Can obligations inconsistent with the express terms of the Extreme Art Studio Owners Agreement be implied?
Extreme_Art_Studio Franchise · 2024 FDDAnswer from 2024 FDD Document
17.2 WAIVER OF OBLIGATIONS.
- 17.2.1 We and you may, by written instrument, unilaterally waive or reduce any obligation of or restriction upon the other under this Franchise Agreement, effective upon delivery of written notice to the other or another effective date stated in the notice of waiver.
Any waiver granted will be without prejudice to any other rights we or you have, will be subject to continuing review, and may be revoked at any time and for any reason effective upon delivery of ten days' prior written notice.
- 17.2.2 We and you will not waive or impair any right, power or option this Franchise Agreement reserves (including, without limitation, our right to demand exact compliance with every term, condition and covenant, or to declare any breach to be a default, and to terminate this Franchise Agreement before its term expires) because of any custom or practice at variance with this Franchise Agreement's terms; our or your failure, refusal or neglect to exercise any right under this Franchise Agreement, or to insist upon the other's compliance with this Franchise Agreement, including, without limitation, any System Standard; our waiver of or failure to exercise any right, power or option, whether of the same, similar, or different nature, with other Extreme Art Studio Businesses; the existence of franchise agreements for other Extreme Art Studio Businesses which contain provisions different from those contained in this Franchise Agreement; or our acceptance of any payments due from you after any breach of this Franchise Agreement.
No special or restrictive legend or endorsement on any check or similar item given to us will be a waiver, compromise, settlement or accord and satisfaction.
We are authorized to remove any legend or endorsement, which then will have no effect.
Source: Item 22 — CONTRACTS (FDD page 49)
What This Means (2024 FDD)
According to the 2024 Extreme Art Studio Franchise Disclosure Document, Extreme Art Studio and the franchisee can only waive or reduce obligations if it is in writing.
Specifically, Extreme Art Studio states that neither they nor the franchisee will waive or impair any right, power, or option that the Franchise Agreement reserves due to custom, practice, failure to exercise a right, or waiver of any right with other Extreme Art Studio businesses. This also applies to franchise agreements for other Extreme Art Studio businesses that contain different provisions or Extreme Art Studio's acceptance of payments after a breach of the Franchise Agreement.
This means that a franchisee cannot assume that Extreme Art Studio has waived its rights or changed the agreement terms based on past behaviors or inconsistencies. Extreme Art Studio retains the right to demand strict compliance with the agreement, regardless of any prior leniency or deviations. This protects Extreme Art Studio's ability to enforce the agreement as written and ensures that franchisees cannot claim implied consent to deviations from the contract terms.