What conditions must Hardees meet to receive indemnification from Olo regarding third-party claims?
Hardees Franchise · 2025 FDDAnswer from 2025 FDD Document
- 7.1. Each of Olo and Customer (in such capacity, the "Indemnifying Party") shall defend, indemnify and hold harmless the other Party and its officers, directors and employees (each an "Indemnified Party") from all third-party claims and liabilities (including reasonable outside attorney's fees) arising out of or relating to the Indemnifying Party's (i) negligent acts or omissions including the negligent acts or omissions of its employees, subcontractors or representatives and with respect to Customer, its Third Party Providers or Authorized Operators; (ii) breach of Section 5 or 6; or (iii) infringement or misappropriation of a third party's trade secret, or United States patent, trademark or copyright, or other intellectual property right in connection with (a) with respect to Olo, the Licensed Applications, software or other technology Olo uses to provide the Services to Customer hereunder and (b) with respect to Customer, the technology, data, or other materials Customer provides or uses with the Services ("Customer Materials") (the indemnification obligation of each Party described in this clause (iii), the "IP Infringement Obligation"). The previous sentence states the sole liability of the Indemnifying Party, and the sole remedy of the Indemnified Party, with respect to any third-party claim arising out of the Indemnifying Party's negligent acts or omissions (other than claims arising from fraud, criminal activity or willful misconduct).
- 7.3.
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 Hardees's 2025 Franchise Disclosure Document, Olo and Hardees (referred to as Customer in the document) each agree to defend, indemnify, and hold harmless the other party, including their officers, directors, and employees, from third-party claims and liabilities. This includes reasonable outside attorney's fees. This indemnification applies to claims arising from the Indemnifying Party's negligent acts or omissions, breaches of specific sections within the agreement (Sections 5 or 6), or infringement/misappropriation of intellectual property. Olo's obligation covers the Licensed Applications, software, or technology it uses to provide services, while Hardees's obligation covers technology, data, or materials it provides or uses with the services. This outlines the sole liability and remedy for third-party claims related to negligent acts or omissions, excluding claims arising from fraud, criminal activity, or willful misconduct.
To receive indemnification, Hardees must adhere to specific conditions. Hardees must promptly notify Olo in writing of any third-party claim. However, a delay in notification will only relieve Olo of its indemnification obligations if Olo has been prejudiced by the delay. Hardees must also reasonably cooperate with Olo in the defense of the matter and give Olo primary control over the defense and settlement negotiations.
Hardees has the option to join in the defense with its own counsel, but at its own expense. Olo cannot enter into a settlement unless it involves only monetary damages paid by Olo and includes a complete release of liability in favor of Hardees. Any other settlement requires Hardees's written consent, which cannot be unreasonably withheld. These conditions ensure that Olo has control over the defense and settlement of claims while protecting Hardees's interests.