Must a waiver by Black Bear Diner be in writing to be binding?
Black_Bear_Diner Franchise · 2025 FDDAnswer from 2025 FDD Document
If any alterations are required to be made to the standard plans and specifications, such alterations
must be approved by Franchisor in writing before any work is begun on the Franchised Restaurant.
Franchisee and the Personal Guarantors will not, during the term of this Agreement, on their own account or as an employee, agent, consultant, affiliate, licensee, partner, officer, director, or shareholder of any other person, firm, entity, partnership or corporation, own, operate, lease, franchise, conduct, engage in, be connected with, have any interest in, or assist any person or entity engaged in any Competitive Business, except with the prior written consent of the Franchisor.
Franchisee and the Personal Guarantors covenant that, except as otherwise approved in writing by Franchisor, neither Franchisee nor the Personal Guarantors will not, for a period of two (2) years after the expiration or termination of this Agreement, regardless of the cause of for termination, either directly or indirectly, for themselves or through, on behalf of or in conjunction with, any person, persons, partnership, corporation, limited liability company or other business entity own an interest in, manage, operate, act as a consultant with respect to the management or operation of any Competitive Business within a radius of twenty-five (25) miles of the Approved Location or within twenty-five (25) miles of any other Black Bear Diner restaurant.
Source: Item 23 — RECEIPT (FDD pages 56–243)
What This Means (2025 FDD)
According to the 2025 Black Bear Diner FDD, there are multiple instances where written consent or approval from Black Bear Diner is explicitly required. Specifically, the FDD states that alterations to standard plans and specifications must be approved by Black Bear Diner in writing before any work begins on the franchised restaurant. Additionally, franchisees are prohibited from engaging in any competitive business during the term of the agreement without prior written consent from Black Bear Diner. Furthermore, after termination of the agreement, franchisees and personal guarantors are restricted from involvement in any competitive business within a specified radius unless otherwise approved in writing by Black Bear Diner.
These provisions suggest that for certain key aspects of the franchise agreement, such as modifications to building plans, involvement in competitive businesses during the agreement term, and post-termination competitive activities, a written waiver or approval from Black Bear Diner is necessary to be binding. This requirement for written documentation provides clarity and legal certainty for both the franchisee and the franchisor, ensuring that any deviations from the standard agreement are properly authorized and documented.
While the FDD excerpts highlight specific instances requiring written consent, it does not provide a comprehensive statement that all waivers must be in writing to be binding. Therefore, prospective franchisees should seek clarification from Black Bear Diner regarding the circumstances under which waivers or consents must be in writing to be considered valid and enforceable. Understanding these requirements is crucial for franchisees to ensure they are in compliance with the franchise agreement and to protect their rights and obligations.