Under what conditions is Microsoft's obligation to defend a Brightstar Care franchisee against infringement claims not applicable?
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.
Source: Item 23 — RECEIPTS (FDD pages 118–387)
What This Means (2025 FDD)
According to Brightstar Care's 2025 Franchise Disclosure Document, Microsoft's obligation to defend a franchisee against infringement claims has specific limitations. Microsoft is not obligated to defend a Brightstar Care franchisee if the claim or adverse judgment is based on certain actions or conditions related to the software use.
These conditions include using the software after Microsoft has notified the franchisee to discontinue use due to an infringement claim, combining the software with non-Microsoft products, data, or business processes (including third-party add-ons or programs), or if the damages are attributable to the value of the use of a non-Microsoft product, data, or business process. Additionally, Microsoft's obligation does not apply if the franchisee alters or modifies the software, distributes the software to or uses it for the benefit of any third party, or uses Microsoft trademarks without express written consent.
Furthermore, Microsoft is not obligated to defend against any trade secret claim if the franchisee acquired the trade secret through improper means, under circumstances that required maintaining its secrecy or limiting 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 to the party asserting the claim. The franchisee is responsible for reimbursing Microsoft for any costs or damages resulting from these actions. This means a Brightstar Care franchisee must adhere strictly to the terms of software use to maintain Microsoft's defense obligations.