Are the covenants in the Burros Fries franchise agreement enforceable independent of claims?
Burros_Fries Franchise · 2024 FDDAnswer from 2024 FDD Document
nder construction as of the expiration or termination of, or the transfer of all or your interest in, the Franchise Agreement.
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- You undertake to use your best efforts to ensure that your staff acts as required by this Agreement.
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- You agree that in the event of a breach of this Agreement, we would be irreparably injured and be without an adequate remedy at law. Therefore, in the event of such a breach, or threatened or attempted breach of any of the provisions hereof, we shall be entitled to enforce this Agreement and shall be entitled, in addition to any other remedies which are available to it at law or in equity, including the right to terminate the Franchise Agreement, to a temporary and/or permanent injunction and a decree for the specific performance of the terms of this Agreement, without the necessity of showing actual or threatened harm and without being required to furnish a bond or other security.
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- You agree to pay all expenses (including court costs and reasonable legal fees) incurred by us and You in enforcing this Agreement.
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- Any failure by us or You to object or to take action with respect to any breach of this Agreement by You shall not operate or be construed as a waiver of or consent to that breach or any later breach by You.
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- THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF CALIFORNIA.
Source: Item 22 — CONTRACTS (FDD page 53)
What This Means (2024 FDD)
According to the 2024 Burros Fries Franchise Disclosure Document, the franchise agreement contains several provisions that address the enforceability of its covenants. Specifically, the agreement states that in the event of a breach, or threatened breach, Burros Fries is entitled to enforce the agreement through injunctive relief and specific performance, in addition to any other legal or equitable remedies available. This enforcement can occur without needing to demonstrate actual or threatened harm and without the requirement of posting a bond or security.
Furthermore, the franchise agreement stipulates that any failure by Burros Fries to object to a breach of the agreement by the franchisee does not constitute a waiver of any subsequent breaches. This means that Burros Fries's right to enforce the covenants remains intact even if they have previously overlooked a violation. The agreement also specifies that the franchisee is responsible for covering all expenses, including court costs and reasonable legal fees, incurred by Burros Fries in enforcing the agreement.
Additionally, the document includes a clause regarding non-competition, stating that the unenforceability of the covenant not to compete in one jurisdiction does not affect its enforceability in other jurisdictions or the enforceability of the rest of the agreement. This suggests that Burros Fries has taken steps to ensure that the covenants within the franchise agreement are enforceable to the fullest extent possible, independent of certain external factors or claims.