How is the language of the Beverly Anns Cookie Franchise Owner Agreement construed?
Beverly_Anns_Cookie Franchise · 2025 FDDAnswer from 2025 FDD Document
Covenant is held unreasonable or unenforceable by a court or agency having valid jurisdiction in a final decision to which we are a party, you agree to be bound by any lesser covenant subsumed within the terms of such Brand Covenant that imposes the maximum duty permitted by law, as if the resulting Brand Covenant were separately stated in and made a part of this Section. Accordingly, the parties agree that any reduction in scope or modification of any part of the non-competition provisions contained herein shall not render any other part unenforceable. You acknowledge and agree that: (i) the terms of this Franchise Agreement are reasonable both in time and in scope of geographic area; (ii) our use and enforcement of covenants similar to those described above with respect to other "Beverly Ann's Cookie Truck" franchisees benefits you and the Owners because it prevents others from unfairly competing with your Franchised Business; and (iii) you and the Owners have sufficient resources and business experience and opportunities to earn an adequate living while complying with the terms of this Franchise Agreement. You hereby waive any right to challenge the terms of the Brand Covenants as being overly broad, unreasonable or otherwise unenforceable.
We have the right, in our sole discretion, to unilaterally reduce the scope of all or part of any Brand Covenant without your consent (before or after any dispute arises), effective when we give you written notice of this reduction and you agree to comply with any modifications to the Brand Covenants .
Source: Item 23 — RECEIPTS (FDD pages 57–235)
What This Means (2025 FDD)
According to the 2025 Beverly Anns Cookie Franchise Disclosure Document, if a court finds any part of the non-competition agreement unreasonable or unenforceable, the franchisee agrees to be bound by a lesser covenant within the terms that imposes the maximum duty permitted by law. This means that even if specific parts of the non-compete clause are deemed invalid, the franchisee is still obligated to adhere to the most restrictive, yet legal, version of the covenant.
Beverly Anns Cookie maintains that the terms of the Franchise Agreement are reasonable in both time and geographic scope. The company believes that enforcing similar covenants with other franchisees benefits existing franchisees by preventing unfair competition. Franchisees and their owners are considered to have sufficient resources, business experience, and opportunities to earn a living while adhering to the Franchise Agreement.
Furthermore, franchisees waive any right to challenge the terms of the Brand Covenants as overly broad, unreasonable, or unenforceable. Beverly Anns Cookie retains the right to unilaterally reduce the scope of any Brand Covenant without the franchisee's consent, with such reduction becoming effective upon written notice to the franchisee, who must then comply with the modified covenants. This clause ensures that Beverly Anns Cookie can adjust the non-compete terms as needed, providing flexibility while still protecting its interests.