What is the effect of accepting payment from a Big Apple Bagels developer after a breach of the agreement?
Big_Apple_Bagels Franchise · 2025 FDDAnswer from 2025 FDD Document
- (3) Franchisor and Developer shall not be deemed to have waived or impaired any right, power or option reserved by this Agreement (including, without limitation, the right to demand exact compliance with every term, condition and covenant herein, or to declare any breach thereof to be a default and to terminate this Agreement prior to the expiration of its term), by virtue of any custom or practice of the parties at variance with the terms hereof; any failure, refusal, or neglect of Franchisor or Developer to exercise any right under this Agreement or to insist upon exact compliance by the other with its obligations hereunder; any waiver, forbearance, delay, failure, or omission by Franchisor to exercise any right, power, or option, whether of the same, similar or different nature with respect to any BAGELS Stores or any development or franchise agreements therefor; any grant of a Franchise Agreement to Developer; or the acceptance by Franchisor of any payment from Developer after any breach of this Agreement.
Source: Item 23 — RECEIPTS (FDD pages 87–319)
What This Means (2025 FDD)
According to Big Apple Bagels' 2025 Franchise Disclosure Document, the acceptance of any payment from the Developer after a breach of the Area Development Agreement does not prevent Big Apple Bagels from enforcing the terms of the agreement.
Specifically, Big Apple Bagels retains all rights, powers, and options reserved by the agreement, including the right to demand exact compliance with every term, condition, and covenant. This means that even if Big Apple Bagels accepts a payment after a breach, they are not obligated to continue the agreement or waive any rights related to the breach. They can still declare the breach a default and terminate the agreement.
This clause protects Big Apple Bagels by ensuring that accepting payments does not inadvertently waive their right to enforce the agreement's terms. For a prospective Big Apple Bagels developer, this means that even if you make a payment after breaching the agreement, it does not guarantee that the breach is forgiven or that the agreement will continue. You are still responsible for complying with all terms of the agreement, and Big Apple Bagels can still take action based on the breach, regardless of whether they have accepted payments from you after the breach occurred.