What happens if a provision of the Ella Cafe franchise agreement is deemed invalid?
Ella_Cafe Franchise · 2024 FDDAnswer from 2024 FDD Document
I agree that each of the foregoing covenants will be construed as independent of any other covenant or provision of this Confidentiality Agreement.
If all or any portion of a covenant in this Confidentiality Agreement is held unreasonable or unenforceable by a court or agency having valid jurisdiction in an unappealed final decision to which Franchisor is a party, I expressly agree 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 were separately stated in and made a part of this Confidentiality Agreement.
I understand and acknowledge that Franchisor has the right, in its sole discretion, to reduce the scope of any covenant set forth in this Confidentiality Agreement, or any portion thereof, without my consent, effective immediately upon receipt by me of written notice thereof, and I agree to comply forthwith with any covenant as so modified.
I also understand that neither I nor Developer may make any changes to this Confidentiality Agreement without the written consent of Franchisor.
Source: Item 23 — RECEIPTS (FDD pages 50–181)
What This Means (2024 FDD)
According to Ella Cafe's 2024 Franchise Disclosure Document, if a part of the confidentiality agreement is deemed unreasonable or unenforceable by a court or agency with jurisdiction, the franchisee expressly agrees to be bound by any lesser covenant within the terms of the original covenant. This means the franchisee must adhere to the maximum duty permitted by law, as if this resulting covenant was originally part of the agreement.
In simpler terms, if a specific restriction or requirement in the Ella Cafe confidentiality agreement is found to be too broad or not legally enforceable, the franchisee is still obligated to comply with a narrower, legally acceptable version of that restriction. This ensures that some level of obligation remains in place, protecting Ella Cafe's interests to the fullest extent allowed by law.
Furthermore, Ella Cafe has the right to modify the scope of any covenant within the confidentiality agreement, or any part of it, without the franchisee's consent. This modification becomes effective immediately once the franchisee receives written notice. The franchisee is then required to comply with the covenant as it has been modified. The franchisee cannot make any changes to the confidentiality agreement without Ella Cafe's written consent.