Plaintiff appeals a summary judgment for defendants. He argues that the court erred when it concluded that a release provision in a stock sales agreement precludes him from bringing a claim against defendants. We reverse.
The court shall grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47C. We view the record in the light most favorable to the party opposing the motion. Uihlein v. Albertson’s, Inc., 282 Or 631, 580 P2d 1014 (1978).
In 1974, plaintiff and defendant Youngren each owned one-half of the stock in Western Engineers, Inc. (Western). They were also the officers and directors of the corporation. Disputes between plaintiff and Youngren led to an agreement in 1988 in which plaintiff agreed to sell his stock to Youngren. The transaction included promissory notes for the purchase price and a separate noncompete agreement supported by separately stated consideration. In addition, the parties executed a release, which provides:
“Effective as of the date hereof, [plaintiff] and Youngren hereby mutually release each other from any and all claims, demands, rights, damages, expenses, loss of compensation, suits and causes of action, whether known or unknown, now existing.”
Both parties were represented by counsel and plaintiffs counsel drafted the release. After the sale, Western merged into defendant Wescold.
In 1991, plaintiff filed this action for violation of security laws, seeking rescission of the stock sale agreement or damages. Defendant moved for summary judgment on the basis of the release and, in the alternative, on the basis that plaintiff, by his conduct, had affirmed the contract. The trial court granted the motion on the basis of the release.
Plaintiffs claim is for securities fraud arising from defendants’ purported misrepresentations and failure to disclose certain information material to the stock sale agreement. He alleges, and provides supporting evidence, that the release of claims was a part of the same transaction. He *267further alleges, and supports with evidence, that he would not have entered into the sale agreement, or would have demanded a higher price for his shares, had he known the truth.
Defendants argue that the release agreement is unambiguous and precludes plaintiffs claim. In the alternative, they argue that, even if the release is ambiguous, the uncontradicted evidence is that it was intended to settle all disputes between the parties, including any claim for fraud in the inducement of the agreement. Plaintiff argues that the release was intended only to bar the parties from bringing claims arising out of transactions that occurred before the sales agreement was negotiated, not to bar claims for fraud in the inducement of the stock sales agreement itself.
The issue is whether the language of the release agreement precludes plaintiffs claim that the stock sale agreement and the release were induced by fraud. When there is a misrepresentation regarding a material term of the contract, a party is entitled to rescind the agreement. As a general proposition, an agreement that releases claims can be rescinded for the same reasons as any other agreement, including fraud in the inducement. See Wheeler v. White Rock Bottling Co., 229 Or 360, 364, 366 P2d 527 (1961); Larson v. Hansen et al, 223 Or 533, 534, 355 P2d 234 (1960); Kim v. Allstate Ins. Co., 102 Or App 529, 795 P2d 582, rev den 310 Or 475 (1990). However, a release agreement may explicitly provide that it releases even claims of fraud in the inducement. In that case, there can be no rescission of the release because of misrepresentations or nondisclosures that induce it. Lindgren v. Berg, 307 Or 659, 772 P2d 1336 (1989).
Here, the release is general; it provides that it releases each party “from any and all claims, demands, rights, damages, expenses, loss of compensation, suits and causes of action, whether known or unknown, now existing.” Unlike in Lindgren, that language does not explicitly allocate the risk of misrepresentation or nondisclosure in inducing the agreement. In the absence of explicit language, plaintiff is entitled to seek rescission, and the trial court should not have granted summary judgment to defendants on the basis of the release.
*268Defendants argue that the trial court’s ruling can be affirmed on the basis of their alternative ground asserted for summary judgment: that plaintiff elected to affirm the contract and cannot now seek to rescind it.
“[0]ne who accepts benefits under a contract and acts inconsistently with an intent to rescind it may thereby waive the right to rescind.” Kladouchos v. Ballis, 94 Or App 403, 405, 765 P2d 831 (1988); see State Farm Fire v. Sevier, 272 Or 278, 537 P2d 88 (1975). A defrauded party seeking to rescind must act promptly and “cannot retain the fruits of the contract awaiting future developments to determine whether it will be more profitable * * * to affirm or disaffirm it.” Schuler et ux. v. Humphrey et ux., 198 Or 458, 480, 257 P2d 865 (1953). Waiver is a matter of intent and each case is decided on its own facts and circumstances. 198 Or at 480.
Here, there is no evidence showing when plaintiff learned of the alleged misrepresentation. At best, we can infer that he knew of it when he filed his complaint. The complaint includes a tender of the full contract price in the claim for rescission. That offer is consistent with an intent to rescind. There is no evidence on the summary judgment record that plaintiff failed to act promptly after learning of the alleged fraud and before he filed his complaint.
Defendant, however, argues that plaintiffs continued receipt of payments on the note and noncompete agreement after he filed his complaint, show his intent to affirm rather than disaffirm the contract. We disagree. There is no evidence that defendant accepted plaintiffs offer to return the sale price and, under the circumstances, we cannot say that continued acceptance of payments on the purchase price, which plaintiff has offered to return, is conduct necessarily inconsistent with an intent to rescind. The tender offer remained outstanding, and plaintiffs receipt of payments after defendant failed to accept that tender did not necessarily constitute a waiver of the right to rescind.
Defendants also argue that plaintiff’s continued acceptance of payments under the noncompete agreement is inconsistent with rescission. Plaintiff does not seek to rescind the noncompete agreement; what he seeks is rescission of the stock sale agreement pursuant to ORS 59.127(2). The two *269agreements were contemporaneous; however, each was supported by separate consideration. Depending on the intent of the parties, the agreements may or may not be severable. Their intent is not evident on this record. We conclude that there are questions of fact that preclude summary judgment for defendant on that alternative basis.
Reversed and remanded.