Under what circumstances can Devon Creek or the franchisee bring an action in any court with jurisdiction?
Devon_Creek Franchise · 2024 FDDAnswer from 2024 FDD Document
18.1.5 pay to Franchisor all damages, costs and expenses, including reasonable attorneys' fees, incurred by Franchisor in connection with obtaining any remedy available to Franchisor for any violation of this Agreement and, subsequent to the termination or expiration of this Agreement, in obtaining injunctive or other relief for the enforcement of any provisions of this Agreement that survive its termination;
21.1.3 Franchisee's Employees.
Franchisee acknowledges and agrees that any training Franchisor provides for Franchisee's employees is geared to impart to those employees, with Franchisee's ultimate authority, the various procedures, protocols, systems, and operations of a Devon Creek outlet and in no fashion reflects any employment relationship between Franchisor and such employees.
If ever it is asserted that Franchisor is the employer, joint employer or co-employer of any of Franchisee's employees in any private or government investigation, action, proceeding, arbitration or other setting, Franchisee irrevocably agree to assist Franchisor in defending said allegation, appearing at any venue requested by Franchisor to testify on Franchisor's behalf participate in depositions, other appearances or preparing affidavits rejecting any assertion that Franchisor is the employer, joint employer or co-employer of any of Franchisee's employees.
- 15.6 Indemnification. TO THE FULLEST EXTENT PERMITTED BY LAW, FRANCHISEE AGREES TO EXONERATE AND INDEMNIFY AND HOLD HARMLESS DEVON CREEK FRANCHISE GROUP, LLC, LICENSOR, AND ANY PARENT COMPANY, SUBSIDIARIES, DIVISIONS, AFFILIATES, SUCCESSORS, ASSIGNS AND DESIGNEES AS WELL AS THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, SUCCESSORS, DESIGNEES AND REPRESENTATIVES, (COLLECTIVELY REFERRED TO AS THE "DEVON CREEK INDEMNITEES"), FROM ALL CLAIMS BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATED TO THE OPERATION, CONDITION, OR ANY PART OF FRANCHISEE'S DEVON CREEK FRANCHISE, THE FRANCHISED BUSINESS, THE SERVICES OR PRODUCTS, THE FRANCHISED BUSINESS OFFICE LOCATION, OR ANY ASPECT OF THE REAL ESTATE CONNECTED TO FRANCHISEE'S FRANCHISED BUSINESS, WHETHER CAUSED BY FRANCHISEE, FRANCHISEE'S AGENTS OR EMPLOYEES, OR ARISING FROM FRANCHISEE'S ADVERTISING OR BUSINESS PRACTICES. FRANCHISEE AGREES TO PAY FOR ALL THE DEVON CREEK INDEMNITEES' LOSSES, EXPENSES (INCLUDING, BUT NOT LIMITED TO ATTORNEYS' FEES) OR CONCURRENT OR CONTRIBUTING LIABILITY INCURRED IN CONNECTION WITH ANY ACTION, SUIT, PROCEEDING, INQUIRY (REGARDLESS OF WHETHER THE SAME IS REDUCED TO JUDGMENT OR DETERMINATION), OR ANY SETTLEMENT THEREOF FOR THE INDEMNIFICATION GRANTED BY FRANCHISEE HEREUNDER. THE DEVON CREEK INDEMNITEES SHALL HAVE THE RIGHT TO SELECT AND APPOINT INDEPENDENT COUNSEL TO REPRESENT ANY OF THE DEVON CREEK INDEMNITEES IN ANY ACTION OR PROCEEDING COVERED BY THIS INDEMNITY. FRANCHISEE AGREES THAT
Source: Item 22 — CONTRACTS (FDD page 45)
What This Means (2024 FDD)
The 2024 Devon Creek Franchise Disclosure Document outlines several circumstances where either the franchisee or Devon Creek itself may pursue legal action. Specifically, Devon Creek retains the right to seek legal remedies for violations of the franchise agreement, especially after termination or expiration, including actions to enforce provisions that survive termination. This can include obtaining injunctive or other relief.
Furthermore, if it's alleged that Devon Creek is a joint employer of the franchisee's employees, the franchisee is obligated to assist Devon Creek in defending against such claims. This includes providing testimony and affidavits to refute any assertion of an employment relationship. This clause protects Devon Creek from potential liabilities related to the franchisee's staff.
Additionally, the franchisee is required to indemnify Devon Creek against claims arising from the operation of the franchise, covering losses, expenses, and attorney's fees. Devon Creek also has the right to select independent counsel to represent its interests in any action covered by this indemnity. These provisions collectively define the legal recourse available to Devon Creek and the obligations of the franchisee in various scenarios involving potential legal disputes.