11/13/2015 08:4230:DEA47B33-0B83-4C39-96FF-4D07CB5D273B17537ACONTRACTS537A.1Seals abolished.The use of private seals in written contracts, or other instruments in writing, by individuals, firms, or corporations that have not adopted a corporate seal, is hereby abolished; but the addition of a seal to any such instrument shall not affect its character or validity in any respect.[C51, §974; R60, §1823; C73, §2112; C97, §3068; S13, §3068; C24, 27, 31, 35, 39, §9439; C46, 50, 54, 58, 62, 66, 71, 73, §537.1; C75, 77, 79, 81, §537A.1]Corporate seals, §490.302, 504.302, 558.2 et seq.537A.2Consideration implied.All contracts in writing, signed by the party to be bound or by the party’s authorized agent or attorney, shall import a consideration.[C51, §975; R60, §1824; C73, §2113; C97, §3069; C24, 27, 31, 35, 39, §9440; C46, 50, 54, 58, 62, 66, 71, 73, §537.2; C75, 77, 79, 81, §537A.2]537A.3Failure of consideration.The want or failure, in whole or in part, of the consideration of a written contract may be shown as a defense, total or partial, except as provided in the uniform commercial code, chapter 554.[C51, §976; R60, §1825; C73, §2114; C97, §3070; C24, 27, 31, 35, 39, §9441; C46, 50, 54, 58, 62, 66, 71, 73, §537.3; C75, 77, 79, 81, §537A.3]537A.4Gaming contracts void — exceptions.1All promises, agreements, notes, bills, bonds, or other contracts, mortgages or other securities, when the whole or any part of the consideration thereof is for money or other valuable thing won or lost, laid, staked, or bet, at or upon any game of any kind or on any wager, are absolutely void and of no effect.2This section does not apply to a contract for the operation of or for the sale or rental of equipment for games of skill or games of chance, if both the contract and the games are in compliance with chapter 99B. This section does not apply to wagering under the pari-mutuel method of wagering authorized by chapter 99D. This section does not apply to the sale, purchase, or redemption of a ticket or share in the state lottery in compliance with chapter 99G. This section does not apply to wagering authorized by chapter 99F. This section does not apply to the sale, purchase, or redemption of any ticket or similar gambling device legally purchased in Indian lands within this state.[C51, §2724; R60, §4366; C73, §4029; C97, §4965; C24, 27, 31, 35, 39, §9442; C46, 50, 54, 58, 62, 66, 71, 73, §537.4; C75, 77, 79, 81, §537A.4]83 Acts, ch 187, §32; 85 Acts, ch 33, §123; 86 Acts, ch 1125, §4; 88 Acts, ch 1136, §1; 89 Acts, ch 231, §34; 92 Acts, ch 1203, §19; 2003 Acts, ch 178, §115, 121; 2003 Acts, ch 179, §142; 2008 Acts, ch 1031, §58537A.5Indemnity agreements construction contracts.1As used in this section, “construction contract” means an agreement relating to the construction, alteration, improvement, development, demolition, excavation, rehabilitation, maintenance, or repair of buildings, water or sewage treatment plants, power plants, or any other improvements to real property in this state, including shafts, wells, and structures, whether on ground, above ground, or underground, and includes agreements for architectural services, design services, engineering services, construction services, construction management services, development services, maintenance services, material purchases, equipment rental, and labor. “Construction contract” includes all public, private, foreign, or domestic agreements as described in this subsection other than such public agreements relating to highways, roads, and streets.2Except as excluded under subsection 3, a provision in a construction contract that requires one party to the construction contract to indemnify, hold harmless, or defend any other party to the construction contract, including the indemnitee’s employees, consultants, agents, or others for whom the indemnitee is responsible, against liability, claims, damages, losses, or expenses, including attorney fees, to the extent caused by or resulting from the negligent act or omission of the indemnitee or of the indemnitee’s employees, consultants, agents, or others for whom the indemnitee is responsible, is void and unenforceable as contrary to public policy.3This section does not apply to the indemnification of a surety by a principal on any surety bond, an insurer’s obligation to its insureds under any insurance policy or agreement, a borrower’s obligations to its lender, or any obligation of strict liability otherwise imposed by law.2011 Acts, ch 33, §1; 2011 Acts, ch 131, §99, 158537A.6In-state construction contracts Iowa law to govern.1As used in this section, “in-state construction contract” means a public, private, foreign, or domestic agreement relating to construction, alteration, repair, or maintenance of any real property in this state and includes agreements for architectural services, demolition, design services, development, engineering services, excavation, or any other improvement to real property in this state, including buildings, shafts, wells, and structures, whether on, above, or under real property in this state. “In-state construction contract” does not include