If a Bambu franchisee fails to exercise a right or remedy, does that constitute 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.
- 24.8 No Right to Set Off.
Franchisee shall not be allowed to set off amounts owed to Bambu for Marketing and Technology Fees, Royalty Fees, other fees or amounts due hereunder, against any monies owed to Franchisee, nor shall Franchisee in any event withhold such amounts due to any alleged nonperformance by Bambu hereunder, which right of set off is hereby expressly waived by Franchisee.
Source: Item 23 — Receipts (FDD pages 52–209)
What This Means (2025 FDD)
According to Bambu's 2025 Franchise Disclosure Document, a delay, waiver, omission, or forbearance of any option, condition, or covenant, including the failure to exercise a right or remedy by either Bambu or the franchisee, will not be considered a waiver of the same or any other option, condition, covenant, right, or remedy. This means that if either party chooses not to enforce a specific right or remedy at one time, it does not prevent them from enforcing that right or remedy in the future.
Furthermore, the FDD states that subsequent acceptance by Bambu of any payments due to it will not be deemed a waiver by Bambu of any preceding breach by the franchisee of any terms, provisions, covenants, or conditions of the agreement. This protects Bambu's right to address prior breaches of the agreement, even if payments are later accepted.
This section of the Bambu franchise agreement aims to protect both the franchisor and franchisee by ensuring that a single instance of not enforcing a right does not result in the permanent loss of that right. However, the agreement also specifies that the franchisee is not allowed to offset amounts owed to Bambu for fees against any monies owed to the franchisee, and the franchisee expressly waives this right.