Under what circumstances related to negligence or misconduct is Atwell Suites liable for proven damages?
Atwell_Suites Franchise · 2025 FDDAnswer from 2025 FDD Document
IHG SHALL HAVE NO LIABILITY WITH RESPECT TO THE PERFORMANCE OF THIRD-PARTY GOODS OR THIRD-PARTY SERVICES. THE LIABILITY OF IHG ARISING OUT OF OR RELATING TO THIS PARTICIPATION AGREEMENT AND THE DIRECT SERVICES SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY HOTEL TO IHG FOR THE SERVICES GIVING RISE TO SUCH DAMAGES DURING THE PRIOR SIX MONTHS. Notwithstanding anything to the contrary contained in this Participation Agreement, IHG shall have no liability under this Participation Agreement or in any way related to the Secure Payment Solution for any incidental, indirect, exemplary, punitive or consequential damages, or any lost data, lost business, lost revenue or opportunity cost or damage to reputation or goodwill, howsoever arising (whether foreseeable or not, or within the contemplation of either Party) whether arising in contract or tort (including negligence and breach of statutory or other duty) or other form of equitable or legal theory. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECT IN THE SYSTEM OR DEFECT IN OR FAILURE TO PERFORM OR TIMELY PERFORM SERVICES UNDER THIS PARTICIPATION AGREEMENT SHALL BE A CREDIT FOR SERVICE PAYMENTS DUE UNDER THIS PARTICIPATION AGREEMENT.
Source: Item 23 — Receipts (FDD pages 99–486)
What This Means (2025 FDD)
According to the 2025 Atwell Suites FDD, IHG (the parent company) has limited liability regarding the performance of third-party goods or services. IHG's liability arising from the participation agreement and direct services is capped at the actual amount the hotel paid to IHG for the services that caused the damages during the prior six months.
Specifically, Atwell Suites is not liable for incidental, indirect, exemplary, punitive, or consequential damages related to the Secure Payment Solution. This includes lost data, business, revenue, opportunity costs, or damage to reputation or goodwill, regardless of foreseeability or the legal theory under which the claim arises (contract, tort, negligence, etc.). The sole remedy for defects in the system or failures in service performance is a credit for service payments due under the participation agreement.
This means that as an Atwell Suites franchisee, your ability to recover damages from IHG for issues related to third-party services or the Secure Payment Solution is significantly limited. You are primarily entitled to a service credit, and you bear the risk of consequential losses. This is a fairly typical arrangement in franchising, where franchisors often try to limit their liability for third-party services they mandate or recommend.