Does Hyper Kidz's failure to exercise a right under the agreement constitute a waiver of that right?
Hyper_Kidz Franchise · 2024 FDDAnswer from 2024 FDD Document
- 22.1.3 We and you shall not be deemed to have waived or impaired any right, power, or option reserved by this Agreement including, without limitation, the right to demand exact compliance with every term, condition, and covenant herein, or to declare any breach thereof to be a default and to terminate this Agreement prior to the expiration of its term by virtue of any (a) custom or practice of the parties at variance with the terms hereof; (b) any failure, refusal, or neglect of us or you to exercise any right under
this Agreement or to insist upon exact compliance by the other with its obligations hereunder including, without limitation, any mandatory specification, standard or operating procedure; (c) any waiver, forbearance, delay, failure, or omission by us to exercise any right, power, or option, whether of the same, similar or different nature, with respect to any other Hyper Kidz Business or any franchise agreement or multi-unit development agreement therefor; or (d) our acceptance of any payments from you after any breach by you of this Agreement.
Source: Item 22 — CONTRACTS (FDD page 52)
What This Means (2024 FDD)
According to the 2024 Hyper Kidz Franchise Disclosure Document, Hyper Kidz's failure to exercise any right under the franchise agreement does not constitute a waiver of that right. This is explicitly detailed in Section 22.1.3, which states that neither Hyper Kidz nor the franchisee is deemed to have waived any right reserved in the agreement due to any failure, refusal, or neglect to exercise that right. This includes the right to demand exact compliance with every term and condition.
This provision protects Hyper Kidz from inadvertently losing its rights if it chooses not to enforce a specific term in the agreement at a particular time. For a franchisee, this means Hyper Kidz can still enforce all terms of the agreement in the future, even if they haven't done so consistently in the past. This also applies to any custom or practice that varies from the agreement's terms, any failure to insist on exact compliance with mandatory specifications, standards, or operating procedures, and any acceptance of payments after a breach of the agreement.
Furthermore, the clause clarifies that any waiver, forbearance, delay, failure, or omission by Hyper Kidz to exercise any right concerning any other Hyper Kidz business or franchise agreement does not impact its rights under the franchisee's agreement. This ensures that Hyper Kidz can manage its franchise network without setting unwanted precedents. The franchisee should understand that Hyper Kidz's actions (or inactions) with other franchisees do not provide any basis to claim a waiver of the terms of their own franchise agreement.