What does "Maintenance" include for the Brain Balance software, and what is excluded?
Brain_Balance Franchise · 2025 FDDAnswer from 2025 FDD Document
"Maintenance Fee" has the meaning assigned in Section 3(b) of the License Agreement.
"Maintenance" means Error Corrections and provision of Update Releases, whether by telephone, electronic mail, fax or other delivery. Maintenance shall be within reasonable limits, as determined by Licensor, and does not include requests for basic product training or technical consulting.
- (iii) Correct Errors in the Software, so long as such Errors are repeatable by the Licensee, or to provide a software patch or bypass around such Error. (No warranty is made that all Errors can or shall be corrected.)
- (iv) Provide diagnosis and solution of operational problems (generally on a remote basis); and
- (v) Provide Update Releases and Upgrades of the Software at the Licensee site (to both fix defects or as part of ongoing development of the product).
- (d) Notwithstanding any language to the contrary in this Agreement, Licensor shall not be obligated to provide maintenance or support with respect to or for:
- (i) Licensee provided hardware, operating systems, networks and connectivity;
- (ii) Any software other than the Software, or with respect to the Software if it has been altered or modified by anyone other than Licensor or its designated representatives;
- (iii) Viruses (including, without limitation, detection of viruses and resorting or recovering software, including the Software, or data damage caused by viruses);
- (iv) damage to the Software or data not caused by Licensor or its representatives (including, without limitation, entering, correcting or restoring any data lost, damaged or corrupted due to media failure, Hardware failure, viruses, power interruption, failure to back-up data, improper use of the Software or other software, or network or operating system problems); and
- (v) Making modifications to, or providing support for Licensee hardware, operating system software, third party application software, data feeds or external data of the Licensee or its affiliates.
Source: Item 23 — RECEIPTS (FDD pages 72–292)
What This Means (2025 FDD)
According to Brain Balance's 2025 Franchise Disclosure Document, "Maintenance" for the software includes error corrections and providing update releases via telephone, email, fax, or other delivery methods. The franchisor determines the reasonable limits of maintenance, and it does not cover requests for basic product training or technical consulting.
Brain Balance is obligated to correct software errors if they are repeatable by the franchisee, or to provide a software patch or bypass. However, there is no guarantee that all errors will be corrected. Maintenance also includes diagnosing and solving operational problems, typically remotely, and providing update releases and upgrades of the software at the franchisee's site to fix defects or as part of ongoing product development.
However, Brain Balance is not obligated to provide maintenance or support for licensee-provided hardware, operating systems, networks, and connectivity. It also excludes any software other than the Brain Balance software, or if the software has been altered by anyone other than Brain Balance or its representatives. Maintenance does not cover viruses, damage to the software or data not caused by Brain Balance, or modifications to licensee hardware, operating system software, third-party application software, data feeds, or external data.