any agreement between this state and any other state.2A provision of an in-state construction contract is void and unenforceable as contrary to public policy if the provision does any of the following:aMakes the in-state construction contract subject to the laws of another state.bRequires any litigation, mediation, arbitration, or other dispute resolution proceeding arising from the in-state construction contract to be conducted in another state.3The laws of this state shall apply to every in-state construction contract.4Any litigation, mediation, arbitration, or other dispute resolution proceeding arising from or relating to an in-state construction contract shall be conducted in this state.2013 Acts, ch 87, §1, 2537A.7Reserved.537A.8Reserved.537A.9Reserved.537A.10Franchise agreements.1Definitions.When used in this section, unless the context otherwise requires:a“Affiliate” means a person controlling, controlled by, or under common control with another person, every officer or director of such a person, and every person occupying a similar status or performing similar functions.b“Business day” means a day other than a Saturday, Sunday, or federal holiday.c1“Franchise” means either of the following:aAn oral or written agreement, either express or implied, which provides all of the following:iGrants the right to distribute goods or provide services under a marketing plan prescribed or suggested in substantial part by the franchisor.iiRequires payment of a franchise fee to a franchisor or its affiliate.iiiAllows the franchise business to be substantially associated with a trademark, service mark, trade name, logotype, advertisement, or other commercial symbol of or designating the franchisor or its affiliate.bA master franchise.2“Franchise” does not include any business that is operated under a lease or license on the premises of the lessor or licensor as long as such business is incidental to the business conducted by the lessor or licensor on such premises, including, without limitation, leased departments, licensed departments, and concessions and the leased or licensed department operates only under the trademark, trade name, service mark, or other commercial symbol designating the lessor or licensor.3“Franchise” also does not include any contract under which a petroleum retailer or petroleum distributor is authorized or permitted to occupy leased marketing premises, which premises are to be employed in connection with the sale, consignment, or distribution of motor fuel under a trademark which is owned or controlled by a refiner which is regulated by the federal Petroleum Marketing Practices Act, 15 U.S.C. §2801 et seq. The term “refiner” means any person engaged in the refining of crude oil to produce motor fuel, and includes any affiliate of such person. “Franchise” also does not include a contract entered into by any person regulated under chapter 103A, subchapter IV, or chapter 123, 322, 322A, 322C, 322D, 322F, 522B, or 543B, or a contract establishing a franchise relationship with respect to the sale of construction equipment, lawn or garden equipment, or real estate.d“Franchise fee” means a direct or indirect payment to purchase or operate a franchise. Franchise fee does not include any of the following:1Payment of a reasonable service charge to the issuer of a credit card by an establishment accepting the credit card.2Payment to a trading stamp company by a person issuing trading stamps in connection with a retail sale.3An agreement to purchase at a bona fide wholesale price a reasonable quantity of tangible goods for resale.4The purchase or agreement to purchase, at a fair market value, any fixtures, equipment, leasehold improvements, real property, supplies, or other materials reasonably necessary to enter into or continue a business.5Payments by a purchaser pursuant to a bona fide loan from a seller to the purchaser.6Payment of rent which reflects payment for the economic value of leased real or personal property.7The purchase or agreement to purchase promotional or demonstration supplies, materials, or equipment furnished at fair market value and not intended for resale.e“Franchisee” means a person to whom a franchise is granted. Franchisee includes the following:1A subfranchisor with regard to its relationship with a franchisor.2A subfranchisee with regard to its relationship with a subfranchisor.f“Franchisor” means a person who grants a franchise or master franchise, or an affiliate of such a person. Franchisor includes a subfranchisor with regard to its relationship with a franchisee, unless stated otherwise in this section.g“Marketing plan” means a plan or system concerning a material aspect of conducting business. Indicia of a marketing plan include any of the following:1Price specification, special pricing systems, or discount plans.2Sales or display equipment or merchandising devices.3Sales techniques.4Promotional or advertising materials or cooperative advertising.5Training regarding the promotion, operation, or management of the business.6Operational, managerial, technical, or financial guidelines or assistance.h“Master