Is the Cream franchisee's designation of Cream as their attorney in fact revocable?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
If you fail to take any of the actions or refrain from taking any of the actions described above, we may take whatever action and sign whatever documents we deem appropriate on your behalf to cure the deficiencies, including, without liability to you or third parties for trespass or any other claim, to enter the Premises and remove any signs or other materials containing any Marks from your Shop. You must reimburse us for all costs and expenses we incur in correcting any such deficiencies. You hereby appoint us as your true and lawful attorney-in-fact to take such actions and execute such documents on your behalf as may be required to effect the foregoing purposes.
Source: Item 23 — RECEIPTS (FDD pages 61–192)
What This Means (2025 FDD)
According to the 2025 FDD, if a Cream franchisee fails to take certain actions to maintain brand standards, Cream is authorized to act on their behalf. Specifically, if the franchisee fails to maintain the shop according to Cream's standards, Cream can enter the premises and take corrective actions, including removing non-compliant signs or materials. To facilitate this, the franchisee appoints Cream as their attorney-in-fact.
The FDD does not explicitly state whether the franchisee can revoke this designation of Cream as their attorney-in-fact. However, the FDD does state in Item 23, B. Waiver of Obligations, that "We and you may by written instrument unilaterally waive or reduce any obligation of or restriction upon the other under this Agreement, effective upon delivery of written notice to the other or another effective date stated in the notice of waiver. Any waiver granted will be without prejudice to any other rights we or you have, will be subject to continuing review, and may be revoked at any time and for any reason effective upon delivery of 10 days' prior written notice." This suggests that the franchisee may have the ability to revoke the designation with written notice.
Given the lack of explicit information, it is important for a prospective Cream franchisee to seek clarification from Cream regarding the revocability of the attorney-in-fact designation. Understanding the conditions under which this designation can be revoked, and the process for doing so, is crucial for protecting the franchisee's interests and maintaining control over their business operations. This is a point that should be discussed with the franchisor before entering into a franchise agreement.