Does any custom or practice of the parties at variance with the terms of the Aw franchise agreement constitute a waiver?
Aw Franchise · 2025 FDDAnswer from 2025 FDD Document
Neither you nor the Company will be deemed to have waived or impaired any right, power or option reserved by this Agreement (including, without limitation, the right to demand exact compliance with every term, condition and covenant herein, or to declare any breach thereof to be a default and to terminate the Franchise prior to the expiration of its terms), by virtue of: (1) any custom or practice of the parties at variance with the terms hereof; (2) any failure, refusal or neglect of either of us to exercise any right under this Agreement or to insist upon exact compliance by the other with its obligations hereunder, including, without limitation, any mandatory specification, standard or operating procedure; (3) any waiver, forbearance, delay, failure or omission by us to exercise any
right, power or option, whether of the same, similar or different nature, with respect to other Papa Ray's Pizza Restaurants; or (4) the acceptance by us of any payments due from you after any breach of this Agreement.
Source: Item 22 — CONTRACTS (FDD pages 39–40)
What This Means (2025 FDD)
According to Aw's 2025 Franchise Disclosure Document, neither the franchisee nor Aw will be considered to have waived or impaired any right, power, or option reserved by the franchise agreement due to custom or practice that differs from the agreement's terms. This includes the right to demand strict compliance with every term, condition, and covenant, or to declare any breach a default and terminate the franchise before its term expires.
This means that even if Aw or the franchisee have, in the past, acted in a way that doesn't strictly adhere to the franchise agreement, that behavior doesn't prevent either party from later insisting on full compliance with all terms. For example, if Aw has previously allowed a franchisee to deviate from a specific operating procedure, Aw can still, at any time, demand strict adherence to that procedure going forward.
This clause protects Aw's ability to enforce the franchise agreement's terms, even if there has been some flexibility or leniency in the past. It also means that a franchisee cannot claim that Aw has implicitly agreed to change the terms of the agreement simply because of past practices. This type of clause is common in franchise agreements to ensure that the written contract remains the governing document for the franchise relationship.