What is the maximum frequency with which Fly Fitness can require a franchisee to implement 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 can require franchisees to refurbish their business location to conform to Trade Dress Modifications no more than once in a thirty-six (36) month period. These modifications are at the franchisee's sole expense and may include structural changes, remodeling, redecoration, and modifications to existing improvements. This means a franchisee could be required to invest in upgrades to the location's appearance and layout every three years.
However, there is an exception to this rule. Fly Fitness can require immediate changes to discontinue the use of any Mark that is no longer desirable or available to Fly Fitness and substitute a different Mark or Marks as Fly Fitness directs. This implies that while major refurbishments are limited, changes to branding elements like logos or names can be mandated more frequently.
Fly Fitness will not be liable to the franchisee for any expenses, losses, or damages sustained as a result of any modifications, including Trade Dress Modifications. The franchisee also agrees not to commence or join in any litigation against Fly Fitness or any third party complaining of any such modifications or seeking expenses, losses, or damages caused thereby, and waives any claims arising from or related to the modifications. This places the financial burden and risk of these changes entirely on the franchisee, with limited recourse for any resulting losses.