Can the Dryject franchisor delay exercising a right or remedy without waiving it?
Dryject Franchise · 2025 FDDAnswer from 2025 FDD Document
39. REMEDIES CUMULATIVE
All rights and remedies of the parties hereto shall be cumulative and not alternative, in addition to and not exclusive of any other rights or remedies which are provided for in this Agreement or which may be available at law or in equity in case of any actual or threatened breach, failure or default of any term, provision or condition of this Agreement or any other agreement between You and Us or Our affiliates. The rights and remedies of the parties under this Agreement shall be continuing and may be exercised at any time or from time to time. The expiration, earlier termination, or exercise of Our rights pursuant to Section 32 of this Agreement shall not discharge or release You from any liability or obligation then accrued, or any liability or obligation continuing beyond, or arising out of, the expiration, the earlier termination, or the exercise of such rights under this Agreement.
40. LIMITATIONS OF CLAIMS
Except with regard to Your obligation to pay Us and Our affiliates Royalty Service Fees, Marketing Fund Fees and other fees or payments of every nature and kind due from You pursuant to this Agreement or otherwise, any claims between the parties must be commenced within one (1) year from the date on which the party asserting the claim knew or should have known of the facts giving rise to the claim or such claim shall be barred. The parties understand that this time limit might be shorter than otherwise allowed by law. You agree that the sole recourse for claims arising between the parties shall be against Us or Our successors and assigns. You agree that Our shareholders, members, managers, directors, officers, employees and agents and Our affiliates shall not be personally liable nor named as a party in any action between Franchisee and Franchisor. You and We further agree that, in connection with any such proceeding, each must submit or file any claim which would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same proceeding as the claim to which it relates. Any such claim that is not submitted or filed as described above shall be forever barred. The parties agree that any proceeding will be conducted on an individual, not a class-wide, basis and that a proceeding between You and Us may not be consolidated with another proceeding between Us and any other person or entity. No previous course of dealing shall be admissible to
Source: Item 8 — BUSINESS RELATIONSHIP (FDD pages 68–229)
What This Means (2025 FDD)
According to the 2025 Dryject FDD, the rights and remedies available to both parties are cumulative, meaning they can be exercised at any time without being considered an alternative to other available options. This is detailed in Section 39 of the franchise agreement, titled "Remedies Cumulative." This clause ensures that Dryject's rights and remedies are continuing and can be exercised at any time, without being considered a waiver.
This provision protects Dryject by ensuring that if they delay in enforcing a specific right or remedy, they do not lose the ability to enforce it later. This is a common clause in franchise agreements, as it allows the franchisor flexibility in managing the franchise network and addressing breaches or defaults without immediately resorting to the most severe actions. It also clarifies that the termination or exercise of rights under Section 32 of the agreement does not release the franchisee from any accrued or ongoing liabilities.
For a prospective Dryject franchisee, this means that Dryject has significant latitude in how they choose to enforce the franchise agreement. While this protects Dryject's interests, it also means that a franchisee cannot assume that leniency in one instance will prevent Dryject from strictly enforcing the agreement in the future. Franchisees should, therefore, ensure they consistently comply with all terms and conditions of the franchise agreement to avoid potential issues.
Furthermore, the FDD specifies a limitation on claims, requiring that any claims between the parties, except for the franchisee's payment obligations, must be commenced within one year from when the party knew or should have known about the facts giving rise to the claim. This time limit could be shorter than what is otherwise allowed by law, so franchisees need to be aware of this specific requirement.