Is a Brightstar Care franchisee required to reimburse Microsoft for costs or damages resulting from combining the software with a non-Microsoft product?
Brightstar_Care Franchise · 2025 FDDAnswer from 2025 FDD Document
and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance in defending the claim, and Microsoft will reimburse you for reasonable out of pocket expenses that you incur in providing that assistance. The terms "misappropriation" and "trade secret" are used as defined in the Uniform Trade Secrets Act, except in the case of claims arising outside the United States, in which case "misappropriation" will mean intentionally unlawful use and "trade secret" will mean "undisclosed information" as specified in Article 39.2 of the TRIPs agreement.
Our obligations will not apply to the extent that the claim or adverse final judgment is based on (i) your use of the software after Microsoft notifies you to discontinue use due to such a claim; (ii) your combining the software with a non-Microsoft product, data or business process including third party add-ons or programs; (iii) damages attributable to the value of the use of a non-Microsoft product, data or business process; (iv) your altering or modifying the software, including any modifications by third parties; (v) your distribution of the software to, or its use for the benefit of, any third party; (vi) your use of Microsoft trademark(s) without express written consent to do so; or (vii) for any trade secret claim, your acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a person (other than Microsoft or its affiliates) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. You will reimburse us for any costs or damages that result from these actions.
Source: Item 23 — RECEIPTS (FDD pages 118–387)
What This Means (2025 FDD)
According to Brightstar Care's 2025 Franchise Disclosure Document, a franchisee may be required to reimburse Microsoft for costs or damages under specific circumstances related to the Microsoft software provided.
Specifically, if a claim or adverse final judgment arises because the franchisee combined the Microsoft software with a non-Microsoft product, data, or business process, including third-party add-ons or programs, Brightstar Care's obligations do not apply. In such cases, the franchisee will be responsible for reimbursing Microsoft for any resulting costs or damages. This condition is one of several scenarios outlined in the FDD where Microsoft's obligations are limited, and the franchisee assumes financial responsibility.
This means that Brightstar Care franchisees should exercise caution when integrating the Microsoft software with other systems or applications. It is crucial to ensure compatibility and avoid modifications that could lead to infringement claims or other legal issues. Franchisees should seek appropriate technical advice before implementing any integrations or modifications to the software to mitigate the risk of incurring reimbursement obligations to Microsoft.
The FDD also states that if a third-party claim is brought against a Brightstar Care franchisee regarding Microsoft's intellectual property, the franchisee must promptly notify Microsoft in writing. Microsoft has the option to handle these claims as covered under this section, further emphasizing the importance of franchisees adhering to the specified usage guidelines and seeking guidance when necessary.