Under what circumstances is a party excused from fulfilling obligations (other than payment) under the Aplus Franchise Agreement due to Force Majeure?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
which would render the provision unenforceable, the provision shall be given the meaning that renders it enforceable.
- 13.8 Force Majeure. 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, fire, flood, or other natural forces, war, acts of terrorism, civil unrest, government actions or regulations, national pandemic, or any other event similar to those enumerated above. 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.
- 13.9. Timing. Time is of the essence with respect to all provisions in this Agreement.
Source: Item 22 — CONTRACTS (FDD page 68)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, a party is excused from fulfilling obligations (other than payment) under the Franchise Agreement due to Force Majeure. Force Majeure is defined as significant events outside the party's control, including Acts of God, fire, flood, other natural forces, war, acts of terrorism, civil unrest, government actions or regulations, national pandemic, or any other similar event.
This excuse from liability is effective only to the extent and duration of the event causing the failure or delay in performance. 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 of the nature and extent of the Force Majeure condition as soon as reasonably practicable after the occurrence of such an event.
The party must also use commercially reasonable efforts to remove any such causes and resume performance under the Agreement as soon as reasonably practicable, and otherwise continue performing its obligations. If performance is delayed due to Force Majeure, the deadline for performance will be extended for a period commensurate with the Force Majeure, but not to exceed 12 months.
This clause is fairly standard in franchise agreements. It protects both Aplus and the franchisee from being penalized for circumstances genuinely beyond their control, while also setting clear expectations for communication and mitigation efforts during such events. However, franchisees should note that payment obligations are specifically excluded from this clause, meaning that even during a Force Majeure event, payment obligations must still be met.