Under what conditions will Microsoft defend a Brightstar Care franchisee against claims of infringement or misappropriation related to the software?
Brightstar_Care Franchise · 2025 FDDAnswer from 2025 FDD Document
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.
If Microsoft receives information concerning an infringement or misappropriation claim related to the software, Microsoft may, at its expense and without obligation to do so, either (i) procure for you the right to continue to run the software, or (ii) modify the software or replace it with a functional equivalent, to make it non-infringing, in which case you will stop running the software immediately. If, as a result of an infringement or misappropriation claim, your use of the software is enjoined by a court of competent jurisdiction, Microsoft will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid and terminate this license.
If any other type of third party claim is brought against you regarding Microsoft's intellectual property, you must notify us promptly in writing. Microsoft may, at its option, choose to treat these daims as being covered by this section. This Section 19 provides your exclusive remedy for third party infringement and trade secret misappropriation claims.
Source: Item 23 — RECEIPTS (FDD pages 118–387)
What This Means (2025 FDD)
According to Brightstar Care's 2025 Franchise Disclosure Document, Microsoft may defend a Brightstar Care franchisee against claims of infringement or misappropriation related to the software, but this is subject to several conditions and limitations. Microsoft's obligations do not apply if the claim is based on the franchisee's use of the software after Microsoft has notified them to discontinue use due to such a claim. Additionally, Microsoft is not obligated to defend the franchisee if the claim arises from combining the software with a non-Microsoft product, data, or business process, including third-party add-ons or programs, or if damages are attributable to the value of the use of a non-Microsoft product, data, or business process. Microsoft will also not defend the franchisee if they alter or modify the software, including modifications by third parties, or if they distribute the software to, or use it for the benefit of, any third party. The same applies to the use of Microsoft trademarks without express written consent. Finally, for any trade secret claim, Microsoft's obligations do not apply if the franchisee acquired the trade secret through improper means, under circumstances giving rise to a duty to maintain its secrecy or limit its use, or from a person (other than Microsoft or its affiliates) who owed a duty to maintain the secrecy or limit the use of the trade secret. The franchisee is responsible for reimbursing Microsoft for any costs or damages resulting from these actions.
If Microsoft receives information about an infringement or misappropriation claim, it has the option, but not the obligation, to either procure the right for the franchisee to continue using the software or modify or replace the software with a non-infringing functional equivalent. If a court enjoins the franchisee's use of the software due to an infringement or misappropriation claim, Microsoft will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid and terminate the license.
If any other type of third-party claim is brought against the franchisee regarding Microsoft's intellectual property, the franchisee must notify Microsoft promptly in writing. Microsoft may choose to treat these claims as being covered by this section. The FDD specifies that this section provides the franchisee's exclusive remedy for third-party infringement and trade secret misappropriation claims. This means that the franchisee's recourse against Microsoft for such claims is limited to the remedies described in this section.