Does the Itan franchise agreement allow a party's custom or practice to vary the terms of the agreement?
Itan Franchise · 2025 FDDAnswer from 2025 FDD Document
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 explicitly states that neither party can claim a waiver or impairment of their rights based on customs or practices that differ from the agreement's terms. This means that even if Itan or the franchisee have consistently acted in a way that deviates from the written agreement, that behavior does not change the enforceability of the original contract terms.
This provision protects Itan from inadvertently losing rights if they don't strictly enforce every term of the agreement. It also protects the franchisee, as Itan cannot later claim a franchisee's routine actions constituted a waiver of the agreement's protections.
For a prospective Itan franchisee, this clause underscores the importance of adhering to the written terms of the franchise agreement. Any deviations from the agreement, even if seemingly accepted or overlooked by Itan, do not create a binding precedent or alter the franchisee's obligations. Franchisees should seek written waivers or modifications for any desired changes to the agreement to ensure they are protected. This is a fairly standard clause in franchise agreements, intended to provide clarity and prevent disputes based on informal practices.