Does the Checkers franchise agreement require the franchisee to indemnify for their breach of any representation?
Checkers Franchise · 2025 FDDAnswer from 2025 FDD Document
e prior notice, the "good cause" standard and/or the other action required by such law shall be substituted for the comparable provisions hereof.
10.02 Waiver of Obligations. We and you may by written instrument unilaterally waive or reduce any obligation of the other under this Agreement. Any waiver granted by us shall be without prejudice to any other rights we may have, will be subject to continuing review by us and may be revoked, in our sole discretion, at any time and for any reason, effective upon delivery to you of 10 days' prior written notice. You and we shall not be deemed to have waived any right reserved by this Agreement or be deemed to have modified this Agreement by virtue of any custom or practice of the parties at variance with it.
10.03 Exercise of Rights of Parties. The rights of Franchisor and Area Franchisee hereunder are cumulative and no exercise or enforcement by Franchisor or Area Franchisee of any right or remedy hereunder shall preclude the exercise or enforcement by Franchisor or Area Franchisee of any other right or remedy hereunder which Franchisor or Area Franchisee is entitled to enforce by law. If Area Franchisee commits any act of default under this Agreement for which Franchisor exercises its right to terminate this Agreement, Area Franchisee shall pay to Franchisor all actual, consequential, special and incidental damages Franchisor incurs as a result of the premature termination of this Agreement regardless of whether or not such damages are reasonably foreseeable. Area Franchisee acknowledges and agrees that the proximate cause of such damages sustained by Franchisor is Area Franchisee's act of default and not Franchisor's exercise of its right to terminate. Notwithstanding the foregoing, and except as otherwise prohibited or limited by applicable law, any failure, neglect, or delay of a party to assert any breach or violation of any legal or equitable right arising from or in connection with this Agreement, shall constitute a waiver of such right and shall preclude the exercise or enforcement of any legal or equitable remedy arising therefrom, unless written notice specifying such breach or violation is provided to the other party within 12 months after the later of: (a) the date of such breach or violation; or (b) the date of discovery of the facts (or the date the facts could have been discovered, using reasonable diligence) giving rise to such breach or violation.
10.04 Costs of Enforcement. If we file a claim in a judicial or arbitration proceeding for amounts you or any of your Owners owe us or any of our Affiliates, or if we enforce this Agreement in a judicial or arbitration proceeding, and we prevail in any such proceeding, you agree to reimburse us for all of our costs and expenses, including reasonable accounting, paralegal, expert witness and attorneys' fees. If we are required to engage legal counsel in connection with your failure to comply with this Agreement, you must reimburse us for any attorneys' fees, costs and expenses we incur.
10.05 Injunctive Relief. We, as an alternative or supplement to arbitration pursuant to Section 10.06, may obtain in any court of competent jurisdiction any injunctive relief, including temporary restraining orders and preliminary injunctions, against conduct or threatened conduct for which no adequate remedy at law may be available or which may cause us irreparable harm. We may seek and obtain such injunctive relief, without bond, but
upon notice as required under applicable rules, in addition to such further and other relief as may be available at equity or law, and your sole remedy in the event of the entry of such injunction, shall be its dissolution, if warranted, upon hearing duly had (all claims for damages by reason of the wrongful issuance of any such injunction being expressly waived hereby).
Source: Item 23 — RECEIPTS (FDD pages 92–384)
What This Means (2025 FDD)
The 2025 Checkers Franchise Disclosure Document states that Area Franchisees must indemnify Checkers from claims and actions. Specifically, Section 10.03 states that if an Area Franchisee defaults on the agreement and Checkers terminates the agreement, the Area Franchisee is responsible for paying Checkers' actual, consequential, special, and incidental damages resulting from the early termination, regardless of foreseeability. The Area Franchisee acknowledges that their default directly causes these damages.
Section 10.04 outlines that if Checkers files a claim against a franchisee or their owners for amounts owed or to enforce the agreement and Checkers prevails, the franchisee must reimburse Checkers for all costs and expenses, including accounting, paralegal, expert witness, and attorneys' fees. Similarly, if Checkers needs to hire legal counsel due to a franchisee's non-compliance with the agreement, the franchisee must cover Checkers' attorneys' fees, costs, and expenses.
Section 10.14 includes a release where the Area Franchisee releases Checkers from all claims and demands before the agreement date and agrees not to institute legal action against Checkers. However, this section clarifies that franchisees do not waive reliance on any representations made by Checkers in their Franchise Disclosure Document. This means that while franchisees generally release Checkers from prior claims, they retain the right to hold Checkers accountable for misrepresentations made in the FDD.