Does the Apricot Lane franchisor's right to terminate the agreement for non-payment constitute an obligation to do so?
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
Source: Item 23 — RECEIPTS (FDD pages 51–222)
What This Means (2025 FDD)
According to the 2025 Apricot Lane Franchise Disclosure Document, the franchisor's failure to exercise any power reserved to it, or to insist upon strict compliance by the franchisee with any obligation or condition, does not constitute a waiver of the franchisor's right to demand exact compliance with the terms. This means that Apricot Lane retains the right to enforce all terms of the agreement, including payment obligations, even if they have not strictly enforced them in the past.
This section of the FDD also states that a waiver by Apricot Lane of any particular default by the franchisee is not binding unless it is in writing and executed by the party sought to be charged. This protects Apricot Lane from unintentional waivers and ensures that any waiver is clearly documented. Furthermore, such a waiver does not affect or impair Apricot Lane's right with respect to any subsequent default, whether it is the same or of a different nature.
In practical terms, this means that Apricot Lane is not obligated to terminate the agreement for non-payment, even if they have the right to do so. They can choose to work with the franchisee to resolve the issue, pursue other remedies, or take other actions. However, their decision not to terminate the agreement in one instance does not prevent them from doing so in the future if the franchisee defaults again. This clause provides Apricot Lane with flexibility in managing its franchise relationships while also protecting its rights under the franchise agreement.