General Release Agreement
Sample General Release Agreement
EXHIBIT E
General Release
Robeks Generai. Release (3-21 -06) (Amended 4-14-06)
GENERAL RELEASE
This GENERAL RELEASE ("Release") is made this ______ day of _____________, ____, by
________________________("Releasor"), with reference to the following facts:
A. The undersigned, Releasor:
COMPLETE AND CHECK APPROPRIATE BOX(ES):
[~l is the Regional Director under, and signatory to, that certain Regional Director Marketing Agreement
dated ________________ entered into with ROBEKS FRANCHISE CORPORATION ("Company") granting
Regional Director the right to recruit franchise prospects and provide ongoing site and operating support and supervision to ROBEKS® stores within a specific geographic area and the obligation to open and operate at least one ROBEKS store within that geographic area.
CD is the Franchisee under, and signatory to, one or more Franchise Agreements entered into by and between Company and Releasor, as Franchisee, and each one permits Releasor to use the ROBEKS® System and Proprietary Marks to operate one ROBEKS store at a specific location.
|~| is an employee, officer, director, member, manager, partner or owner of an interest in the equity or voting interests of the party (hereinafter "Releasor") identified in either 1 or 2 above.
B. This Release is being executed either pursuant to the requirements of the Regional Director Marketing Agreement or Franchise Agreement as a condition of the rights granted by Company to Releasor, and for other good and valuable consideration, the receipt of which is acknowledged by the parties.
NOW, THEREFORE, RELEASOR AGREES AS FOLLOWS:
1. General Release.
Releasor, for itself, himself or herself, and, if applicable, additionally, for Releasor's Affiliates, if any, and for each of their respective officers, directors, shareholders, members, managers, trustees, partners, employees, attorneys, heirs and successors (Releasor and such other persons are collectively referred to as the "Releasing Parties"), hereby release and forever discharge Company, Company's Affiliates, and their respective officers, directors, shareholders, agents, employees, representatives, attorneys, successors and assigns (collectively the "Released Parties"), and each of them, from any and all claims, demands, obligations, liabilities, actions, causes of action, suits, proceedings, controversies, disputes, agreements, promises, allegations, costs and expenses, at law or in equity, of every nature, character or description whatsoever, whether known or unknown, suspected or unsuspected or anticipated or unanticipated, which any of the Releasing Parties ever had, now has, or may, shall or can hereafter have or acquire (collectively referred to as "Claims"). This Release includes, but is not limited to, all Claims arising out of, concerning, pertaining to or connected with any agreement, tort, statutory violation, representation, nondisclosure, act, omission to act, fact, matter or thing whatsoever, occurring as of or prior to the date of this Release, so that after the date of this Release, none of the Releasing Parties shall have any claim of any kind or nature whatsoever against the Released Parties, directly or indirectly, or by reason of any matter, cause, action, transaction or thing whatsoever done, said or omitted to have been done or said at any time prior to the date of this Release. The terms, "Company's Affiliates" and "Releasors Affiliates," respectively include every entity that controls, is controlled by, or is under common control with Company or Releasor.
2. Waiver of Civil Code Section 1542.
This Release is intended by Releasor to be a full and unconditional general release, as that phrase is used and commonly interpreted, and to constitute a full, unconditional and final accord and satisfaction, extending to all claims of any nature, whether or not known, expected or anticipated to exist in favor of Releasor or any of the other Releasing Parties against the Released Parties regardless of whether any unknown, unsuspected or unanticipated claim would materially affect settlement and compromise of any matter mentioned herein. Releasor,
Robeks General Release (3-21-06) (Amended 4-14-06)
for itself, himself or herself, for each of the other Releasing Parties hereby expressly, voluntarily and knowingly waives, relinquishes and abandons each and every right, protection and benefit to which Releasor or any of the Releasing Parties would be entitled, now or at any time hereafter under Section 1542 of the Civil Code of the State of California, as well as under any other statutes or common law principles of similar effect to said Section 1542, whether now or hereinafter existing under the laws of California or any other applicable federal and state law with jurisdiction over the parties relationship. Releasor, for itself, himself or herself, for each of the other Releasing Parties, acknowledges that Section 1542 of the Civil Code of the State of California provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially effected his settlement with the debtor."
In making this voluntary express waiver, Releasor acknowledges that claims or facts in addition to or different from those which are now known or believed to exist with respect to the matters mentioned herein may later be discovered and that it is Releasor's intention to hereby fully and forever settle and release any and all matters, regardless of the possibility of later discovered claims or facts. This Release is and shall be and remain a full, complete and unconditional general release. Releasor acknowledges and agrees that the foregoing waiver of Section 1542 is an essential, integral and material term of this Release.
3. Dispute Resolution. Releasor agrees to be bound by the dispute resolution provisions attached as Exhibit "A" to this Release, which are incorporated herein by this reference.
