever is greater; however, in the case of a transfer to a corporation or limited liability company formed by You for the convenience of ownership (as determined by Combo Kitchen in its sole discretion), no such transfer fee shall be required.

8.2.1 Immediate Termination upon Notice of Default

Upon the occurrence of any of the following defaults, Combo Kitchen may, at its option, terminate this Agreement effective immediately upon written notice to You:

(a) If You misuse the Trade Name, Marks or the System, or engage in conduct which reflects materially and unfavorably upon the goodwill associated with them, or if You use in the Combo Kitchen Restaurant any names, marks, systems, logotypes or symbols that Combo Kitchen has not authorized You to use.

(b) If You have any direct or indirect interest in the ownership or operation of any business other than the Combo Kitchen Restaurant that is confusingly similar to the Combo Kitchen Restaurant or uses the System or Marks, or if You fail to give Combo Kitchen a signed copy of the Nondisclosure, Nonsolicitation and Noncompetition Agreement, a form of which is attached hereto as Exhibit E for You (or if You are a corporation, all officers and shareholders, or, if You are a partnership, all Your general partners, or, if You are a limited liability company, all Your members) within ten (10) days after Combo Kitchen requests it.

(c) If You attempt to assign or Transfer Your rights under this Agreement in any manner not authorized by this Agreement.

(d) If You have made any material misrepresentations in connection with the acquisition of a Combo Kitchen Restaurant or to induce Combo Kitchen to enter into this Agreement.

(e) If You act without Combo Kitchen’s prior written approval or consent in regard to any matter for which Combo Kitchen’s prior written approval or consent is expressly required by this Agreement.

(f) If You cease to operate the Combo Kitchen Restaurant, unless (i) operations are suspended for a period of no more than one thirty (30) days, and (ii) the suspension is caused by fire, condemnation, or other act of God.

(g) If You fail to permanently correct a breach of this Agreement, or to meet the operational standards stated in the Manual, after being twice requested in writing by Combo Kitchen to correct a similar breach or meet a similar standard in any twelve (12) months period.

(h) If a threat or danger to public health or safety results from the construction, maintenance or operation of the Combo Kitchen Restaurant.

(i) Except as otherwise required by the United States Bankruptcy Code, if You become insolvent, are adjudicated a bankrupt, or file or have filed against You a petition in bankruptcy, reorganization, or similar proceeding.

(j) If You plead guilty to, plead no contest to, or are convicted of, a felony, a crime involving moral turpitude, or any other crime or offense that Combo Kitchen believes is reasonably likely to have an adverse effect on the System or Marks, the goodwill associated therewith, or Combo Kitchen’s interest therein.

(k) If You maintain false books or records, or submit any false reports to
Combo Kitchen.

(l) If You offer a product or service without Combo Kitchen’s consent, or fail to offer any product or service designated by Combo Kitchen.

8.2.2 Termination after Five Days’ Notice to Cure

Combo Kitchen may, at its option, terminate this Agreement, effective five (5) days after written notice is given to You, if You fail to make any payment when due under this Agreement or any other agreement between You and Combo Kitchen.

8.2.3 Termination after Thirty Days’ Notice to Cure

Upon the occurrence of any of the following defaults, Combo Kitchen may, at its option, terminate this Agreement after thirty (30) days’ notice to cure:

(a) If You fail to submit to Combo Kitchen in a timely manner any information You are required to submit under this Agreement.

(b) If You fail to begin operation of the Combo Kitchen Restaurant within the time limits as provided in this Agreement, or if You fail to operate your Combo Kitchen Restaurant in accordance with this Agreement and/or the Manual.

(c) If You default in the performance of any other obligation under this Agreement, or any other agreement with Combo Kitchen.

(a) Combo Kitchen will have no further obligations under this Agreement.

(b) You shall give the final accounting for the Combo Kitchen Restaurant, pay Combo Kitchen within thirty (30) days after termination all payments due to Combo Kitchen, and return the Manual and any other property belonging to Combo Kitchen.

