Does the Buona Franchise Agreement state that the provision regarding waiver of claims supersedes any other term of any document executed in connection with the franchise?
Buona Franchise · 2025 FDDAnswer from 2025 FDD Document
Notwithstanding the foregoing, Franchisor shall have no obligation to mediate before commencing litigation in the following circumstances: (i) In the event Franchisor seeks the entry of temporary and permanent injunctions and orders of specific performance in a court of competent jurisdiction to: (a) enforce the provisions of this Agreement relating to Franchisee's use of the Marks and/or your non-disclosure and non-competition obligations under this Agreement; (b) prohibit any act or omission by Franchisee or Franchisee's employees that constitutes a violation of any applicable law, ordinance or regulation, constitutes
a danger to the public, or may impair the goodwill associated with the Marks or cause irreparable harm to Franchise, the System, the Marks and/or other Buona franchises. agree to waive any claims for damages in the event there is a later determination that an injunction or specific performance order was issued improperly; (ii) in the event Franchisor is filing suit to enforce Franchisee's obligations to pay Franchisor under this Agreement and to seek collection of such fees due and owing to Franchisor; and (iii) in the event Franchisee has abandoned the Franchised Business or has lost its right to possess the premises of the Franchised Business so that the Franchised Business is no longer operating.
Source: Item 23 — RECEIPTS (FDD pages 78–356)
What This Means (2025 FDD)
Based on the 2025 Buona Franchise Disclosure Document, the franchise agreement outlines specific circumstances where Buona may seek injunctions or specific performance orders through litigation, particularly concerning the franchisee's use of trademarks or non-compliance with non-disclosure and non-competition obligations. In such cases, if Buona seeks these legal measures, the franchisee agrees to waive any claims for damages if it is later determined that the injunction or specific performance order was improperly issued. This waiver applies specifically to situations where Buona seeks immediate legal remedies like injunctions.
This means that a Buona franchisee gives up the right to sue for damages if a court later finds that an injunction against them was wrongly issued. This clause does not appear to broadly supersede all other terms or documents related to the franchise agreement. Instead, it is narrowly focused on the franchisee's agreement to waive damage claims in specific instances where Buona seeks injunctive relief but is later found to have been in error.
Prospective Buona franchisees should be aware of this waiver and understand its implications. It is advisable to seek legal counsel to fully understand the scope and potential impact of this provision, particularly in relation to other clauses within the franchise agreement and any related documents. Franchisees should also clarify with Buona the circumstances under which this waiver would be invoked and how it might affect their rights in the event of a dispute.