Does the Checkers franchise agreement allow for unilateral waiver of obligations?
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.
Source: Item 22 — CONTRACTS (FDD pages 91–92)
What This Means (2025 FDD)
According to the 2025 Checkers Franchise Disclosure Document, the franchise agreement allows Checkers to unilaterally waive or reduce any obligation of the franchisee under the agreement. This waiver must be in writing. However, any waiver granted by Checkers is subject to continuing review and can be revoked at any time, for any reason, with ten days' prior written notice to the franchisee.
This clause also specifies that Checkers's failure to enforce any right under the agreement, delay in exercising a right, or acceptance of payments after a breach does not constitute a waiver of their rights. This means Checkers can choose not to enforce certain terms at one point without giving up their right to enforce them later.
For a prospective Checkers franchisee, this means that while Checkers can choose to be lenient on certain obligations, they retain the right to change their mind and enforce those obligations later. This clause protects Checkers's interests and provides them with flexibility in managing the franchise relationship, but it also introduces an element of uncertainty for the franchisee, as previously waived obligations can be reinstated with limited notice. Franchisees in California, Indiana, Michigan, Rhode Island, and Wisconsin should also take note of the rider that states no statement signed by a franchisee shall waive any claims under any applicable state franchise law, including fraud in inducement, or disclaiming reliance on any statement made by the franchisor.
This type of clause is relatively common in franchise agreements, as it allows the franchisor to maintain control and flexibility in the franchise system. However, franchisees should be aware of the potential implications and ensure they understand their obligations under the agreement.