What legal recourse does Baya Bar have in the event of a breach of the agreement by the Covenantor?
Baya_Bar Franchise · 2024 FDDAnswer from 2024 FDD Document
- b. Covenantor agrees that in the event of a breach of this Agreement, Franchisor would be irreparably injured and be without an adequate remedy at law.
Therefore, in the event of such a breach, or threatened or attempted breach of any of the provisions hereof, Franchisee is obligated to enforce the provisions of this Agreement and shall be entitled, in addition to any other remedies that are made available to it at law or in equity, to a temporary and/or permanent injunction and a decree for the specific performance of the terms of this Agreement, without the necessity of showing actual or threatened harm and without being required to furnish a bond or other security.
c. Covenantor agrees to pay all expenses (including court costs and reasonable attorneys' fees) incurred by Franchisor and Franchisee in enforcing this Agreement.
d. Any failure Franchisee to object to or take action with respect to any breach of any provision of this Agreement by Covenantor shall not operate or be construed as a waiver of or consent to that breach or any subsequent breach by Covenantor.
e. THIS AGREEMENT SHALL BE INTERPRETED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO DELAWARE CHOICE OF LAW PRINCIPLES.
COVENANTOR HEREBY IRREVOCABLY SUBMITS HIMSELF OR HERSELF TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF NEW YORK.
COVENANTOR HEREBY WAIVES ALL QUESTIONS OF PERSONAL JURISDICTION OR VENUE FOR THE PURPOSE OF CARRYING OUT THIS PROVISION.
COVENANTOR HEREBY AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON COVENANTOR IN ANY PROCEEDING RELATING TO OR ARISING UNDER THIS AGREEMENT OR THE RELATIONSHIP CREATED BY THIS AGREEMENT BY ANY MEANS ALLOWED BY NEW YORK OR FEDERAL LAW.
COVENANTOR FURTHER AGREES THAT VENUE FOR ANY PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL BE IN NEW YORK; PROVIDED, HOWEVER, WITH RESPECT TO ANY ACTION THAT INCLUDES INJUNCTIVE RELIEF OR OTHER EXTRAORDINARY RELIEF, FRANCHISOR OR FRANCHISEE MAY BRING SUCH ACTION IN ANY COURT IN ANY STATE THAT HAS JURISDICTION.
Source: Item 22 — CONTRACTS (FDD page 56)
What This Means (2024 FDD)
According to Baya Bar's 2024 Franchise Disclosure Document, if the Covenantor breaches the agreement, Baya Bar would be irreparably injured and lack adequate legal recourse. In such cases, or in the event of a threatened or attempted breach, the franchisee is obligated to enforce the agreement. Baya Bar is entitled to a temporary or permanent injunction and a decree for specific performance of the agreement terms. This can be pursued without needing to demonstrate actual or threatened harm and without the requirement of providing a bond or other security.
Furthermore, the Covenantor is responsible for covering all expenses, including court costs and reasonable attorney's fees, incurred by Baya Bar and the franchisee in enforcing the agreement. The failure of the franchisee to object to any breach by the Covenantor does not constitute a waiver of rights regarding that breach or any subsequent breaches.
The agreement is governed by and interpreted under the laws of Delaware, without regard to its choice of law principles. The Covenantor irrevocably submits to the jurisdiction of the state and federal courts of New York and waives any objections to personal jurisdiction or venue. Service of process can be made upon the Covenantor through any means allowed by New York or federal law, and venue for any proceedings will be in New York. However, Baya Bar or the franchisee can bring actions for injunctive or other extraordinary relief in any court with jurisdiction.
These measures provide Baya Bar with strong legal tools to protect its interests and enforce the agreement, ensuring that breaches by the Covenantor can be addressed swiftly and effectively through injunctive relief, specific performance, and recovery of enforcement costs.