What is the effect of the severability clause in the Bens Soft Pretzels agreement?
Bens_Soft_Pretzels Franchise · 2025 FDDAnswer from 2025 FDD Document
- A. Severability. Should one or more clauses of this Agreement be held void or unenforceable for any reason by any court of competent jurisdiction, such clause or clauses will be deemed to be separable in such jurisdiction and the remainder of this Agreement is valid and in full force and effect and the terms of this Agreement must be equitably adjusted so as to compensate the appropriate party for any consideration lost because of the elimination of such clause or clauses. It is the intent and expectation of each of the parties that each provision of this Agreement will be honored, carried out and enforced as written. Consequently, each of the parties agrees that any provision of this Agreement sought to be enforced in any proceeding must, at the election of the party seeking enforcement and notwithstanding the availability of an adequate remedy at law, be enforced by specific performance or any other equitable remedy.
Source: Item 22 — CONTRACTS (FDD pages 46–47)
What This Means (2025 FDD)
According to Bens Soft Pretzels' 2025 Franchise Disclosure Document, the severability clause ensures that if a court finds any part of the Franchise Agreement to be void or unenforceable, the rest of the agreement remains valid and in effect. This clause is a standard provision in franchise agreements, designed to protect the overall enforceability of the contract.
Specifically, the clause states that the problematic section will be treated as separable in that jurisdiction, and the rest of the agreement will remain valid and fully effective. Furthermore, the terms of the agreement will be adjusted equitably to compensate the affected party for any lost consideration due to the removal of the clause. This adjustment aims to maintain the balance of the agreement as originally intended.
The clause also expresses the intent of both parties to uphold and enforce each provision of the agreement as written. Consequently, either party can seek specific performance or other equitable remedies to enforce any provision, regardless of whether there is an adequate remedy available at law. This aspect reinforces the commitment to fulfilling the agreement's terms and allows for flexibility in how the agreement is enforced, potentially compelling a party to perform their obligations rather than just paying damages.
In simpler terms, if a part of the Bens Soft Pretzels Franchise Agreement is deemed invalid, this clause prevents the entire agreement from being thrown out. Instead, the problematic part is removed, the rest of the agreement stands, and adjustments are made to ensure fairness. This provides a level of security and predictability for both Bens Soft Pretzels and the franchisee.