(c) You shall immediately and permanently cease to operate the Combo Kitchen Restaurant. You shall immediately and permanently stop using the Marks or any confusingly similar marks, the System, or any advertising, signs, stationery, or forms that bear identifying marks or colors that might give others the impression that You are operating a Combo Kitchen Restaurant, You shall refrain from any statement or action that might give others the impression that You are or ever were affiliated with the Combo Kitchen Franchise Network.

(d) You shall promptly sign any documents and take any steps that, in the judgment of Combo Kitchen, are necessary to delete Your listings from classified telephone directories, disconnect, or, at Combo Kitchen’s option, assign the Combo Kitchen all telephone numbers that have been used in the Combo Kitchen Restaurant, and terminate all other references that indicate You are or ever were affiliated with Combo Kitchen or a Combo Kitchen Restaurant. By signing this Agreement, You irrevocably appoint Combo Kitchen as Your attorney-in-fact to take the actions described in this paragraph if You do not do so Yourself within seven (7) days after termination of this Agreement. You further irrevocably assign Your telephone numbers listed on Exhibit A, or hereinafter acquired for the operation of Your Combo Kitchen Restaurant, to Combo Kitchen.

(e) You shall maintain all records required by Combo Kitchen under this Agreement for a period of not less than five (5) years after final payment of any amounts You owe to Combo Kitchen when this Agreement is terminated (or such longer period as required by applicable law).

(f) If Combo Kitchen declines to exercise the option, purchase, or assume the lease on Your equipment, You may sell it to either another Combo Kitchen franchisee or, with Combo Kitchen’s prior written approval, You may de-brand the equipment and sell it to a non-franchisee.

(g) You may not sell, or in any way divulge, the client list of Your Combo Kitchen Restaurant.

(h) Franchisee and its Related Parties shall abide by the post-termination restrictive covenants in Section 8.6 of this Agreement.

9.2.1

This Agreement shall take effect upon its acceptance and execution by Combo Kitchen. Except to the extent governed by the United States Arbitration Act (9 U.S.C. § 1, et seq.), and the United States Trademark Act of 1946 (Lanham Act, 15 U.S.C § 1050, et seq.), this Agreement, the franchise, and all claims arising from or in any way related to the relationship between Combo Kitchen, and/or any of its Related Parties, on the one hand, and you, and any of your owners, guarantors and/or affiliates, on the other hand, shall be interpreted and construed under the laws of the State of Florida, which laws shall prevail in the event of any conflict of law, except that any law regulating the sale of franchises or governing the relationship of a franchisor and its franchise, will not apply unless jurisdictional requirements are met independently without reference to this paragraph.

9.2.2

In the event the arbitration clause set forth in Section 11.8 is inapplicable or unenforceable, and subject to Combo Kitchen’s rights, as outlined in Section 11.9, the following provision shall govern: The parties hereby expressly agree that the Eleventh Circuit Court of Florida, or if such court lacks subject matter jurisdiction, the United States District Court for the Southern District of Florida, shall be the exclusive venue and exclusive proper forum in which to adjudicate any case or controversy arising out of or related to, either directly or indirectly, this Agreement, ancillary agreements, or the business relationship between the parties. The parties further agree that, in the event of such litigation, they will not contest or challenge the jurisdiction or venue of these courts. You acknowledge that this Agreement has been entered into in the State of Florida and that you are to receive valuable and continuing services emanating from Combo Kitchen’s headquarters in Florida. Without limiting the generality of the foregoing, the parties waive all questions of jurisdiction or venue for the purposes of carrying out this provision.

9.8.1

The arbitration will be administered by the AAA pursuant to its Commercial Arbitration Rules then in effect by one (1) arbitrator. The arbitrator shall be an attorney with substantial experience in franchise law. If proper notice of any hearing has been given, the arbitrator will have full power to proceed to take evidence or to perform any other acts necessary to arbitrate the matter in the absence of any party who fails to appear.

9.8.2

In connection with any arbitration proceeding, each party will submit or file any claim which would constitute a compulsory counterclaim (as defined by the then-current Rule 13 of the Federal Rules of Civil Procedure) within the same proceeding as the claim to which it relates. Any such claim which is not submitted or filed in such proceeding will be forever barvred.

