Does the waiver of subrogation in the Bens Soft Pretzels sublicense agreement extend to negligence?
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 sublicense agreement includes a waiver of subrogation. This waiver means that the Sublicensee (the franchisee) waives the right to seek recovery or file claims against the Sublicensor (the entity granting the sublicense, which may be Bens Soft Pretzels or an affiliate) and its related parties for losses or damages to the premises or property.
Specifically, this waiver applies to losses covered by fire and extended insurance policies related to the license or sublicense. Importantly, the waiver explicitly includes losses or damages caused by negligence. However, there is an exception: the waiver does not apply in cases where such a waiver would be void under the law. This means that if a law prohibits waiving liability for certain negligent acts, the waiver will not be enforced in those specific instances.
In practical terms, a Bens Soft Pretzels franchisee might be unable to recover damages from the Sublicensor if, for example, a fire caused by the Sublicensor's negligence damages the franchisee's store, provided the damage is covered by the franchisee's insurance and the waiver is enforceable under applicable law. Franchisees should consult with a legal professional to understand the full implications of this waiver and its enforceability in their specific jurisdiction.