Does the Bor Restoration General Release affect the rights of the Franchisor?
Bor_Restoration Franchise · 2024 FDDAnswer from 2024 FDD Document
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© 2024 All rights reserved BOR Franchising, LLC Gen 3-30-24 ____________ ___________ Initials Initials
EXHIBIT 4 GENERAL RELEASE
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GENERAL RELEASE
| This General Release (Release) is made on the date that all Parties sign it (Effective Date) between BOR Franchising, LLC, a Colorado limited liability company authorized to do business in Colorado (Franchisor), (Franchisee), and (Guarantor). Franchisor, Franchisee, and Guarantor may sometimes be referred to as a "Party" or jointly as the "Parties." All capitalized terms not defined in this Release will have the meaning stated in the Franchise Agreement. |
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| RECITALS |
| Franchisor and Franchisee entered into that certain franchise agreement dated |
| (Franchise Agreement), and Guarantor guaranteed the performance of the Franchisee under the Franchise |
| Agreement. Franchisee desires |
| to take some action (or make some amendment) to the Franchise Agreement |
| or desires for the Franchisor to take any action for which a General Release is called for in the Franchise |
| Agreement |
| or is required by Franchisor as part of such action, |
| and |
| as a material inducement to the |
| Franchisor approving the same, Franchisee and Guarantor have each agreed to provide this Release. |
| NOW, THEREFORE, for and in consideration of the mutual covenants found herein, for that |
| consideration stated below, and for other good and valuable consideration, the adequacy of which is |
| admitted by all Parties |
| hereto, each of the Guarantors personally and unconditionally agrees as follows: |
| COVENANTS |
| 1. |
| Franchisee, for and on behalf of itself, its officers, directors, shareholders, and employees, |
| and on behalf of any parent corporation or subsidiary, business entity, successor, assignee, and their |
| officers, directors, shareholders, and employees, (Franchisee Parties) and Guarantor for himself or herself |
| and for and on behalf of its family members and for and in consideration of: the Franchisor granting to the |
| Franchisee the right to do the following;; and for |
| other good and valuable consideration, all of which is deemed adequate by all Parties hereto, do each |
| (personally, jointly and severally) from the beginning of time to the Effective Date of this Release, release, |
| indemnify, and forever forgive and discharge Franchisor and the Franchisor Parties from all |
| known or |
| unknown, liquidated or unliquidated, fixed, direct or indirect, foreseeable or unforeseeable, matured or |
| unmatured, absolute |
| or contingent, determined or determinable, |
| equitable or legal claims; claims sounding |
| in Applicable Law; causes of action; complaints; direct, indirect, punitive or consequential damages; |
| judgments; business losses; awards; injury, or any other right or action (separately and together a "Claim" |
| or the "Claims") which relate in any way to: (i) the manner and |
| method by which Franchisor delivered the |
| FDD to Franchisee, and Guarantor (ii) the content, or lack of content of the FDD (as such content may have |
| been required by any Applicable Law); (iii) the performance or failure of performance of Franchisor or |
| Franchisor Parties in reference to any federal-required or state-required disclosure obligations and |
| requirements; (iv) any oral, written, express or implied promises, statements, disclosures and the like |
| relating in any way to the Franchise Agreement or the franchise relationship between the Franchisor and |
| Franchisor Parties, Franchisee, Guarantor and the Franchisee Parties; (v) the performance or the failure to |
| perform of Franchisor or any Franchisor Party under the Franchise Agreement; (vi) the performance or |
| failure to perform of Franchisor or any Franchisor Party under any other oral or written, express or implied |
| agreement, covenant, or document whether or not found in the Franchise Agreement; and, (vii) any other |
| Claim sounding in equity or law. Notwithstanding the preceding, nothing in this Release is intended to |
| disclaim any representations made in the Franchise Disclosure Document. |
| 2. |
| Franchisee for itself and on behalf of the Franchisee Parties and Guarantor each agree and |
| expressly state that this Release was made in contemplation of not only known Claims and the consequences |
| © 2024 All rights reserved BOR Franchising, LLC Gen 3-30-24 |
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thereof but also in contemplation of the possibility that each such Party identified in this paragraph may or will sustain future damages presently unknown to them and which accrued on or before the Effective Date of this Release but which were not asserted until after that date. By executing this Release Franchisee for itself and on behalf of the Franchisee Parties intend to release Franchisor and the Franchisor Parties, jointly and severally from liability for all known, unknown, and unforeseen Claims, losses, expenses, damages, costs, liabilities, business losses, and the consequences thereof.
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- Franchisee for itself and on behalf of the Franchisee Parties assume any risk that the facts and law may be, or may become, different from the facts and law as known to them or believed to be known by them as of the date of this Release, and each agrees that if the execution of this Release was made based on mistake (mutual or unilateral) that each will forever waive any right to claim that entering into this Release resulted from a mistake of any kind, thereby waiving all claims based upon the doctrine of mistake.
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- Franchisee for itself and on behalf of the Franchisee Parties and Guarantor deliver this Release with the intent that Franchisor relies upon the same. Should any condition, covenant, or clause herein be considered to be unenforceable, any tribunal of competent jurisdiction shall be permitted to amend the Release to the least extent possible to form an enforceable covenant, or if such amendment cannot be fashioned then to excise the offending clause, covenant, or condition to form an enforceable Release, which shall be binding upon the Parties to the fullest extent permissible.
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- Notwithstanding the terms of this Release, nothing herein relieves any Party of the obligation to maintain the confidentiality of any confidential, trade secret, proprietary, or similar information of any other Party. The terms of this Release are and will remain confidential and will not be disclosed by any Party to any Person except as required by legal process and required to be disclosed in Franchisor's Franchise Disclosure Document.
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- In the event of a dispute concerning this Release, the Parties agree that the alternative dispute resolution provisions of the Franchise Agreement found at Article 16 are incorporated herein by this reference as if fully set forth here.
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Source: Item 23 — Receipts (FDD pages 40–202)
What This Means (2024 FDD)
According to Bor Restoration's 2024 Franchise Disclosure Document, the General Release primarily affects the rights of the franchisee and guarantor, releasing Bor Restoration from various claims. The document outlines that the franchisee and guarantor release Bor Restoration and its parties from all known and unknown claims related to the Franchise Disclosure Document (FDD), the franchise agreement, and the franchise relationship. This includes claims regarding the delivery and content of the FDD, performance under the franchise agreement, and any other agreements.
Specifically, the franchisee and guarantor waive rights and benefits under Section 1542 of the Civil Code of the State of California and similar provisions, to the extent they can lawfully waive such rights. This waiver acknowledges that they may discover new facts but intend to fully release all claims, known or unknown. The franchisee and guarantor also agree to defend and indemnify Bor Restoration from claims arising from any assertion contrary to this release.
However, the General Release does contain a limitation that protects the integrity of the Franchise Disclosure Document. The release explicitly states that it is 'not intended to disclaim any representations made in the Franchise Disclosure Document.' This ensures that Bor Restoration cannot use the General Release to avoid responsibility for statements made within the FDD itself. Therefore, while the General Release largely protects Bor Restoration from potential claims by the franchisee, it does not negate the franchisor's accountability for the accuracy of the FDD.