9.8.3

Any arbitration must be on an individual basis and the parties and the arbitrator will have no authority or power to proceed with any claim as a class action, associational action, or otherwise to join or consolidate any claim with any claim or any other proceeding involving third-parties. If a court or arbitrator determines that this limitation on joinder of, or class action certification of claims is unenforceable then the agreement to arbitrate the dispute will be null and void and the parties must submit all claims to the jurisdiction of the courts in accordance with Section 11.8. The arbitration must take place in Miami-Dade County, Florida, or at such other location as Combo Kitchen designates.

9.8.4

The arbitrator must follow the law and not disregard the terms of this Agreement. The arbitrator may not consider any settlement discussions or offers that might have been made by either you or Combo Kitchen. The arbitrator may not, under any circumstance, (a) stay the effectiveness of any pending termination of this Agreement, (b) assess punitive or exemplary damages, (c) certify a class or a consolidated action, or (d) make any award which extends, modifies or suspends any lawful term of this Agreement, or any reasonable standard of business performance that Combo Kitchen sets. The arbitrator will have the right to make a determination as to any procedural matters as would a court of competent jurisdiction be permitted to make in the state in which the main office of Combo Kitchen is located. The arbitrator will also decide any factual, procedural, or legal questions relating in any way to the dispute between the parties, including, but not limited to, any decision as to whether Section 11.8 is applicable and enforceable as against the parties, subject matter, timeliness, scope, remedies, unconscionability, and any alleged fraud in the inducement.

9.8.5

The arbitrator can issue summary orders disposing of all or part of a claim, and provide for temporary restraining orders, preliminary injunctions, injunctions, attachments, claim and delivery proceedings, temporary protective orders, receiverships, and other equitable and/or interim/final relief. Each party consents to the enforcement of such orders, injunctions, etc., by any court having jurisdiction.

9.8.6

The arbitrator will have subpoena powers limited only by the laws of the State of Florida.

9.8.7

The parties ask that the arbitrator limit discovery to the greatest extent possible consistent with basic fairness in order to minimize the time and expense of arbitration. The parties to the dispute will otherwise have the same discovery rights as are available in civil actions under the laws of the State of Florida.

9.8.8

All other procedural matters will be determined by applying the statutory common laws and rules of procedure that control a court of competent jurisdiction in the state of Florida.

9.8.9

Other than as may be required by law, the entire arbitration proceedings (including but not limited to, any rulings, decisions or orders of the arbitrator), will remain confidential and will not be disclosed to anyone other than the parties to this Agreement.

9.8.10

The judgment of the arbitrator on any preliminary or final arbitration award will be final and binding and may be entered in any court having jurisdiction.

9.8.11

Combo Kitchen reserves the right, but has no obligation, to advance your share of the costs of any arbitration proceeding in order for such arbitration proceeding to take place and by doing so will not be deemed to have waived or relinquished Combo Kitchen’s right to seek recovery of those costs against you.

9.8.12

The Arbitrator shall render a reasoned award unless otherwise requested by the parties. If Combo Kitchen requests a more detailed award, i.e. “findings of fact and conclusions of law,” the parties shall evenly split the excess cost above the cost required for a reasoned award. However, if You request an award more detailed than a reasoned award, i.e. “findings of facts and conclusions of law,” You shall bear the entire additional cost required for such award, which cost is above the cost for a reasoned award.

9.8.13

Should Combo Kitchen prevail in any arbitration, the Arbitrator shall require You to pay all expenses of Arbitration, as well as Combo Kitchen’s attorneys’ fees and costs.

