What are the conditions that Hardees must meet to be considered an Indemnified Party, regarding notification and cooperation, in the event of a third-party claim?
Hardees Franchise · 2025 FDDAnswer from 2025 FDD Document
The Indemnified Party must (a) promptly notify the Indemnifying Party in writing of any third-party claim (provided that a failure to promptly notify will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been prejudiced by such failure); (b) reasonably cooperate with the Indemnifying Party in the defense of the matter; and (c) give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement.
The Indemnified Party may, at its own expense, join in the defense with counsel of its choice.
The Indemnifying Party may not enter into a settlement unless it (i) involves only the payment of monetary damages by the Indemnifying Party, and (ii) includes a complete release of liability in favor of the Indemnified Party; any other settlement will be subject to the written consent of the Indemnified Party (not to be unreasonably withheld).
Source: Item 23 — Receipts (FDD pages 85–541)
What This Means (2025 FDD)
According to the 2025 Hardees FDD, in the context of indemnification related to third-party claims, the Indemnified Party (which could be either Olo or the Customer) must meet specific conditions to be protected. These conditions revolve around notification, cooperation, and control of the defense.
First, the Indemnified Party must promptly inform the Indemnifying Party in writing about any third-party claim. However, a delay in notification will not invalidate the indemnification unless it prejudices the Indemnifying Party. Second, the Indemnified Party must reasonably cooperate with the Indemnifying Party in defending against the claim. Finally, the Indemnified Party must grant the Indemnifying Party primary control over the defense and settlement negotiations.
The Indemnified Party has the option to join the defense at its own expense, using its own counsel. However, the Indemnifying Party cannot settle the claim unless the settlement involves only monetary damages paid by them and includes a complete release of liability for the Indemnified Party. Any other settlement requires the written consent of the Indemnified Party, which cannot be unreasonably withheld.