Is a waiver of a violation of the Face Foundrie agreement construed as a waiver of any succeeding violation?
Face_Foundrie Franchise · 2025 FDDAnswer from 2025 FDD Document
Any notice by a means which affords the sender evidence of delivery, or rejected delivery, shall be deemed to have been given at the date and time of receipt or rejected delivery.
19.06 Costs and Attorneys' Fees. If Franchisor incurs any expenses in connection with Franchisee's failure to pay any amounts it owes when due, submit any required reports when due or otherwise comply with this Agreement, Franchisee agrees to reimburse Franchisor for any of the costs and expenses that Franchisor incurs, including, without limitation, reasonable accounting, attorneys', arbitrators' and related fees.
19.07 Waiver. No waiver, delay, omission or forbearance on the part of Franchisor to exercise any right, option, duty or power arising from any default or breach by Franchisee shall affect or impair the rights of Franchisor with respect to any subsequent default of the same or a different kind; nor shall any delay or omission of Franchisor to exercise any right arising from any such default affect or impair Franchisor's rights as to such default or any future default.
However, Franchisee agrees that it will give Franchisor immediate
written notice of any claimed breach or violation of this Agreement as soon as possible after it has knowledge, or determine, or are of the opinion, that there has been a breach or violation by Franchisor of this Agreement. If Franchisee fails to give written notice to us of any claimed misrepresentation, violation of law, or breach of this Agreement within one (1) year from the date it has knowledge, determine, are of the opinion, or become aware of facts and circumstances reasonably indicating, that Franchisee may have a claim against Franchisor or against any of its affiliates under any state law, federal law, or common law, then the misrepresentation, violation of law, or breach will be considered to have been condoned, approved and waived by Franchisee, and Franchisee will be barred from beginning any legal, arbitration, or other action against Franchisor or against its affiliates, or from instituting any counterclaim against Franchisor or its affiliates, for the misrepresentation, violation of law, or breach, or from using the alleged act or omission as a defense to any action Franchisor may maintain against Franchisee.
Source: Item 22 — CONTRACTS (FDD pages 73–74)
What This Means (2025 FDD)
According to Face Foundrie's 2025 Franchise Disclosure Document, a waiver, delay, omission, or forbearance by Face Foundrie to exercise any right arising from a franchisee's default or breach does not affect Face Foundrie's rights regarding any subsequent default. This applies whether the subsequent default is of the same kind or a different kind. Additionally, any delay or omission by Face Foundrie in exercising a right due to a default does not impair Face Foundrie's rights concerning that default or any future default.
This clause protects Face Foundrie's ability to enforce the franchise agreement consistently over time. Even if Face Foundrie chooses not to act on a specific violation by a franchisee, it retains the right to enforce the agreement for any later violations. This prevents a franchisee from arguing that a past instance of leniency sets a precedent.
However, the franchisee has a responsibility to promptly notify Face Foundrie in writing of any claimed breach or violation of the agreement by Face Foundrie. This notice must be given as soon as possible after the franchisee becomes aware of the potential breach. Failure to provide this notice within one year from the date of knowledge or awareness of circumstances indicating a potential claim against Face Foundrie will result in the franchisee being considered to have waived the claim. In such cases, the franchisee will be barred from taking any legal action, arbitration, or instituting a counterclaim against Face Foundrie.