Does Focalpoint Coaching's acceptance of payments after a breach constitute a waiver of that breach?
Focalpoint_Coaching Franchise · 2025 FDDAnswer from 2025 FDD Document
Franchisor and Franchisee will not waive or impair any right, power, or option this Agreement reserves (including, without limitation, Franchisor's right to demand exact compliance with every term, condition, and covenant or to declare any breach to be a default and to terminate this Agreement before its term expires) because of any custom or practice at variance with this Agreement's terms; Franchisor's or Franchisee's failure, refusal, or neglect to exercise any right under this Agreement or to insist upon the other's compliance with this Agreement, including, without limitation, any System Standard; Franchisor's waiver of or failure to exercise any right, power, or option, whether of the same, similar, or different nature, with other FocalPoint Franchised Businesses; the existence of franchise agreements for other FocalPoint Franchised Businesses which contain provisions different from those contained in this Agreement; or Franchisor's acceptance of any payments due from Franchisee after any breach of this Agreement.
Source: Item 22 — Contracts (FDD pages 56–57)
What This Means (2025 FDD)
According to Focalpoint Coaching's 2025 Franchise Disclosure Document, the acceptance of payments from a franchisee after a breach of the agreement does not constitute a waiver of that breach by Focalpoint Coaching. This is explicitly stated in Item 22, which addresses contract-related matters. This clause protects Focalpoint Coaching's right to enforce the terms of the agreement, even if they have accepted payments after a franchisee has violated the agreement.
This provision is important for prospective Focalpoint Coaching franchisees to understand because it means that even if Focalpoint Coaching continues to accept royalty payments or other fees after a franchisee has breached the agreement (for example, by failing to meet performance standards or violating operational guidelines), Focalpoint Coaching still retains the right to take action regarding the breach. They are not obligated to overlook the breach simply because they continued to accept payments.
This type of clause is relatively common in franchise agreements, as it allows the franchisor to maintain some flexibility in managing its franchise network. It prevents a situation where a franchisor might inadvertently waive its rights by continuing to do business with a franchisee who is not fully compliant with the agreement. Franchisees should be aware of this and ensure they adhere to all terms of the agreement to avoid potential issues, even if payments are being accepted.
In practical terms, a Focalpoint Coaching franchisee cannot assume that continued acceptance of payments implies forgiveness or acceptance of any breach on their part. Focalpoint Coaching retains the power to demand full compliance with the franchise agreement's terms, regardless of whether payments have been consistently made. This underscores the importance of understanding and adhering to all aspects of the franchise agreement to maintain a healthy and compliant franchise operation.