Waiver clause
A waiver clause says that not enforcing a contract right once does not mean giving it up, so it can still be enforced later.
What it means
A waiver clause, often called a no-waiver clause, protects a party that lets something slide. If one side does not enforce a right, such as insisting on on-time payment, the clause says that choice does not give up the right for the future. It usually also says any waiver must be in writing to count.
Consider a consultant whose client pays 20 days late every month. The consultant says nothing for half a year, then wants to charge late fees or terminate. Without a no-waiver clause, the client may argue the consultant accepted late payment as the new normal. With one, the consultant is in a stronger position to enforce the payment terms again.
The clause is usually mutual and protects whichever side is owed performance. It is not bulletproof: some courts find that a long pattern of accepting different performance can override it, and the rules vary by state. It works best alongside a clear written notice when a party decides to start enforcing a term strictly again.
What to watch for
- Check that the clause requires any waiver to be in writing and signed by the party giving up the right.
- Look at whether it covers both a failure to enforce and a delay in enforcing.
- If you have been tolerating late payments or missed deadlines, check how the clause affects your ability to enforce them now.
- See whether another clause, such as acceptance of deliverables or payment of an invoice, acts as an automatic waiver of complaints.
Example clause
No failure or delay by either party in exercising any right under this Agreement will operate as a waiver of that right. Any waiver must be in writing and signed by the waiving party, and a waiver on one occasion does not waive any other breach.
Letting a problem slide once does not mean you have given up the right to enforce that term later.