During each Maintenance Period, what support and maintenance is a Brain Balance licensee entitled to?
Brain_Balance Franchise · 2025 FDDAnswer from 2025 FDD Document
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.
5. Definitions.
As used in this Exhibit, the following capitalized terms shall have the meaning assigned below:
"Error" means any failure of the Software to substantially conform to the specifications included with the License Agreement.
"Error Correction" means a software modification or addition that, when made or added to the Software, establishes material conformity to the specifications provided for in the License Agreement, as the same may have been updated or amended by Licensor from time to time.
"Maintenance Fee" has the meaning assigned in Section 3(b) of the License Agreement.
Source: Item 23 — RECEIPTS (FDD pages 72–292)
What This Means (2025 FDD)
According to Brain Balance's 2025 Franchise Disclosure Document, maintenance is provided for the term of the agreement, and maintenance fees are payable annually as outlined in Exhibit B. During the agreement term, Brain Balance is expected to use commercially reasonable efforts to provide reasonable support and maintenance to users during normal business hours. This includes investigating and addressing the repair of software errors reported by the licensee or otherwise known to Brain Balance, and correcting software errors if they are repeatable by the licensee, or providing a software patch or bypass. However, there is no guarantee that all errors will be corrected.
Brain Balance will also provide licensees with update releases containing changes to the software for error correction, as well as upgrades to new versions of the software, as provided to other licensees. These update releases may also include enhancements to the software or software materials at Brain Balance's discretion. Licensees are required to notify support personnel of suspected errors exhibited by the software, and support personnel will confirm receipt of the notification and provide a reasonable estimate of the time required for diagnosis and resolution of the errors. Brain Balance will then use commercially reasonable efforts to provide an error correction within a reasonable time.
However, Brain Balance is not obligated to provide maintenance or support for licensee-provided hardware, operating systems, networks, and connectivity, or for any software other than the software provided, especially if it has been altered or modified by someone other than Brain Balance or its representatives. They are also not responsible for viruses or damage to the software or data not caused by them, including issues like media failure, hardware failure, viruses, power interruption, failure to back-up data, or improper use of the software. Additionally, Brain Balance will not make modifications to or provide support for licensee hardware, operating system software, third-party application software, data feeds, or external data.