How does the Cream franchise agreement define 'affiliate'?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
During and after the Term, you and your owners agree not to (and to use each of your best efforts to cause each of your respective current and former spouses, immediate family members, owners, officers, directors, employees, representatives, affiliates, successors and assigns not to) disparage or otherwise speak or write negatively, directly or indirectly, of us, our affiliates, any of our or our affiliates' directors, officers, employees, representatives or affiliates, current and former franchisees or developers of us or our affiliates, the Jeni's ® brand, the System, any Jeni's Ice Creams Scoop Shop, any other brand or service-marked or trademarked concept operated or franchised by us or our affiliates, or take any other action which would, directly or indirectly, subject any of the foregoing to ridicule, scandal, reproach, scorn, or indignity, or which would negatively impact or injure the goodwill of the System.
Source: Item 23 — RECEIPTS (FDD pages 61–192)
What This Means (2025 FDD)
I am unable to provide a definition of 'affiliate' for Cream, according to the 2025 Franchise Disclosure Document. While the term 'affiliate' is used in several sections outlining restrictions and obligations of the franchisee, the document does not contain a specific definition of the term. The term 'affiliates' appears in the context of non-compete and non-disparagement clauses, suggesting that the franchisee's obligations extend not only to the franchisee themselves but also to those associated with Cream.
Without a clear definition, it is difficult to determine the full scope of these obligations. For example, the non-disparagement clause states that the franchisee agrees not to disparage Cream, its affiliates, or their representatives. However, without knowing who qualifies as an 'affiliate,' the franchisee may be unsure about the extent of this restriction. Similarly, the non-compete clause restricts the franchisee and their affiliates from engaging in competitive businesses. The absence of a definition for 'affiliate' could create uncertainty about who is bound by this restriction.
A prospective Cream franchisee should seek clarification from the franchisor regarding the definition of 'affiliate' to fully understand their obligations and restrictions under the franchise agreement. Specifically, they should ask Cream to provide a comprehensive definition of 'affiliate' and examples of entities or individuals that would be considered affiliates. This information is crucial for assessing the potential impact of these clauses on the franchisee's business and personal activities.