Under what conditions is a waiver by Aplus of a franchisee's default considered binding?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
No failure of Franchisor to exercise any power reserved to it hereunder, or to insist upon strict compliance by Franchisee with any obligation or condition hereunder, and no custom nor practice of the parties in variance with the terms hereof, shall constitute a waiver of Franchisor's right to demand exact compliance with the terms of this Agreement. Waiver by Franchisor of any particular default by Franchisee shall not be binding unless in writing and executed by Franchisor and shall not affect nor impair Franchisor's right with respect to any subsequent default of the same or of a different nature. Subsequent acceptance by Franchisor of any payment(s) due shall not be deemed to be a waiver by Franchisor of any preceding breach by Franchisee of any terms, covenants or conditions of this Agreement.
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, Aplus's failure to enforce any right or strict compliance with any obligation does not constitute a waiver of its right to demand exact compliance with the terms of the agreement. Furthermore, custom or practice of the parties that varies from the terms of the agreement does not constitute a waiver of Aplus's right to demand exact compliance with the terms of the agreement.
For a waiver by Aplus of any particular default by the franchisee to be binding, it must be in writing and executed by Aplus. This means that verbal agreements or implied waivers based on Aplus's conduct are not sufficient. The written waiver must be formally signed by Aplus to be considered valid and enforceable.
Moreover, a waiver by Aplus of a specific default does not affect Aplus's rights regarding any subsequent default. This means that even if Aplus waives a particular instance of default, it does not give up its right to enforce the agreement strictly in the future, even for the same type of default. Similarly, Aplus's acceptance of payments does not waive any prior breaches of the agreement by the franchisee.