Under what circumstances is a party excused from fulfilling obligations (excluding payment) under the Aplus agreement due to Force Majeure?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
No party shall be deemed in default of this Agreement for any delay or failure to fulfill any obligation (other than a payment obligation) hereunder so long as and to the extent to which any delay or
failure in the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of "Force Majeure," which shall be defined as those significant events outside the party's control, including but not limited to Acts of God (such as tornadoes, earthquakes, hurricanes, floods, fire or other natural catastrophe), war, acts of terrorism, civil unrest, government actions or regulations, national pandemic or epidemic, or any other event similar to those enumerated above; provided however, that neither an act or failure to act by a governmental authority, nor the performance, non-performance or exercise of rights under any agreement with you by any lender, landlord, or other person shall be an event of Force Majeure under this Agreement, except to the extent that such act, failure to act, performance, nonperformance or exercise of rights results from an act which is otherwise an event of Force Majeure. Your financial inability to perform or your insolvency shall not be an event of Force Majeure under this Agreement. Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay in performance and provided that the party has not caused such event(s) to occur and continues to use diligent, good faith efforts to avoid the effects of such event and to perform the obligation. A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event, (a) provide written notice to the other party of the nature and extent of any such Force Majeure condition; (b) use commercially reasonable efforts to remove any such causes and resume performance under this Agreement, as applicable, as soon as reasonably practicable; and (c) otherwise continue performing its obligations hereunder.
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, a party is not considered in default of the agreement for failing to fulfill obligations, excluding payment obligations, if the failure is due to circumstances of "Force Majeure." Force Majeure events are significant events outside the party's control. These events include Acts of God like tornadoes, earthquakes, hurricanes, floods, fire, or other natural catastrophes, as well as war, acts of terrorism, civil unrest, government actions or regulations, national pandemics or epidemics, or any other similar event.
However, an act or failure to act by a governmental authority, or the performance, non-performance, or exercise of rights under any agreement with you by any lender, landlord, or other person is not considered an event of Force Majeure unless it results from an act that is otherwise a Force Majeure event. Additionally, a party's financial inability to perform or insolvency does not qualify as a Force Majeure event.
To be excused from liability, the failure or delay in performance must be directly caused by the Force Majeure event, and the excuse is effective only for the extent and duration of the event. The party must not have caused the event and must continue to use diligent, good faith efforts to avoid the effects of the event and to perform the obligation. The party claiming the benefit of this provision must provide written notice to the other party as soon as reasonably practicable after the occurrence of the event, detailing the nature and extent of the Force Majeure condition. They must also use commercially reasonable efforts to remove the causes and resume performance under the agreement as soon as reasonably practicable and continue performing its obligations otherwise.