What is the effect of the Licensor's election of any remedy against the Bens Soft Pretzels Sublicensee?
Bens_Soft_Pretzels Franchise · 2025 FDDAnswer from 2025 FDD Document
- 4.3 Licensor's Remedies. In the event of a default in any term, covenant or condition on the Sublicensee's part to be performed under the License, Licensor shall have the right, but not the obligation, to pursue the remedies available to it under the License or otherwise, directly against Sublicensee without prejudice to its rights to pursue Sublicensor jointly or severally in the same manner. Sublicensor, at its election, may require Licensor to (a) proceed against Sublicensee; (b) proceed against or exhaust any security held from Sublicensee; or (c) pursue any remedy in Licensor's power whatsoever. Sublicensee waives any defenses that may be acquired by reason of Licensor's election of any remedy against Sublicensee, including without limitation, an election by Licensor to exercise any of its rights under the provisions of applicable law, under the License, or hereunder. Sublicensee waives the right to require Licensor to enforce or pursue any remedy which Licensor now has or may hereafter have against Sublicensor, and further hereby waives the benefit of, or any right to participate in any security now or hereafter held by Licensor from any other party except to the extent that such security remains after performance of the obligations of said other party in full. No failure, delay or election to pursue Sublicensee on the part of Sublicensor or Licensor or to pursue any remedy hereunder or under the License, shall constitute a waiver on its part of the right to pursue said remedy against the Sublicensee on the basis of the same or subsequent breach.
Source: Item 22 — CONTRACTS (FDD pages 46–47)
What This Means (2025 FDD)
According to the 2025 Bens Soft Pretzels Franchise Disclosure Document, if a Sublicensee defaults on any term, covenant, or condition under the License, the Licensor has the right, but not the obligation, to pursue remedies directly against the Sublicensee. This action does not prevent the Licensor from also pursuing the Sublicensor in the same manner, either jointly or separately. The Sublicensor can require the Licensor to take specific actions such as proceeding against the Sublicensee, pursuing any security held from the Sublicensee, or using any other remedy available to the Licensor.
The Sublicensee, as stated in the FDD, waives any defenses they might acquire due to the Licensor's choice of remedy. This includes the Licensor's decision to exercise rights under applicable law, the License, or the Sublicense agreement. The Sublicensee also waives the right to demand that the Licensor enforce any remedy against the Sublicensor and waives any benefit from security held by the Licensor from another party, except for any remaining security after the obligations of that party are fulfilled.
Furthermore, any delay or failure by the Sublicensor or Licensor to pursue remedies against the Sublicensee does not constitute a waiver of their right to pursue said remedy for the same or subsequent breaches. This ensures that the Licensor and Sublicensor retain their rights to enforce the agreement terms despite any previous leniency or delays in taking action. All remedies available to the Sublicensor and Licensor are cumulative and are in addition to any other remedies provided by law or equity.