Is the Bevaris Alliance franchise agreement personal to both the Franchisee and the Individual?
Bevaris_Alliance Franchise · 2024 FDDAnswer from 2024 FDD Document
23. Assignment
- 23.1 This agreement is personal to the Franchisee and the Individual, who, subject to clause 16 and clause 17 may not, without the prior written consent of the Franchisor (such consent not to be unreasonably conditioned, withheld or delayed), assign, transfer, mortgage, charge, declare a trust of, sub-contract, delegate or deal in any other manner with:
- (a) this agreement or any of their rights and obligations under it (or any document referred to in it); or
- (b) the Franchisee's Business, or purport to do any of the same.
- 23.2 The Franchisor may, at any time, assign (absolutely or by way of security and in whole or in part), transfer, mortgage, charge or deal in any other manner with the benefit of any or all of any other party's obligations or any benefit arising under this agreement.
- 23.3 If there is an assignment pursuant to clause 23.2:
- (a) the Franchisee and Individual shall discharge their obligations under this agreement to the Franchisor until they receive written notice of the assignment;
- (b) the assignee may enforce this agreement as if it were a party to it, but the Franchisor shall remain liable for its obligations under this agreement;
- (c) the liability of the Franchisee and Individual to any assignee cannot be greater than their liability to the Franchisor;
- (d) notwithstanding clause 27.3, the Franchisor may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment; and
- (e) any disclosure pursuant to clause 23.3(d) shall only be made after notice of the identity of the proposed assignee has been given to the Franchisee and Individual.
- 23.4 Each party to this agreement is acting on its own behalf and not for the benefit of another person.
Source: Item 23 — RECEIPT (FDD pages 22–88)
What This Means (2024 FDD)
According to the 2024 Bevaris Alliance Franchise Disclosure Document, the franchise agreement is personal to both the Franchisee and the Individual. Clause 23.1 states that neither the Franchisee nor the Individual can assign, transfer, mortgage, charge, declare a trust of, sub-contract, delegate, or deal in any manner with the agreement or their rights and obligations under it without prior written consent from Bevaris Alliance. This consent will not be unreasonably conditioned, withheld, or delayed, subject to clauses 16 and 17.
This restriction extends to the Franchisee's Business as well, meaning they cannot transfer or deal with the business in any way without Bevaris Alliance's approval. This clause ensures that Bevaris Alliance maintains control over who operates a franchise and prevents unauthorized transfers that could impact the brand's reputation or standards.
However, Bevaris Alliance retains the right to assign, transfer, mortgage, charge, or deal with the benefits of any other party's obligations or any benefit arising under the agreement at any time. If Bevaris Alliance assigns the agreement, the Franchisee and Individual must continue to fulfill their obligations to Bevaris Alliance until they receive written notice of the assignment. The assignee can then enforce the agreement as if they were a party to it, but Bevaris Alliance remains liable for its obligations under the agreement. The liability of the Franchisee and Individual to any assignee cannot exceed their liability to Bevaris Alliance.
Bevaris Alliance may disclose information about the agreement or its subject matter to a proposed assignee after notifying the Franchisee and Individual of the assignee's identity. This allows Bevaris Alliance to provide necessary information to potential assignees while also informing the Franchisee and Individual of the proposed change. Clause 23.4 clarifies that each party is acting on its own behalf and not for the benefit of another person.