Relationship of the Parties; Indemnification. It is understood and agreed by the parties hereto that this Agreement does not create a fiduciary relationship between them, that COMPANY and FRANCHISEE shall be independent contractors and that nothing in this Agreement is intended to make either party a general or special agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the other for any purpose. FRANCHISEE shall conspicuously identify himself at the Premises, and in all dealings with customers, lessors, contractors, suppliers, public officials and others, as the owner of the STORE under a franchise from COMPANY, and shall place such other notices of independent ownership on such signs, forms, stationery, advertising and other materials as COMPANY may require from time to time. COMPANY has not authorized or empowered FRANCHISEE to use the Marks except as provided by this Agreement, and FRANCHISEE shall not employ any Mxxx in signing any contract, lease, mortgage, check, purchase agreement, negotiable instrument or other legal obligation without the prior written consent of COMPANY, or employ any Mxxx in a manner that is likely to result in liability of COMPANY for any indebtedness or obligation of FRANCHISEE. Except as expressly authorized by this Agreement, neither COMPANY nor FRANCHISEE shall make any express or implied agreements, guaranties or representations, or incur any debt, in the name of or on behalf of the other or represent that their relationship is other than franchisor and franchisee. Neither COMPANY nor FRANCHISEE shall be obligated by, or have any liability under, any agreements or representations made by the other that are not expressly authorized hereunder, nor shall COMPANY be obligated for any damages to any person or property directly or indirectly arising out of the operation of the STORE, whether or not caused by FRANCHISEE's negligent or willful action or failure to act. COMPANY shall have no liability for any sales, use, excise, gross receipts, property or other taxes, whether federal, state or local, or whether levied upon FRANCHISEE, the STORE or its assets, revenues or income, or upon COMPANY, relating to sales made by or the business conducted by FRANCHISEE. FRANCHISEE agrees to indemnify and hold harmless COMPANY and its affiliates, stockholders, directors, officers, employees, agents and assignees from and against any claims, suits, actions, loss, liability, taxes or damages (actual or consequential) and all reasonable costs and expenses in connection with the defense of any claim brought against any of them or any action in which any of them is named as a party (including, without limitation, reasonable accountants', attorneys' and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses) which any of them may suffer, sustain or incur by reason of, arising from or in connection with FRANCHISEE's ownership or operation of the STORE. The indemnities and assumptions of liabilities and obligations herein shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Appears in 2 contracts
Samples: Treats Franchise Agreement (Emc Group Inc /Fl), Treats Franchise Agreement (Emc Group Inc /Fl)
Relationship of the Parties; Indemnification. It is understood and agreed by the parties hereto that this Agreement does not create a fiduciary relationship between them, that the COMPANY and FRANCHISEE MARRIOTT shall be independent contractors and that nothing in this Agreement is intended to make either party a general or special agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the other for any purpose. FRANCHISEE MARRIOTT shall conspicuously identify himself itself at the Premises, premises of each STORE and in all dealings with customers, lessors, contractors, suppliers, public officials and others, others as the owner operator of the each STORE under a franchise from agreement with the COMPANY, and shall place such other notices of independent ownership on such signs, forms, stationery, advertising and other materials as COMPANY may require from time are reasonably necessary and prudent to timeidentify MARRIOTT as the operator of the STORES. The COMPANY has not authorized or empowered FRANCHISEE MARRIOTT to use the Marks except as provided by this Agreement, and FRANCHISEE MARRIOTT shall not employ any Mxxx Xxxx in signing any contract, lease, mortgage, check, purchase agreement, negotiable instrument or other legal obligation without the prior written consent of the COMPANY, or employ any Mxxx Xxxx in a manner that is likely to result in liability of the COMPANY for any indebtedness or obligation of FRANCHISEEMARRIOTT. Except as expressly authorized by this Agreement, neither Neither the COMPANY nor FRANCHISEE MARRIOTT shall make any express or implied agreements, guaranties or representations, or incur any debt, in the