What actual damages are considered for a Bombs Away franchisee?
Bombs_Away Franchise · 2024 FDDAnswer from 2024 FDD Document
- 17.2 Damages. In any controversy or claim arising out of or relating to this Agreement, each party waives any right to punitive or other monetary damages not measured by the prevailing party's actual damages, except damages expressly authorized by federal statute and damages expressly authorized by this Agreement.
"Losses" includes (but is not limited to) all losses; damages; fines; charges; expenses; lost profits; reasonable attorneys' fees; travel expenses, expert witness fees; court costs; settlement amounts; judgments; loss of Bombs Away Franchising's reputation and goodwill; costs of or resulting from delays; financing; costs of advertising material and media time/space and the costs of changing, substituting or replacing the same; and any and all expenses of recall, refunds, compensation, public notices and other such amounts incurred in connection with the matters described.
If Franchisee serves a customer outside of the Territory without Bombs Away Franchising's prior written permission, Bombs Away Franchising may impose a fee equal to the greater of (i) $500 or (ii) 75% of the amount paid by such customer to Franchisee. This fee is a reasonable estimate of Bombs Away Franchising's internal cost of personnel time attributable to addressing Franchisee's breach of this Section, and it is not a penalty or estimate of all damages arising from Franchisee's breach. This fee is in addition to all of Bombs Away Franchising's other rights and remedies.
Source: Item 22 — CONTRACTS (FDD pages 35–36)
What This Means (2024 FDD)
According to Bombs Away's 2024 Franchise Disclosure Document, in the event of a controversy or claim arising from the Franchise Agreement, each party waives the right to punitive or other monetary damages that are not measured by the prevailing party's actual damages. The only exceptions to this are damages expressly authorized by federal statute and damages expressly authorized by the Franchise Agreement itself. This means that Bombs Away franchisees are generally only liable for the actual financial harm they cause, not for additional penalties.
Furthermore, the FDD defines 'Losses' to include a comprehensive list of potential financial detriments. This includes all losses, damages, fines, charges, expenses, lost profits, reasonable attorneys' fees, travel expenses, expert witness fees, court costs, settlement amounts, judgments, loss of Bombs Away's reputation and goodwill, costs of delays and financing, costs of advertising material and media, and expenses related to recalls, refunds, compensation, and public notices. This definition makes it clear that Bombs Away considers a wide array of costs as recoverable damages in the event of a dispute.
In the event that a Bombs Away franchisee serves customers outside of their designated territory without prior written permission from Bombs Away, the franchisee may be charged a fee. This fee will be the greater of $500 or 75% of the amount paid by the customer to the franchisee. This fee is considered a reasonable estimate of Bombs Away's internal cost of personnel time spent addressing the franchisee's breach of contract, and is not considered a penalty or estimate of all damages arising from the breach. This fee is in addition to all of Bombs Away's other rights and remedies.