4. Release Not Admission. Releasor understands and agrees that the giving or acceptance of this Release and the agreements contained herein shall not constitute or be construed as an admission of any liability by Company or Company or an admission of the validity of any claims made by or against Company or Company.
5. Authority of Parties. Each person executing this Release on behalf of a party hereto warrants and represents that he or she is duly authorized to execute this Release on behalf of such party. Further, each person executing this Release represents that he or she fully and completely understands the effects of this Release and has been represented by counsel in entering this Release or has had ample opportunity and time to do so but, on his or her own, has elected not to do so.
6. No Prior Assignments. Releasor represents and warrants that Releasor has not previously assigned or transferred, or attempted to assign or transfer, to any third party any of the Claims which are the subject of this Release, all of such Claims being released.
IN WITNESS WHEREOF, Releasor has executed this Release on the date first shown above.
Releasor:
[IF APPLICABLE]
By: _______________________________________
Its:_________________________________________
ROBEKS FRANCHISE CORPORATION
By: ____________________________________________
Title: ___________________________________________
Date: ___________________________________________
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EXHIBIT "A
DISPUTE RESOLUTION
1. Agreement to Mediate Disputes. Except as provided in Section 2 of this Exhibit A, neither
Releasor nor Company shall bring an action or proceeding to enforce or interpret any provision of the Release, or seeking any legal remedy based upon the relationship created by this Release or an alleged breach of this Release, until the dispute has been submitted to a mediation proceeding conducted in accordance with the procedures stated in this Exhibit A.
(a) The mediation proceeding shall be conducted pursuant to the mediation rules of the National Franchise Mediation Program, a dispute resolution process for franchising administered under the auspices of the Center for Public Resources with offices in New York, New York ("the Mediation Service"). Either party may initiate the mediation proceeding (the "Initiating Party") by notifying the Mediation Service in writing, with a copy to the other party (the "Responding Party"). The notice shall describe with specificity the nature of the dispute and the Initiating Party's claim for relief. Thereupon, both parties will be obligated to engage in the mediation, which shall be conducted in accordance with the Mediation Service's then current rules, except to the extent such rules conflict with this Release, in which case this Release shall control.
To be qualified, the mediator shall have no past or present affiliation or conflict with any party to the mediation, and must be generally available to conduct the mediation within the time parameters required by this Release. The parties agree that the mediator and the Mediation Service's employees shall be disqualified as a witness, expert, consultant or attorney in any pending or subsequent proceeding relating to the dispute which is the subject of the mediation.
(b) Upon receipt of the written mediation demand, the Mediation Service shall provide the parties with a list of mediators willing to serve. If the parties do not agree upon a mediator, and so advise the Mediation Service in writing, within 10 days of receipt of such list, the Mediation Service shall appoint the mediator. The mediator must be either a practicing attorney with experience in business format franchising or a retired judge. Except as otherwise provided in this Section 1: (i) the fees and expenses of the Mediation Service, including (without limitation) the mediator's fee and expenses, shall be shared equally by the parties, and (ii) each party shall bear its own attorneys' fees and other costs incurred in connection with the mediation irrespective of the outcome of the mediation or the mediator's evaluation of each party's case.
(c) The mediation conference shall take place within 30 days after selection of the mediator. Regardless of whether Company or Releasor is the Initiating Party, the mediation shall be conducted at Company's headquarters, unless Company and Releasor agree upon a mutually acceptable alternative location. At least 7 days before the first scheduled session of mediation, each party shall deliver to the mediator and to the other party a concise written summary of its position with respect to the matters in dispute and the Initiating Party's claims for relief, and such other matters required by the mediator.
(d) The parties shall participate in good faith in the entire mediation proceeding, including the mediation conference, with the intention of resolving the dispute, if at all possible. The parties shall each send at least one representative to the mediation conference who has authority to enter into a binding contract on that party's behalf and on behalf of all principals of that party who are required by the terms of the parties' settlement to be personally bound by it.
(e) If one party breaches this Release by refusing to participate in the mediation proceeding in accordance with this Release, the non-breaching party may immediately file suit and take such other action to enforce its rights as permitted by law and the breaching party shall be obligated to pay: (aa) the mediator's fees and costs, (bb) the non-breaching party's reasonable attorneys fees and costs incurred in connection with the mediation, and (cc) to the extent permitted by law, the non-breaching party's reasonable attorneys fees and costs incurred in any suit arising out of the same dispute, regardless of whether the non-breaching party is the prevailing party. Additionally, in connection with (cc), the breaching party shall forfeit any right to recover its attorneys fees and costs should it prevail in the suit. The parties agree that the foregoing conditions are necessary in order to encourage meaningful mediation as a means for efficiently resolving any disputes that may arise.
