Can the Hawaiian Bros Island Grill agreement be modified by course of dealing or inference from conduct?
Hawaiian_Bros_Island_Grill Franchise · 2025 FDDAnswer from 2025 FDD Document
Subject to Section 1 regarding amendment of the Master Agreement, Franchisee and Don agree that no amendment to this Participation Agreement will be effective without the written consent of Hawaiian Bros. Hawaiian Bros is an intended third party beneficiary of this Participation Agreement.
Source: Item 23 — RECEIPTS (FDD pages 77–262)
What This Means (2025 FDD)
According to the 2025 Hawaiian Bros Island Grill Franchise Disclosure Document, the Participation Agreement with Edward Don & Company cannot be amended without written consent. Specifically, while the Master Agreement between Don and Hawaiian Bros Inc. can be amended, any changes to the Participation Agreement between the franchisee and Don requires Hawaiian Bros' written approval to be effective.
This means that a Hawaiian Bros Island Grill franchisee cannot rely on informal agreements or a history of conduct to alter the terms of their Participation Agreement with Don. Any modifications must be formally documented and approved by Hawaiian Bros. This protects Hawaiian Bros Island Grill by ensuring standardization and control over its supply chain and franchise operations.
This requirement for written consent provides clarity and prevents disputes that could arise from relying on verbal agreements or implied understandings. It also ensures that all parties are aware of and agree to any changes in the agreement, reducing the risk of misunderstandings or disagreements. For a prospective franchisee, this highlights the importance of documenting all agreements in writing and obtaining the necessary approvals from Hawaiian Bros Island Grill to ensure the changes are valid and enforceable.