What intellectual property infringement claims will PAR defend against for a Dq Treat Participating Location?
Dq_Treat Franchise · 2025 FDDAnswer from 2025 FDD Document
- **2.
BY PAR FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.** PAR agrees to defend any action brought against Participating Location based on a claim that the Device Software, State Management Services, Device Management Service and/or the PARPay Service infringes upon a United States copyright, trademark or patent, and/or violates the trade secret rights of a third party and we will pay those costs and damages finally awarded against Participating Location on the condition that (i) Participating Location notify PAR promptly in writing of any such claim or action; (ii) PAR shall have the sole control of the defense and final settlement thereof; and (iii) if the Device Software or the PARPay Service, or any part thereof, in PAR's sole opinion is likely to become the subject of a claim of infringement, then Participating Location shall permit PAR, at PAR's sole option and expense (a) to replace or modify the Device Software or the PARPay Service to become non-infringing, or (b) if (a) is not reasonably available as an option, then Participating Location's sole and exclusive remedy shall be a refund of the PARPay Service Fees for the then current month's PARPay Service or any PARPay Service Fees for the remainder of the Term if such PARPay Service Fees were paid in advance.
We shall have no liability to Participating Location for any such claim of infringement of a third party's proprietary rights that are caused by use of the Device Software or PARPay Service in a manner that is in violation of these PARPay Terms.
- **3.
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, PAR provides certain protections to Participating Locations against intellectual property infringement claims. Specifically, PAR will defend against actions brought against a Participating Location if the claim alleges that the Device Software, State Management Services, Device Management Service, and/or the PARPay Service infringes upon a United States copyright, trademark, or patent, or violates the trade secret rights of a third party. PAR will also cover the costs and damages finally awarded against the Participating Location in such cases.
However, this protection is conditional. The Participating Location must promptly notify PAR in writing of any such claim or action, and PAR has sole control over the defense and final settlement of the claim. Additionally, if PAR believes that the Device Software or the PARPay Service is likely to become the subject of an infringement claim, PAR has the option to replace or modify the software or service to become non-infringing. If this is not reasonably available, the Participating Location's sole remedy is a refund of the PARPay Service Fees for the current month or the remainder of the term if fees were prepaid.
It's important to note that PAR's liability does not extend to claims of infringement caused by the use of the Device Software or PARPay Service in a manner that violates the PARPay Terms. Furthermore, PAR is not obligated to defend, indemnify, or hold harmless the Participating Location for any losses arising from the Participating Location's negligence or willful misconduct, or from modifications to the Equipment or Services made by the Participating Location or a third party at their request. The use of Equipment or Services in conjunction with unapproved equipment or software, or use inconsistent with its intended purpose or PAR's instructions, also voids PAR's liability.
In addition, if a third-party alleges that a Participating Location's use of the Licensed Software or the SSS (other than related to the Participating Location Data) infringes, misappropriates or otherwise violates that party's patent, copyright or other intellectual property or proprietary right, PAR shall defend and indemnify Participating Location against that claim at PAR' expense and pay all costs, damages, and attorney's fees, that a court finally awards or that are included in a settlement approved by PAR. The Participating Location must promptly notify PAR in writing of the claim and allow PAR to control the defense and any related settlement. PAR could continue to enable Participating Location to use the Licensed Software or SSS or to modify it. If PAR determines that these alternatives are not reasonably available, PAR may terminate the SSS (without any liability to Participating Location except with respect to PAR's indemnification obligations herein) upon prior notice to Participating Location and with the return of any prepaid and unused SSS Service Fees. PAR will not have any indemnification obligations to the extent such infringement is caused by: the modification of the SSS by Participating Location or a third party at Participating Location's request; the use of the SSS in conjunction with equipment or software not provided or approved by PAR; or use of the SSS inconsistent with its intended purpose or which is not in conformance with PAR's reasonable instructions.