Does the Kidokinetics agreement waive rights to claims pertaining to warranty issues?
Kidokinetics Franchise · 2024 FDDAnswer from 2024 FDD Document
idence conclusively showing you did not disclose the Intellectual Property to the family member.
-
- Covenants Reasonable. You acknowledge and agree that: (i) the terms of this Agreement are reasonable both in time and in scope of geographic area; and (ii) you have sufficient resources and business experience and opportunities to earn an adequate living while complying with the terms of this Agreement. YOU HEREBY WAIVE ANY RIGHT TO CHALLENGE THE TERMS OF THIS AGREEMENT AS BEING OVERLY BROAD, UNREASONABLE, OR OTHERWISE UNENFORCEABLE.
-
- Breach. You agree that failure to comply with this Agreement will cause substantial and irreparable damage to us and/or other Kidokinetics franchisees for which there is no adequate remedy at law. Therefore, you agree that any violation of this Agreement will entitle us to injunctive relief. You agree that we may apply for such injunctive relief, without bond, but upon due notice, in addition to such further and other relief as may be available at equity or law, and the sole remedy of yours, in the event of the entry of such injunction, will be the dissolution of such injunction, if warranted, upon hearing duly held (all claims for damages by reason of the wrongful issuance of any such injunction being expressly waived hereby). If a court requires the filing of a bond notwithstanding the preceding sentence, the parties agree that the amount of the bond shall not exceed $1,000. None of the remedies available to us under this Agreement are exclusive of any other, but may be combined with others under this Agreement, or at law or in equity, including injunctive relief, specific performance, and recovery of monetary damages. Any claim, defense, or cause of action you may have against us or against Franchisee, rega
Source: Item 22 — CONTRACTS (FDD page 59)
What This Means (2024 FDD)
Based on the 2024 Kidokinetics Franchise Disclosure Document, the franchise agreement includes a clause where the franchisee waives the right to challenge the terms of the agreement. Specifically, franchisees agree that the terms are reasonable and enforceable. This waiver could potentially extend to various aspects of the agreement, including those related to warranties, depending on how broadly a court interprets the waiver.
Additionally, the Kidokinetics franchise agreement states that any claims or causes of action a franchisee may have against Kidokinetics or other franchisees cannot be used as a defense against Kidokinetics' enforcement of the agreement. This clause means that if Kidokinetics sues a franchisee for breach of contract, the franchisee cannot use a warranty claim (or any other claim) as a legal defense. This could significantly limit a franchisee's ability to seek recourse for warranty issues through legal means.
Furthermore, the agreement specifies that if Kidokinetics seeks injunctive relief (a court order to stop the franchisee from doing something), the franchisee's sole remedy is to attempt to dissolve the injunction. The franchisee expressly waives all claims for damages resulting from the injunction, even if it was wrongfully issued. The agreement also mentions that remedies available to Kidokinetics are cumulative and can be combined, including injunctive relief, specific performance, and monetary damages. This combination of waivers and cumulative remedies favors Kidokinetics in potential disputes.
While the FDD excerpts do not explicitly mention warranty claims, the broad waiver of rights and limitations on remedies suggest that a franchisee's ability to pursue warranty-related claims against Kidokinetics may be significantly restricted by the franchise agreement. A prospective franchisee should seek legal counsel to fully understand the implications of these clauses and how they might affect their rights regarding warranty issues.