Does the acceptance of partial payment from the franchisee modify the Guaranty for Big Blue Swim School?
Big_Blue_Swim_School Franchise · 2025 FDDAnswer from 2025 FDD Document
We and you will not waive or impair any right, power, or option this Agreement reserves (including our right to demand your strict compliance with every term, condition, and covenant or to declare any breach to be a default and to terminate this Agreement before the Term expires) because of any custom or practice varying from this Agreement's terms; our or your failure, refusal, or neglect to exercise any right under this Agreement or to insist upon the other's compliance with this Agreement, including your compliance with any Brand Standard; our waiver of or failure to exercise any right, power, or option, whether of the same, similar, or different nature, with other BIG BLUE Swim Schools; the existence of franchise agreements for other BIG BLUE Swim Schools containing provisions differing from those contained in this Agreement; or our acceptance of any payments from you after any breach of this Agreement. No special or restrictive legend or endorsement on any payment or similar item given to us will be a waiver, compromise, settlement, or accord and satisfaction. We may remove any legend or endorsement, which will have no effect.
Source: Item 22 — CONTRACTS (FDD pages 75–76)
What This Means (2025 FDD)
According to the 2025 Big Blue Swim School FDD, the acceptance of payments from a franchisee after a breach of the Franchise Agreement does not waive or impair any right, power, or option that Big Blue Swim School reserves. This includes the right to demand strict compliance with every term, condition, and covenant, or to declare any breach to be a default and terminate the agreement before the term expires.
Furthermore, any special or restrictive legend or endorsement on any payment given to Big Blue Swim School will not be considered a waiver, compromise, settlement, or accord and satisfaction. Big Blue Swim School retains the right to remove any such legend or endorsement, and it will have no effect on the payment's acceptance.
This means that even if Big Blue Swim School accepts a partial payment or a payment with a restrictive endorsement after a franchisee has breached the agreement, Big Blue Swim School still maintains all its rights and options under the agreement. The franchisee cannot argue that the acceptance of payment constitutes a waiver of Big Blue Swim School’s right to enforce the agreement's terms or pursue further remedies for the breach.