What is the definition of 'costs of procurement of substitute goods or services' 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's liability regarding 'costs of procurement of substitute goods or services' is limited. Specifically, Acumera is not liable to Dq Treat or any third party for these costs. This means that if a Dq Treat franchisee needs to find alternative goods or services because of an issue with Acumera's services, Acumera will not be responsible for covering those expenses. This limitation is part of a broader clause that also protects Acumera from liability for lost profits, loss of data, loss of use, costs associated with integration, interruption of business, or any indirect, special, incidental, punitive, or consequential damages.
However, this limitation on liability does not apply in all circumstances. Acumera remains liable for its (or its agents' or subcontractors') gross negligence, willful misconduct, willful failure to comply with the law, or fraud. Therefore, if Acumera's actions or inactions rise to the level of gross negligence or willful misconduct, the franchisee may be able to recover costs of procurement of substitute goods or services, along with other damages, from Acumera.
For a prospective Dq Treat franchisee, this means understanding that Acumera's liability is limited in many situations, but not entirely excluded. It's crucial to assess the potential risks associated with Acumera's services and consider whether additional insurance or other risk mitigation strategies are necessary to protect the franchisee's business. Franchisees should consult with legal and insurance professionals to fully understand their rights and obligations in the event of service disruptions or other issues with Acumera's services.