Are the rights of Checkers and the Area Franchisee cumulative?
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' 2025 Franchise Disclosure Document, the rights of Checkers as the franchisor and the Area Franchisee are cumulative. This means that Checkers and its Area Franchisees can exercise their rights and remedies without precluding the enforcement of any other rights or remedies they are entitled to by law.
This provision is designed to protect both Checkers and its Area Franchisees, ensuring that neither party waives their legal rights by exercising some, but not all, of their available options. For example, if an Area Franchisee breaches the agreement, Checkers can pursue multiple remedies concurrently or consecutively, such as demanding compliance, seeking damages, and ultimately terminating the agreement if the breach is not cured. Similarly, the Area Franchisee can pursue multiple avenues of recourse if Checkers violates the agreement.
However, the FDD states that failure to assert a breach or violation of any legal or equitable right arising from the agreement constitutes a waiver of such right, unless written notice specifying such breach or violation is provided to the other party within 12 months after the later of the date of such breach or violation, or the date of discovery of the facts giving rise to such breach or violation. This means that both parties must be diligent in protecting their rights and providing timely notice of any issues to avoid inadvertently waiving their claims.
This clause is a standard inclusion in franchise agreements to clarify the scope of rights and remedies available to each party and to encourage proactive communication regarding potential breaches. Prospective Area Franchisees should understand that while their rights are cumulative, they must also be vigilant in asserting those rights within the specified timeframe to avoid any unintended waivers.