name of or on behalf of the other or represent that their relationship is other than franchisor as set forth herein, and franchisee. Neither neither the COMPANY nor FRANCHISEE MARRIOTT shall be obligated by, by or have any liability under, under any agreements or representations made by the other that are not expressly authorized hereunder, nor shall the COMPANY be obligated for any damages to any person or property directly or indirectly arising out of the operation of the STORESTORES, whether or not caused by FRANCHISEEMARRIOTT's negligent or willful action or failure to act unless such is caused by the COMPANY's (a) act or failure to act, (b) product liability, or (c) instructions and/or procedures given to MARRIOTT in the Operating Manual or otherwise in writing. The COMPANY shall have no liability for any sales, use, excise, gross receipts, property or other taxes, whether federal, state or local, or whether levied upon FRANCHISEEMARRIOTT, the STORE or its assets, revenues or income, or upon the COMPANY, relating to in connection with sales made by made, services performed or the business conducted by FRANCHISEEMARRIOTT. FRANCHISEE MARRIOTT agrees to indemnify and hold harmless the COMPANY and its subsidiaries, affiliates, stockholders, directors, officers, employees, agents and assignees from harmless against, and against to reimburse them for, any claims, suits, actions, loss, liability, taxes or damages (actual or consequential) and all reasonable costs and expenses in connection with the defense of defending any claim brought against any of them or any action in which any of them is named as a party (including, without limitation, reasonable accountants', attorneys' and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses) which any of them may suffer, sustain or incur by reason of, arising from or in connection with FRANCHISEEMARRIOTT's ownership or operation of the STORESTORES, except to the extent that such loss, liability or damage is due to the negligence of the COMPANY (or any of its affiliates, i.e., any company controlling, controlled by or under common control with the COMPANY) in producing, handling or storing frozen yogurt sold to MARRIOTT (provided that MARRIOTT inspected such yogurt in accordance with the procedures set forth in the Operating Manual and should not have reasonably discovered the adulteration or other defect in such yogurt which was the cause of such loss, liability or damage); such shall not extend to personal property, fixtures, or equipment produced by the COMPANY. MARRIOTT acknowledges and agrees that any action or inaction by any third party (e.g., an independent carrier) which is not an affiliate of the COMPANY in connection with handling or storing frozen yogurt shall not be attributable to or constitute negligence of the COMPANY. The COMPANY agrees to indemnify and hold MARRIOTT harmless against, and to reimburse it for, any loss, liability or damage (actual or consequential) and all reasonable costs and expenses of defending any claim brought against it or any action in which it is named as a party (including, without limitation, reasonable accountants', attorneys' and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses) which it may suffer, sustain or incur by reason of, arising from or in connection with the negligence of the COMPANY (or any of its affiliates, i.e., any company controlling, controlled by or under common control with the COMPANY) in producing, handling or storing frozen yogurt (provided that MARRIOTT inspected such yogurt in accordance with the procedures set forth in the Operating Manual and should not have reasonably discovered the adulteration or other defect in such yogurt which was the cause of such loss, liability or damage); such shall extend to personal property, fixtures, or equipment produced by the COMPANY. MARRIOTT acknowledges and agrees that any action or inaction by any third party (e.g., an independent carrier) which is not an affiliate of the COMPANY in connection with handling or storing frozen yogurt shall not be attributable to or constitute negligence of the COMPANY. The indemnities and assumptions of liabilities and obligations herein shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Appears in 1 contract
Samples: Joint Venture Agreement (MRS Fields Financing Co Inc)
