What is the definition of 'consequential damages' 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.
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 several types of damages. These include lost profits, loss of data, loss of use, costs associated with integration, interruption of business, and costs of procurement of substitute goods or services. Additionally, Acumera is not liable for any indirect, special, incidental, punitive, or consequential damages, regardless of how they are caused or the legal theory under which the claim is made, even if Acumera was aware of the possibility of such damages.
This limitation of liability is a significant consideration for prospective Dq Treat franchisees. It means that if Acumera's services cause a data breach or other disruption, the franchisee's ability to recover losses beyond direct damages is limited. Direct damages are capped at the fees paid to Acumera in the 12 months preceding the event giving rise to the claim. This could leave a franchisee bearing substantial uncovered losses in the event of a major incident.
However, the limitations on liability do not apply in cases of Acumera's gross negligence, willful misconduct, willful failure to comply with the law, or fraud. This provides some protection for Dq Treat franchisees against egregious actions by Acumera. Additionally, there are specific exclusions related to managed firewall/SD-WAN services, such as data breaches occurring when the firewall is disconnected or circumvented, or due to failure to implement recommended security measures. Franchisees should carefully review these exclusions to understand the circumstances under which Acumera's liability is further limited.
It is important for prospective Dq Treat franchisees to understand the scope and limitations of Acumera's liability, as it directly impacts the financial risks associated with using Acumera's services. Franchisees should consult with legal and insurance professionals to assess their potential exposure and ensure they have adequate coverage to protect their business from potential losses.