Common use of Construction and Operations Clause in Contracts

Construction and Operations. In connection with the construction and operation of the restaurant, ▇▇▇▇▇▇▇▇▇▇ agrees to fulfill the requirements, to perform the obligations and to observe the restrictions stated in this Section 7(b). (1) Franchisee will construct, finish out, equip, furnish and decorate the restaurant in compliance with Company's equipment, trade dress, information systems and signage specifications and the construction documents Company approves in accordance with Section 7(a). After the restaurant opens, Franchisee will not alter its furniture, fixtures, equipment, signs or trade dress in any fashion without Company's express prior permission. (2) Franchisee will affix to an exterior window or display prominently on an interior wall of the restaurant a decal or placard containing the following statement: "An Independently Owned and Operated Franchise” and never make a statement or representation to any person that is contrary to or inconsistent with this Agreement. (3) Franchisee will attend and send the general manager to the Company’s training program. Franchisee and the general manager must both complete Company's training program with a passing grade before the restaurant may open for business. (4) As soon as Franchisee obtains a telephone number for the restaurant, Franchisee will sign and deliver to Company an Assignment of Telephone Number(s) for the number in the form attached as an exhibit to this Agreement. If the restaurant's telephone number changes during the franchise's term, or if Franchisee adds additional lines for delivery service, a modem or other purposes, Franchisee will promptly sign and deliver to Company a new Assignment of Telephone Number(s) for the new or additional number(s). (5) Franchisee will open the restaurant for business by the scheduled opening date and will operate it continuously throughout the entire term of the franchise solely under the trademarks and system required by Company. If the restaurant's completion is interrupted by a natural disaster, hurricane, fire or other casualty, labor dispute, materials shortage or similar event over which Franchisee lacks control, the scheduled opening date will be extended for the time reasonably necessary to remedy the effects of the occurrence. (6) Franchisee will (i) comply with and adhere to the policies and procedures set forth in the Operations Manual, as revised and supplemented from time to time, (ii) follow Company procedures in the storage, preparation, presentation and dispensing of DW product line and authorized menu items, (iii) purchase and use fresh, processed and prepackaged ingredients that satisfy or exceed the minimum grade or quality standards Company from time to time specifies; (iv) purchase from Company and exclusively use Dick’s Wing’s brand sauces, seasonings and other proprietary products; and (v) purchase inventory and supplies only from suppliers or distributors Company designates or approves from time to time. (7) Franchisee will provide appropriate training and supervision for all personnel employed in the restaurant to maintain standards of prompt and courteous customer service, and instruct all employees of the restaurant in the proper use and display of the trademarks and the confidential handling of the trade secrets and the Operations Manual. (8) Franchisee will ensure that all the restaurant's employees follow Company's grooming and dress code and wear the Dick’s Wings uniform items developed by Company. (9) Franchisee will notify Company promptly of any change in the general manager, and send any new general manager to attend and satisfactorily complete Company's training program (unless a new general manager has worked as a managerial level employee of Franchisee's restaurant for at least six months). (10) Without prior permission of the affected employer, Franchisee will not, directly or through others, contact, solicit or offer any inducements to any employee of Company, a Company affiliate or another Dick’s Wings Franchisee for the purpose of persuading or attempting to persuade the employee to accept employment by Franchisee in any capacity. (11) Franchisee will offer all foods and beverages included on Company's standard menu, as revised from time to time, and will not offer any foods, beverages or other merchandise that is not included on Company's authorized restaurant merchandise list, as revised from time to time, without Company's prior written consent. (12) Franchisee will imprint the authorized ▇▇▇▇’s Wings logo on all cups, containers, bags, take out menus and other paper goods used in the restaurant in accordance with instructions contained in the Operations Manual, and will purchase items imprinted with the authorized Dick’s Wings logo only from suppliers or distributors Company designates or approves when made available by Company. (13) Franchisee will purchase as they become available and display in the restaurant all (i) product identification materials, (ii) point-of-purchase promotional materials, (iii) promotional memorabilia, merchandise and prizes, and

