How is the term 'including' used in the Cream franchise agreement?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
f 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.
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.
The following provision applies if you or the franchise granted hereby are subject to the franchise registration laws in Illinois, Indiana, Maryland, Michigan, Minnesota, Virginia, or Wisconsin: No statement, questionnaire, or acknowledgment signed or agreed to by a franchisee in connection with the commencement of the franchise relationship shall have the effect of (1) waiving any claims under any applicable state franchise law, including fraud in the inducement, or (2) disclaiming reliance on any statement made by any franchisor, franchise seller, or other person acting on behalf of the franchisor. This provision supersedes any other term of any document executed in connection with the franchise.
C. COSTS AND ATTORNEYS' FEES.
The prevailing party in any judicial or arbitration proceeding shall be entitled to recover from the other party all damages, costs, and expenses, including arbitration and court costs and reasonable attorneys' fees, incurred by the prevailing party in connection with such proceeding.
D.
Source: Item 23 — RECEIPTS (FDD pages 61–192)
What This Means (2025 FDD)
According to the 2025 FDD, the term "including" appears in several contexts within the Cream franchise agreement, generally serving to provide examples or clarifications without limiting the scope of the preceding statement.
For instance, Cream's agreement states that neither Cream nor the franchisee will waive any rights, even due to failure to insist on compliance with the agreement, "including any System Standard". This indicates that the failure to enforce System Standards is just one example of potential waivers, but not the only one. Similarly, the prevailing party in a dispute is entitled to recover costs and expenses, "including arbitration and court costs and reasonable attorneys' fees". This clarifies that recoverable expenses extend beyond just general costs to specifically include legal and arbitration fees.
Cream also specifies that the franchisor has the right to disapprove a proposed development site for any reason, "including if: (1) it or you do not meet our then-current criteria for new franchise development, or (2) if you or your affiliates are not then in compliance with this Agreement or any Franchise Agreements with us." This means that while non-compliance with development criteria or existing agreements are explicitly mentioned as reasons for disapproval, Cream is not limited to only these reasons. The franchisor retains the right to disapprove for other, unlisted reasons as well.
Finally, when describing other business activities that Cream reserves the right to undertake, the agreement states that Cream and its affiliates may establish other businesses, "including any business that may offer products and services which are identical to, similar to, or competitive with products and services offered by Jeni's Ice Creams Scoop Shops". This clarifies that Cream's reserved rights extend to businesses that directly compete with the franchisee's Cream shop, even within the franchisee's Development Area, as long as they operate under a different brand. These examples demonstrate that "including" is used to provide illustrative examples without restricting the broader application of the clause.