What actions or omissions by a party trigger indemnification obligations under the Dq Treat agreement?
Dq_Treat Franchise · 2025 FDDAnswer from 2025 FDD Document
EACH PARTY (AN "INDEMNITOR") WILL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OTHER PARTY, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (TOGETHER, AN "INDEMNITEE") FROM AND AGAINST ANY DAMAGES, LOSSES, FINES, PENALTIES, COSTS, EXPENSES, LIABILITIES, AND OTHER AMOUNTS (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS) (COLLECTIVELY, "CLAIMS") INCURRED OR SUFFERED BY THE INDEMNITEE IN CONNECTION WITH OR OTHERWISE RELATING TO ANY THIRD PARTY CLAIM OR ARISING OUT OF (I) ITS GROSSLY NEGLIGENT ACTS OR OMISSIONS, OR WILLFUL MISCONDUCT IN PERFORMING UNDER THIS AGREEMENT; OR (II) ALLEGATIONS THAT ANY OF PUNCHH'S PLATFORM OR SERVICES OR DOCUMENTATION INFRINGES ANY INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY IN THE TERRITORY AS FURTHER SUBJECT TO SECTIONS 14.1 AND 14.1.I BELOW; OR (III) ANY INDEMNIFICATION OBLIGATION OF A SUBCONTRACTOR; OR (IV) A DATA BREACH CAUSED BY PUNCHH; OR (V) BREACH OF APPLICABLE LAW.
EACH PARTY AGREES TO: (I) PROVIDE THE INDEMNITOR WITH PROMPT NOTICE OF ANY CLAIM FOR INDEMNIFICATION UNDER THIS SECTION; (II) GRANT THE INDEMNITOR CONTROL OVER THE DEFENSE OR SETTLEMENT OF ANY SUCH CLAIM (PROVIDED THAT THE INDEMNITOR MAY NOT AGREE TO ANY SETTLEMENT OTHER THAN MONETARY DAMAGES); AND (III)
Source: Item 17 — The following paragraph is added to the end of Item 17 of the Disclosure Document: (FDD pages 70–378)
What This Means (2025 FDD)
According to the 2025 Dq Treat FDD, each party (referred to as an "Indemnitor") agrees to indemnify, defend, and hold harmless the other party (referred to as an "Indemnitee") from any damages, losses, fines, penalties, costs, expenses, liabilities, and other amounts, including reasonable attorneys' fees and costs, that the Indemnitee incurs or suffers. This indemnification applies to any third-party claim arising from several specific actions or omissions.
The first trigger for indemnification is the Indemnitor's grossly negligent acts or omissions, or willful misconduct in performing under the agreement. The second is allegations that Punchh's platform, services, or documentation infringes any intellectual property right of a third party in the territory, subject to further conditions outlined in sections 14.1 and 14.1.i. The third trigger is any indemnification obligation of a subcontractor. A data breach caused by Punchh also triggers indemnification. Finally, a breach of applicable law by either party can trigger indemnification obligations.
In cases where a party seeks indemnification, they must promptly notify the Indemnitor of the claim. The Indemnitor then has control over the defense or settlement of the claim, although they cannot agree to any settlement other than monetary damages. The party seeking indemnification must cooperate fully with the Indemnitor in the defense or settlement of the claim, with the Indemnitor covering the reasonable expenses of the defense or settlement.