For Brightstar Care, does the limitation on damages apply to claims of negligence?
Brightstar_Care Franchise · 2025 FDDAnswer from 2025 FDD Document
of competent jurisdiction, Microsoft will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid and terminate this license.
If any other type of third party claim is brought against you regarding Microsoft's intellectual property, you must notify us promptly in writing. Microsoft may, at its option, choose to treat these daims as being covered by this section. This Section 19 provides your exclusive remedy for third party infringement and trade secret misappropriation claims.
- LIMITATION ON AND EXCLUSION OF DAMAGES. You can recover from Microsoft and its suppliers only direct damages up to the amount you paid for the software except for claims covered by Section 19. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental
damages.
This limitation applies to
- anything related to the software, services, content (including code) on third party Internet sites, or third party programs;
Source: Item 23 — RECEIPTS (FDD pages 118–387)
What This Means (2025 FDD)
According to Brightstar Care's 2025 Franchise Disclosure Document, the limitation on damages does apply to claims of negligence. Specifically, the document states that you can only recover direct damages up to the amount you paid for the software from Microsoft and its suppliers, except for claims covered by Section 19.
The limitation on damages extends to anything related to the software, services, content (including code) on third-party Internet sites, or third-party programs. It also includes claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort, to the extent permitted by applicable law.
This limitation applies even if repair, replacement, or a refund for the software does not fully compensate you for any losses, or if Microsoft knew or should have known about the possibility of the damages. However, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this limitation or exclusion may not apply in all cases. As a prospective franchisee, it's important to understand these limitations and how they might affect your legal rights and potential recovery in case of any issues related to the software or services provided.