For Counselor Realty, what is the impact of a custom or practice on the enforceability of the franchise agreement?
Counselor_Realty Franchise · 2025 FDDAnswer from 2025 FDD Document
- 13.2 Governing Law. This Agreement is made in Minnesota and shall be governed by Minnesota law (except that the Minnesota Franchise Law (Minn. Stat. Chapter 80C) shall apply only to Minnesota franchisees). This Agreement may be waived, modified or varied only by a writing signed by the parties on a separate document prepared by us. Acquiescence in or waiver of any breach is not a waiver of any other or subsequent breach. No custom, practice or course of dealing constitutes a waiver of any provision of this Agreement.
Source: Item 22 — CONTRACTS (FDD page 32)
What This Means (2025 FDD)
According to Counselor Realty's 2025 Franchise Disclosure Document, no custom, practice, or course of dealing constitutes a waiver of any provision of the Franchise Agreement. This means that even if Counselor Realty has, in the past, not enforced a specific clause in the agreement, they are not waiving their right to enforce that clause in the future. This protects Counselor Realty from inadvertently losing rights due to past leniency or informal arrangements.
For a prospective Counselor Realty franchisee, this clause emphasizes the importance of adhering strictly to the written terms of the Franchise Agreement. Franchisees cannot rely on past behaviors or verbal agreements as a basis for non-compliance. If a franchisee violates a term of the agreement, Counselor Realty can enforce that term regardless of whether they have done so in the past.
This provision is fairly standard in franchise agreements. It aims to provide clarity and prevent disputes arising from differing interpretations of past actions. Franchisees should be aware that the written agreement is the ultimate authority and should seek written amendments for any desired changes to the agreement's terms.