Does the Brain Balance franchise agreement allow for any invalid provision to affect the remaining provisions of the agreement?
Brain_Balance Franchise · 2025 FDDAnswer from 2025 FDD Document
20.02. FRANCHISEE acknowledges that its franchise is one of a number of Brain Balance® Centers using COMPANY's service marks and style of conduct and that the failure on the part of FRANCHISEE to comply with any of the terms of this Agreement could cause irreparable damage to some or all of the other offices franchised or operated by COMPANY and to COMPANY's business. Therefore, and notwithstanding the provisions contained in Paragraph 20.01 above, FRANCHISEE agrees that upon the happening of any Non-Curable Default or Event of Default set forth in Section 17.01 or 17.02, or in the event of a threatened breach by FRANCHISEE of any of the terms of this Agreement, COMPANY shall have the immediate right to secure a court order enjoining any such default or threatened breach. If this Agreement shall have been terminated, FRANCHISEE may be enjoined from any continued operation of any Center franchised under this Agreement and/or the Franchised Business. This covenant shall be independent and severable and shall be enforceable notwithstanding any other rights or remedies that either party may have.
Source: Item 22 — CONTRACTS (FDD pages 70–72)
What This Means (2025 FDD)
Based on the 2025 Brain Balance Franchise Disclosure Document, the franchise agreement includes a clause ensuring that if any provision is deemed invalid, it does not invalidate the entire agreement. Specifically, the agreement states that the franchisee's covenant to comply with the terms is independent and severable. This means that if a court finds one particular clause unenforceable, the rest of the agreement remains in full effect. This is a fairly standard provision in franchise agreements, designed to protect the overall enforceability of the contract.
For a prospective Brain Balance franchisee, this clause offers some assurance that a minor dispute over one term won't jeopardize the entire franchise relationship. It allows for legal challenges to specific provisions without risking the whole agreement. However, it's important to understand which aspects of the agreement are considered 'independent and severable.'
This clause benefits Brain Balance by maintaining the integrity of the franchise system even if certain individual clauses are successfully challenged. It also means that Brain Balance can enforce the core obligations of the franchisee, such as protecting trade secrets and operating according to brand standards, even if other parts of the agreement are disputed. Franchisees should seek legal counsel to fully understand their rights and obligations under each provision of the agreement.