Construction and Operations. In connection with the construction and operation of the restaurant, ▇▇▇▇▇▇▇▇▇▇ Franchisee agrees to fulfill the requirements, to perform the obligations and to observe the restrictions stated in this Section 7(b). (1) Franchisee will construct, finish out, equip, furnish and decorate the restaurant in compliance with Company's equipment, trade dress, information systems and signage specifications and the construction documents Company approves in accordance with Section 7(a). After the restaurant opens, Franchisee will not alter its furniture, fixtures, equipment, signs or trade dress in any fashion without Company's express prior permission. (2) Franchisee will affix to an exterior window or display prominently on an interior wall of the restaurant a decal or placard containing the following statement: "An Independently Owned and Operated Franchise” and never make a statement or representation to any person that is contrary to or inconsistent with this Agreement. (3) Franchisee will attend and send the general manager to the Company’s training program. Franchisee and the general manager must both complete Company's training program with a passing grade before the restaurant may open for business. (4) As soon as Franchisee obtains a telephone number for the restaurant, Franchisee will sign and deliver to Company an Assignment of Telephone Number(s) for the number in the form attached as an exhibit to this Agreement. If the restaurant's telephone number changes during the franchise's term, or if Franchisee adds additional lines for delivery service, a modem or other purposes, Franchisee will promptly sign and deliver to Company a new Assignment of Telephone Number(s) for the new or additional number(s). (5) Franchisee will open the restaurant for business by the scheduled opening date and will operate it continuously throughout the entire term of the franchise solely under the trademarks and system required by Company. If the restaurant's completion is interrupted by a natural disaster, hurricane, fire or other casualty, labor dispute, materials shortage or similar event over which Franchisee lacks control, the scheduled opening date will be extended for the time reasonably necessary to remedy the effects of the occurrence. (6) Franchisee will (i) comply with and adhere to the policies and procedures set forth in the Operations Manual, as revised and supplemented from time to time, (ii) follow Company procedures in the storage, preparation, presentation and dispensing of DW product line and authorized menu items, (iii) purchase and use fresh, processed and prepackaged ingredients that satisfy or exceed the minimum grade or quality standards Company from time to time specifies; (iv) purchase from Company and exclusively use Dick’s Wing’s brand sauces, seasonings and other proprietary products; and (v) purchase inventory and supplies only from suppliers or distributors Company designates or approves from time to time. (7) Franchisee will provide appropriate training and supervision for all personnel employed in the restaurant to maintain standards of prompt and courteous customer service, and instruct all employees of the restaurant in the proper use and display of the trademarks and the confidential handling of the trade secrets and the Operations Manual. (8) Franchisee will ensure that all the restaurant's employees follow Company's grooming and dress code and wear the Dick’s Wings uniform items developed by Company. (9) Franchisee will notify Company promptly of any change in the general manager, and send any new general manager to attend and satisfactorily complete Company's training program (unless a new general manager has worked as a managerial level employee of Franchisee's restaurant for at least six months). (10) Without prior permission of the affected employer, Franchisee will not, directly or through others, contact, solicit or offer any inducements to any employee of Company, a Company affiliate or another Dick’s Wings Franchisee for the purpose of persuading or attempting to persuade the employee to accept employment by Franchisee in any capacity.. Effective: January 1, 2009 (11) Franchisee will offer all foods and beverages included on Company's standard menu, as revised from time to time, and will not offer any foods, beverages or other merchandise that is not included on Company's authorized restaurant merchandise list, as revised from time to time, without Company's prior written consent. (12) Franchisee will imprint the authorized ▇▇▇▇Dick’s Wings logo on all cups, containers, bags, take out menus and other paper goods used in the restaurant in accordance with instructions contained in the Operations Manual, and will purchase items imprinted with the authorized Dick’s Wings logo only from suppliers or distributors Company designates or approves when made available by Company. (13) Franchisee will