Under the Buona franchise agreement, are all articles, sections, paragraphs, parts, terms, and provisions considered severable?
Buona Franchise · 2025 FDDAnswer from 2025 FDD Document
oses of this Article XIII, a "Competitive Business" is defined as any retail establishment that derives more than ten percent (10%) of its gross sales from Italian beef and Italian sausage products and other Italian specialties or more than ten percent (10%) of its gross sales from ice cream.
- 14.6 Independent Covenants. The parties agree that each of the foregoing covenants shall be construed as independent of any other covenant or provision of this Agreement. If all or any portion of a covenant in this Article XIV, is held unenforceable by a court or other tribunal having jurisdiction on a final decision, then Franchisee expressly agrees to be bound by any lesser covenant subsumed within the terms of such covenant that imposes the maximum duty permitted by law, as if the resulting covenant was separately stated in and made a part of this Article XIV.
- 14.7 Right to Reduce Covenants. Franchisee understands and acknowledges that Franchisor shall have the right, in its sole discretion, to reduce the scope of any covenant set forth in this Article XIV, or any portion thereof, without Franchisee's consent, effective immediately upon receipt by Franchisee of written notice thereof, and Franchisee agrees that it shall comply with any covenant as so modified, which shall be fully enforceable notwithstanding the provisions of Article XXIII.
- 14.8 Injunctive Relief. The parties acknowledge that it will be difficult to ascertain with any degree of certainty the amount of damages resulting from a breach by Franchisee of any of the covenants contained in this Article XIV.
Source: Item 23 — RECEIPTS (FDD pages 78–356)
What This Means (2025 FDD)
According to Buona's 2025 Franchise Disclosure Document, the franchise agreement contains a clause addressing the severability of its provisions. Specifically, the parties agree that each covenant within Article XIV is independent of any other covenant or provision in the agreement. If a court deems any part of Article XIV unenforceable, the franchisee agrees to be bound by a lesser, legally permissible covenant, as if it were originally part of the article. This ensures that even if some parts of the agreement are invalidated, the remaining enforceable parts will still hold.
This severability clause is designed to protect Buona's interests by ensuring that as much of the agreement as possible remains in effect, even if certain provisions are challenged. It also provides a degree of legal certainty for both parties, as it clarifies how the agreement should be interpreted if certain parts are found to be unenforceable. This type of clause is fairly standard in franchise agreements, as it helps to mitigate the risk of the entire agreement being invalidated due to a single unenforceable provision.
Furthermore, Buona retains the right to reduce the scope of any covenant within Article XIV without the franchisee's consent, effective immediately upon written notice. The franchisee must comply with any such modifications, which will be fully enforceable despite any provisions in Article XXIII. This gives Buona flexibility to adjust the agreement as needed, potentially in response to changes in law or business conditions. This clause, combined with the severability provision, underscores Buona's intent to maintain maximum control and enforceability over the franchise agreement's key terms, particularly those related to competitive business activities.
Finally, the FDD states that all parties acknowledge that this section has been fully negotiated and entered into freely. If any provision of Article XIV is held invalid, the terms of the provision shall be modified to the least possible extent to make it valid. This article should not be interpreted against either party as the drafter.