Under what circumstances would Benihana's delay or failure to exercise any right under the franchise agreement be considered a waiver of that right?
Benihana Franchise · 2024 FDDAnswer from 2024 FDD Document
- 20.2 No delay or failure by BNC to exercise any right or power under this Agreement, or delay or failure by BNC to insist upon strict compliance by Franchisee with any obligation hereunder, or custom or practice of the parties at variance with the provisions of this Agreement, shall constitute a waiver of
BNC's right to exercise any such rights or powers or to demand strict and exact performance by Franchisee of all provisions of this Agreement.
Source: Item 22 — CONTRACTS (FDD pages 73–74)
What This Means (2024 FDD)
According to Benihana's 2024 Franchise Disclosure Document, a delay or failure by Benihana to exercise any right or power under the Franchise Agreement, or to insist on strict compliance by the franchisee with any obligation, does not automatically constitute a waiver of Benihana's rights. Additionally, any custom or practice of the parties that varies from the provisions of the agreement will not be considered a waiver.
This means that Benihana retains the right to enforce the terms of the agreement in the future, even if they have previously been lenient or have not strictly enforced certain provisions. This protects Benihana's interests and ensures that they can address any non-compliance issues that may arise, without being bound by past leniency.
For a prospective franchisee, this implies that they cannot rely on past instances where Benihana may have overlooked certain violations or deviations from the agreement as a guarantee that such behavior will be acceptable in the future. Franchisees must adhere to all provisions of the agreement to avoid potential enforcement actions by Benihana.