Is Acumera liable for lost profits related to Dq Treat services?

According to the 2025 Dq Treat FDD, Acumera is generally not liable for lost profits related to its services. Specifically, Item 17 states that neither party, including Acumera, is liable to the other or any third party for lost profits, loss of data, loss of use, costs associated with integration, interruption of business, costs of procurement of substitute goods or services, or for any indirect, special, incidental, punitive, or consequential damages. This limitation applies regardless of the legal theory under which the claim is made, including contract, tort, or any other theory of liability, and whether or not the party has been advised of the possibility of such damage.

However, there are exceptions to this limitation of liability. Acumera's liability is not limited in cases of its (or its agents' or subcontractors') gross negligence, willful misconduct, willful failure to comply with the law, or fraud. These exceptions mean that if Acumera's actions or inactions rise to the level of gross negligence or willful misconduct, the standard limitation on liability, including the exclusion of lost profits, would not apply.

This limitation on liability and the exceptions to it are significant for a prospective Dq Treat franchisee. It means that while Acumera provides services related to network security and PCI compliance, the franchisee bears the risk of losses such as lost profits stemming from data breaches or service interruptions, unless Acumera's conduct meets the threshold of gross negligence or willful misconduct. Franchisees should carefully consider this allocation of risk and ensure they have adequate insurance and security measures in place to protect their businesses.