If Apricot Lane fails to exercise a power reserved to it, does this constitute a waiver of its rights?
Apricot_Lane Franchise · 2025 FDDAnswer from 2025 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 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 franchise agreement specifies that if Apricot Lane does not exercise a power it reserves under the agreement, it does not automatically mean that Apricot Lane has waived its right to enforce that power in the future. Furthermore, a custom or practice that differs from the agreement's terms does not waive Apricot Lane's right to demand compliance with those terms. Any waiver by Apricot Lane of a franchisee's default must be in writing and signed to be binding and will not affect Apricot Lane's rights regarding any later defaults, whether similar or different.
This section of the franchise agreement protects Apricot Lane by ensuring that its failure to enforce a specific term or condition at one time does not prevent it from enforcing it later. This is a common provision in franchise agreements, allowing the franchisor flexibility in managing its franchise system without inadvertently giving up its contractual rights.
For a prospective Apricot Lane franchisee, this means they cannot assume that leniency or lack of enforcement by Apricot Lane in one instance sets a precedent for future behavior. The franchisee must always adhere strictly to the terms of the franchise agreement, as Apricot Lane retains the right to enforce all provisions, even if it has not done so consistently in the past. This clause reinforces the importance of written communication and documentation in the franchisor-franchisee relationship.