What actions by Beverly Anns Cookie are considered a waiver of notice to the owners?
Beverly_Anns_Cookie Franchise · 2025 FDDAnswer from 2025 FDD Document
We and you shall not be deemed to have waived or impaired any right, power or option reserved by this Franchise Agreement (including the right to demand exact compliance with every term, condition and covenant in this Franchise Agreement, or to declare any breach of this Franchise Agreement to be a default, and to terminate the Franchise Agreement before the expiration of its Term) by virtue of: (i) any custom or practice of the parties that varies with the terms of this Franchise Agreement; (ii) any failure, refusal or neglect of us or you to exercise any right under this Franchise Agreement or to insist upon exact compliance by the other with its obligations under this Franchise Agreement, including any mandatory specification, standard or operating procedure; (iii) any waiver, forbearance, delay, failure or omission by us to exercise any right, power or option, whether of the same, similar or different nature, relating to other Beverly Ann's Cookie Truck franchisees; or (iv) the acceptance by us of any payments due from you after breach of this Franchise Agreement.
Source: Item 23 — RECEIPTS (FDD pages 57–235)
What This Means (2025 FDD)
According to Beverly Anns Cookie's 2025 Franchise Disclosure Document, a waiver of rights will not be implied simply from the company's conduct. Specifically, Beverly Anns Cookie will not be deemed to have waived or impaired any right, power, or option reserved in the Franchise Agreement due to custom, practice, or failure to exercise a right. This includes the right to demand exact compliance with every term, condition, and covenant, or to declare any breach a default and terminate the agreement.
This means that even if Beverly Anns Cookie has, in the past, overlooked certain franchisee actions or been lenient on enforcing specific requirements, it does not relinquish its right to enforce those requirements strictly in the future. For example, if Beverly Anns Cookie previously allowed a franchisee to submit royalty payments a few days late without penalty, it is still entitled to demand timely payments and penalize late submissions moving forward.
Furthermore, the acceptance of payments after a breach of the Franchise Agreement does not constitute a waiver of Beverly Anns Cookie's rights. Therefore, if a franchisee violates the agreement and Beverly Anns Cookie continues to accept royalty payments, this acceptance does not prevent Beverly Anns Cookie from pursuing legal remedies for the breach. This protects Beverly Anns Cookie's ability to address violations even while maintaining the business relationship.
In practical terms, this section of the Franchise Agreement emphasizes the importance of franchisees adhering strictly to all terms and conditions. Franchisees cannot rely on past leniency or informal practices as a basis for non-compliance. Any modifications or waivers must be documented in writing to be effective, ensuring clarity and preventing misunderstandings between Beverly Anns Cookie and its franchisees.