Can Itan waive its right to terminate the agreement if it fails to exercise that right previously?
Itan Franchise · 2025 FDDAnswer from 2025 FDD Document
Neither party shall be deemed to have waived or impaired any of its contractual rights under this Agreement, including the right to require strict compliance with all terms of this Agreement or terminate this Agreement due to the other party's failure 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 its obligations under this Agreement; (c) our waiver, failure or refusal to exercise any of our rights with respect to other developers; 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, Itan's failure to exercise its right to terminate the agreement does not constitute a waiver of that right. Specifically, Itan retains its rights under the agreement, even if it does not strictly enforce compliance or terminates the agreements of other franchisees. This means Itan can still enforce the terms of the agreement or terminate the agreement in the future, even if it has not done so in the past.
The franchise agreement specifies that neither party is deemed to have waived or impaired any of its rights under the agreement simply because of past actions or inactions. This includes the right to demand strict compliance with all terms and the right to terminate the agreement if the other party fails to comply. This protection extends to situations where there's a custom or practice that deviates from the agreement's terms, or if Itan doesn't exercise its rights with other franchisees, or even if Itan accepts payments after a breach by the franchisee.
For a prospective Itan franchisee, this clause means that Itan has significant latitude in enforcing the franchise agreement. Even if Itan has been lenient or flexible in the past, it is not prevented from strictly enforcing the agreement or terminating it in the future. This underscores the importance of adhering to all terms of the franchise agreement, as past leniency does not guarantee future flexibility. Franchisees should not rely on previous instances where Itan may have overlooked a breach as a guarantee that similar breaches will be tolerated in the future.