Under what conditions can Big Apple Bagels waive an obligation of the developer?
Big_Apple_Bagels Franchise · 2025 FDDAnswer from 2025 FDD Document
- (1) Franchisor and Developer may by written instrument unilaterally waive or reduce any obligation of or restriction upon the other under this Agreement, effective upon delivery of written notice thereof to the other or such other effective date stated in the notice of waiver.
Whenever this Agreement requires Franchisor's prior approval or consent, Developer shall make a timely written request therefor, and such approval, shall be obtained in writing.
- (2) Franchisor makes no warranties or guarantees upon which Developer may rely, and assumes no liability or obligation to Developer, by granting any waiver, approval, or consent to Developer, or by reason of any neglect, delay, or denial of any request therefor.
Any waiver granted by Franchisor shall be without prejudice to any other rights Franchisor may have, will be subject to continuing review by Franchisor, and may be revoked, in Franchisor's sole discretion, at any time and for any reason, effective upon delivery to Developer of ten (10) days' prior written notice.
- (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's 2025 Franchise Disclosure Document, Big Apple Bagels, as the Franchisor, can waive or reduce any obligation or restriction upon the developer under the Area Development Agreement. This waiver must be documented in a written instrument and becomes effective upon delivery of written notice to the developer or on another effective date stated in the waiver notice.
However, Big Apple Bagels makes no warranties or guarantees and assumes no liability or obligation to the developer by granting any waiver, approval, or consent. Any waiver granted by Big Apple Bagels is without prejudice to any other rights they may have, is subject to continuing review, and can be revoked at any time, for any reason, at Big Apple Bagels's sole discretion. This revocation is effective upon delivery of ten days' prior written notice to the developer.
The agreement also states that Big Apple Bagels's failure to enforce any right or insist on compliance with the agreement's terms does not constitute a waiver of those rights. This means that even if Big Apple Bagels doesn't strictly enforce every term of the agreement initially, they still retain the right to demand full compliance in the future. This protects Big Apple Bagels's interests and ensures that they can address any breaches or non-compliance issues as they see fit, without being limited by past leniency.