Is a previous course of dealing admissible to explain, modify, or contradict the terms of the Cream franchise agreement?
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 franchise agreement contains a clause that addresses how the agreement should be interpreted. Cream states that the company will not waive or impair any right because of any custom or practice that varies from the agreement's terms. This means that even if Cream has acted a certain way in the past, it does not mean they are obligated to continue acting that way.
This clause also states that Cream's failure to exercise any right under the agreement, or to insist on the franchisee's compliance, does not constitute a waiver of those rights. The existence of franchise agreements for other Cream locations with different provisions does not affect the interpretation of an individual franchisee's agreement. Furthermore, any special endorsements on checks or payments will not be considered a waiver or compromise.
For a prospective Cream franchisee, this means that the written terms of the franchise agreement are paramount. Previous discussions, understandings, or a perceived "course of dealing" will likely not be admissible to change or contradict the express terms of the agreement. Franchisees must ensure they understand and can comply with all aspects of the written agreement, as past leniency or different arrangements with other franchisees will not be a valid excuse for non-compliance.