Is a Brain Balance licensee required to provide remote access to the software at all times?
Brain_Balance Franchise · 2025 FDDAnswer from 2025 FDD Document
4. Maintenance and Support Standards.
- (a) During the Term of this Agreement, Licensee shall operate the Software in all material respects in accordance with the Software Materials.
- (b) Licensee shall observe the following standards during the term of this Agreement:
- (i) pursuant to request by Licensor, arrange access to its premises and/or system and make its hardware accessible to Licensor's support personnel and other designated representatives, and enable logons/passwords for such persons as necessary or appropriate for Licensor's performance under this Agreement;
- (ii) Provide remote access to the Software at all times as reasonably necessary or appropriate for Licensor's performance under this Agreement;
- (iii) Install, or permit Licensor to install, Upgrades to the Software from time-to-time;
- (iv) When Upgrades or Update Releases are provided and the Licensee has requested assistance, provide a reasonable level of assistance to Licensor in implementation and testing of the same;
- (v) Provide Licensor with notice of its intention to change any Hardware, operating system or data-feeds that would affect the Software;
- (vi) Provide other reasonable assistance as Licensor may request, including, but not limited to, providing sample output and other diagnostic information as may be required by Licensor for maintenance.
- (c) Licensor shall use its commercially reasonable efforts to observe the following standards during the term of this Agreement:
- (i) provide reasonable support and maintenance to the Users within the Normal Hours;
- (ii) Investigate and address within a reasonable time, the repair of Errors in the Software reported by the Licensee or any Errors of which Licensor otherwise becomes aware;
Source: Item 23 — RECEIPTS (FDD pages 72–292)
What This Means (2025 FDD)
According to Brain Balance's 2025 Franchise Disclosure Document, as a condition of the licensing agreement, Brain Balance licensees must provide remote access to the software at all times. However, this access is only required as reasonably necessary or appropriate for Brain Balance to fulfill its obligations under the agreement.
This requirement ensures that Brain Balance can perform necessary maintenance and support functions. These functions include addressing software errors, providing updates and upgrades, and diagnosing operational problems. Brain Balance commits to using commercially reasonable efforts to provide support and maintenance during normal business hours, investigate and address software errors, and correct errors or provide workarounds.
However, Brain Balance outlines specific situations where they are not obligated to provide maintenance or support. These include issues related to licensee-provided hardware, operating systems, networks, connectivity, software altered by anyone other than Brain Balance, viruses, damage to software or data not caused by Brain Balance, and modifications to licensee hardware or software.