Does the 'No Waiver' clause in the Bens Soft Pretzels sublease allow for implied waivers?
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to modify the Schedules and/or standards and as otherwise provided herein, this Agreement may not be waived, altered or rescinded, in whole or in part, except by a writing signed by you and us.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, the sublease agreement contains a specific clause addressing waivers. This clause explicitly states that Bens Soft Pretzels's failure or delay in enforcing any provision of the agreement does not constitute a waiver of any other or subsequent breach by the franchisee. This also prevents it from being interpreted as an estoppel that would hinder Bens Soft Pretzels from enforcing its rights in the future.
Furthermore, the sublease agreement stipulates that it cannot be waived, altered, or rescinded unless both Bens Soft Pretzels and the franchisee provide a signed written agreement. This requirement for a written waiver provides clarity and legal certainty, ensuring that any modifications or waivers are explicitly documented and agreed upon by both parties.
This "no waiver" clause is designed to protect Bens Soft Pretzels's rights under the sublease agreement. It prevents franchisees from claiming that the franchisor's past leniency or failure to enforce a specific term implies a permanent waiver of that term. This type of clause is common in franchise agreements to ensure consistent enforcement of standards and protect the brand's integrity. Franchisees should be aware that Bens Soft Pretzels's actions or inactions do not set a precedent for future breaches or modifications of the agreement unless explicitly documented in writing.