Do Beverly Anns Cookie Owners waive notice of amendments to the Franchise Agreement?
Beverly_Anns_Cookie Franchise · 2025 FDDAnswer from 2025 FDD Document
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, franchisees waive the right to challenge the terms of Brand Covenants as overly broad, unreasonable, or unenforceable. The FDD states that franchisees acknowledge the reasonableness of the Franchise Agreement's terms, both in time and geographic scope. They also recognize that Beverly Anns Cookie's enforcement of similar covenants with other franchisees benefits them by preventing unfair competition. Franchisees confirm they possess sufficient resources, business experience, and opportunities to earn an adequate living while adhering to the Franchise Agreement's terms.
This waiver means that franchisees give up their right to argue that non-compete clauses or other restrictions are unfair or too restrictive. This could have significant implications if a franchisee later feels that these covenants hinder their ability to operate their business or pursue other opportunities. The franchisee is agreeing upfront that these restrictions are reasonable and enforceable.
However, Beverly Anns Cookie retains the right to unilaterally reduce the scope of any Brand Covenant without the franchisee's consent. This reduction becomes effective upon written notice to the franchisee, who must then comply with the modified covenants. This clause provides Beverly Anns Cookie with flexibility to adjust the restrictions, potentially benefiting franchisees by making the covenants less burdensome, but it does not give the franchisee the right to challenge the covenant itself.
In the event that a court or agency deems a Brand Covenant unreasonable or unenforceable, the franchisee agrees to be bound by any lesser covenant within the terms that imposes the maximum duty permitted by law. This ensures that some level of restriction remains in place, even if the original covenant is deemed too broad. This clause aims to maintain the enforceability of non-compete provisions to the greatest extent possible, which is a common practice in franchising to protect the brand and other franchisees.