Does a delay by the Bumper Man franchisor in exercising a right constitute a waiver of that right?
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 Bumper Man's 2025 Franchise Disclosure Document, the franchise agreement specifies that any delay, waiver, omission, or forbearance by Bumper Man to exercise any right, option, duty, or power due to a breach or default by the franchisee will not be considered a waiver of Bumper Man's ability to enforce such right. This protects Bumper Man's ability to act on any future breaches or defaults by the franchisee, even if they initially delay taking action.
Furthermore, the acceptance of payments by Bumper Man does not constitute a waiver of any prior breach of the franchise agreement by the franchisee. This means that if a franchisee violates the agreement but continues to make payments, Bumper Man's acceptance of those payments does not prevent them from addressing the prior violation.
This clause is included to protect Bumper Man from inadvertently waiving its rights through leniency or delayed action. It is a common provision in franchise agreements, allowing the franchisor flexibility in managing franchisees without the risk of losing their contractual rights. Prospective franchisees should understand that Bumper Man retains the right to enforce the franchise agreement terms, even if they do not immediately act upon a breach or default.