Does the Aplus franchisee's indemnification of Sunoco extend to injury or death of the franchisee's employees, agents, contractors, customers, and invitees?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
(A) You shall fully protect, defend, reimburse, indemnify, and hold harmless Sunoco, its parent, the respective subsidiaries and affiliates, and the respective officers, directors, employees, and agents of Sunoco, and each and every one of them free and harmless at all times from and against any and all claims, liabilities, litigation expenses, losses, demands, damages, fines, and causes of action and injury to any person (or death) and property of you, including your employees, agents, contractors, customers, and invitees, caused by or resulting in any way from but not limited to the following:
- (1) Operation of your business, including the operation or condition of the Premises (e.g., driveways, walkways, and signs) and the service and repair of motor vehicles by you, your employees, customers, invitees, agents, and contractors;
- (2) performance or non-performance of your obligations under this Lease;
- (3) operation, use, condition, and state of repair of Loaned Equipment, the UST System, Motor Fuels, and kerosene (if applicable) dispensing equipment, storage tanks, oil/water separators, and the building fixtures and improvements, and motor vehicles under your care, custody, or control;
- (4) loss, discharge, and spill of petroleum products on or from the Premises (excluding loss, discharge, or spill caused by Sunoco or its carriers occurring while delivering Motor Fuels or kerosene, if applicable, to the Premises);
- (5) contamination, mixing, misbranding, and dispensing of Products by you, your personnel, agents, contractors, customers, and suppliers (excluding Sunoco and its contractors);
- (6) claims and demands of your personnel, agents, and contractors for compensation, wages, benefits, and other remuneration, including fines, interest, and penalties assessed by appropriate governmental authority in any way associated with payment or non-payment of such remuneration;
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, the franchisee's indemnification of Sunoco extends to injury or death of certain individuals. Specifically, the franchisee must protect, defend, reimburse, indemnify, and hold harmless Sunoco and its affiliates from claims, liabilities, losses, damages, and causes of action related to injury or death of the franchisee, including the franchisee's employees, agents, contractors, customers, and invitees. This broad indemnification clause places significant responsibility on the franchisee.
The franchisee's duty to indemnify Sunoco arises from various circumstances related to the Aplus business. These include the operation of the business and condition of the premises, the franchisee's performance or non-performance of obligations under the lease, and the operation, use, or condition of equipment such as the UST System and motor fuel dispensing equipment. It also covers the loss, discharge, or spill of petroleum products on the premises, as well as contamination or misbranding of products by the franchisee or their personnel.
Furthermore, the indemnification extends to claims and demands from the franchisee's personnel, agents, and contractors for compensation, wages, benefits, and other remuneration. This includes any fines, interest, and penalties assessed by governmental authorities related to the payment or non-payment of such remuneration. This means that if an employee of the franchisee is injured and brings a claim, the franchisee is responsible for defending and indemnifying Sunoco against that claim, highlighting the importance of maintaining adequate insurance and safety protocols.