Does Cream's acceptance of payments after a breach constitute a waiver?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
We and you will not waive or impair any right, power, or option this Agreement reserves (including our right to demand exact compliance with every term, condition, and covenant or to declare any breach to be a default and to terminate this Agreement before the Term expires) because of any custom or practice at variance with this Agreement's terms; our or your failure, refusal, or neglect to exercise any right under this Agreement or to insist upon the other's compliance with this Agreement, including any System Standard; our waiver of or failure to exercise any right, power, or option, whether of the same, similar, or different nature, with other Jeni's Ice Creams Scoop Shops; the existence of franchise agreements for other Jeni's Ice Creams Scoop Shops which contain provisions different from those contained in this Agreement; or our acceptance of any payments due from you after any breach of this Agreement. No special or restrictive legend or endorsement on any check or similar item given to us will be a waiver, compromise, settlement, or accord and satisfaction. We are authorized to remove any legend or endorsement, which then will have no effect.
Source: Item 23 — RECEIPTS (FDD pages 61–192)
What This Means (2025 FDD)
According to Cream's 2025 Franchise Disclosure Document, the acceptance of payments from a franchisee after a breach of the franchise agreement does not constitute a waiver of Cream's rights. Cream retains the right to demand full compliance with all terms of the agreement, even if payments are accepted after a breach has occurred. This means that Cream can still take action regarding the breach, even after accepting payments.
This provision protects Cream's ability to enforce the franchise agreement and ensures that accepting payments does not prevent them from addressing any breaches. For a potential franchisee, this means that simply making payments does not resolve any existing breaches of the agreement. Cream can still pursue remedies for the breach, regardless of whether payments are current.
This is a fairly standard clause in franchise agreements, designed to protect the franchisor's rights. Franchisees should be aware that maintaining current payments does not guarantee that other breaches of the agreement will be overlooked. It is crucial to address any breaches promptly and seek written confirmation from Cream that the issue has been resolved to avoid potential future disputes or termination of the franchise agreement.