Is each covenant in Section 12 of the Hyper Kidz agreement considered independent of the others?
Hyper_Kidz Franchise · 2024 FDDAnswer from 2024 FDD Document
- 12.3 The parties agree that each of the foregoing covenants shall be construed as independent of any other covenant or provision of this Agreement.
If all or any portion of a covenant in this Section 12 is held unreasonable or unenforceable by a court or agency having valid jurisdiction in any unappealed final decision to which we are a party, you expressly agree to be bound by any lesser covenant subsumed within the terms of such covenant that imposes the maximum duty permitted by law, as if the resulting covenant were separately stated in and made a part of this Section 12.
Source: Item 23 — RECEIPTS (FDD pages 52–205)
What This Means (2024 FDD)
According to the 2024 Hyper Kidz Franchise Disclosure Document, each covenant within Section 12 of the franchise agreement is designed to be interpreted as independent from the others. This means that if one specific covenant is deemed unreasonable or unenforceable by a court, it does not automatically invalidate the remaining covenants within that section.
This independence clause is significant for a prospective Hyper Kidz franchisee because it provides clarity and enforceability. If a particular restriction is successfully challenged, the franchisee is still obligated to adhere to the remaining enforceable covenants. This limits the franchisee's ability to escape their contractual obligations based on a single point of contention.
Furthermore, the FDD states that if a court finds any portion of a covenant unreasonable, the franchisee agrees to be bound by a lesser covenant that imposes the maximum duty permitted by law. This ensures that Hyper Kidz can still enforce a reasonable level of protection, even if the original covenant is deemed too broad. This flexibility benefits Hyper Kidz by allowing them to maintain some level of protection even if the original terms are challenged.