franchise” means an agreement by which a person pays a franchisor for the right to sell or negotiate the sale of franchises.i“Offer” or “offer to sell” means every attempt to offer or to dispose of, or solicitation of an offer to buy, a franchise or interest in a franchise for value.j“Person” means a person as defined in section 4.1, subsection 20.k“Sale” or “sell” means every contract or agreement of sale of, contract to sell or disposition of, a franchise or interest in a franchise for value.l“Subfranchise” means an agreement by which a person pays a franchisor for the right to sell or negotiate the sale of franchises.m“Subfranchisee” means a person who is granted a franchise from a subfranchisor.n“Subfranchisor” means a person who is granted a master franchise.2Applicability.Notwithstanding section 523H.2, this section applies to a new or existing franchise that is operated in this state and that is subject to an agreement entered into on or after July 1, 2000. For purposes of this section, the franchise is operated in this state only if the premises from which the franchise is operated are physically located in this state. For purposes of this section, a franchise including marketing rights in or to this state, is deemed to be operated in this state only if the franchisee’s principal business office is physically located in this state. This section does not apply to a franchise solely because an agreement relating to the franchise provides that the agreement is subject to or governed by the laws of this state. The provisions of this section do not apply to any existing or future contracts between Iowa franchisors and franchisees who operate franchises located out-of-state.3Jurisdiction and venue of disputes.aA provision in a franchise agreement restricting jurisdiction to a forum outside this state is void with respect to a claim otherwise enforceable under this section.bA civil action or proceeding arising out of a franchise may be commenced wherever jurisdiction over the parties or subject matter exists, even if the agreement limits actions or proceedings to a designated jurisdiction.cVenue for a civil action commenced under this chapter shall be determined in accordance with chapter 616.4Waivers void.A condition, stipulation, or provision requiring a franchisee to waive compliance with or relieving a person of a duty or liability imposed by or a right provided by this section or a rule or order under this section is void. This subsection shall not affect the settlement of disputes, claims, or civil lawsuits arising or brought pursuant to this section.5Transfer of franchise.aA franchisee may transfer the franchised business and franchise to a transferee, provided that the transferee satisfies the reasonable current qualifications of the franchisor for new franchisees. For the purposes of this subsection, a reasonable current qualification for a new franchisee is a qualification based upon a legitimate business reason. If the proposed transferee does not meet the reasonable current qualifications of the franchisor, the franchisor may refuse to permit the transfer, provided that the refusal of the franchisor to consent to the transfer is not arbitrary or capricious.b1A franchisee may transfer less than a controlling interest in the franchise to an employee stock ownership plan, or employee incentive plan provided that more than fifty percent of the entire franchise is held by those who meet the franchisor’s reasonable current qualifications for franchisees, and such transfer is approved by the franchisor. Approval of such transfer shall not be unreasonably withheld.2If pursuant to such a transfer fifty percent or less of the entire franchise would be owned by persons who meet the franchisor’s reasonable current qualifications, the franchisor may refuse to authorize the transfer, provided that enforcement of the reasonable current qualifications is not arbitrary or capricious.3Participation by an employee in an employee stock ownership plan or employee incentive plan established pursuant to this subsection does not confer upon such employee any right to access trade secrets protected under the franchise agreement, which access the employee would not otherwise have if the employee did not participate in such plan.cA franchisor may require as a condition of a transfer any of the following:1That the transferee successfully complete a training program.2That a transfer fee be paid to reimburse the franchisor for the franchisor’s actual expenses directly attributable to the transfer.3That the franchisee pay or make provision acceptable to the franchisor to pay any amount due the franchisor or the franchisor’s affiliate.4That the financial terms of the transfer comply at the time of the transfer with the franchisor’s current financial requirements for franchisees.dA franchisee shall give the franchisor no less than sixty days’ written notice of a transfer which is subject to this subsection, and on request from the franchisor shall provide in writing the ownership interests of all persons holding or claiming an equitable or beneficial interest