What is the effect of the provision regarding waivers and disclaimers on other terms in documents executed in connection with the Apricot Lane franchise?
Apricot_Lane Franchise · 2025 FDDAnswer from 2025 FDD Document
ON WHICH THE PARTY ASSERTING THE CLAIM KNEW OR SHOULD HAVE KNOWN OF THE FACTS GIVING RISE TO THE CLAIM.
SECTION 23: MISCELLANEOUS PROVISIONS
A. Written Consent
Whenever this Agreement requires the prior approval or consent of FRANCHISOR, FRANCHISEE shall make a timely written request to FRANCHISOR therefore, and, except as otherwise provided herein, any approval or consent granted must be in writing to be binding upon FRANCHISOR.
B. Warranties
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;
Source: Item 23 — RECEIPTS (FDD pages 51–222)
What This Means (2025 FDD)
According to the 2025 Apricot Lane FDD, the franchisor makes no warranties or guarantees that a franchisee may rely on by providing any waiver, approval, advice, consent, or services. Apricot Lane also assumes no liability to the franchisee or any third party. This holds true whether it would otherwise be subject to such liability or obligation in connection with the Franchise Agreement, or by reason of any neglect, delay, or denial of any request.
Apricot Lane's failure to exercise any power reserved to it, or to insist on compliance by the franchisee with any obligation or condition, does not constitute a waiver of Apricot Lane's right to demand compliance with the terms of the agreement. A waiver by Apricot Lane of any default by the franchisee must be in writing and does not affect Apricot Lane's right regarding any subsequent default. Any delay, waiver, forbearance, or omission by Apricot Lane to exercise any power or rights arising from a breach by the franchisee does not affect Apricot Lane's rights or constitute a waiver of any right or subsequent breach.
Furthermore, subsequent acceptance by Apricot Lane of any payments due to it does not waive any preceding breach by the franchisee of any terms, covenants, or conditions of the agreement. This section clarifies that Apricot Lane retains its rights and powers under the agreement, even if it chooses not to exercise them or overlooks a franchisee's default at some point. This protects Apricot Lane from inadvertently losing its contractual rights due to leniency or oversight.