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 Release
No-waiver + non-preclusion
Mutual
2025
"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 Agreement
No-waiver + writing-required
Mutual
2022
"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 Agreement
No-waiver + company approval in writing
One-Sided
2022
"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 Agreement
No-waiver + cumulative remedies
Mutual
2024
"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
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.
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.
FAQs
Related Clauses
Amendment
A provision requiring any change to the contract to be made in a signed writing, blocking informal or oral modifications.
Entire Agreement
A boilerplate provision stating the written contract is the parties' complete and final agreement, replacing every prior promise or side conversation on the same subject.
Severability
A contractual provision that keeps the rest of a contract in force if a court finds one part invalid or unenforceable.
Notices
A provision, also called a notice provision, setting how the parties must deliver formal communications under the contract and when those notices count as legally received.
Survival
A contractual provision that keeps specified obligations enforceable after the agreement expires or is terminated.
This content is for informational purposes only and does not constitute legal advice.