in the franchise subsequent to the transfer or the franchisee, as appropriate. A franchisee shall not circumvent the intended effect of a contractual provision governing the transfer of the franchise or an interest in the franchise by means of a management agreement, lease, profit-sharing agreement, conditional assignment, or other similar device.eA transfer by a franchisee is deemed to be approved sixty days after the franchisee submits the request for consent to the transfer unless the franchisor withholds consent to the transfer as evidenced in writing, specifying the reason or reasons for withholding the consent. The written notice must be delivered to the franchisee prior to the expiration of the sixty-day period. Any such notice is privileged and is not actionable based upon a claim of defamation.fA franchisor shall not discriminate against a proposed transferee of a franchise on the basis of race, color, national origin, religion, sex, or disability.gA transfer of less than a controlling interest in the franchise to the franchisee’s spouse or child or children shall be permitted if following the transfer more than fifty percent of the interest in the entire franchise is held by those who meet the franchisor’s reasonable current qualifications. If following such a transfer fifty percent or less of the interest in the franchise would be owned by persons who meet the franchisor’s reasonable current qualifications, the franchisor may refuse to authorize the transfer, provided that enforcement of the reasonable current qualifications is not arbitrary or capricious.hA franchisor shall not deny the surviving spouse or a child or children of a deceased or permanently disabled franchisee the opportunity to participate in the ownership of a franchise under a valid franchise agreement for a reasonable period, which need not exceed one year, after the death or disability of the franchisee. During such reasonable period, the surviving spouse or the child or children of the franchisee shall either meet all of the qualifications which the franchisee was subject to at the time of the death or disability of the franchisee, or sell, transfer, or assign the franchise to a person who meets the franchisor’s current qualifications for a new franchisee. The rights granted pursuant to this subsection are subject to the surviving spouse or the child or children of the franchisee maintaining all standards and obligations of the franchise.iIncorporation of a proprietorship franchise shall be permitted upon sixty days’ prior written notice to the franchisor. Such incorporation does not prohibit a franchisor from requiring a personal guaranty by the franchisee of obligations related to the franchise, and the owners of the corporation must meet the franchisor’s reasonable current qualifications for franchisees.jA transfer within an existing ownership group of a franchise shall be permitted provided that the transferee meets the franchisor’s reasonable current qualifications for franchisees, and written notice is submitted to the franchisor sixty days prior to such a transfer. If less than fifty percent of the franchise would be owned by persons who meet the franchisor’s reasonable current qualifications, the franchisor may refuse to authorize the transfer, provided that enforcement of the reasonable current qualifications is not arbitrary or capricious.6Encroachment.aIf a franchisor develops, or grants to a franchisee the right to develop, a new outlet or location which sells essentially the same goods or services under the same trademark, service mark, trade name, logotype, or other commercial symbol as an existing franchisee and the new outlet or location is in unreasonable proximity to the existing franchisee’s outlet or location and has an adverse effect on the gross sales of the existing franchisee’s outlet or location, the existing adversely affected franchisee has a cause of action for monetary damages in an amount calculated pursuant to paragraph “d”, unless any of the following apply:1The franchisor has first offered the new outlet or location to the existing franchisee on the same basic terms and conditions available to the other potential franchisee and such existing franchisee meets the reasonable current qualifications of the franchisor including any financial requirements, or, if the new outlet or location is to be owned by the franchisor, on the terms and conditions that would ordinarily be offered to a franchisee for a similarly situated outlet or location.2The adverse impact on the existing franchisee’s annual gross sales, based on a comparison to the annual gross sales from the existing outlet or location during the twelve-month period immediately preceding the opening of the new outlet or location, is determined to have been less than six percent during the first twelve months of operation of the new outlet or location.3The existing franchisee, at the time the franchisor develops, or grants to a franchisee the right to develop, a new outlet or location, is not in compliance with the franchisor’s then current reasonable criteria for eligibility for