Is Brain Balance required to provide software upgrades to licensees?
Brain_Balance Franchise · 2025 FDDAnswer from 2025 FDD Document
by confirming receipt of the notification and a reasonable estimate of the time required for diagnosis and resolution of the Error(s). Licensor shall use its commercially reasonable efforts to take the necessary steps to provide an Error Correction within a reasonable time.
- (d) Licensor shall provide the Licensee such update releases containing changes to the Software for Error Correction ("Update Releases") and upgrades to new versions of the Software ("Upgrades") as are provided to its other licensees of the Software. In addition to Error Correction, Update Releases may also contain, at Licensor's sole discretion, enhancements to the Software or Software Materials.
3. Maintenance Period and Fees.
- (a) Maintenance is provided for the Term of the Agreement.
- (b) Maintenance fees are payable annually as set forth in Exhibit B.
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;
Source: Item 23 — RECEIPTS (FDD pages 72–292)
What This Means (2025 FDD)
According to the 2025 Brain Balance Franchise Disclosure Document, Brain Balance is required to provide licensees with both "Update Releases" for error correction and "Upgrades" to new software versions, provided these are also offered to other Brain Balance licensees. These updates and upgrades are part of the maintenance provided during the term of the agreement, for which the franchisee pays annual maintenance fees as detailed in Exhibit B.
Brain Balance's obligation to provide maintenance and support does have limitations. Brain Balance is not required to provide support for hardware, operating systems, networks, or connectivity provided by the franchisee. Additionally, Brain Balance is not responsible for maintaining or supporting software that has been altered by anyone other than Brain Balance or its representatives, or for issues arising from viruses, damage not caused by Brain Balance, or modifications to the franchisee's hardware or operating systems.
The FDD defines key terms relevant to software maintenance. An "Error" is any failure of the software to substantially conform to the specifications included with the License Agreement. "Error Correction" refers to a software modification that restores the software's conformity to these specifications. This clarifies that Brain Balance's responsibility is to ensure the software functions as intended according to the franchise agreement.
As a Brain Balance franchisee, it is important to understand the scope of software maintenance and support provided by Brain Balance, as well as the responsibilities of the franchisee in maintaining their own hardware and systems. Paying attention to Exhibit B, which outlines the annual maintenance fees, is also crucial for budgeting and understanding the ongoing costs of the franchise.