What is the C3 Wellness Spa Indemnitee's obligation regarding notifying the Indemnitor of a Claim?
C3_Wellness_Spa Franchise · 2024 FDDAnswer from 2024 FDD Document
- 7.03. Defense of Third party Claims. The Indemnitee will give the Indemnitor written notice of any Claim of which defense is sought.
However, failure to provide such notice will not relieve the Indemnitor from its obligations under this Agreement, except to the extent the Indemnitor is materially prejudiced as a direct result of such failure.
If any such proceeding is brought against an Indemnitee, the Indemnitor will be required to assume the defense of such proceeding, except as otherwise set forth below, using legal counsel acceptable to the Indemnitee in its reasonable discretion.
The Indemnitee will cooperate with the Indemnitor at the Indemnitor's expense in connection with the defense and settlement of the Claim.
The Indemnitor may not settle any indemnified Claim in a manner that adversely affects the Indemnitee without its prior written consent, which will not be unreasonably withheld or delayed.
Further, the Indemnitee may participate in the defense of the Claim through counsel of its own choosing at its own cost and expense.
If the Indemnitor fails promptly to assume the defense and employ counsel reasonably satisfactory to Indemnitee, or the Indemnitee has been advised by counsel that there exist actual or potential conflicting interests between the Indemnitor or the Indemnitor's counsel and Indemnitee, the Indemnitee may employ separate counsel to represent Indemnitee.
The Indemnitor agrees to pay the fees of separate counsel as incurred.
Source: Item 23 — RECEIPTS (FDD pages 59–293)
What This Means (2024 FDD)
According to the 2024 C3 Wellness Spa Franchise Disclosure Document, if an indemnified party seeks defense for a claim, they must provide written notice to the indemnitor. However, failure to provide this notice does not relieve the indemnitor of their obligations, unless the indemnitor is materially prejudiced as a direct result of the failure to notify them.
If a proceeding is brought against an indemnitee, the indemnitor is required to assume the defense, using legal counsel acceptable to the indemnitee. The indemnitee must cooperate with the indemnitor in the defense and settlement of the claim, at the indemnitor's expense. The indemnitor cannot settle any claim in a way that adversely affects the indemnitee without prior written consent, which cannot be unreasonably withheld or delayed.
The indemnitee can participate in the defense of the claim through their own counsel, but at their own cost. If the indemnitor fails to promptly assume the defense or employ satisfactory counsel, or if there are conflicting interests between the indemnitor and indemnitee, the indemnitee may employ separate counsel, and the indemnitor agrees to cover the fees of this separate counsel as they are incurred.