How can the Casiola agreement be modified?
Casiola Franchise · 2024 FDDAnswer from 2024 FDD Document
between you and us that you are in a better position to know if you permitted and/or provide an immediate family member with access to the Know-How. Therefore, you agree that you will be presumed to have violated the terms of this Agreement if any member of your immediate family (i) engages in any Prohibited Activities during any period of time during which you are prohibited from engaging in the Prohibited Activities or (ii) uses or discloses the Know-How. However, you may rebut this presumption by providing evidence conclusively demonstrating that you did not disclose the Know-How nor permit disclosure of the Know-How to the family member.
- (f) Reasonableness of Covenants and Restrictions. You agree that: (i) the terms of this Agreement are reasonable both in time and in scope of geographic area; and (ii) you have sufficient resources and business experience and opportunities to earn an adequate living while complying with the terms of this Agreement. You waive any right to challenge the terms of this Agreement as being overly broad, unreasonable or otherwise unenforceable. Although you and we both believe that the covenants in this Agreement are reasonable in terms of scope, duration and geographic are, we may at any time unilaterally modify the terms of this Article 4 (Intellectual Property, Brand Protection and Non-Competition Covenants and Restrictions) by limiting the scope of the Prohibited Activities, narrowing the definition of a Competitive Business, shortening the duration of the Restricted Period, reducing the geographic scope of the Restricted Territory and/or reducing the scope of any other covenant imposed upon you under this Article 4 to ensure that the terms are enforceable under applicable law.
- (g) Breach. You agree that failure to comply with these Article 4 Intellectual Property, Brand Protection and Non-Competition Covenants and Restrictions will cause irreparable harm to us and/or other Casiola Business franchisees for which there is no adequate remedy at law. Therefore, you agree that any violation of these covenants will entitle us to injunctive relief. You agree that we may apply for such injunctive relief, without bond, but upon due notice, in addition to such further and other relief as may be available at equity or law, and the sole remedy of yours, in the event of the entry of such injunction, will be the dissolution of such injunction, if warranted, upon a hearing duly held (all claims for damages by reason of the wrongful issuance of any such injunction being expressly waived hereby). If a court requires the filing of a bond notwithstanding the preceding sentence, the parties agree that the amount of the bond shall not exceed $1,000. None of the remedies available to us under this Article are exclusive of any other, but may be combined with others under this Agreement, or at law or in equity, including injunctive relief, specific performance and recovery of monetary damages.
5. Transfer Restrictions and Non-Competition Covenants and Restrictions.
Notwithstanding anything contained in this Agreement to the contrary, you agree that prior to Transferring any Owner's equity and/or ownership interests in Franchisee that, among other things, Franchisee must notify us and obtain our written consent. Likewise, you agree that under the Franchise Agreement that prior to Franchisee's Transfer of the Franchise Agreement, among other things, Franchisee must notify us and obtain our written consent. For our protection and to prevent the subversion of the non-competition covenants contained in Article 4 of this Agreement and, to induce us to enter into the Franchise Agreement with Franchisee, you agree, that:
(a) if you are an Owner, should Franchisee fail to properly and timely notify us in writing of the proposed Transfer of your equity and/or ownership interests in Franchisee and/or should Franchisee, fail to obtain our consent to the proposed Transfer of your equity and/or ownership
interests in Franchisee (which we may either reject or approve, in accordance with the terms and conditions of the Franchise Agreement), you shall remain subject to the non-competition covenants contained in Article 4 of this Agreement and irrespective of any purported and/or actual Transfer in violation of the terms and conditions of the Franchise Agreement; and
(b) if you are an Owner, should Franchisee fail to properly and timely notify us in writing of the proposed Transfer of the Franchise Agreement to a third party and/or should Franchisee, fail to obtain our consent to the proposed Transfer of the Franchise Agreement to a third party (which we may either reject or approve, in accordance with the terms and conditions of the Franchise Agreement), you shall remain subject to the non-competition covenants contained in Article 4 of this Agreement and irrespective of any purported and/or actual Transfer in violation of the terms and conditions of the Franchise Agreement.
**6.
Source: Item 23 — RECEIPTS (FDD pages 47–209)
What This Means (2024 FDD)
According to the 2024 Casiola Franchise Disclosure Document, there are several ways the franchise agreement can be modified. Casiola may unilaterally modify Article 4 of the agreement, which pertains to intellectual property, brand protection, and non-competition covenants. These modifications can include limiting prohibited activities, narrowing the definition of a competitive business, shortening the restricted period, and reducing the geographic scope of restrictions to ensure enforceability under applicable law.
Additionally, the terms and conditions of the Commission Agreement can be modified and amended by Casiola in its Reasonable Business Judgment. This agreement covers the offering and provision of approved services and products on behalf of property owner customers, the calculation of Commission+ Fees, and other related terms.
For franchisees in North Dakota, the franchise agreement is subject to specific amendments to comply with the North Dakota Franchise Investment Law. These amendments include making provisions requiring North Dakota franchisees to sign a general release upon renewal of the Franchise Agreement unenforceable, as well as provisions requiring consent to termination or liquidated damages. Covenants not to compete are generally considered unenforceable in North Dakota, and provisions requiring franchisees to consent to the jurisdiction of courts outside of North Dakota may also be unenforceable. Furthermore, North Dakota law shall apply to North Dakota franchisees, and provisions requiring a waiver of trial by jury or exemplary and punitive damages are not enforceable under North Dakota law.
In the event of a transfer of the franchise agreement, if Casiola elects, the transferee may be required to execute the then-current standard form Franchise Agreement offered to new franchisees, which would supersede the original agreement. These new agreements will be for a term ending on the expiration date of the original agreement and may have different terms, provided they maintain the same Royalty Fee, Advertising Contributions, and other financial obligations.