Are the remedies available to the Sublicensor cumulative for a Bens Soft Pretzels franchise?
Bens_Soft_Pretzels Franchise · 2025 FDDAnswer from 2025 FDD Document
- B. Waiver/Integration. No waiver by us of any breach by you, nor any delay or failure by us to enforce any provision of this Agreement, may be deemed to be a waiver of any other or subsequent breach or be deemed an estoppel to enforce our rights with respect to that or any other or subsequent breach. Subject to our rights to modify the Schedules and/or standards and as otherwise provided herein, this Agreement may not be waived, altered or rescinded, in whole or in part, except by a writing signed by you and us.
This Agreement together with all schedules, addenda and appendices to this Agreement constitute the entire agreement between the parties and supersede any and all prior negotiations, understandings, representations and agreements. Nothing in this or in any related agreement, however, is intended to disclaim the representations we made in the Franchise Disclosure Document we furnished to you.
Source: Item 22 — CONTRACTS (FDD pages 46–47)
What This Means (2025 FDD)
Based on the 2025 Bens Soft Pretzels Franchise Disclosure Document, the franchise agreement contains general provisions regarding remedies and waivers. Specifically, it states that no delay or failure by Bens Soft Pretzels to enforce any provision of the agreement can be deemed a waiver of any other subsequent breach, nor an estoppel to enforce their rights. This suggests that the franchisor's rights and remedies are cumulative, meaning they can pursue multiple remedies simultaneously or consecutively without losing any rights.
Additionally, the franchise agreement specifies that it, along with all schedules, addenda, and appendices, constitutes the entire agreement between the parties, superseding any prior negotiations or understandings. However, it also clarifies that nothing in the agreement disclaims the representations made in the Franchise Disclosure Document itself. This is important for franchisees as it ensures that the representations made during the franchise sales process are not nullified by the franchise agreement.
Furthermore, the agreement includes a severability clause, indicating that if any clause is held void or unenforceable, the remainder of the agreement remains valid. The terms of the agreement must be equitably adjusted to compensate the appropriate party for any consideration lost due to the elimination of such clauses. The agreement also states that each provision of the 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.