Under what conditions is Del Taco required to indemnify a licensee against claims of software infringement?
Del_Taco Franchise · 2025 FDDAnswer from 2025 FDD Document
By Del Taco. Subject to Section 10.2, Del Taco will indemnify Licensee against any claim that the Software, furnished and used within the scope of this Agreement, infringes any U.S. copyright or patent, provided that: (i) Del Taco is given prompt notice of the claim; (ii) Del Taco is given immediate and complete control over the defense and/or settlement of the claim and Licensee fully cooperates with Del Taco in such defense and/or settlement; (iii) Licensee does not prejudice in any manner Del Taco's conduct of such claim; and (iv) the alleged infringement is not based upon the use of the Software in a manner prohibited under this Agreement, in a manner for which the Software was not designed, or in a manner not in accordance with the Del Taco's specifications.
Altered Version. Del Taco shall have no liability for any claim of infringement based on: (i) the use of a superseded or altered version of the Software if infringement would have been avoided by the use of a current or unaltered version of the Software, which Del Taco made available to Licensee; or (ii) the combination, operation or use of the Software with software, hardware or other materials not furnished or approved for use with the Software by Del Taco.
Source: Item 23 — RECEIPTS (FDD pages 59–325)
What This Means (2025 FDD)
According to Del Taco's 2025 Franchise Disclosure Document, Del Taco will indemnify a licensee against claims that the software infringes any U.S. copyright or patent under specific conditions. This protection applies only if the software is furnished and used within the scope of the franchise agreement.
For Del Taco to provide indemnification, the franchisee must promptly notify Del Taco of any infringement claim and give Del Taco immediate and complete control over the defense and/or settlement of the claim. The franchisee must also fully cooperate with Del Taco in the defense or settlement and must not take any actions that could prejudice Del Taco's handling of the claim.
Furthermore, Del Taco’s indemnification obligation does not apply if the alleged infringement results from the franchisee using the software in a manner prohibited by the agreement, in a way for which the software was not designed, or in a manner not following Del Taco’s specifications. Del Taco is also not liable for infringement claims based on the use of a superseded or altered version of the software if the infringement could have been avoided by using a current, unaltered version that Del Taco made available. Similarly, Del Taco is not liable if the infringement claim arises from combining the software with other software, hardware, or materials not furnished or approved by Del Taco.