What is Bor Restoration's intent regarding dispute resolution with franchisees?
Bor_Restoration Franchise · 2024 FDDAnswer from 2024 FDD Document
xistence of any claim you may have against us, whether or not arising from this Franchise Agreement, does not constitute a defense to the enforcement by us of any covenants of this Article specifically and this Franchise Agreement generally. You further agree that we are entitled to set off any loss or damage we suffer against any amounts owed by us to you.
ARTICLE 16
DISPUTE RESOLUTION
16.1 Intent, Meeting, and Mediation
You and we believe that resolving disputes amicably, quickly, cost-effectively, and professionally and returning to business as soon as possible is important. You and we agree that the provisions of this Article support these mutual and practical business objectives, and, therefore, agree as follows:
a. All provisions of this Franchise Agreement (including the language of this Article) will be fully enforced, including those relating to arbitration, waiver of jury trial, limitation of damages, venue, choice of laws, and shortened periods in which to bring claims.
b. The terms of this Article are mandatory and not permissive.
c. The Parties rely on the federal preemption of state laws under the Federal Arbitration Act (9 U.S.C. § 1 et seq.) (FAA) with the understanding that the FAA and not state law will control any matters pertaining to mediation and arbitration and, as a result, the provisions of this Franchise Agreement will be enforced only according to its terms and through the alternative dispute mechanism found in this Article.
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The Parties further agree that each Party intends that any state law attempting to prohibit arbitration or void out-of-state forums for arbitration are preempted by the Federal Arbitration Act and that arbitration will be held as provided in this Article.
d. Except as expressly provided in this Franchise Agreement, EACH PARTY KNOWINGLY WAIVES ALL RIGHTS TO A COURT OR JURY TRIAL AND, INSTEAD, SELECTS FACE-TO-FACE MEETINGS, MEDIATION AND FINALLY BINDING ARBITRATION AS THE SOLE MEANS TO RESOLVE DISPUTES UNDERSTANDING THAT FACE-TO-FACE MEETINGS, MEDIATION AND ARBITRATION MAY BE LESS FORMAL THAN A COURT OR JURY TRIAL, MAY USE DIFFERENT RULES OF PROCEDURE AND EVIDENCE, THAT AN APPEAL PROCESS IS GENERALLY LESS AVAILABLE, AND THAT THE FEES AND COSTS ASSOCIATED WITH MEDIATION AND ARBITRATION MAY BE SUBSTANTIALLY GREATER THAN IN CIVIL LITIGATION.
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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, Bor Restoration aims to resolve disputes with franchisees amicably, quickly, cost-effectively, and professionally to return to business as soon as possible. To support these objectives, the Franchise Agreement provisions, including those related to arbitration, waiver of jury trial, limitation of damages, venue, choice of laws, and shortened claim periods, will be fully enforced. The terms outlined in Article 16 regarding dispute resolution are mandatory. Bor Restoration and the franchisee will rely on the federal preemption of state laws under the Federal Arbitration Act (FAA) to control matters pertaining to mediation and arbitration.
Bor Restoration requires that any disputes be determined on an individual basis, prohibiting class action lawsuits or disputes involving multiple unrelated franchisees. This is based on the belief that mediation and arbitration are most effective on an individual basis, respecting the unique factors in each franchisee's situation, and that class-wide disputes do not promote quick or economic resolutions.
Except for matters involving alleged violations of the Marks or intellectual property, both Bor Restoration and the franchisee must initiate any arbitration against the other within one year of the date when the facts giving rise to the claim occurred. This one-year period is not extended merely because the claiming party was unaware of the legal basis for the claim. If mediation has begun before the one-year period expires, the period is extended by 90 days from the unsuccessful end of mediation to bring arbitration. Failure to bring arbitration within this extended timeframe results in the expiration of the right to bring arbitration.