Under the Big Apple Bagels agreement, what is the effect of accepting payment from the developer after a breach?
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, accepting payment from a developer after a breach of the agreement does not prevent Big Apple Bagels from exercising any right, power, or option it has under the agreement. This includes demanding exact compliance with every term, condition, and covenant, declaring a breach to be a default, and terminating the agreement before its expiration.
This means that even if Big Apple Bagels accepts a payment from a developer after the developer has breached the agreement, Big Apple Bagels still retains all of its rights and options, and is not considered to have waived or impaired any of them. This protects Big Apple Bagels' interests and ensures that it can still enforce the terms of the agreement, even if it has accepted a payment from the developer after a breach.
This clause is fairly standard in franchise agreements. It protects the franchisor from inadvertently waiving its rights simply by accepting payments. Big Apple Bagels franchisees should be aware that any acceptance of payment after a breach does not excuse the breach or prevent Big Apple Bagels from taking action.