a new franchise, not including any financial requirements.4The existing franchisee has been granted reasonable territorial rights and the new outlet or location does not violate those territorial rights.b1The franchisor, with respect to claims made under paragraph “a”, shall establish both of the following:aA formal procedure for hearing and acting upon claims by an existing franchisee with regard to a decision by the franchisor to develop, or grant to a franchisee the right to develop, a new outlet or location, prior to the opening of the new outlet or location.bA reasonable formal procedure for mediating a dispute resulting in an award of compensation or other form of consideration to a franchisee to offset all or a portion of the franchisee’s lost profits caused by the establishment of the new outlet or location. The procedure shall involve a neutral third-party mediator. The procedure shall be deemed reasonable if approved by a majority of the franchisor’s franchisees in the United States.2A dispute submitted to a formal procedure under subparagraph (1) does not diminish the rights of a franchisor or franchisee to bring a cause of action for a violation of this subsection if no settlement results from such procedure.cA franchisor shall establish and make available to its franchisees a written policy setting forth its reasonable criteria to be used by the franchisor to determine whether an existing franchisee is eligible for a franchise for an additional outlet or location.d1In establishing damages under a cause of action brought pursuant to this subsection, the franchisee has the burden of proving the amount of lost profits attributable to the compensable sales. In any action brought under this subsection, the damages payable shall be limited to no more than three years of the proven lost profits. For purposes of this paragraph, “compensable sales” means the annual gross sales from the existing outlet or location during the twelve-month period immediately preceding the opening of the new outlet or location less both of the following:aSix percent of the annual gross sales for that twelve-month period immediately preceding the opening of the new outlet or location.bThe actual gross sales from the operation of the existing outlet or location for the twelve-month period immediately following the opening of the new outlet or location.2Compensable sales shall exclude any amount attributable to factors other than the opening and operation of the new outlet or location.eAny cause of action brought under this subsection must be filed within eighteen months of the opening of the new outlet or location or within thirty days after the completion of the procedure under paragraph “b”, subparagraph (1), whichever is later.7Termination.aExcept as otherwise provided by this section, a franchisor shall not terminate a franchise prior to the expiration of its term except for good cause. For purposes of this subsection, “good cause” is cause based upon a legitimate business reason. “Good cause” includes the failure of the franchisee to comply with any material lawful requirement of the franchise agreement, provided that the termination by the franchisor is not arbitrary or capricious. The burden of proof of showing that the action of the franchisor is arbitrary or capricious shall rest with the franchisee.bPrior to termination of a franchise for good cause, a franchisor shall provide a franchisee with written notice stating the basis for the proposed termination. After service of written notice, the franchisee shall have a reasonable period of time to cure the default, which in no event shall be less than thirty days or more than ninety days. In the event of nonpayment of moneys due under the franchise agreement, the period to cure need not exceed thirty days.cNotwithstanding paragraph “b”, a franchisor may terminate a franchise upon written notice and without an opportunity to cure if any of the following apply:1The franchisee or the business to which the franchise relates is declared bankrupt or judicially determined to be insolvent.2All or a substantial part of the assets of the franchise or the business to which the franchisee relates are assigned to or for the benefit of any creditor which is subject to chapter 681. An assignment for the benefit of any creditor pursuant to this subparagraph does not include the granting of a security interest in the normal course of business.3The franchisee voluntarily abandons the franchise by failing to operate the business for five consecutive business days during which the franchisee is required to operate the business under the terms of the franchise, or any shorter period after which it is not unreasonable under the facts and circumstances for the franchisor to conclude that the franchisee does not intend to continue to operate the franchise, unless the failure to operate is due to circumstances beyond the control of the franchisee.4The franchisor and franchisee agree in writing to terminate the franchise.5The franchisee knowingly makes any material misrepresentations or knowingly omits to state any material facts