If a Chocolate Bash franchisee delays exercising a right, does that constitute a waiver of that right?
Chocolate_Bash Franchise · 2024 FDDAnswer from 2024 FDD Document
- 18.5 Consent; Waiver. No consent under this Agreement, and no waiver of satisfaction of a condition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the consent or waiver.
No waiver by a party of any right will affect the party's rights as to any subsequent exercise of that right or any other right.
No delay, forbearance or omission by a party to exercise any right will constitute a waiver of such right.
Source: Item 22 — CONTRACTS (FDD pages 38–39)
What This Means (2024 FDD)
According to Chocolate Bash's 2024 Franchise Disclosure Document, a delay in exercising a right does not constitute a waiver of that right. The franchise agreement specifies that no delay, forbearance, or omission by a party to exercise any right will be considered a waiver of that right. This means that if either Chocolate Bash or the franchisee chooses not to immediately enforce a specific right they have under the agreement, they do not lose the ability to enforce that right at a later time.
This provision protects both the franchisee and Chocolate Bash by ensuring that leniency or a temporary lack of enforcement does not permanently forfeit their contractual rights. For example, if Chocolate Bash allows a franchisee to deviate from a specific operational standard for a period, this does not mean they cannot later require strict adherence to the standard. Similarly, if a franchisee does not immediately challenge a franchisor action, they do not waive their right to challenge it in the future.
This clause is fairly standard in franchise agreements, as it provides flexibility in the business relationship without risking the unintended loss of important contractual protections. However, franchisees should still be mindful of documenting any agreements or understandings that deviate from the written contract to avoid potential disputes, even though a simple delay in enforcement does not automatically constitute a waiver.