Does the Aplus franchise agreement have any exceptions to the 'time is of the essence' clause, and if so, where are they located in the agreement?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
n requires a termination notice period longer than thirty (30) days, the period will be the minimum notice period required by the laws of such jurisdiction. In the latter case, all obligations of Franchisee shall remain in full force and effect during the Interim Period as if this Agreement had not expired, and all obligations and restrictions imposed on Franchisee upon expiration of the Agreement shall take effect upon termination of the Interim Period.
5. FRANCHISED BUSINESS
5.1. Franchised Business Location and Site Selection
The address of the approved location for the Franchised Business is described, or if not yet identified as of the Effective Date, is described on Attachment 1 ("Key Terms"). You must identify and acquire a site for the APLUS Store within thirty (30) days after the Effective Date of this Agreement. The site must meet Franchisor's then-current site selection criteria, and must otherwise be mutually acceptable to you and to Franchisor. Franchisor will approve or reject your site within thirty (30) days of receiving your application and all required information. Franchisor may assist you in site selection, in its sole discretion, which assistance may include making available to you the services of an internal development management team or a designated third party tenant representative consulting firm. If required, you must use the services of a designated tenant representative consulting firm and pay any fees imposed by the firm. Although Franchisor or its tenant representative may propose sites for your consideration, you understand that ultimate site selection is solely your choice and your responsibility. If an acceptable site is not found by the Franchisee and approved by the Franchisor within ninety (90) days of the Effective Date, then Franchisor reserves the right to terminate this Agreement. Franchisor may utilize a Designated Service Provider to perform any of its duties under this Section 5.1 and Section 5 generally.
5.2. Development of the APLUS Store
- 5.2.1. Prior to the Commencement Date and at the direction of Franchisor, Franchisee, at Franchisee's expense, will obtain and install certain APLUS Store equipment designated by Franchisor (the "Store Equipment"). The Store Equipment must meet all of our specifications and requirements and must be purchased from suppliers approved or designated by Sunoco. You will adhere to all ongoing security, maintenance, and upgrade requirements of the Store Equipment as directed by Franchisor during the term of this Agreement. No Store Equipment owned by you or leased from a third party may be installed or used at the Store without our prior written consent.
- 5.2.2. If applicable, Sunoco will furnish and install other certain APLUS store equipment that
Sunoco loans to you as part of this Agreement (the "Loaned Store Equipment").
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
Based on the 2024 Aplus Franchise Disclosure Document, there are instances where strict adherence to deadlines may be subject to certain exceptions or considerations. Specifically, the agreement outlines scenarios where failure to meet specified timelines can result in penalties or termination, but also provides conditions that may affect these outcomes. For example, the franchisee is expected to take possession of the Aplus store and open it by the commencement date. Failure to do so allows Sunoco to collect a prorated Minimum Royalty Fee per day and potentially terminate the agreement if the store isn't opened within thirty days after the commencement date.
Another instance is related to site selection. The franchisee has 30 days to identify and acquire a site for the Aplus store after the agreement's effective date. If an acceptable site isn't found and approved within 90 days of the effective date, Aplus reserves the right to terminate the agreement. Furthermore, if the franchisee wishes to relocate the franchised business, and the parties cannot agree upon a substitute site within 90 days after Sunoco receives notice, the agreement may terminate.
These stipulations indicate that while Aplus emphasizes timely compliance, there are defined periods for franchisees to meet obligations, and the franchisor retains rights to make certain exceptions based on specific circumstances. Prospective franchisees should carefully review these sections of the franchise agreement to understand their obligations and the potential consequences of failing to meet deadlines, as well as any recourse or flexibility they might have.