If late payments are accepted by Amorino, does this waive any preceding breach of the Amorino agreement?
Amorino Franchise · 2025 FDDAnswer from 2025 FDD Document
- (3) No failure by either party to exercise any power reserved to it by this Agreement, or to insist upon strict compliance with any obligation or condition hereunder, and no custom or practice of the parties at variance with the terms of this Agreement, shall constitute a waiver of either party's right to demand exact compliance with any of its terms. The acceptance of any late payments due under this Agreement shall not be deemed to be a waiver of any preceding breach of any terms, covenants or conditions of this Agreement except those pertaining to the late payment or payments.
Source: Item 22 — CONTRACTS (FDD pages 80–81)
What This Means (2025 FDD)
According to Amorino's 2025 Franchise Disclosure Document, the acceptance of late payments does not automatically waive previous breaches of the franchise agreement. Specifically, the document states that accepting late payments will not be considered a waiver of any preceding breach of any terms, covenants, or conditions of the agreement, except for those directly related to the late payment itself.
This means that even if Amorino accepts a payment after its due date, they still retain the right to enforce other parts of the agreement that may have been violated prior to the late payment. For example, if a franchisee was not following brand standards before making a late payment that Amorino accepts, Amorino does not lose its right to address the earlier violations of brand standards.
This provision protects Amorino's ability to enforce the franchise agreement fully, even when they show flexibility in accepting late payments. It is a fairly standard clause in franchise agreements, ensuring that franchisors can address multiple issues independently and aren't forced to waive other violations simply by accepting a payment after the due date. Franchisees should be aware that bringing an account current does not necessarily absolve them of responsibility for previous failures to comply with the agreement.