Can a delay in enforcing a provision of the Bens Soft Pretzels agreement be considered a waiver?
Bens_Soft_Pretzels Franchise · 2025 FDDAnswer from 2025 FDD Document
- B. Waiver/Integration. No waiver by us of any breach by you, nor any delay or failure by us to enforce any provision of this Agreement, may be deemed to be a waiver of any other or subsequent breach or be deemed an estoppel to enforce our rights with respect to that or any other or subsequent breach. Subject to our rights to modify the Schedules and/or standards and as otherwise provided herein, this Agreement may not be waived, altered or rescinded, in whole or in part, except by a writing signed by you and us.
Source: Item 22 — CONTRACTS (FDD pages 46–47)
What This Means (2025 FDD)
According to the 2025 Bens Soft Pretzels Franchise Disclosure Document, a delay or failure by Bens Soft Pretzels to enforce any provision of the Franchise Agreement will not be deemed a waiver of any other or subsequent breach. Nor will it prevent Bens Soft Pretzels from enforcing its rights regarding that or any other subsequent breach.
Essentially, this means that Bens Soft Pretzels's inaction on a previous violation by a franchisee does not prevent them from taking action on that same violation, or a different one, in the future. This clause protects Bens Soft Pretzels's right to enforce the agreement's terms consistently over time.
This type of clause is common in franchise agreements to ensure that franchisors retain their rights to enforce the agreement, even if they have previously been lenient or slow to act. Franchisees should be aware that even if a particular rule has not been strictly enforced in the past, Bens Soft Pretzels still has the right to enforce it at any time.