Can a court revise a provision of the Brand Protection Agreement with Itan to make it enforceable?
Itan Franchise · 2025 FDDAnswer from 2025 FDD Document
- (d) Each section of this Agreement (and portion thereof) is severable. If any section (or portion thereof) is unenforceable, it shall not affect the enforceability of any other section (or portion thereof). A court may revise any provision of this Agreement to the extent necessary to make the provision enforceable.
Source: Item 23 — RECEIPT (FDD pages 44–190)
What This Means (2025 FDD)
According to Itan's 2025 Franchise Disclosure Document, a court may revise a provision within the Brand Protection Agreement to ensure its enforceability. Specifically, the agreement's sections are designed to be severable, meaning that if one part is deemed unenforceable, it does not invalidate the entire agreement. Instead, a court is authorized to modify the problematic provision to the extent necessary to make it enforceable.
This clause offers a degree of flexibility, potentially saving both Itan and the franchisee from the negative consequences of an invalidated agreement due to a single unenforceable clause. It allows for judicial intervention to adjust the terms, aligning them with legal requirements while preserving the overall intent of the agreement. This could be particularly relevant in areas subject to changing laws or differing interpretations across jurisdictions.
However, it's important to note that this does not guarantee that every provision will be revised and enforced. The court's decision will depend on the specific circumstances and the applicable laws. Franchisees should be aware of this clause and understand that while it offers a chance for revision, it does not provide absolute protection against unenforceable terms. It is advisable to seek legal counsel to fully understand the implications of each provision within the Brand Protection Agreement and how this clause might affect their rights and obligations.