Are there any exceptions to the liability cap and exclusion of consequential damages for Atwell Suites?
Atwell_Suites Franchise · 2025 FDDAnswer from 2025 FDD Document
IVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PARTY OR ANY THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (THE "DAMAGES EXCLUSION").
- 8.5 LIABILITY CAP. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY AND SUBJECT TO SECTION 8.8(a), OUR CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES AND DAMAGES FOR ANY CAUSE(S) WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THE AGREEMENT), REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED, (I) $50,000; OR (II) THE AMOUNT OF FEES RECEIVED BY US PURSUANT TO THE AGREEMENT FOR SERVICES PERFORMED IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS, WHICHEVER IS LESS ("LIABILITY CAP").
Source: Item 23 — Receipts (FDD pages 99–486)
What This Means (2025 FDD)
According to Atwell Suites's 2025 Franchise Disclosure Document, there are exceptions to both the liability cap and the exclusion of consequential damages. The standard liability cap, as detailed in Section 8.5, is the lesser of $50,000 or the amount of fees Atwell Suites received for services performed in the preceding 12 months. However, Section 8.8(a) outlines specific situations where this liability cap does not apply. These exceptions, termed "Excluded Amounts," include claims and losses caused by Atwell Suites's or its personnel's gross negligence, willful misconduct, or fraud.
Additionally, the liability cap does not apply to Atwell Suites's obligations under Section 15.3, which likely pertains to specific duties or responsibilities outlined elsewhere in the agreement. It also does not apply to Atwell Suites's breaches of obligations related to compliance with Applicable Laws or Card Organization Rules, although breaches involving a Data Security Event remain subject to the standard liability cap. Finally, breaches of confidentiality obligations that do not involve personally identifiable consumer information are also excluded from the liability cap.
These exceptions mean that an Atwell Suites franchisee may be able to recover amounts exceeding the standard liability cap in cases of gross negligence, willful misconduct, fraud, certain breaches of obligations, or breaches of confidentiality. It is important for prospective franchisees to understand these exceptions, as they can significantly impact the potential financial recovery in the event of disputes or damages. Franchisees should carefully review Sections 8.5, 8.8(a), and 15.3 of the franchise agreement to fully understand the scope of the liability cap and its exceptions.