Under what conditions will Hyper Kidz indemnify a franchisee against damages?
Hyper_Kidz Franchise · 2024 FDDAnswer from 2024 FDD Document
TO THE FULLEST EXTENT PERMITTED BY LAW, FRANCHISEE AGREES TO EXONERATE AND INDEMNIFY AND HOLD HARMLESS BOOMERANG FRANCHISE LLC AND ANY OF THESE COMPANIES' 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 "HYPER KIDZ INDEMNITEES"), FROM ALL CLAIMS BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATED TO THE OPERATION, CONDITION, OR ANY PART OF FRANCHISEE'S HYPER KIDZ® FRANCHISE, THE FRANCHISED BUSINESS, THE PRODUCTS, THE PREMISES, 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 HYPER KIDZ 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 HYPER KIDZ INDEMNITEES SHALL HAVE THE RIGHT TO SELECT AND APPOINT INDEPENDENT COUNSEL TO REPRESENT ANY OF THE HYPER KIDZ INDEMNITEES IN ANY ACTION OR PROCEEDING COVERED BY THIS INDEMNITY. FRANCHISEE AGREES THAT TO HOLD THE HYPER KIDZ INDEMNITEES HARMLESS, FRANCHISEE WILL REIMBURSE THE HYPER KIDZ INDEMNITEES AS THE COSTS AND EXPENSES ARE INCURRED BY THE HYPER KIDZ INDEMNITEES.
Source: Item 22 — CONTRACTS (FDD page 52)
What This Means (2024 FDD)
According to Hyper Kidz's 2024 Franchise Disclosure Document, Hyper Kidz does not indemnify the franchisee. Instead, the franchisee agrees to indemnify Hyper Kidz.
Specifically, the franchisee agrees to exonerate, indemnify, and hold harmless Boomerang Franchise LLC, its parent company, subsidiaries, divisions, affiliates, successors, assigns, designees, directors, officers, employees, agents, shareholders, successors, designees, and representatives from all claims based upon, arising out of, or in any way related to the operation, condition, or any part of the franchisee's Hyper Kidz franchise. This includes the franchised business, the products, the premises, or any aspect of the real estate connected to the franchisee's franchised business, whether caused by the franchisee, their agents or employees, or arising from the franchisee's advertising or business practices.
The franchisee is responsible for paying all losses and expenses, including attorneys' fees, incurred in connection with any action, suit, proceeding, or inquiry, regardless of whether it is reduced to judgment or determination, or any settlement thereof. Hyper Kidz has the right to select and appoint independent counsel to represent any of the Hyper Kidz indemnitees in any action or proceeding covered by this indemnity, and the franchisee agrees to reimburse Hyper Kidz as the costs and expenses are incurred.