Does the Fly To Fit agreement state that each covenant is independent of other covenants?
Fly_To_Fit Franchise · 2024 FDDAnswer from 2024 FDD Document
ry of any other Fly To Fit business operating on the date of termination or transfer, as applicable. If this Agreement is terminated before the Territory is determined, then the area of noncompetition will the Development Area and the territory of any other Fly To Fit business operating on the date of termination.
- (c) Interpretation. The parties agree that each of the foregoing covenants is independent of any other covenant or provision of this Agreement. If all or any portion of the covenants in this Section is held to be unenforceable or unreasonable by any arbitrator or court, then the parties intend that the arbitrator or court modify such restriction to the extent reasonably necessary to protect the legitimate business interests of Fly To Fit Franchise. Franchisee agrees that the existence of any claim it may have against Fly To Fit Franchise shall not constitute a defense to the enforcement by Fly To Fit Franchise of the covenants of this Section. If a Restricted Party fails to comply with the obligations under this Section during the restrictive period, then the restrictive period will be extended an additional day for each day of noncompliance.
- 13.3 General Manager and Key Employees. If requested by Fly To Fit Franchise, Franchisee will cause its general manager and other key employees to sign Fly To Fit Franchise's then-current form of confidentiality and non-compete agreement (unless prohibited by applicable law).
ARTICLE 14. DEFAULT AND TERMINATION
14.1 Termination by Franchisee. Franchisee may terminate this Agreement only if Fly To Fit Franchise violates a material provision of this Agreement and fails to cure or to make substantial
progress toward curing the violation within 30 days after receiving written notice from Franchisee detailing the alleged default.
Source: Item 22 — CONTRACTS (FDD page 44)
What This Means (2024 FDD)
According to Fly To Fit's 2024 Franchise Disclosure Document, the franchise agreement specifies that each covenant, particularly those related to non-competition, is independent of any other covenant or provision within the agreement. This independence is mentioned in two contexts: once concerning the franchisee and owners, and again concerning the guarantor. This means that if one part of the agreement is found to be unenforceable, it does not automatically invalidate the other covenants.
For a prospective Fly To Fit franchisee, this is significant because it reinforces the enforceability of individual clauses. For example, if a franchisee were to claim that Fly To Fit breached one aspect of the agreement, it would not necessarily excuse the franchisee from adhering to the non-compete obligations. This protects Fly To Fit's interests by ensuring that franchisees and guarantors cannot avoid their responsibilities under specific covenants simply because of a dispute over another part of the agreement.
Furthermore, the agreement addresses the possibility that a court or arbitrator might find a portion of the non-compete covenants unreasonable. In such cases, the intention is for the restriction to be modified to the extent necessary to protect Fly To Fit's legitimate business interests. This demonstrates an intent to maintain the enforceability of the non-compete provisions as much as legally possible, which is a common practice in franchising to safeguard the brand and market position. The agreement also stipulates that any failure to comply with non-compete obligations will result in an extension of the restrictive period by one day for each day of noncompliance, further emphasizing the importance of adhering to these covenants.