Does a delay by Bumper Man Franchisor to exercise any right constitute a waiver?
Bumper_Man Franchise · 2025 FDDAnswer from 2025 FDD Document
- (b) Effect of Delay, Waiver, Omission or Forbearance. No delay, waiver, omission or forbearance by Franchisor to exercise any right, option, duty or power arising out of any breach or default by Franchisee or its Principals under this Agreement will constitute a waiver by Franchisor to enforce any such right, option, duty or power against Franchisee or its Principals, or as to subsequent breach or default by Franchisee or its Principals. Subsequent acceptance by Franchisor of any payments due to it hereunder will not be deemed to be a waiver by Franchisor of any preceding breach by Franchisee or its Principals of any terms, provisions, covenants or conditions of this Agreement.
Source: Item 23 — RECEIPTS (FDD pages 45–180)
What This Means (2025 FDD)
According to the 2025 Bumper Man FDD, a delay, waiver, omission, or forbearance by Bumper Man to exercise any right will not be considered a waiver. This means that even if Bumper Man delays in enforcing a right or doesn't immediately act on a breach of the agreement by the franchisee, it does not give up its right to enforce that right in the future. This protects Bumper Man's ability to enforce the franchise agreement terms, even if there have been prior instances of leniency or delayed action.
Additionally, the FDD states that subsequent acceptance by Bumper Man of any payments due will not be considered a waiver of any preceding breach by the franchisee. In other words, if a franchisee owes money but has also violated another term of the agreement, Bumper Man's acceptance of the payment does not mean they are waiving their right to take action on the other violation.
This clause is common in franchise agreements to protect the franchisor's rights over time. It prevents franchisees from arguing that the franchisor's past actions (or inactions) prevent them from enforcing the agreement in the future. Prospective Bumper Man franchisees should understand that Bumper Man's rights under the agreement remain in effect even if they are not always immediately enforced.