Does Endless Summer Sweets require the franchisee to consent to a limitation of claims?
Endless_Summer_Sweets Franchise · 2024 FDDAnswer from 2024 FDD Document
- 18.5 Consent; Waiver. No consent under this Agreement, and no waiver of satisfaction of a condition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the consent or waiver.
No waiver by a party of any right will affect the party's rights as to any subsequent exercise of that right or any other right.
No delay, forbearance or omission by a party to exercise any right will constitute a waiver of such right.
- 18.6 Cumulative Remedies. Rights and remedies under this Agreement are cumulative.
No enforcement of a right or remedy precludes the enforcement of any other right or remedy.
- 18.7 Severability. The parties intend that (i) if any provision of this Agreement is held by an arbitrator or court to be unenforceable, then that provision be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded, and (ii) if an unenforceable provision is modified or disregarded, then the rest of this Agreement will remain in effect as written.
Source: Item 23 — RECEIPTS (FDD pages 39–125)
What This Means (2024 FDD)
According to the 2024 Endless Summer Sweets Franchise Disclosure Document, there is no explicit mention of a requirement for franchisees to consent to a limitation of claims. However, the document does state that "No consent under this Agreement, and no waiver of satisfaction of a condition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the consent or waiver." This suggests that any consent or waiver, which could potentially include a limitation of claims, must be documented in writing and signed to be considered valid.
Additionally, the FDD includes a section on cumulative remedies, stating that rights and remedies under the agreement are cumulative, and the enforcement of one right or remedy does not prevent the enforcement of any other. This implies that franchisees retain all available rights and remedies unless specifically waived in writing. The document also addresses severability, indicating that if any provision is deemed unenforceable, it should be modified to the minimum extent necessary to make it enforceable, or disregarded if modification is not permitted by law, without affecting the rest of the agreement.
While the FDD does not directly address a limitation of claims, the provisions regarding consent, waiver, cumulative remedies, and severability suggest that any such limitation would need to be clearly documented and agreed upon in writing. Prospective franchisees should carefully review the franchise agreement and consult with legal counsel to understand their rights and obligations regarding potential limitations of claims. It would be prudent to ask Endless Summer Sweets about any specific clauses or requirements related to claim limitations during the due diligence process.