How is the term 'including' interpreted in 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 the 2025 FDD, the Cream franchise agreement specifies that the franchisor's rights are not waived due to various factors, and uses the term 'including' to provide examples of such factors. This means that the examples provided after the word 'including' are illustrative and not exhaustive.
Specifically, Cream retains all rights, powers, and options reserved in the agreement, even if there's a custom or practice that differs from the agreement's terms, or if Cream fails to exercise a right or insist on compliance. This also applies if Cream waives a right with other Jeni's Ice Creams Scoop Shops, or if other franchise agreements have different provisions. The acceptance of payments after a breach of the agreement does not constitute a waiver either.
For a prospective Cream franchisee, this means that the franchise agreement is strictly enforced, and any deviations or leniency shown in one instance or with other franchisees does not set a precedent. Franchisees should be aware that Cream can still enforce all terms of the agreement, even if they haven't always done so in the past. This clause aims to protect Cream's rights and ensure consistent application of the franchise agreement across all franchisees.