What specific actions are considered 'gross negligence' that would negate the liability limitations for Acumera regarding Dq Treat?

According to the 2025 Dq Treat FDD, the limitations on liability for Acumera do not apply to Acumera's (or its agents' or subcontractors') gross negligence or willful misconduct. This means that while there are limitations to Acumera's liability in most situations, these limitations are lifted if Acumera is found to have been grossly negligent or engaged in willful misconduct. The FDD does not define 'gross negligence' specifically, but it implies a higher degree of negligence than ordinary negligence.

Additionally, the liability limitations do not apply to Acumera for willful failure to comply with the law or fraud. The managed firewall/SD-WAN exclusions outline specific scenarios where Acumera will not be liable for data breaches, such as when the firewall is disconnected or circumvented, or when the Participating Location fails to implement recommended security measures. However, these exclusions do not apply if the Participating Location received a Configuration Exception from Dairy Queen, or when Dairy Queen mandates a configuration that Acumera advises against after notifying Dairy Queen of the recommendation.

For a Dq Treat franchisee, this means that Acumera's liability is not capped in cases of gross negligence, willful misconduct, willful failure to comply with the law, or fraud. However, in other situations, Acumera's liability is limited to the fees paid by the Participating Location to Acumera in the twelve months preceding the event giving rise to the claim. It is important for franchisees to understand the circumstances under which Acumera's liability is limited and when it is not, as this can have significant financial implications in the event of a security breach or other issue.

It is also important to note that the FDD does not provide a precise definition of what constitutes 'gross negligence' in this context. Franchisees should seek legal counsel to understand how 'gross negligence' is defined under applicable law and how it might apply to their specific circumstances. Furthermore, franchisees should ensure they understand and comply with all recommended security measures to minimize the risk of data breaches and other security incidents, as failure to do so may limit Acumera's liability.