Does a delay or omission by Apricot Lane in exercising its rights constitute a waiver of those rights?
Apricot_Lane Franchise · 2025 FDDAnswer from 2025 FDD Document
FRANCHISOR makes no warranties or guarantees upon which FRANCHISEE may rely and assumes no liability or obligation to FRANCHISEE or any third party to which it would not otherwise be subject, by providing any waiver, approval, advice, consent or services to FRANCHISEE in connection with this Agreement, or by reason of any neglect, delay or denial of any request therefore.
C. Non-Waiver
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 or 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 hereof. Waiver by FRANCHISOR of any particular default by FRANCHISEE shall not be binding unless in writing and executed by the party sought to be charged and shall not affect or impair FRANCHISOR's right with respect to any subsequent default of the same or of a different nature; nor shall any delay, waiver, forbearance, or omission of FRANCHISOR to exercise any power or rights arising out of any breach or default by FRANCHISEE of any of the terms, provisions, or covenants hereof, affect or impair FRANCHISOR's rights nor shall such constitute a waiver by FRANCHISOR of any right hereunder or of the right to declare any subsequent breach or default. Subsequent acceptance by FRANCHISOR of any payment(s) due to it hereunder 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 — RECEIPTS (FDD pages 51–222)
What This Means (2025 FDD)
According to Apricot Lane's 2025 Franchise Disclosure Document, the franchisor's failure to exercise any power or insist on compliance by the franchisee does not constitute a waiver of Apricot Lane's right to demand compliance with the terms of the agreement. This means that even if Apricot Lane has not strictly enforced certain rules or regulations in the past, it does not give up its right to enforce them in the future.
Furthermore, a waiver by Apricot Lane of a specific default by the franchisee is not binding unless it is in writing and signed by Apricot Lane. This waiver will also not impact Apricot Lane's rights regarding any subsequent defaults, whether they are the same or different in nature. Similarly, any delay, waiver, or omission by Apricot Lane in exercising its rights will not affect or impair Apricot Lane's rights, nor will it constitute a waiver of any right or the ability to declare a subsequent breach or default.
Moreover, Apricot Lane's acceptance of payments from the franchisee does not mean that Apricot Lane is waiving any prior breach of the agreement's terms, covenants, or conditions by the franchisee. This section protects Apricot Lane's ability to address any breaches or defaults by the franchisee, even if payments are accepted afterward.
In practical terms, this non-waiver clause means that as a franchisee, you cannot assume that leniency or lack of enforcement in one instance will protect you from future enforcement of the franchise agreement. Apricot Lane retains the right to enforce all terms of the agreement, and any waivers must be documented in writing to be effective.