What actions are NOT considered a waiver of rights by Checkers under the franchise agreement?
Checkers Franchise · 2025 FDDAnswer from 2025 FDD Document
18.02 Waiver of Obligations. We and you may by written instrument unilaterally waive or reduce any obligation of the other under this Agreement. Any waiver granted by us shall be without prejudice to any other rights we may have, will be subject to continuing review by us and may be revoked, in our sole discretion, at any time and for any reason, effective upon delivery to you of ten (10) days' prior notice. You and we shall not be deemed to have waived any right reserved by this Agreement by virtue of any custom or practice of the parties at variance with it; any failure, refusal or neglect by you or us to exercise any right under this Agreement (except as provided in Section 18.03) or to insist upon exact compliance by the other with its obligations hereunder; any waiver, forbearance, delay, failure or omission by us to exercise any right, whether of the same, similar or different nature, with respect to other Restaurants; or the acceptance by us of any payments due from you after any breach of this Agreement.
18.03 Exercise of Rights. The rights of Franchisor and Franchisee hereunder are cumulative and no exercise or enforcement by Franchisor or Franchisee of any right or remedy hereunder shall preclude the exercise or enforcement by Franchisor or Franchisee of any other right or remedy hereunder which Franchisor or Franchisee is entitled to enforce by law. If Franchisee commits any act of default under this Agreement for which Franchisor exercises its right to terminate this Agreement, Franchisee shall pay to Franchisor all actual, consequential, special and incidental damages Franchisor incurs as a result of the premature termination of this Agreement regardless of whether or not such damages are reasonably foreseeable. Franchisee acknowledges and agrees that the proximate cause of such damages sustained by Franchisor is Franchisee's act of default and not Franchisor's exercise of its right to terminate. Notwithstanding the foregoing, and except as otherwise prohibited or limited by applicable law, any failure, neglect, or delay of a party to assert any breach or violation of any legal or equitable right
Source: Item 22 — CONTRACTS (FDD pages 91–92)
What This Means (2025 FDD)
According to Checkers' 2025 Franchise Disclosure Document, several actions do not constitute a waiver of rights under the franchise agreement. Specifically, any custom or practice of the parties that differs from the agreement's terms, or any failure, refusal, or neglect by either Checkers or the franchisee to exercise a right under the agreement, does not constitute a waiver. This means that even if Checkers doesn't always enforce a specific clause, they don't lose the right to enforce it later.
Additionally, any waiver, forbearance, delay, failure, or omission by Checkers to exercise any right with respect to other restaurants, or the acceptance by Checkers of payments from the franchisee after a breach of the agreement, also does not constitute a waiver. So, if Checkers is lenient with one franchisee or accepts late payments, it doesn't mean they have to be lenient with all franchisees or that they can't enforce the agreement strictly in the future.
However, Checkers and the franchisee can, through a written instrument, unilaterally waive or reduce any obligation of the other under the agreement. Any waiver granted by Checkers is subject to continuing review and may be revoked at any time, for any reason, with ten days' prior notice to the franchisee. This ensures Checkers retains flexibility in managing the franchise system while also providing franchisees with some notice of changes.
For franchisees in California, Indiana, Michigan, Rhode Island, and Wisconsin, no statement, questionnaire, or acknowledgment signed in connection with starting the franchise can waive claims under state franchise law, including fraud in inducement, or disclaim reliance on statements made by Checkers or its representatives. This provision protects franchisees in these states from inadvertently waiving important legal rights during the initial stages of the franchise relationship.