What is the scope of Devon Creek's right to use customer data collected by the franchisee?
Devon_Creek Franchise · 2024 FDDAnswer from 2024 FDD Document
egularly recurring fees for software and Internet access, license fees, licensing or user-based fees.
- 12.3.8 Franchisee is solely responsible for maintaining the security and integrity of the computer and payment processing systems used in the Franchised Business and the customer and other data stored therein. Franchisee, at Franchisee's sole cost and expense, shall implement all computer hardware, software and Internet security procedures, including required updates or upgrades thereto, that are reasonably necessary to protect Franchisee's computer and payment processing systems and the data stored therein from viruses, malware, privacy breaches or other unauthorized access.
- 12.4 Safety and Security. Franchisee is solely responsible for the safe and secure operation of the Franchised Business and the services provided thereby for Franchisee, Franchisee's personnel, customers, agents and the general public. All matters of safety and security are within Franchisee's discretion and control, and Franchisee's indemnification obligations set forth in Section 15.6 hereof shall apply to any claims made against Franchisor regarding safety or security.
- 12.5 Prices. Subject to applicable law, Franchisor may recommend or set maximum prices for
services and products offered by Franchisee, which may vary depending on geographic and other market conditions. Franchisee acknowledges that Franchisor has made no guarantee or warranty that offering services or products at any particular price will enhance Franchisee's sales or profits.
12.6 Employee Background Check. Franchisee shall conduct a background review of every prospective employee's criminal history and any other histories (such as motor vehicle, medical and/or credit histories) that are required by state and local laws, regulations, and ordinances and/or that Franchisee determines to be necessary and appropriate, prior to hiring. Franchisee shall not hire any prospective employee for any position involving entrance to a residence if such prospective employee's background review indicates, in Franchisee's sole discretion, a propensity for violence, dishonesty, negligent, reckless or careless behavior, or a conviction for any violent crime reasonably related to the prospective employee's employment. Notwithstanding the foregoing, all matters of employment and the safety of Franchisee's customers and their clients are within Franchisee's discretion and control. Franchisor shall not be liable to Franchisee, any employee or prospective employee of Franchisee, or any third-party for any act or omission of Franchisee or any employee or agent of Franchisee, and Franchisee's indemnification obligations set forth in Section 15.6 hereof shall apply to any claims, demands or actions against Franchisor arising from any act or omission of Franchisee or any employee or agent of Franchisee (including, without limitation, refusal to hire or discrimination claims or claims asserted by third parties for torts allegedly committed by any employee or agent of Franchisee).
12.7 Customer Dispute Resolution. Franchisee acknowledges Franchisor's philosophy that exceeding customers' expectations is essential to Franchisee's success as well as the reputation and success of the System and other Devon Creek franchisees and that all System franchisees shall endeavor to go above and beyond expectations and generosity in all customer dealings. Accordingly, Franchisee agrees to: (i) use its best efforts to ensure the complete satisfaction of each of Franchisee's customers; (ii) apply the highest standards of customer service and use good faith in all dealings with customers, potential customers, referral sources, suppliers and creditors; (iii) respond to customer complaints in a courteous, prompt, and professional manner; (iv) use its best efforts to promptly and fairly resolve customer disputes; and (v) within twenty-four (24) hours of receiving a request from Franchisor, provide Franchisor a written summary of the dispute. If Franchisee fails to resolve a dispute with a customer, for any reason whatsoever, Franchisor, in its sole discretion and for the sole purpose of protecting the goodwill and reputation of the System and the Marks, may (but shall not be obligated to) investigate the matter and take such action as Franchisor may deem necessary or appropriate to resolve the dispute fairly and promptly, including, but not limited to, the issuance of a refund on Franchisee's behalf. Within ten (10) days after receiving notice thereof, Franchisee shall reimburse Franchisor for any amounts refunded to a customer on Franchisee's behalf. Franchisee hereby authorizes Franchisor to take payment of refunded amounts, at Franchisor's option, through electronic funds transfer or ACH payment. Nothing contained in this Section or any other provision of this Agreement shall be construed to impose liability upon Franchisor to any third party for any action by or obligation of Franchisee.
12.8 Unapproved Item/Suppliers.
Source: Item 22 — CONTRACTS (FDD page 45)
What This Means (2024 FDD)
Based on the 2024 Devon Creek Franchise Disclosure Document, the franchisee is responsible for maintaining the security and integrity of customer data. Specifically, the franchisee must implement and maintain all necessary computer hardware, software, and internet security procedures to protect customer data from unauthorized access, viruses, malware, and privacy breaches. Devon Creek emphasizes customer satisfaction and dispute resolution, requiring franchisees to address complaints promptly and professionally. If a franchisee fails to resolve a customer dispute, Devon Creek reserves the right to intervene to protect the brand's goodwill and reputation, potentially issuing refunds on the franchisee's behalf, which the franchisee is then obligated to reimburse. Devon Creek also maintains sole discretion and control over the brand's website, including the listing of franchisee contact information. Franchisees do not have ownership rights to the Devon Creek website. Franchisees are restricted from using intellectual property to incur debt on behalf of Devon Creek and must have any items containing Devon Creek marks approved by Devon Creek before distribution or sale. Franchisees must also notify Devon Creek immediately of any intellectual property infringement or challenges. Devon Creek also reserves the right to solicit, sell to, negotiate rates with and service national accounts. Devon Creek may offer the franchisee the right to service National Accounts in the Territory, provided that Franchisee accept negotiated terms; otherwise, Devon Creek may service the National Accounts either directly or permit another franchisee to provide such service. Franchisee will receive no compensation for Devon Creek's sales through Alternate Distribution Channels or declined National Accounts made within the Territory.