Under the Amorino agreement, how can a waiver or modification to the agreement be considered valid?
Amorino Franchise · 2025 FDDAnswer from 2025 FDD Document
- (2) No waiver or modification of this Agreement or of any covenant, condition, or limitation contained in this Agreement shall be valid unless the same is made in writing and duly executed by the party to be charged therewith, nor shall any evidence of any waiver or modification be offered or received in evidence in any proceeding, mediation, arbitration, or litigation between the parties arising out of or affecting this Agreement, or the rights or obligations of any party hereunder, unless such waiver or modification is in writing, duly executed as aforesaid.
- (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, any waiver or modification to the franchise agreement must be documented in writing and properly executed by the party against whom the waiver or modification is enforced. This requirement ensures that both Amorino and the franchisee are clear about any changes to their contractual obligations and protects against misunderstandings or disputes based on verbal agreements or informal practices.
This clause means that an Amorino franchisee cannot rely on any verbal promises or implied changes to the agreement. For example, if Amorino agrees to a temporary change in the required opening hours, that agreement is not valid unless it is written and signed by Amorino. This protects Amorino from future claims based on undocumented agreements.
Furthermore, the Amorino franchise agreement specifies that neither party's failure to enforce a right or strict compliance with a condition, nor any custom or practice that deviates from the agreement's terms, constitutes a waiver of the right to demand exact compliance. This means that even if Amorino has, in the past, not strictly enforced a certain requirement, it does not waive its right to do so in the future. The acceptance of late payments does not waive Amorino's right to address any prior breaches of the agreement, except for those specifically related to the late payments themselves. This provision is common in franchise agreements to preserve the franchisor's ability to enforce standards and protect the brand's integrity.
This requirement for written and executed waivers or modifications is a standard practice in franchising to provide clarity and legal certainty. Prospective Amorino franchisees should be aware of this provision and ensure that any negotiated changes to the franchise agreement are properly documented to avoid potential disputes.