If Casiola accepts payments from a franchisee, does this constitute a waiver of the franchisee's default or breach of the agreement?
Casiola Franchise · 2024 FDDAnswer from 2024 FDD Document
18.B. WAIVER OF OBLIGATIONS
No delay, waiver, omission, or forbearance on the part of Franchisor to enforce any term and condition of this Agreement or exercise any of Franchisor's rights, options, or powers under this Agreement constitutes a waiver by Franchisor to enforce any other term and condition of this Agreement or exercise any of Franchisor's other rights, options, or powers under this Agreement. No such delay, waiver, omission, or forbearance shall constitute a waiver by Franchisor to subsequently enforce such term and condition of this Agreement or subsequently exercise such right, option, or power. Acceptance by Franchisor of any payments, fees, charges, or other amount from Franchisee payable to Franchisor pursuant to this Agreement shall not constitute a waiver or acceptance of Franchisee's default or breach of this Agreement or otherwise a waiver of any term and condition of this Agreement, and Franchisor reserves the right to pursue any and all additional remedies set forth in this Agreement, at law, or in equity. Franchisor shall likewise not be deemed to have waived or impaired any term and condition, right, option or power set forth in this Agreement by virtue of any custom or practice of the parties at variance with the terms and conditions of this Agreement or Franchisor's insistence upon Franchisee's strict compliance with Franchisee's obligations, including any mandatory specification, standard or operating procedure. No waiver by Franchisor of any term and condition of this Agreement shall be valid unless in writing and signed by Franchisor.
Source: Item 23 — RECEIPTS (FDD pages 47–209)
What This Means (2024 FDD)
According to Casiola's 2024 Franchise Disclosure Document, the acceptance of payments from a franchisee does not automatically constitute a waiver of the franchisee's default or breach of the agreement. Casiola explicitly reserves the right to pursue any and all additional remedies available under the agreement, at law, or in equity, regardless of accepting payments. This means that even if a franchisee is in default or has breached the agreement, Casiola can still accept payments without relinquishing its right to take further action to enforce the terms of the agreement.
This provision protects Casiola's interests by ensuring that it can continue to receive payments while simultaneously addressing any breaches or defaults by the franchisee. It also clarifies that any delay, waiver, omission, or forbearance on Casiola's part in enforcing any term or condition of the agreement does not constitute a waiver of its right to enforce any other term or condition, or to exercise any of its other rights, options, or powers under the agreement. Furthermore, a custom or practice of the parties that varies from the terms of the agreement does not waive Casiola's right to insist on strict compliance with the franchisee's obligations.
For a prospective Casiola franchisee, this means that they cannot assume that making payments will excuse any defaults or breaches of the franchise agreement. Casiola retains the right to take action against the franchisee for any violations, even if payments are being accepted. Franchisees must ensure they are in full compliance with all terms and conditions of the agreement to avoid potential legal or financial repercussions, irrespective of whether Casiola continues to accept payments.
It is important to note that any waiver by Casiola of any term or condition of the agreement must be in writing and signed by Casiola to be considered valid. This requirement provides further clarity and protection for both parties, ensuring that any waivers are explicitly documented and agreed upon.