What constitutes a failure to comply with any obligations imposed on an Epcon Communities franchisee by the agreement?

usiness entity name or trade name in its advertising and promotional materials.

• (b) Feature and use the Marks solely in the manner prescribed by Franchisor.
• (c) Observe such reasonable requirements with respect to service mark, trade name, trademark and fictitious name registrations and copyright and patent ownership notices as Franchisor may, from time to time, direct in writing.
  • (d) Comply with the provisions of Article 6, Section 7.3, and Section 10.5 hereof.
• 5.10 Franchisee shall, during the term of this Agreement, purchase, install, maintain, and use in its operations under this Agreement a personal computer system having at least the minimum specifications and capabilities, and including at least the software, as specified by Franchisor in writing from time to time to its Epcon Communities franchisees. Franchisee understands that compliance with its obligations in this Section 5.10 may require it to purchase new hardware and software or upgrades to existing hardware and software, as specified by Franchisor in writing from time to time to its Epcon Communities franchisees. As to any malfunctioning of the any computer system or any website as further described in this Agreement, neither Franchisor nor any affiliate will be liable to Franchisee for any consequential, incidental, indirect, economic, special, exemplary or punitive damages, such as, but not limited to, loss of revenue or anticipated profits or lost business.

Franchisee shall obtain and maintain any and all equipment and services necessary to connect to the website referenced in Section 7.5 and to receive electronic communications from Franchisor. Franchisee is responsible for notifying Franchisor of its desired e-mail address for delivery of communications and online sales leads and must advise Franchisor of any subsequent changes immediately.

• 5.11 Franchisee's covenants and obligations contained in this Agreement shall be construed as severable and independent and shall be interpreted and applied consistently with the requirements of reasonableness and equity. If all or any portion of any covenant is held unreasonable or unenforceable by a court or agency having valid jurisdiction, Franchisee expressly agrees to be bound by any lesser covenant included within the terms of such greater covenant that imposes the maximum duty permitted by law, as if the lesser included covenant were separately stated in and made a part of this Agreement.
• 5.12 On a schedule, at a location and in a medium to be determined within its sole discretion, Franchisor will hold a series of initial franchisee training sessions for the benefit of Franchisee at a location and/or medium selected by Franchisor in its sole discretion. Franchisee or at least one owner of the franchise business is required to attend and/or participate each of the portions of the first such training session held by Franchisor after execution of this Agreement. Including the required attendee described above, up to three (3) additional non-owner individuals may attend the initial training. Franchisor has the right to require that Franchisee's construction supervisor attend the construction training sessions provided by Franchisor as part of the initial training sessions. Initial training shall be provided free of charge; provided that the Franchisee shall be responsible for all travel, lodging, meal and other incidental costs and expenses.

Franchisor may provide training in addition to initial training and shall have the right to require Franchisee and certain of Franchisee's employees attend such training. Franchisee shall be responsible for the travel, lodging, meal and other incidental costs and expenses of any attendee of such training. Franchisor shall have the right to charge a fee for such training.

• 5.13 In the event that Franchisor holds an annual meeting or conference of the Epcon Communities franchisees, Franchisee, or a representative of Franchisee's management satisfactory to Franchisor in its sole discretion, shall attend all sessions of such meeting or conference, unless such attendance is excused by Franchisor in writing. Attendance at such meeting or conference shall be at Franchisee's sole cost and expense.
• 5.14 Franchisee may be required, in Franchisor's discretion, to purchase building materials and/or components that (a) meet Franchisor's specifications, and/or (b) are sold by suppliers designated or approved by Franchisor. In connection with such purchases, Franchisor shall have the right to require Franchisee to participate in a rebate tracking service designated by Franchisor. Franchisor may charge a percentage of the rebates received from the rebate tracking service as an administrative fee for Franchisor's administration of the rebate tracking service. Franchisor may remit the amount of the rebate tracking service fee to the service provider on Franchisee's behalf. Any rebates received as a result of Franchisee's participation in such rebate tracking service will be paid to Franchisee (after deduction of any administrative fees to Franchisor and any applicable program fees paid to the service provider).
• 5.15 Franchisee may be required, in Franchisor's discretion, to participate in a home survey service designated by Franchisor to track buyer satisfaction. If required, Franchisee shall pay such fees due and payable from time to time for participation in such service. Franchisee shall also purchase from suppliers approved by Franchisor certain presentation galleries, site maps for presentation galleries, and web site and marketing materials, as required by Franchisor from time to time.
• 5.16 On or before the fifth (5th) day of each month, Franchisee shall report to Franchisor for the previous month (a) the number of Units closed and the sale price of each Unit (b) the applicable Settlement Statement or the total of the "Sale Price of the Property" and the "Sale Price of any personal property included in sale" in the Settlement Disclosure Form (or their equivalent) for each such Unit closed, (c) a list of each of the upgrades to or optional features selected by the buyer of such Unit, as well as the cost paid by the buyer for each such upgrade or optional feature, and (d) any other additional information relating to the sale of the Units requested by Franchisor.
• 5.17 Franchisee shall fully participate in the QualityMark inspection program, or any successor program instituted by Franchisor (the "QualityMark Program"), and Franchisee shall employ or contract for an inspector to provide such inspections as required by the QualityMark Program, as the same may be prescribed in writing by Franchisor from time to time. The QualityMark Program is not intended to exercise, and does not constitute, control over Franchisee's day-to-day operation of its business or the Project. The QualityMark Program is also not intended to be, and does not constitute, an analysis of Franchisee's compliance with applicable federal, state, and local laws, regulations, ordinances, and codes. The QualityMark Program is to protect Franchisor's interests in the Development System and the Marks and not for the purpose of establishing any control or duty to take control over those matters that are reserved to Franchisee.
• 5.18 Franchisee shall provide to Franchisor true and accurate copies of all executed loan or other documents evidencing the arrangement by which Franchisee is financing acquisition, development, and construction of each Project. Franchisee's obligation to provide such documents to Franchisor shall continue throughout the term of this Agreement.
• 5.19 Franchisee must, at all times, operate its business and develop the Project under this Agreement and any and all Initial Market Area Agreements and/or Market Area Agreements in full compliance with all applicable federal, state and local laws, regulations, codes and ordinances. Franchisee also must secure and maintain in force all required licenses, permits and certificates relating to its business and the Project. Any liability or expense that Franchisor or its affiliates incur due to Franchisee's failure to comply with the requirements of this Section 5.19 shall be subject to Franchisee's indemnification obligations under Section 16.1. Franchisee acknowledges that it is an independent business and responsible for control and management of its business and the Project.

Source: Item 23 — RECEIPTS (FDD pages 86–280)