9.9.1

Notwithstanding the provisions of Sections 11.7 and 11.8 of this Agreement, Combo Kitchen shall be entitled, with a bond of not more than $10,000, to the entry of temporary, preliminary and permanent injunctions, and orders of specific performance, enforcing the provisions of this Agreement in any court of competent jurisdiction relating to:
(a) Your, and/or any of Your Related Party’s use of the Marks; (b) Your confidentiality and non-competition covenants (Section 8); (c) Your obligations upon termination or expiration of the franchise; or (d) Transfer or assignment by You. If Combo Kitchen secures any such injunction (i.e. temporary restraining order, preliminary injunction, or permanent injunction) or order of specific performance, you agree to pay to Combo Kitchen an amount equal to the aggregate of Combo Kitchen’s costs of obtaining such relief including, without limitation, reasonable attorneys’ fees, costs of investigation and proof of facts, court costs, other litigation expenses, travel and living expenses, and any damages incurred by Combo Kitchen as a result of the breach of any such provision.

9.9.2

Further, at the election of Combo Kitchen or its affiliate, the mediation and arbitration provisions of Sections 11.7 and 11.8, inclusive of all subparts, shall not apply to:
(a) any claim by Combo Kitchen relating to your failure to pay any fee due to Combo Kitchen under this Agreement; and/or (b) any claim by Combo Kitchen or its affiliate relating to use of the Proprietary Marks and/or the System, including, without limitation, claims for violations of the Lanham Act; and/or (c) any claim by Combo Kitchen relating to a breach of your confidentiality and/or non-competition obligations under this Agreement.

9.15.1

Jury Trial. The parties hereto and each of them EXPRESSLY WAIVE(S) THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN ANY ARBITRATION, ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, FOR ANY CLAIMS RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE NEGOTIATION OF THIS AGREEMENT, THE EVENTS LEADING UP TO THE SIGNING OF THIS AGREEMENT, OR THE BUSINESS RELATIONSHIP RELATING TO THIS AGREEMENT OR THE FRANCHISE, WHETHER BROUGHT IN STATE OR FEDERAL COURT, WHETHER BASED IN CONTRACT THEORY, NEGLIGENCE OR TORT, AND REGARDLESS OF WHETHER OR NOT THERE ARE OTHER PARTIES IN SUCH ACTION OR PROCEEDING. This waiver is effective even if a court of competent jurisdiction decides that the arbitration provision in Section 11.8 is unenforceable. Each party acknowledges that it has had full opportunity to consult with counsel concerning this waiver, and that this waiver is informed, voluntary, intentional, and not the result of unequal bargaining power.

9.15.2

Damages Waiver. The parties hereto and each of them EXPRESSLY WAIVE(S) ANY CLAIM FOR PUNITIVE, MULTIPLE AND/OR EXEMPLARY DAMAGES, except that this waiver and limitation shall not apply with respect to (a) your obligation to indemnify Combo Kitchen pursuant to any provision of this Agreement, and/or (b) any claims Combo Kitchen brings against you and/or your guarantors for unauthorized use of the Marks, unauthorized use or disclosure of any Confidential Information, unfair competition, breach of the non-competition covenant and any other cause of action under the Lanham Act and Combo Kitchen shall be entitled to receive an award of multiple damages, attorneys’ fees and all damages as provided by law.

9.15.3

The parties hereto and each of them EXPRESSLY AGREE(S) THAT IN THE EVENT OF ANY FINAL DETERMINATION ADJUDICATION OR APPLICABLE ENACTMENT OF LAW THAT PUNITIVE MULTIPLE AND/OR EXEMPLARY DAMAGES MAY NOT BE WAIVED, ANY RECOVERY BY ANY PARTY IN ANY ARBITRATION OR OTHER FORUM SHALL NEVER EXCEED TWO (2) TIMES ACTUAL DAMAGES, except that COMBO KITCHEN may recover more than two (2) times its actual damages if you commit acts of willful trademark infringement or otherwise violate the Lanham Act, as provided by law.

9.15.4

You hereby expressly waive any and all rights, actions or claims for relief under the Federal Act entitled “Racketeer Influenced and Corrupt Organizations,” 18 U.S.C. § 1961, et seq. (“RICO”).

9.15.5

You hereby expressly agree that the existence of any claims You may have against Combo Kitchen or its Related Parties, whether or not arising from this Agreement, shall not constitute a defense to the enforcement by Combo Kitchen of the covenants contained in this Agreement. You agree to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Combo Kitchen in connection with the enforcement of any covenant contained in this Agreement.