Is Fly Fitness liable for any expenses incurred by the franchisee as a result of Trade Dress Modifications?
Fly_Fitness Franchise · 2024 FDDAnswer from 2024 FDD Document
- 9.4.2.
As a condition to renew this Agreement and as otherwise requested by Franchisor no more than once in a thirty-six (36)-month period, Franchisee shall refurbish the Franchised Business location at Franchisee's sole expense, as required by Franchisor, to conform to Trade Dress Modifications.
This includes, without limitation, structural changes, remodeling, redecoration, and modifications to existing improvements.
Notwithstanding the foregoing restriction on the frequency of Trade Dress Modifications, Franchisee, upon notice by Franchisor and in accordance with Section 14.6 hereof, shall immediately discontinue the use of any Mark that is no longer desirable or available to Franchisor and substitute a different Mark or Marks as Franchisor directs.
- 9.4.3.
Franchisee will accept, use, and display any such Trade Dress Modifications as if they were a part of this Franchise Agreement at the time of execution hereof.
- 9.5.
No Liability/Waiver of Claims.
Franchisor shall not be liable to Franchisee for any expenses, losses or damages sustained by Franchisee as a result of any of the modifications, including Trade Dress Modifications, required by this Article 9.
Franchisee hereby covenants not to commence or join in any litigation or other proceeding against Franchisor or any third party, complaining of any such or seeking expenses, losses or damages caused thereby.
Further, Franchisee expressly waives any claims, demands or damages arising from or related to the modifications contemplated by this Article 9, including, without limitation, any claim of breach of contract, breach of fiduciary duty, fraud, and/or breach of the implied covenant of good faith and fair dealing.
Source: Item 22 — CONTRACTS (FDD pages 44–45)
What This Means (2024 FDD)
According to Fly Fitness's 2024 Franchise Disclosure Document, Fly Fitness is not liable for any expenses, losses, or damages that a franchisee sustains as a result of required modifications, including Trade Dress Modifications. The franchisee agrees not to initiate or participate in any legal proceedings against Fly Fitness or any third party to claim expenses, losses, or damages resulting from these modifications.
Furthermore, the franchisee expressly waives any claims, demands, or damages related to the modifications, including claims for breach of contract, breach of fiduciary duty, fraud, and/or breach of the implied covenant of good faith and fair dealing. This waiver means that franchisees bear the full financial responsibility for Trade Dress Modifications and cannot seek reimbursement or compensation from Fly Fitness for these costs.
Fly Fitness can request Trade Dress Modifications as a condition of renewing the Franchise Agreement or at other times, but no more than once in any 36-month period. These modifications are made at the franchisee's sole expense and may include structural changes, remodeling, redecoration, and modifications to existing improvements. The franchisee must accept, use, and display these Trade Dress Modifications as if they were part of the original Franchise Agreement.