Does the Itan franchise agreement allow for implied waivers of rights?
Itan Franchise · 2025 FDDAnswer from 2025 FDD Document
- **24.4.
Waivers.** Each party may waive any obligation imposed on the other party in writing.
Neither party is deemed to have waived or impaired any of its rights under this Agreement, including the right to require strict compliance with all terms of this Agreement or terminate this Agreement if the other party fails to comply with such terms, by virtue of: (a) any custom or practice of the parties at variance with the terms of this Agreement; (b) any failure, refusal or neglect by a party to exercise any right under this Agreement or require the other party to strictly comply with any term of this Agreement; (c) our waiver, failure or refusal to exercise any of our rights with respect to other franchisees; or (d) our acceptance of payment from you after your breach.
Source: Item 23 — RECEIPT (FDD pages 44–190)
What This Means (2025 FDD)
According to Itan's 2025 Franchise Disclosure Document, the franchise agreement addresses the issue of implied waivers. Specifically, it states that neither party is considered to have waived or impaired any rights under the agreement simply due to custom, practice, failure to exercise a right, waiving rights with other franchisees, or accepting payment after a breach. This means that Itan's consistent business practices, or lack thereof, do not constitute a waiver of the terms outlined in the franchise agreement.
This section of the Itan franchise agreement protects both the franchisor and the franchisee from inadvertently losing rights due to past behaviors or oversights. For example, if Itan does not consistently enforce a specific rule among all franchisees, this does not prevent them from enforcing it against a specific franchisee in the future. Similarly, if a franchisee fails to exercise a right granted to them in the agreement, they do not automatically lose that right.
The Itan franchise agreement specifies that waivers of obligations must be documented in writing to be valid. This requirement for written waivers provides clarity and avoids potential disputes over whether a waiver was actually granted. It ensures that both parties are fully aware of any modifications to the original agreement and that such changes are formally recorded.
This clause in the Itan franchise agreement is fairly standard in franchising. It aims to provide a level of certainty and protect the rights of both parties by preventing unintentional waivers. Prospective franchisees should understand this provision, as it clarifies that only explicit written waivers are enforceable, and past conduct does not alter the terms of the agreement.