Developer and Developer's Principals expressly agree that the existence of any claims they may have against Franchisor, whether or not arising from this Agreement, shall not constitute a defense to the enforcement by Franchisor of the covenants in this Section 9.
Developer and Developer's Principals specifically acknowledge that they will receive valuable specialized training, trade secrets and confidential information, including, without limitation, information regarding the site selection and other methods and techniques of Franchisor and the System related to the development of the Restaurants which are beyond the present skills and experience possessed by Developer, Developer's Principals and Developer's managers and other employees. Developer and Developer's Principals acknowledge that such training, trade secrets and confidential information provide a competitive advantage and will be valuable to them in the development of the franchised businesses and that gaining access to such training, trade secrets and confidential information are, therefore, a primary reason why they are entering into this Agreement. In consideration for such training, trade secrets and confidential information, Developer and Developer's Principals covenant as follows:
Developer and Developer's Principals understand and acknowledge that the rights and duties set forth in this Agreement are personal to Developer, and that Franchisor has granted the development rights in reliance on the business skill, financial capacity and business reputation and character of the Developer . Accordingly, neither Developer nor any initial or subsequent successor or assign to any part of Developer's interest in the development rights, shall sell, assign, transfer, convey, give away, pledge, mortgage or otherwise encumber any direct or indirect interest in this Agreement or in any entity which owns the development rights without the prior written consent of Franchisor; provided, however, that Franchisor's prior written consent shall not be required for a transfer of an interest in a publicly-held corporation. A publicly-held corporation is a corporation registered pursuant to Section 12 under the Securities Exchange Act of 1934, as amended. Any purported assignment or transfer, by operation of law or otherwise, not having the written consent of Franchisor required by this Subsection 8.B shall be null and void and shall constitute a material event of default for which Franchisor may terminate this Agreement pursuant to Subsection 7.C hereof.
Developer and Developer's Principals expressly agree to be bound by any promise or covenant imposing the maximum duty permitted by law which is subsumed within the terms of any provision hereof, as though it were separately articulated in and made a part of this Agreement, that may result from striking from any of the provisions hereof any portion or portions which a court may hold to be unreasonable and unenforceable in a final decision to which Franchisor is a party, or from reducing the scope of any promise or covenant to the extent required to comply with such a court order or to the extent which Franchisor in its sole discretion may otherwise determine.
Developer and Developer's Principals acknowledge that Franchisor has made no representations about the development rights granted herein that are contrary to the terms of this Agreement or the documents referred to herein and Exhibits attached hereto, and further represents to Franchisor, as an inducement to its entry into this Agreement, that Developer has made no misrepresentations in obtaining the development rights granted herein.
Developer and Developer's Principals acknowledge that it has received, read and understood this Agreement, the documents referred to herein and the Exhibits attached hereto and that Franchisor has accorded them ample time and opportunity to consult with advisors of Developer's own choosing about the potential benefits and risks of entering into this Agreement.
Developer and Developer's Principals acknowledge that it received a complete copy of this Agreement, the documents referred to herein and the Exhibits attached hereto, at least five (5) business days prior to the date on which this Agreement was executed. Developer and Developer's Principals further acknowledge that it has received the disclosure document required by the Trade Regulation Rule of the Federal Trade Commission entitled "Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures" at least ten (10) business days prior to the date on which this Agreement was executed.
Developer and Developer's Principals understand and acknowledge that Franchisor will have the right, in its sole discretion, to reduce the scope of any covenant set forth in Sections 5.5 and 5.6, or any portion thereof, without their consent, effective immediately upon notice to Developer; and Developer and Developer's Principals agree that they will comply with any covenant as so modified, which will be fully enforceable notwithstanding the provisions of Section 12.2 hereof.
Developer and Developer's Principals understand and acknowledge that the rights and duties set forth in this Development Agreement are personal to Developer and are granted, in part, in reliance upon the skill, aptitude, business and financial capacity of Developer and Developer's Principals and their intention of complying with its terms and conditions. Therefore, if the Developer and/or Developer's Principals desire to Transfer any interest to any individual or entity (including a trust), they must first obtain the prior written approval of Franchisor. Any such attempted Transfer not approved by Franchisor shall be null and void from its purported inception. Prior to authorizing such Transfer, Franchisor may require, among other things, satisfaction of any or all of the following:
Developer and Developer's Principals. (as defined in Subsection 13.A hereof) covenant and agree that neither shall, during the term of this Agreement or thereafter, communicate, divulge or use for the benefit of any other person, persons, partnership, association or corporation any confidential information, knowledge or know-how concerning the methods of development and operation of the Restaurant which may be communicated to Developer or Developer's Principals or of which they may be apprised by virtue of Developer's operation under the terms of this Agreement. Developer and Developer's Principals shall divulge such confidential information only to such of Developer's employees as must have access to it in connection with their employment. Any and all information, knowledge, techniques and know-how, including without limitation, the Development Manual and all drawings, materials, equipment, recipes, computer and point of sale programs and output from such programs, and all other data which Franchisor designates as confidential shall be deemed confidential for purposes of this Agreement. Neither Developer nor any of Developer's Principals shall at any time, without Franchisor's prior written consent, copy, duplicate, record or otherwise reproduce such materials or information, in whole or in part, or otherwise make the same available to any unauthorized person.
