Can Bambu's delay in exercising a right under the Franchise Agreement be considered a waiver?
Bambu Franchise · 2025 FDDAnswer from 2025 FDD Document
- 24.7 No Waiver.
No delay, waiver, omission or forbearance of any option, condition or covenant contained in this Agreement or failure to exercise a right or remedy by Bambu or Franchisee shall be considered to imply or constitute a further waiver by Bambu or Franchisee of the same or any other option, condition, covenant, right or remedy.
Subsequent acceptance by Bambu of any payments due to it hereunder shall not be deemed to be a waiver by Bambu of any preceding breach by Franchisee of any terms, provisions, covenants or conditions of this Agreement.
Source: Item 23 — Receipts (FDD pages 52–209)
What This Means (2025 FDD)
According to Bambu's 2025 Franchise Disclosure Document, a delay or failure to exercise a right or remedy by either Bambu or the franchisee will not be considered a waiver of that right or any other right. This means that if Bambu delays in enforcing a specific term of the agreement, it does not forfeit its right to enforce that term later, nor does it waive any other rights it possesses under the agreement. This provision protects Bambu's ability to act on any breach or non-compliance by the franchisee, even if there has been a period of forbearance.
This section of the Franchise Agreement also states that subsequent acceptance of payments by Bambu does not constitute a waiver of any prior breach by the franchisee. For example, if a franchisee fails to pay royalties on time but Bambu accepts a late payment, Bambu still retains the right to pursue action for the initial late payment. This protects Bambu from inadvertently waiving its rights simply by accepting payments.
This clause is designed to ensure that all rights and remedies available to both Bambu and the franchisee remain fully enforceable, regardless of any past delays or omissions in exercising them. This is further reinforced by the statement that the rights and remedies are cumulative, meaning the exercise of one right does not preclude the exercise of any other right. Prospective franchisees should understand that Bambu's leniency at one point in time does not prevent them from enforcing the agreement strictly at a later date.