Relationship of the Parties; Indemnification. It is understood and agreed by the parties hereto that this Agreement does not create a fiduciary relationship between them, that COMPANY LICENSOR and FRANCHISEE LICENSEE shall be independent contractors and that nothing in this Agreement agreement is intended to make either party a general or special agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the other for any purpose. FRANCHISEE LICENSEE shall conspicuously identify himself at the Premises, his office and in all dealings with customers, lessors, contractors, suppliers, public officials and others, others as the owner of the STORE under a franchise from COMPANY, Marks and the System in the Exclusive Territory and shall place such other notices of independent ownership on such signs, forms, stationerystationary, advertising and other materials as COMPANY LICENSOR may require from time to time. COMPANY has not authorized or empowered FRANCHISEE to use the Marks except as provided by this Agreement, and FRANCHISEE shall not employ any Mxxx in signing any contract, lease, mortgage, check, purchase agreement, negotiable instrument or other legal obligation without the prior written consent of COMPANY, or employ any Mxxx in a manner that is likely to result in liability of COMPANY for any indebtedness or obligation of FRANCHISEE. Except as expressly authorized by this Agreement, neither COMPANY Neither LICENSOR nor FRANCHISEE LICENSEE shall make any express or implied agreements, guaranties warranties or representations, or incur any debt, in the name of or on behalf of the other or represent that their relationship is other than franchisor LICENSOR or LICENSEE and franchisee. Neither COMPANY nor FRANCHISEE neither LICENSOR or LICENSEE shall be obligated by, by or have any liability under, under any agreements agreement or representations made by the other that are not expressly authorized hereunderother, nor shall COMPANY LICENSOR be obligated for any damages to any person or property directly or indirectly arising out of the operation of the STOREbusiness authorized by or conducted pursuant to this Agreement, whether or not caused by FRANCHISEELICENSEE's negligent or willful action or failure to act. COMPANY LICENSOR shall have no liability for any sales, use, excise, gross receipts, income, property or other taxes, whether federal, state or local, or whether levied upon FRANCHISEE, the STORE or its assets, revenues or income, LICENSEE or upon COMPANYLICENSOR, relating to sales made by or in connection with the business conducted by FRANCHISEELICENSEE. FRANCHISEE LICENSEE agrees to indemnify and hold harmless COMPANY and LICENSOR, its subsidiaries, affiliates, stockholders, directors, officers, employees, agents and assignees from LICENSEES harmless against, and against to reimburse them for, all such obligations, actual and consequential damages and taxes for which any claims, suits, actions, loss, liability, taxes or damages (actual or consequential) of them is held liable and for all reasonable costs and expenses reasonably incurred by any of them in connection with the defense of any such claim brought against any of them or in any action in which any of them is named as a party (includingparty, including without limitation, limitation reasonable accountants', attorneys' accountants and attorneys and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses. LICENSOR shall have the right to defend any such claim against it, provided that LICENSEE shall have the right to participate in and, to the extent LICENSEE deems necessary, to control any litigation proceeding which could result in liability or expense to LICENSOR subject to such indemnification. LICENSOR agrees to indemnify LICENSEE against and to reimburse LICENSEE for any obligations or liability for damages attributable to agreements, representations, warranties of or authorized by LICENSOR, or caused by the gross negligence or willful action of LICENSOR, and for costs (as hereinabove defined) which reasonably incurred by LICENSEE in the defense of any of them may suffer, sustain or incur by reason of, arising from such claim brought against him or in connection with FRANCHISEE's ownership any action in which he is named as a party, provided that LICENSOR shall have the right to participate in and, to the extent LICENSOR deems necessary, to control any litigation or operation proceeding which could result in liability of the STOREor expense to LICENSEE subject to such indemnification. The indemnities and assumptions of liabilities and obligations herein shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Appears in 1 contract
