What is the maximum aggregate liability of AutoClerk and its affiliates to a Best Western customer under the AutoClerk agreement, and how is it calculated?
Best_Western Franchise · 2025 FDDAnswer from 2025 FDD Document
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 4, IN NO EVENT WILL THE AGGREGATE LIABILITY OF AUTOCLERK AND ITS AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS PAID TO AUTOCLERK UNDER THIS AGREEMENT DURING THE TWLEVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE ACTION.
THE FOREGOING LIMITATIONS APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO EACH PARTY'S INDEMNIFICATION OBLIGATION, BREACH OF CONFIDENTIALITY, FRAUD, OR WILLFUL MISCONDUCT.
Source: Item 23 — Receipts (FDD pages 108–413)
What This Means (2025 FDD)
According to Best Western's 2025 Franchise Disclosure Document, the AutoClerk Cloud PMS Software as a Service Agreement outlines the limitations of liability for AutoClerk and its affiliates. The agreement specifies that the maximum aggregate liability of AutoClerk and its affiliates is capped at the total amount paid to AutoClerk under the agreement during the twelve-month period preceding the event that led to the claim. This limitation applies regardless of the legal theory under which the claim is made, including breach of contract, tort, negligence, strict liability, or any other legal or equitable basis.
This means that a Best Western franchisee's potential recovery from AutoClerk for any damages is limited to the fees they paid for the AutoClerk service in the year before the issue arose. This could be a significant limitation if the damages incurred are far greater than the service fees paid.
However, there are exceptions to this limitation. The liability cap does not apply to either party's indemnification obligations, breaches of confidentiality, instances of fraud, or cases of willful misconduct. Therefore, in those specific situations, AutoClerk's liability may exceed the amount paid under the agreement in the preceding year. Franchisees should be aware of these limitations and exceptions when assessing the risks associated with using the AutoClerk service.