Does the Checkers franchise agreement specify that you and we shall not be deemed to have waived any right reserved by this Agreement or be deemed to have modified this Agreement by virtue of any custom or practice of the parties at variance with it?
Checkers Franchise · 2025 FDDAnswer from 2025 FDD Document
10.03 Exercise of Rights of Parties. The rights of Franchisor and Area Franchisee hereunder are cumulative and no exercise or enforcement by Franchisor or Area Franchisee of any right or remedy hereunder shall preclude the exercise or enforcement by Franchisor or Area Franchisee of any other right or remedy hereunder which Franchisor or Area Franchisee is entitled to enforce by law. If Area Franchisee commits any act of default under this Agreement for which Franchisor exercises its right to terminate this Agreement, Area 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. Area Franchisee acknowledges and agrees that the proximate cause of such damages sustained by Franchisor is Area 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 arising from or in connection with this Agreement, shall constitute a waiver of such right and shall preclude the exercise or enforcement of any legal or equitable remedy arising therefrom, unless written notice specifying such breach or violation is provided to the other party within 12 months after the later of: (a) the date of such breach or violation; or (b) the date of discovery of the facts (or the date the facts could have been discovered, using reasonable diligence) giving rise to such breach or violation.
Source: Item 23 — RECEIPTS (FDD pages 92–384)
What This Means (2025 FDD)
According to Checkers's 2025 Franchise Disclosure Document, Section 10.03 addresses the exercise of rights by both Checkers (Franchisor) and the Area Franchisee. It states that the rights are cumulative, meaning the use of one right or remedy does not prevent either party from using any other right or remedy available under the law.
However, the agreement also stipulates that any failure, neglect, or delay by either party to assert a breach or violation of any legal or equitable right related to the agreement will be considered a waiver of that right. This waiver is only valid if written notice specifying the breach or violation is not provided to the other party within 12 months of the later of the date of the breach or violation, or the date when the facts of the breach or violation were discovered or could have been discovered through reasonable diligence.
In practical terms, this means that if Checkers or the franchisee fails to act on a violation of the agreement within the specified timeframe after discovery, they may lose the right to enforce that particular provision. This clause encourages timely communication and action regarding any breaches of the franchise agreement to avoid potential waivers of rights.