What is the impact of negligence on the waiver of subrogation in the Bens Soft Pretzels Sublicense agreement?
Bens_Soft_Pretzels Franchise · 2025 FDDAnswer from 2025 FDD Document
- 6.10 Waiver of Subrogation. Notwithstanding anything in this Sublicense to the contrary, Sublicensee hereby waives any and all rights of recovery, claims, actions or causes of action against Sublicensor and its officers, directors, managers, members, shareholders or partners, as the case may be, and the respective agents, employees, successors and assigns of each of them, for any loss or damage that may occur to the Premises or the building within which same are located or any improvements thereto or any personal property located therein by reason of fire, the elements, or any other cause insured against under valid and collectible fire and extended coverage of insurance policies under or related to the License and/or this Sublicense, regardless of cause of origin, including negligence, except in any case which would render this waiver void under law, to the extent that such loss or damage is recoverable under said insurance policies.
Source: Item 22 — CONTRACTS (FDD pages 46–47)
What This Means (2025 FDD)
According to the 2025 Bens Soft Pretzels Franchise Disclosure Document, the Sublicensee waives rights to recovery from the Sublicensor for damages to the premises or property due to fire, the elements, or other insured causes. This waiver extends to the Sublicensor, its officers, directors, managers, members, shareholders, partners, agents, employees, successors, and assigns.
This waiver applies regardless of the cause or origin of the damage, including negligence. However, the waiver of subrogation does not apply in any case where such a waiver would be void under the law. The waiver is limited to the extent that the loss or damage is recoverable under the insurance policies related to the License and/or the Sublicense.
In practical terms, this means that if damage occurs due to an insured event, even if it's due to the Sublicensor's negligence, the Sublicensee must rely on insurance coverage for recovery and cannot sue the Sublicensor, unless the waiver is legally void. This clause allocates risk and encourages the Sublicensee to maintain adequate insurance coverage. Franchisees should consult with a legal professional to fully understand the implications of waiving subrogation rights in their specific jurisdiction.