Is Bananas Smoothies Frozen Yogurt responsible for any damages arising from the Developer's business operations?
Bananas_Smoothies_Frozen_Yogurt Franchise · 2025 FDDAnswer from 2025 FDD Document
Developer agrees to indemnify, defend and hold Franchisor, Developer's affiliates and Franchisor's respective members, shareholders, directors, officers, employees, agents, successors and assignees (the "Indemnified Parties") harmless from and against and to reimburse them for all claims, obligations and damages described in this Section, any and all taxes described in Paragraph 12.3 of Section 12 of this Agreement and any and all claims and liabilities directly or indirectly arising out of the operation of Developer's business (even if Franchisor's negligence is alleged, but not proven), Developer's breach of this Agreement or Developer's use of the Marks in any manner not in accordance with this Agreement.
For purposes of this indemnification, "claims" means and includes all obligations, damages (actual, consequential or otherwise) and costs reasonably incurred in the defense of any claim against any of the Indemnified Parties including, without limitation, reasonable costs, other expenses of litigation, attorney fees, arbitration or alternative dispute resolution and travel and living expenses.
The Indemnified Parties have the right to defend any such claim against them in such manner as they deem appropriate or desirable in their sole discretion.
This indemnity will continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Under no circumstances will Franchisor or any other Indemnified Party be required to seek recovery from any insurer or other third party, or otherwise to mitigate our, their or Developer's losses and expenses, in order to maintain and recover fully a claim against Developer.
Developer agrees that a failure to pursue such recovery or mitigate a loss will in no way reduce or alter the amounts Franchisor or another Indemnified Party may recover from Developer.
Source: Item 23 — RECEIPT (FDD pages 58–231)
What This Means (2025 FDD)
According to Bananas Smoothies Frozen Yogurt's 2025 Franchise Disclosure Document, the developer, or franchisee, is responsible for indemnifying the franchisor. Specifically, the franchisee must indemnify, defend, and hold harmless Bananas Smoothies Frozen Yogurt, its affiliates, and their respective members, shareholders, directors, officers, employees, agents, successors, and assignees (referred to as the "Indemnified Parties").
This indemnification extends to all claims, obligations, and damages arising from the franchisee's business operations. This includes any and all taxes described in Paragraph 12.3 of Section 12 of the agreement, as well as any claims and liabilities directly or indirectly arising out of the operation of the franchisee's business, even if negligence on the part of Bananas Smoothies Frozen Yogurt is alleged but not proven. It also covers the franchisee's breach of the agreement or the franchisee's use of the Marks (trademarks, service marks, and commercial symbols) in any manner not in accordance with the agreement.
The definition of "claims" includes all obligations, damages (actual, consequential, or otherwise), and costs reasonably incurred in defending against any claim, including reasonable costs, litigation expenses, attorney fees, arbitration or alternative dispute resolution costs, and travel and living expenses. The Indemnified Parties have the right to defend any such claim as they deem appropriate. This indemnity remains in effect even after the agreement expires or is terminated. Bananas Smoothies Frozen Yogurt or any other Indemnified Party is not required to seek recovery from any insurer or third party or mitigate losses before making a claim against the franchisee. A failure to mitigate a loss will not reduce the amounts Bananas Smoothies Frozen Yogurt may recover from the franchisee.