relating to the acquisition or ownership or operation of the franchise business.6The franchisee repeatedly fails to comply with one or more material provisions of the franchise agreement, when the enforcement of such material provisions is not arbitrary or capricious, whether or not the franchisee complies after receiving notice of the failure to comply.7The franchised business or business premises of the franchisee are lawfully seized, taken over, or foreclosed by a government authority or official.8The franchisee is convicted of a felony or any other criminal misconduct which materially and adversely affects the operation, maintenance, or goodwill of the franchise in the relevant market.9The franchisee operates the franchised business in a manner that imminently endangers the public health and safety.8Nonrenewal of a franchise.aA franchisor shall not refuse to renew a franchise unless both of the following apply:1The franchisee has been notified of the franchisor’s intent not to renew at least six months prior to the expiration date or any extension of the franchise agreement.2Any of the following circumstances exist:aGood cause exists, provided that the refusal of the franchisor to renew is not arbitrary or capricious. For purposes of this subsection, “good cause” means cause based on a legitimate business reason.bThe franchisor and franchisee agree not to renew the franchise.cThe franchisor completely withdraws from directly or indirectly distributing its products or services in the geographic market served by the franchisee, provided that upon expiration of the franchise, the franchisor agrees not to seek to enforce any covenant of the nonrenewed franchisee not to compete with the franchisor or franchisees of the franchisor.bAs a condition of renewal of the franchise, a franchise agreement may require that the franchisee meet the then current requirements for franchises and that the franchisee execute a new agreement incorporating the then current terms and fees for new franchises.9Sources of goods or services.aA franchisor shall not require that a franchisee purchase goods, supplies, inventories, or services exclusively from the franchisor or from a source or sources of supply specifically designated by the franchisor where such goods, supplies, inventories, or services of comparable quality are available from sources other than those designated by the franchisor.bHowever, the publication by the franchisor of a list of approved suppliers of goods, supplies, inventories, or services, or the requirement that such goods, supplies, inventories, or services comply with specifications and standards prescribed by the franchisor, does not constitute designation of a source. Additionally, the reasonable right of a franchisor to disapprove a supplier does not constitute a designation of source. This subsection does not apply to the principal goods, supplies, inventories, or services manufactured by the franchisor, or such goods, supplies, inventories, or services entitled to protection as a trade secret.10Franchisee’s right to associate.A franchisor shall not restrict a franchisee from associating with other franchisees or from participating in a trade association, and shall not retaliate against a franchisee for engaging in these activities.11Duty of good faith.aA franchise imposes on the parties a duty of good faith in performance and enforcement of the franchise agreement. “Good faith” means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.bThe duty of good faith is imposed in situations including, but not limited to, where the franchisor opens a new outlet or location that has an adverse impact on an existing franchisee. A determination of whether the duty of good faith with respect to a new outlet or location has been met shall be made pursuant to the provisions, standards, and procedures in subsection 6.12Exclusion.For purposes of this section, “franchise” does not include a contract under which a franchise relationship is established with respect to retreaded tires and related equipment used for commercial vehicles.13Private civil action.A person who violates a provision of this section or order issued under this section is liable for damages caused by the violation, including, but not limited to, costs and reasonable attorneys’ and experts’ fees, and subject to other appropriate relief including injunctive and other equitable relief.14Choice of law.A condition, stipulation, or provision requiring the application of the law of another state in lieu of this section is void.15Construction with other law.This section does not limit any liability that may exist under another statute or at common law.16Construction.This section shall be liberally construed to effectuate its purposes.17Severability.If any provision or clause of this section or any application of this section to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the section which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared to be severable.2000 Acts, ch 1093, §1; 2001 Acts, ch 118, §55; 2002 Acts, ch 1119, §186; 2006 Acts, ch 1090, §22, 26; 2012 Acts, ch 1023, §157