Does Big Blue Swim School's acceptance of payments after a breach constitute a waiver of its rights?
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 Big Blue Swim School's 2025 Franchise Disclosure Document, the brand's acceptance of payments from a franchisee after a breach of the franchise agreement does not constitute a waiver of Big Blue Swim School's rights. This means that even if Big Blue Swim School continues to accept royalty payments or other fees from a franchisee who is in violation of the agreement, Big Blue Swim School still retains the right to enforce the terms of the agreement and pursue remedies for the breach.
This provision protects Big Blue Swim School by ensuring that it does not inadvertently forfeit its rights simply by continuing to accept payments. It allows Big Blue Swim School to address the breach separately, without the risk of being deemed to have waived its right to do so by accepting payments. This is a common provision in franchise agreements, as it allows the franchisor flexibility in managing breaches and maintaining the integrity of the franchise system.
For a prospective Big Blue Swim School franchisee, this means that they cannot assume that continued payment acceptance by Big Blue Swim School implies forgiveness or acceptance of any breach they may commit. Franchisees must ensure they adhere to all terms and conditions of the franchise agreement, as Big Blue Swim School can still take action regarding a breach, regardless of whether payments have been accepted. Furthermore, any special endorsements or legends added to payments will not be considered a waiver or settlement.