Is Burneys Sweets More obligated to provide an extended cure period for any breach?
Burneys_Sweets_More Franchise · 2025 FDDAnswer from 2025 FDD Document
The de-identification procedures include removing all references to BURNEY'S SWEETS & MORE, complying with Franchisor's instructions to remove trade dress items, branding items, signage, color schemes, fixtures, and décor items from the Shop.
- (q) Access Right.
In the event Franchisee does not comply with the above requirements, Franchisor may enter the Premises, without being guilty of trespass and without incurring any liability to Franchisee, to undertake these post-termination obligations, including removing all signs, trade dress, equipment, and other items identifying the Premises as a BURNEY'S SWEETS & MORE Shop and to make such other modifications as are reasonably necessary to protect the Marks and the BURNEY'S SWEETS & MORE System and to distinguish the Premises from BURNEY'S SWEETS & MORE Shops.
- (r) Liquidated Damages.
If Franchisor terminates this Agreement based upon Franchisee's default (or if Franchisee purports to terminate this Agreement except as permitted under Section 17(f)), then within 10 days thereafter Franchisee shall pay to Franchisor a lump sum (as liquidated damages and not as a penalty) calculated as follows: (x) the average monthly Royalty Fees and Brand Fund contributions that Franchisee owed to Franchisor under this Agreement for the 52-week period preceding the date on which Franchisee ceased operating the Business; multiplied by (y) the lesser of (1) 104 or (2) the number of weeks remaining in the then-current term of this Agreement.
If Franchisee had not operated the Business for at least 52 weeks, then (x) will equal the average Royalty Fees and Brand Fund contributions that Franchisee owed to Franchisor during the period that Franchisee operated the Business.
The "average Royalty Fees and Brand Fund contributions that Franchisee owed to Franchisor" shall not be discounted or adjusted due to any deferred or reduced Royalty Fees and Brand Fund contributions set forth in an addendum to this Agreement, unless this Section 18(r) is specifically amended in such addendum.
Source: Item 22 — CONTRACTS (FDD page 50)
What This Means (2025 FDD)
Based on the 2025 Franchise Disclosure Document, the excerpts provided do not specify whether Burneys Sweets More is obligated to provide an extended cure period for any breach of the franchise agreement. The documents outline various obligations of the franchisee upon termination, expiration, or non-renewal of the agreement, such as ceasing operations, discontinuing the use of confidential information, and returning franchisor property. Additionally, the franchisor has the option to lease the premises under certain conditions related to the termination or non-renewal of the franchise agreement.
While the FDD excerpts detail the franchisee's responsibilities and the franchisor's rights in the event of termination, they do not explicitly address the cure periods available to the franchisee to remedy a breach before termination occurs. The excerpts do mention default by the tenant under the Form Lease after the expiration of any applicable notice and cure periods, but this refers to the lease agreement, not the franchise agreement itself.
A prospective Burneys Sweets More franchisee should carefully review the franchise agreement and related documents to understand the specific conditions under which a breach may occur and the remedies available to both parties. It is essential to clarify with the franchisor the length of any cure periods, the process for addressing breaches, and the potential consequences of failing to remedy a breach within the allotted time. Understanding these terms is crucial for protecting the franchisee's investment and ensuring a clear understanding of their rights and obligations under the franchise agreement.
To gain a comprehensive understanding of breach and cure provisions, a potential franchisee should ask Burneys Sweets More for specific details regarding the standard cure periods offered, any circumstances that might warrant an extended cure period, and examples of breaches that have occurred in the past and how they were resolved. This information will help the franchisee assess the franchisor's approach to handling breaches and the potential risks associated with the franchise agreement.