What damages are considered 'indirect' for which Acumera is not liable to Dq Treat?
Dq_Treat Franchise · 2025 FDDAnswer from 2025 FDD Document
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY 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 HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- 18.3.
THE LIMITATIONS IN THIS SECTION 18 DO NOT APPLY TO EITHER PARTY'S LIABILITY FOR ITS (OR ITS RESPECTIVE AGENT'S AND/OR SUBCONTRACTOR'S) GROSS NEGLIGENCE OR WILFULL MISCONDUCT, WILFUL FAILURE TO COMPLY WITH LAW, FRAUD.
Source: Item 17 — The following paragraph is added to the end of Item 17 of the Disclosure Document: (FDD pages 70–378)
What This Means (2025 FDD)
According to the 2025 Dq Treat FDD, Acumera is not liable for certain types of damages, specifically those classified as indirect. These include lost profits, loss of data, loss of use, costs associated with integration, interruption of business, and costs of procuring substitute goods or services. Additionally, Acumera is not liable for any special, incidental, punitive, or consequential damages, regardless of the cause or legal theory, even if Acumera was aware of the potential for such damages.
This limitation of liability is a significant consideration for prospective Dq Treat franchisees. It means that if Acumera's services fail or cause issues, the franchisee's ability to recover damages is limited to direct damages only, and they cannot claim compensation for these broader, indirect impacts on their business. This is a fairly standard practice in franchising and commercial contracts, where parties often seek to limit their exposure to potentially large and unpredictable consequential losses.
However, the FDD also specifies exceptions to this limitation. Acumera's liability is not limited in cases of gross negligence, willful misconduct, willful failure to comply with the law, or fraud committed by Acumera or its agents and subcontractors. This provides some protection to the Dq Treat franchisee in situations where Acumera's actions are particularly egregious or unlawful. Franchisees should carefully consider these limitations and exceptions when evaluating the risks associated with using Acumera's services.