Can Alloy's failure to enforce a provision be considered a waiver of future breaches?
Alloy Franchise · 2025 FDDAnswer from 2025 FDD Document
No waiver by us of any breach by you, nor any delay or failure by us to enforce any provision of this Agreement, may be deemed to be a waiver of any other or subsequent breach or be deemed an estoppel to enforce our rights with respect to that or any other or subsequent breach. Subject to our rights to modify the Schedules and/or standards and as otherwise provided herein, this Agreement may not be waived, altered or rescinded, in whole or in part, except by a writing signed by you and us.
Source: Item 23 — RECEIPTS (FDD pages 69–245)
What This Means (2025 FDD)
According to Alloy's 2025 Franchise Disclosure Document, Alloy's failure to enforce a specific provision within the franchise agreement does not constitute a waiver of any other or subsequent breaches by the franchisee. Furthermore, any delay or failure by Alloy to enforce any provision of the agreement will not be deemed as an estoppel, preventing Alloy from enforcing its rights concerning that or any other subsequent breach. This means Alloy retains the right to enforce all terms of the agreement in the future, regardless of past leniency.
This clause protects Alloy by ensuring that its decisions not to act on a particular breach by a franchisee does not set a precedent or weaken its ability to enforce the same or other provisions later on. It also prevents a franchisee from claiming that Alloy's inaction implies acceptance of a certain behavior or violation of the agreement.
For a prospective Alloy franchisee, this provision highlights the importance of adhering strictly to the franchise agreement. Even if Alloy does not immediately enforce a specific rule, it reserves the right to do so in the future. This prevents franchisees from assuming that non-enforcement is equivalent to permission or a permanent alteration of the agreement terms, unless any changes are explicitly documented in writing and signed by both parties.