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(f) The mediation proceeding will be treated as a compromise settlement negotiation. All
offers, promises, conduct and statements, whether oral or written, made in the course of the mediation proceeding by any party or their agents, experts, counsel, employees or representatives, and by the mediator and the Mediation Service's employees, are confidential. Such offers, promises, conduct and statements may not be disclosed to any third party and are privileged and inadmissible for any purpose, including impeachment, under applicable federal and state laws or rules of evidence; provided however, that evidence otherwise discoverable or admissible shall not be rendered not discoverable or inadmissible as a result of its use in the mediation. If a party informs the mediator that information is conveyed in confidence by the party to the mediator, the mediator will not disclose the information.
2. Exceptions to Duty to Mediate Disputes. The obligation to mediate shall not apply to:
(a) Any claim by either party seeking interim relief, including requests for temporary restraining orders, preliminary injunctions, writs of attachment, appointment of a receiver, for claim and delivery, or any other orders which a court may issue when deemed necessary in its discretion to preserve the status quo or prevent irreparable injury, including the claim of either party for injunctive relief to preserve the status quo pending the completion of a mediation proceeding. The party awarded interim or injunctive relief shall not be required to post bond. Once interim relief is obtained, the parties agree to submit the dispute to, or continue, mediation in accordance with this Exhibit A.
(b) Any claim by Company or the holder of rights under any lease or sublease for unlawful detainer or similar remedies available to a landlord or for the enforcement of Company's other rights under any Addendum to Lease.
3. Judicial Relief.
(a) The parties agree that (i) all disputes arising out of or relating to this Release which are not resolved by negotiation or mediation, and (ii) all claims described in Section 2 of this Exhibit A, shall be brought in the state court located closest to Company's headquarters, unless the subject matter of the dispute arises exclusively under federal law, in which event the dispute shall be submitted to the federal court located closest to Company's headquarters. As of the date of this Release, the parties acknowledge that the Superior Court of the County of Los Angeles, and the United States District Court of the Central District of California are, respectively, the state and federal courts that are located closest to Company's headquarters; however, the parties further acknowledge that Company may relocate its headquarters in its discretion at any time without notice to Releasor. The parties agree to submit to the jurisdiction of the courts mutually selected by them pursuant to this paragraph and mutually acknowledge that selecting a forum in which to resolve disputes arising between them is important to promote stability in their relationship.
(b) To the fullest extent that it may effectively do so, Releasor waives the defense of an inconvenient forum to the maintenance of an action in the courts identified in this Exhibit A and agrees not to commence any action of any kind against Company or any one of its affiliates, or any of its officers, directors, employees, agents or property arising out of or relating to this Release, except in the courts identified in this Exhibit A.
4. Choice of Law. The parties agree that the laws of the state in which the franchise location is located shall govern the construction, interpretation, validity and enforcement of this Release and shall be applied in any mediation or judicial proceeding to resolve all disputes between them, except to the extent the subject matter of the dispute arises exclusively under federal law, in which event such federal law shall govern.
5. Limitations Period. To the extent permitted by applicable law, any legal action of any kind arising out of or relating to this Release or its breach, including without limitation, any claim that this Release or any of its parts is invalid, illegal or otherwise voidable or void, must be commenced by no later than the last to occur of the following: (i) 90 days after obtaining knowledge of the facts which constituted or gave rise to the alleged violation or liability, or (ii) one year after the act, event, occurrence or transaction which constituted or gave rise to the alleged violation or liability; provided, however, the applicable limitations period shall be tolled during the course of any mediation proceeding which is initiated before the last day of the limitations period, and such toll shall commence
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on the date the Responding Party receives the Initiating Party's demand for mediation and continue until the date the mediation is concluded.
6. Punitive or Exemplary Damages. Company and Releasor each hereby waive to the fullest extent permitted by law, any right to, or claim for, punitive or exemplary damages against the other and agree that, in the event of a dispute between them, each is limited to recovering only the actual damages proven to have been sustained by it.
7. Attorneys' Fees. Except as expressly provided in this Release, in any action or proceeding brought to enforce any provision of this Release or arising out of or in connection with the relationship of the parties hereunder, the prevailing party shall be entitled to recover against the other its reasonable attorneys' fees and costs in addition to any other relief awarded by the court; provided, however, the total attorneys' fees and costs awarded to the prevailing party shall not exceed the total monetary relief the prevailing party recovers. As used in this Release, the "prevailing party" is the party who recovers greater relief in the action.
8. WAIVER OF JURY TRIAL. COMPANY, ON BEHALF OF ITSELF AND ITS RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS, AND RELEASOR, ON BEHALF OF HIMSELF OR HERSELF, AND HIS OR HER HEIRS, REPRESENTATIVES AND ASSIGNS, EACH HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION, PROCEEDING OR HEARING BROUGHT BY EITHER PARTY OR PERSON ON ANY MATTER WHATSOEVER ARISING OUT OF, ON IN ANY WAY CONNECTED WITH, THIS RELEASE OR ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY LAW, STATUTE, REGULATION, EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
Robeks General Release (3-21-06) (Amended 4-14-06)