Does the exclusion of consequential damages for Aira Fitness apply regardless of the failure of any sole or exclusive remedy?
Aira_Fitness Franchise · 2025 FDDAnswer from 2025 FDD Document
- (b) **Exclusion of Consequential Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, FRANCHISOR'S AFFILIATE SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO FRANCHISEE OR ANY THIRD PARTY, FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING**
NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, OR BENEFITS OF USE OR LOSS OF BUSINESS, REGARDLESS OF WHETHER SUCH LOSSES ARE CONSTRUED TO BE CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, AND EVEN IF FRANCHISOR'S AFFILIATE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
**IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE FROM ANY OTHER PROVISION AND IS A SEPARABLE AND INDEPENDENT ELEMENT OF RISK ALLOCATION AND IS INTENDED TO BE ENFORCED AS SUCH. THE PARTIES ALSO AGREE THAT, REGARDLESS OF THE FAILURE OF ANY SOLE OR E
Source: Item 23 — **RECEIPTS (FDD pages 59–254)
What This Means (2025 FDD)
According to Aira Fitness's 2025 Franchise Disclosure Document, the franchisor's affiliate is not liable to the franchisee or any third party for consequential, incidental, special, or exemplary damages arising out of or related to the lease transaction. This exclusion applies regardless of the legal theory the action is based on, including contract, tort (negligence or strict liability), or any other legal theory. The damages include, but are not limited to, loss of anticipated profits, benefits of use, or loss of business, whether these losses are construed as consequential, incidental, special, or exemplary damages. This exclusion applies even if Aira Fitness's affiliate is aware of the likelihood of such damages occurring.
The FDD states that each provision providing for a limitation of liability, disclaimer of warranties, or exclusion of damages is severable and an independent element of risk allocation, intended to be enforced as such. Most importantly, the exclusion of consequential damages applies regardless of the failure of any sole or exclusive remedy.
This means that even if the franchisee's primary legal recourse fails to provide adequate compensation, Aira Fitness's affiliate will still not be liable for consequential damages. This clause is designed to limit the financial exposure of the franchisor's affiliate in the event of disputes or issues related to the lease, placing a significant portion of the risk on the franchisee. Prospective franchisees should carefully consider the implications of this provision and seek legal counsel to understand their rights and obligations under the lease agreement.