What is Kidokinetics' liability to the franchisee for expenses, losses, or damages sustained as a result of modifications?
Kidokinetics Franchise · 2024 FDDAnswer from 2024 FDD Document
IN NO EVENT WILL FRANCHISOR BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF FRANCHISOR HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, FRANCHISOR SHALL HAVE NO LIABILITY FOR ANY ERRORS OR OMISSIONS IN ANY WAY RELATED TO WORK PERFORMED BY CONSULTANTS OR OTHER PROFESSIONALS USING SCHEDULING OR ANY CUSTOMIZED SOFTWARE, REGARDLESS OF ANY PERMISSION, APPROVAL OR
ACCEPTANCE OF ACCOUNTANTS OR OTHERS BY FRANCHISOR. FRANCHISOR SHALL ALSO HAVE NO LIABILITY FOR INADVERTENT INTERRUPTION, DISABLING, OR UPDATE OF THE PROPRIETARY SOFTWARE.
- D. KIDOLINK Software and Franchisee's Right to Indemnification.
If a third party claims that the MOBILNK Software infringes any U.S. patent, copyright, or trade secret, Franchisor may elect, in its sole discretion, to defend Franchisee against such claim at Franchisor's expense and pay all damages that a court finally awards, provided that Franchisee promptly notifies Franchisor in writing of the claim, and allows Franchisor to control, and Franchisee cooperates with Franchisor in, the defense or any related settlement negotiations.
If such a claim is made or appears possible, Franchisor may, at its option, secure for Franchisee the right to continue to use the KIDOLINK Software or modify or replace the KIDOLINK Software so that it is non-infringing.
If neither of the foregoing options is available in Franchisor's judgment, Franchisor may terminate the license granted by this Agreement and require Franchisee to return the KIDOLINK Software without compensation.
Franchisor has no obligation with respect to any claim based on a version of the KIDOLINK Software that is modified without Franchisor's authorization or is combined, operated or used with any product, data, or apparatus not specified or approved by Franchisor.
THIS SECTION 6.D.
STATES THE ENTIRE OBLIGATION OF FRANCHISOR AND FRANCHISOR'S AFFILIATES TO FRANCHISEE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
Source: Item 22 — CONTRACTS (FDD page 59)
What This Means (2024 FDD)
According to Kidokinetics' 2024 Franchise Disclosure Document, Kidokinetics will not be liable for incidental, special, indirect, or consequential damages, including lost profits, even if Kidokinetics has been advised of the possibility of such damages. This means that if a franchisee incurs losses due to changes or modifications implemented by Kidokinetics, the franchisee may not be able to recover these losses from Kidokinetics.
Kidokinetics also has no liability for errors or omissions related to work performed by consultants or other professionals using scheduling or customized software, regardless of any permission or approval by Kidokinetics. Additionally, Kidokinetics is not liable for inadvertent interruption, disabling, or updates of the proprietary software.
However, if a third party claims that the MOBILINK Software infringes any U.S. patent, copyright, or trade secret, Kidokinetics may elect to defend the franchisee against such claim at Kidokinetics' expense and pay all damages that a court finally awards. This is contingent on the franchisee promptly notifying Kidokinetics in writing of the claim and allowing Kidokinetics to control the defense and settlement negotiations. Kidokinetics can also secure the franchisee's right to continue using the KIDOLINK Software or modify or replace it so that it is non-infringing. If these options are unavailable, Kidokinetics may terminate the license and require the franchisee to return the KIDOLINK Software without compensation. Kidokinetics has no obligation if the KIDOLINK Software is modified without their authorization or combined with unapproved products.
This section of the Franchise Agreement states the entire obligation of Kidokinetics and its affiliates to the franchisee regarding any claim of infringement. This means that Kidokinetics' liability is limited to the specific terms outlined in this section, and franchisees should be aware of these limitations when considering the franchise opportunity.