Is the Aerus software license granted to the Licensee assignable?
Aerus Franchise · 2025 FDDAnswer from 2025 FDD Document
NOW, THEREFORE, for and in consideration of the premises and promises set forth herein and in the Franchise Agreement, and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, Licensor and Licensee agree as follows:
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- Licensor hereby grants to Licensee a nonexclusive, nonassignable license to use the computer programs (including all revisions, modifications and enhancements thereto), in object code form (the "Software"), together with their related user and operating documentation, if any (the "Documentation") from time to time made available to Licensee under the Franchise Agreement. Licensee must provide, at Licensee's sole expense, the hardware, software and Internet or telecommunication connections meeting or exceeding the minimum operating specifications for the Software, as Licensor determines from time to time.
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- Licensee must use the Software and the Documentation only in the operation of Licensee's Franchised Business at the Approved Locations. Licensee may not modify, copy, translate, or reproduce in any form all or any part of the Software or the Documentation without Licensor's prior written consent, and in such event solely to the extent required for use of the Software and the Documentation in the operation of Licensee's Franchised Business. Any copies made under Licensor's direction must include any proprietary notices Licensor may request, including the statement "Copyright © AERUS FRANCHISING, LLC." Licensee must not make the Software or any Documentation available to any party except as described herein. Licensee must not, nor will Licensee allow any third party to, reverse engineer, decompile or otherwise recreate the Software or to reproduce or disclose any portion of the Documentation.
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- As between Licensor and Licensee, all copies of the Software and the Documentation, including any produced by Licensee with Licensor's consent, are and will remain Licensor's sole and exclusive property during and after the term of this Software License. Licensee acknowledges and agrees that Licensor may secure all or any part of the Software or the Documentation from Licensor's Affiliates and/or other third party licensors. Licensee agrees to
execute and deliver to Licensor any further contracts, agreements, reports and/or other documents Licensor requires.
Source: Item 23 — Receipts (FDD pages 74–305)
What This Means (2025 FDD)
According to Aerus's 2025 Franchise Disclosure Document, the software license granted to franchisees is generally not assignable. Specifically, the license to use the computer programs is granted as nonexclusive and nonassignable. This means that franchisees cannot transfer their rights to use the software to another party without explicit permission from Aerus.
This restriction is typical in franchising, as franchisors like Aerus need to maintain control over their brand standards and technology. By preventing franchisees from assigning the software license, Aerus ensures that only authorized and trained individuals are using their proprietary software. This helps protect the integrity of the Aerus system and maintain consistency across all franchise locations.
However, another clause states that franchisees may not assign any rights under the Software License without Aerus's prior written consent. This clause suggests that while assignment is generally prohibited, it may be possible with the franchisor's approval. A prospective franchisee should clarify with Aerus under what specific circumstances the franchisor might grant such consent, and what conditions would apply.
In practical terms, this means that if a franchisee sells their Aerus business, the new owner will need to obtain their own software license agreement with Aerus. The existing franchisee cannot simply transfer their license to the new owner as part of the sale unless Aerus provides written consent. This ensures that Aerus retains control over who is using their software and that all users meet their standards and requirements.