Does the Checkers franchise agreement state that the failure to exercise any right under the agreement constitutes a waiver of that right?
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 Checkers' 2025 Franchise Disclosure Document, the franchise agreement specifies that neither Checkers nor the franchisee is deemed to have waived any right reserved in the agreement due to custom, practice, or failure to exercise a right. This means that if Checkers doesn't enforce a specific term of the agreement at one point, it doesn't forfeit its right to enforce that term later on. Similarly, the franchisee cannot claim Checkers has waived a right simply because Checkers didn't immediately act upon a violation.
This provision protects Checkers' ability to enforce the franchise agreement terms consistently over time. It prevents franchisees from arguing that past leniency or non-enforcement sets a precedent that prevents Checkers from enforcing the agreement strictly in the future. However, Checkers retains the right to unilaterally waive or reduce any obligation of the franchisee under the agreement via written instrument.
For a prospective franchisee, this clause underscores the importance of understanding and adhering to all terms of the franchise agreement from the outset. Franchisees cannot rely on past instances of non-enforcement as a guarantee of future leniency. It is important to note that any waiver granted by Checkers is subject to continuing review and may be revoked at any time with ten days' prior notice. This ensures Checkers maintains control over the enforcement of its franchise agreement and can adapt its approach as needed.
This type of 'no waiver' clause is common in franchise agreements to protect the franchisor's rights and ensure consistent application of the agreement's terms across all franchisees. Franchisees should seek legal counsel to fully understand the implications of this clause and how it may affect their operations and relationship with Checkers.