Are the rights and remedies in the Fly Fitness agreement cumulative or alternative?
Fly_Fitness Franchise · 2024 FDDAnswer from 2024 FDD Document
ke action to stop such use shall not in any event be considered a waiver of the rights of Franchisor at any time to require Franchisee to restrict said use to the Franchised Business location.
- 21.9. Remedies Cumulative. All rights and remedies of the parties to this Agreement shall be cumulative and not alternative, in addition to and not exclusive of any other rights or remedies that are provided for herein or that may be available at law or in equity in case of any breach, failure or default or threatened breach, failure or default of any term, provision or condition of this Agreement or any other agreement between Franchisee or any of its affiliates and Franchisor or any of its affiliates. The rights and remedies of the parties to this Agreement shall be continuing and shall not be exhausted by any one or more uses thereof and may be exercised at any time or from time to time as often as may be expedient; and any option or election to enforce any such right or remedy may be exercised or taken at any time and from time to time.
Source: Item 23 — RECEIPT (FDD pages 45–182)
What This Means (2024 FDD)
According to Fly Fitness's 2024 Franchise Disclosure Document, the rights and remedies of both parties are cumulative and not alternative. This means that if one party breaches the agreement, the other party can pursue any and all available legal avenues, rather than being limited to a single course of action. This is in addition to, and not exclusive of, any other rights or remedies provided in the agreement, or available at law or in equity.
This provision protects Fly Fitness by ensuring it can pursue multiple remedies if a developer defaults. For example, Fly Fitness could terminate the agreement, sue for damages, and seek an injunction, all as part of a cumulative strategy. This is a common clause in franchise agreements, as it provides franchisors with broad protection against franchisee breaches.
The agreement also states that the rights and remedies are continuing and are not exhausted by one or more uses. This means Fly Fitness can exercise its rights and remedies at any time and as often as necessary. The expiration or termination of the agreement does not release the developer from any accrued liability or obligation that continues beyond the termination date.
For a prospective Fly Fitness franchisee, this clause underscores the importance of adhering to the franchise agreement. Breaching the agreement could expose the franchisee to multiple legal actions and financial liabilities. It is important to fully understand the obligations and potential consequences outlined in the agreement.