If Baya Bar requests a Trade Dress Modification, is the franchisee required to implement it?
Baya_Bar Franchise · 2024 FDDAnswer from 2024 FDD Document
- 9.4.1 Franchisee is aware that to maintain and improve the image and reputation of the System, Franchisor, in its sole and absolute discretion, may change and modify identifying elements of the System, including but not limited to, the adoption and use of new exterior building designs, new interior decors, new color schemes, new or modified marks, and new furnishings (collectively, "Trade Dress Modifications").
- 9.4.2 No more than once in a five (5)-year period, at Franchisor's request, Franchisee shall refurbish the Franchised Business location at Franchisee's sole expense, as required by Franchisor, to conform to Trade Dress Modifications. This includes, without limitation, structural changes, remodeling, redecoration, and modifications to existing improvements. Notwithstanding the foregoing restriction on the frequency of Trade Dress Modifications, Franchisee, upon notice by Franchisor and in accordance with Section 14.6 hereof, shall immediately discontinue the use of any Mark that is no longer desirable or available to Franchisor and substitute a different Mark or Marks as Franchisor directs.
- 9.4.3 Franchisee will accept, use and display any such Trade Dress Modifications as if they were a part of this Franchise Agreement at the time of execution hereof.
- 9.5 No Liability/Waiver of Claims. Franchisor shall not be liable to Franchisee for any expenses, losses or damages sustained by Franchisee as a result of any of the modifications, including Trade Dress Modifications, required by this Article 9. Franchisee hereby covenants not to commence or join in any litigation or other proceeding against Franchisor or any third party, complaining of any such or seeking expenses, losses or damages caused thereby. Further, Franchisee expressly waives any claims, demands or damages arising from or related to the modifications contemplated by this Article 9, including, without limitation, any claim of breach of contract, breach of fiduciary duty, fraud, and/or breach of the implied covenant of good faith and fair dealing.
Source: Item 22 — CONTRACTS (FDD page 56)
What This Means (2024 FDD)
According to Baya Bar's 2024 Franchise Disclosure Document, franchisees are generally required to implement Trade Dress Modifications. Baya Bar, in its sole discretion, may change identifying elements of the System, including exterior building designs, interior decors, color schemes, marks, and furnishings.
Specifically, Baya Bar can request franchisees to refurbish their franchised business location to conform to these Trade Dress Modifications, but no more than once in a five-year period. This refurbishment is at the franchisee's sole expense and may include structural changes, remodeling, redecoration, and modifications to existing improvements. However, franchisees must immediately discontinue the use of any Mark that is no longer desirable or available to Baya Bar and substitute it with a different Mark as directed.
The franchisee must accept, use, and display any Trade Dress Modifications as if they were part of the Franchise Agreement at the time of its execution. Baya Bar is not liable for any expenses, losses, or damages sustained by the franchisee as a result of these modifications, and the franchisee waives any claims against Baya Bar related to these changes.