Relationship of the Parties; Indemnification. It is understood and agreed by the parties hereto that this Agreement does not create a fiduciary relationship between them, that the COMPANY and FRANCHISEE shall be independent contractors and that nothing in this Agreement is intended to make either party a general or special agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the other for any purpose. FRANCHISEE shall conspicuously identify himself at FRANCHISEE and the Premises, and premises of the STORE in all dealings with customers, lessors, contractors, suppliers, public officials officials, employees, and others, others as the owner of the and a STORE under a franchise agreement from the COMPANY, and shall place such other notices of independent ownership on such signs, forms, stationery, advertising and other materials as the COMPANY may require from time to time. COMPANY has not authorized or empowered FRANCHISEE to use Neither the Marks except as provided by this Agreement, and FRANCHISEE shall not employ any Mxxx in signing any contract, lease, mortgage, check, purchase agreement, negotiable instrument or other legal obligation without the prior written consent of COMPANY, or employ any Mxxx in a manner that is likely to result in liability of COMPANY for any indebtedness or obligation of FRANCHISEE. Except as expressly authorized by this Agreement, neither COMPANY nor FRANCHISEE shall make any express or implied agreements, guaranties or representations, or incur any debt, in the name of or on behalf of the other or represent that their relationship is other than franchisor and franchisee. Neither , and neither the COMPANY nor FRANCHISEE shall be obligated by, by or have any liability under, under any agreements or representations made by the other that are not expressly authorized hereunder, nor shall the COMPANY be obligated for any damages to any person or property directly or indirectly arising out of the operation of the STORE, whether or not caused by FRANCHISEE's negligent or willful action or failure to act. The COMPANY shall have no liability for any sales, use, excise, gross receipts, property or other taxes, whether federal, state or local, or whether levied upon FRANCHISEE, the STORE or its assets, revenues or income, or upon the COMPANY, relating to in connection with sales made by made, services performed or the business conducted by FRANCHISEE. FRANCHISEE agrees to indemnify and hold harmless the COMPANY and its subsidiaries, affiliates, stockholders, directors, officers, employees, agents and assignees from harmless against, and against to reimburse them for, any claims, suits, actions, loss, liability, taxes or damages (actual or consequential) and all reasonable costs and expenses in connection with the defense of defending any claim brought against any of them or any action in which any of them is named as a party (including, without limitation, reasonable accountants', attorneys' and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses) which any of them may suffer, sustain or incur by reason of, arising from or in connection with FRANCHISEE's ownership or operation of the STORE, unless such loss, liability or damage is solely due to the negligence or willful misconduct of the COMPANY (or any of its affiliates, i.e., any company controlling, controlled by or under common control with the COMPANY) in producing, handling or storing frozen dessert products sold to FRANCHISEE (provided FRANCHISEE shall have established that FRANCHISEE inspected such dessert products in accordance with the procedures set forth in the Operating Manual and could not have reasonably discovered the adulteration or other defect in such dessert products which was the cause of such loss, liability or damage). The COMPANY agrees to indemnify and hold FRANCHISEE and its subsidiaries, affiliates, stockholders, directors, officers, employees, agents and assignees harmless against, and to reimburse FRANCHISEE for, any loss, liability or damage (actual or consequential) and all reasonable costs and expenses of defending any claim brought against FRANCHISEE or any action in which FRANCHISEE is named as a party (including, without limitation, reasonable accountants', attorneys' and expert witness fees, costs of investigation and proof of facts, court costs, other litigation expenses and travel and living expenses) which FRANCHISEE may suffer, sustain or incur solely by reason of, arising from or in connection with the negligence or willful misconduct of the COMPANY (or any of its affiliates, i.e., any company controlling, controlled by or under common control with the COMPANY) in producing, handling or storing frozen dessert products (provided FRANCHISEE shall have established that FRANCHISEE inspected such dessert products in accordance with the procedures set forth in the Operating Manual and could not have reasonably discovered the adulteration or other defect in such dessert products which was the cause of such loss, liability or damage). FRANCHISEE acknowledges and agrees that any action or inaction by any third party (e.g., an independent carrier) which is not an affiliate of the COMPANY in connection with handling or storing frozen dessert products shall not be attributable to or constitute negligence of the COMPANY. The indemnities and assumptions of liabilities and obligations herein shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Appears in 1 contract