purchase as they become available and display in the restaurant all (i) product identification materials, (ii) point-of-purchase promotional materials, (iii) promotional memorabilia, merchandise and prizes, and (iii) other advertising and marketing materials Company creates or authorizes for use by restaurant operators. Franchisee will purchase these materials from a source that Company designates or approves. (14) At Company's request, Franchisee will display in a prominent, accessible place a "franchise opportunity" display furnished by Company at its expense for the purpose of increasing public awareness of the availability of Dick’s Wings franchises. (15) Franchisee will use the marks, the trade secrets, the Operations Manual and other copyrighted materials in strict compliance with this Agreement and in a manner tending to promote the goodwill and public image of the Dick’s Wings system. (16) Franchisee will follow Company procedures in maintaining and cleaning the restaurant's equipment and fixtures, and will maintain the customer seating, kitchen, storage and restroom areas of the restaurant in a safe and sanitary condition at all times (17) Franchisee will maintain the physical appearance and integrity of the restaurant in accordance with the repair, refurbishing and remodeling standards stated in the Operations Manual. (18) Franchisee will permit Company representatives to conduct unannounced QSC inspections of the restaurant at any time during normal business hours. Franchisee must promptly correct any condition noted as "unsatisfactory" or "needs improvement" in a QSC report. A failing score (as defined in the Operations Manual) shall be deemed a material breach and may be deemed a default of the franchise agreement. (19) Franchisee will maintain restaurant business hours and days of operation appropriate for the market and facility in which the restaurant is located. (20) Franchisee will adopt and follow Company's fiscal year for accounting purposes, (i) adopt and follow the accounting principles, policies and practices Company prescribes, (iii) acquire, install and use the information systems company specifies from time to time in the Operations Manual, (iv) install and continually maintain a telephone line for the restaurant's modem, and (v) furnish Company the additional telephone numbers as originally assigned and as changed from time to time. (21) Franchisee will accurately calculate and report Gross Revenues to Company at the times and through the procedures Company from time to time specifies (including electronic means). Franchisee acknowledges that Company may electronically poll the restaurant's information systems to obtain gross revenues data, as well as other financial and operating information. Franchisee agrees to maintain continual data network access to the restaurant's information systems for use by Company. (22) At Company's request, Franchisee will immediately furnish Company copies of all federal and state income and sales tax returns filed by Franchisee. Effective: January 1, 2009 (23) Franchisee will permit Company, at any time during the term of the franchise and for three years after it expires or terminates, to conduct a special audit of Franchisee's books and records relating to the restaurant's operation. To assist Company in planning and conducting its audit program, Franchisee expressly authorizes Company to obtain from any vendor with which Franchisee does business copies of invoices and other sales data related to Franchisee's account with the vendor. If an audit establishes that Franchisee's royalty reports, advertising fee reports or profit and loss statements have understated gross revenues for any fiscal year by more than 3%, Franchisee shall pay the audit's cost, including the travel, fees, wages, lodging and meal expenses of the persons who conduct the audit. Otherwise, Company will bear the audit's entire cost. Franchisee shall promptly pay Company any royalty and marketing fee deficiencies established by an audit, together with interest. Franchisee must also pay interest on past-due amounts and a $500 administrative fee. Interest shall be 1.5% per month or the maximum permitted by law. (24) Franchisee will maintain complete and accurate books and records relating to the operation of the restaurant, permit Company representatives to inspect such books and records at reasonable times and, within 45 days after the end of each fiscal year of the restaurant, submit to Company a balance sheet, income statement and statement of cash flow for the year then ended. These financial statements shall disclose separately the items specified by Company on forms it provides, and shall be prepared in accordance with the accounting principles and practices Company prescribes. If Franchisee is at any time required to furnish any lender, lessor, government agency or other person audited financial statements with respect to the restaurant, Franchisee shall concurrently furnish Company a copy of such audited financial statements.