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Waiver Clause

A provision stating that failing to enforce a contractual right once does not forfeit it, and that any waiver must be expressed and, usually, in writing.

Reviewed by GC AI Solutions Team•Updated August 2026

Definition

A waiver clause, also called a no-waiver or non-waiver clause, states that a party's failure or delay in enforcing a contractual right does not waive that right or any future breach. It typically requires any waiver to be expressed, in writing, and signed by the party giving it, and confirms that a one-time waiver does not become a continuing one. The clause also preserves cumulative remedies, so electing one does not surrender the others. Its purpose is to stop a course of lenient conduct from quietly stripping away rights the contract grants.

  • Confirms that not enforcing a right once does not waive it for the future
  • Requires any waiver to be express, in writing, and signed by the party giving it
  • Stops a single or partial exercise of a right from precluding later enforcement
  • Keeps remedies cumulative, so using one does not surrender the others
  • Prevents a pattern of leniency from creating an implied waiver or course of dealing

Writing-and-signature requirements for waivers have become standard in commercial contracts, narrowing the room for implied-waiver arguments.

What It Does

A waiver clause protects you from your own goodwill. Letting a late payment slide once should never mean you surrendered the deadline for good, and this clause is what keeps a pattern of accommodation from hardening into a binding change. For in-house counsel, it preserves your rights while you stay practical day to day. The operative questions are whether a waiver must be in a signed writing to count, whether a single waiver can be read as continuing, and whether your remedies stay cumulative. A practical test: if you have tolerated late delivery for six months and now want to enforce the deadline, a strong no-waiver clause is what lets you reinstate it.

When You'll See It

The waiver clause sits in the boilerplate of nearly every contract: commercial agreements, credit agreements, employment and equity awards, leases, and M&A documents. It lives in the miscellaneous or general provisions, usually next to amendment and entire agreement. The drafting matters most in long-running commercial and credit relationships, where repeated leniency can otherwise build an implied waiver.

It matters most where one side regularly accommodates the other, such as a lender that tolerates covenant slippage or a supplier that overlooks late orders. The more informal the relationship runs, the more the no-waiver clause is doing the work.

Examples

Builders FirstSource, Inc.

Dave Rush, Special Advisor Agreement and ReleaseNo-waiver + non-preclusionMutual2025
"No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege."
Source

nCino OpCo, Inc.

nCino, Inc., Form of Assignment and Assumption AgreementNo-waiver + writing-requiredMutual2022
"No failure or delay by any Party in exercising any right under this Agreement will operate as a waiver of, nor will any single or partial exercise preclude any other or further exercise of, any rights under this Agreement. No waiver of any provisions of this Agreement will be valid unless the same is in writing and signed by the Party so waiving."
Source

DaVita Inc.

Berkshire Hathaway Inc., Letter AgreementNo-waiver + company approval in writingOne-Sided2022
"No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Any approval or waiver of the Company hereunder shall be explicitly noted as such and shall be in writing or from the Chief Executive Officer."
Source

Westrock Coffee Company

Grantee, Restricted Stock Unit Award AgreementNo-waiver + cumulative remediesMutual2024
"No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law."
Source

Negotiate

Carries an implied best-efforts obligation under UCC Section 2-306 in exclusive dealing for goods

You Want Rights Preserved

  • Require every waiver to be in writing and signed by the party giving it.
  • State that a single or partial exercise of a right never precludes later exercise.
  • Add that a waiver on one occasion is not a waiver of any later breach.
  • Keep remedies cumulative and not exclusive.
  • Bar any implied waiver arising from a course of dealing or prior conduct.

If you relied on the other side's leniency

You Want to Hold Them to Past Conduct

  • Resist a writing-only waiver rule if your relationship runs on informal accommodations.
  • Add a notice-and-cure step before a long-tolerated practice can be reversed.
  • Require reasonable notice before the other side reinstates strict enforcement.
  • Document accommodations in writing so they count as express waivers.
  • Negotiate an estoppel carve-out that preserves reliance on prior conduct.

Goodwill should not cost you a right. Put every accommodation in writing and keep the clause strict.

Red Flags

  • A waiver clause paired with no writing requirement, which leaves room for disputed oral waivers.

  • Language letting one party waive on the other's behalf, or waiver by silence.

  • No statement that a single waiver is not continuing, inviting a course-of-dealing argument.

  • Remedies framed as exclusive rather than cumulative, so electing one drops the rest.

  • A clause that lets a party reinstate strict enforcement with no notice after a long practice of leniency.

Waiver Clause FAQs

What is a waiver clause?
A provision stating that failing to enforce a contractual right once does not forfeit it, and that any waiver must be express and, usually, in writing.
What is the difference between a waiver and an amendment?
A waiver gives up the right to enforce an existing term on a given occasion. An amendment changes the term itself going forward. A no-waiver clause often works alongside a no-oral-modification clause.
How do you waive a contract right?
Through an express statement, ideally in a signed writing as the clause requires. Some courts also find waiver through conduct, which a no-waiver clause is designed to prevent.
Can a contract right be waived by conduct?
Sometimes. Without a strong no-waiver clause, a consistent course of leniency can create an implied waiver. A writing requirement narrows that risk.
Does a one-time waiver apply to future breaches?
No, when the clause says so. A well-drafted no-waiver clause confirms that waiving one breach does not waive later breaches of the same term.
What does no waiver mean in a contract?
It means tolerating a breach or delaying enforcement does not surrender the right to enforce the term later.

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This content is for informational purposes only and does not constitute legal advice.