Does a claim that an Aerus franchisee may have against the company constitute a defense to the enforcement of the non-compete covenants?
Aerus Franchise · 2025 FDDAnswer from 2025 FDD Document
er developed businesses or systems. Franchisee agrees that the length of time in this Section 6(B) will be tolled for any period during which Franchisee is in breach of the covenants set forth in this Section 6(B) or any other period during which Company seeks to enforce this Agreement
- C. This Section 6 shall survive the expiration or termination of this Agreement. No claim Franchisee may have against Company, whether or not arising from this Agreement, shall
constitute a defense to the enforcement by Company of the covenants provided for in this Section. Franchisee acknowledges that a violation of the terms of this Section would result in irreparable injury to Company for which no adequate remedy at law may be available, and, notwithstanding any other requirement herein to arbitrate disputes, Franchisee accordingly consents to the issuance of an injunction prohibiting any conduct by Franchisee in violation of the terms of this Section without the necessity of showing actual or threatened harm, likelihood of success on the merits of the claims and without being required to furnish a bond or other security. Franchisee agrees to pay all court costs and reasonable attorneys' fees incurred by Company in connection with the enforcement of this Section, including payment of all expenses for obtaining specific performance of, or an injunction against violation of, the requirements of this Section.
D. For breach of the covenants in this Section 6, which are made in consideration of the specialized training and confidential information conveyed to Franchisee, and due to the difficulty of establishing the precise amount of damages for breach of these covenants, in addition to the other remedies provided for in this Agreement or otherwise available to Company, Franchisee and Franchisee's principals who committed such breach jointly and severally agree to pay Company the amount of O
Source: Item 23 — Receipts (FDD pages 74–305)
What This Means (2025 FDD)
According to Aerus's 2025 Franchise Disclosure Document, a claim that a franchisee may have against the company does not constitute a defense against the enforcement of non-compete covenants. Specifically, the FDD states that no claim a franchisee has against Aerus, regardless of whether it arises from the franchise agreement, will prevent Aerus from enforcing the non-compete provisions outlined in the agreement. This means that even if an Aerus franchisee believes Aerus has wronged them, they are still obligated to adhere to the non-compete terms.
Aerus emphasizes the importance of the non-compete agreement by stating that any violation would cause irreparable injury to the company. Because of this, Aerus can seek an injunction against a franchisee violating the non-compete agreement without needing to prove actual harm or provide a bond. The franchisee also agrees to cover all court costs and legal fees Aerus incurs while enforcing the non-compete agreement.
In addition to other available remedies, Aerus specifies that a franchisee and its principals who breach the non-compete covenants must pay Aerus $1,500 per day for each day the breach continues. Aerus states that this amount is a reasonable estimate of the damages the company would incur due to a breach of these covenants. This clause underscores the seriousness with which Aerus views the non-compete agreement and the potential financial repercussions for franchisees who violate it.