In the event of a violation of the confidentiality terms, is Aerus required to show actual or threatened harm to obtain an injunction?
Aerus Franchise · 2025 FDDAnswer from 2025 FDD Document
s 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.
Source: Item 23 — Receipts (FDD pages 74–305)
What This Means (2025 FDD)
According to Aerus's 2025 Franchise Disclosure Document, if a franchisee violates the confidentiality terms outlined in Section 19 of the franchise agreement, Aerus does not need to demonstrate actual or threatened harm to obtain an injunction against the franchisee. The franchisee consents to the issuance of an injunction prohibiting any conduct in violation of the terms without Aerus having to show actual or threatened harm or likelihood of success on the merits of the claims. Aerus is also not required to furnish a bond or other security.
This means that Aerus has the right to seek immediate legal action to prevent a franchisee from disclosing confidential information, even if the company cannot prove that it has already suffered specific damages or is likely to suffer future damages. This clause strengthens Aerus's ability to protect its proprietary information and maintain a competitive advantage.
Furthermore, the franchisee is responsible for covering all court costs and reasonable attorney's fees incurred by Aerus in enforcing Section 19, including expenses for obtaining specific performance or an injunction. In addition to other available remedies, the franchisee and their principals agree to pay Aerus $5,000 per occurrence for breaches of these confidentiality covenants, acknowledging this amount as a reasonable estimate of the damages Aerus would incur. This financial penalty serves as a deterrent against violating the confidentiality terms.
This type of clause is relatively common in franchise agreements, as franchisors need to protect their trade secrets and confidential information. Prospective Aerus franchisees should understand the importance of maintaining confidentiality and the potential legal and financial consequences of breaching these terms.