Does a failure to enforce a provision in the Brueggers Bagels agreement constitute a waiver of that provision?
Brueggers_Bagels Franchise · 2025 FDDAnswer from 2025 FDD Document
- 23.3. No Implied Waiver. No delay or failure by us to exercise any right reserved to us under this Agreement or to insist upon strict compliance by you with any obligation or condition hereunder, and no custom or practice of the parties at variance with the terms hereof, will constitute a waiver of our right to exercise such right or to demand exact compliance by you with any of the terms hereof. Waiver by us of any particular default by you will not affect or impair our rights with respect to any subsequent default of the same, similar, or a different nature. Acceptance by us of any payments due to us hereunder will not be deemed to be a waiver by us of any preceding breach by you.
Source: Item 22 — CONTRACTS (FDD page 61)
What This Means (2025 FDD)
According to Brueggers Bagels' 2025 Franchise Disclosure Document, the franchise agreement specifies that the franchisor's delay or failure to exercise any right, or to insist on strict compliance by the franchisee, does not constitute a waiver of their right to demand exact compliance with all terms of the agreement. This means that even if Brueggers Bagels does not enforce a specific rule or condition for a period of time, they retain the right to enforce it later.
Furthermore, the agreement states that any custom or practice of the parties that differs from the terms of the agreement will not be considered a waiver. This protects Brueggers Bagels from being bound by any informal or inconsistent behavior. The franchisor's waiver of a particular default by the franchisee does not prevent them from taking action on any subsequent default, even if it is the same or similar to the previous one. Also, the acceptance of payments due does not constitute a waiver of any preceding breach by the franchisee.
This section of the Brueggers Bagels franchise agreement is designed to protect the franchisor's rights and ensure that franchisees adhere strictly to the terms of the agreement. It prevents franchisees from claiming that the franchisor has implicitly waived a requirement through past actions or inactions. Prospective franchisees should understand that Brueggers Bagels retains the right to enforce all provisions of the agreement, regardless of any prior leniency or inconsistent practices.