What is the definition of 'loss of data' for which Acumera is not liable to Dq Treat?
Dq_Treat Franchise · 2025 FDDAnswer from 2025 FDD Document
- No Indirect Damages.
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.
Managed Firewall/SD-WAN Exclusions In no event shall Acumera have any liability to Participating Location for any data breach that occurs:
during any period in which the Acumera-provided or Acumera-approved firewall or SD-WAN device
has yet to be initially connected or is disconnected or has been circumvented;
i. due to the failure to implement a security measure as recommended by PCI-DSS Standards;
j. in any Participating Location environment where POS system data traffic is not configured to be on an isolated network segment through the Acumera firewall;
k. when Participating Location requests that the isolated network segment containing POS data traffic is granted access to any system or service not directly related to processing POS transactions.
However, this exclusion will not apply unless Participating Location received a Configuration Exception from Dairy Queen;
I. when Dairy Queen mandates implementation of a configuration, policy or procedure that Acumera recommends against (if Dairy Queen has been notified of the recommendation);
m. through any firewall in use, whether provided by Acumera or otherwise acquired by Participating Location, that has not passed its most recent Approved Scanning Vendor's scan (unless the issue has already been remediated);
n. in a manner that industry-standard firewall technology employed at time of breach is not able to prevent.
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 to the franchisee for any loss of data, irrespective of the cause or legal theory, as detailed in Item 17. This exclusion applies whether the claim arises in contract, tort, or any other legal framework, and regardless of whether Acumera was informed about the potential for such damage.
Specifically, Acumera is not liable for data breaches under certain circumstances related to the managed firewall and SD-WAN. These circumstances include any period when the Acumera-provided or approved firewall or SD-WAN device has not been initially connected, is disconnected, or has been circumvented. Additionally, Acumera bears no liability if a data breach occurs due to the failure to implement a security measure recommended by PCI-DSS standards, or if POS system data traffic is not configured to be on an isolated network segment through the Acumera firewall.
Further, Acumera is not liable if the franchisee requests that the isolated network segment containing POS data traffic be granted access to any system or service not directly related to processing POS transactions, unless the franchisee received a Configuration Exception from Dairy Queen. Acumera is also not liable when Dairy Queen mandates a configuration, policy, or procedure that Acumera advises against, provided Dairy Queen has been notified of the recommendation. Finally, Acumera is not liable for breaches occurring through any firewall that has not passed its most recent Approved Scanning Vendor's scan, unless the issue has already been remediated, or in a manner that industry-standard firewall technology employed at the time of the breach is unable to prevent.