Under what conditions can Cream unilaterally waive or reduce obligations under the Franchise Agreement?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
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.
No right, power, or option you or we are provided under this Agreement will be impaired or waived because of any custom or practice at variance with this Agreement's terms or your or our 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 area development 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, Cream has the power to unilaterally waive or reduce obligations under the Franchise Agreement. Cream can do this by providing a written instrument that outlines the specific obligation being waived or reduced. This waiver becomes effective once written notice is delivered to the franchisee, or on another effective date as specified in the waiver notice.
However, any waiver granted by Cream is not permanent and does not affect any other rights that Cream possesses. The waiver is subject to ongoing review and can be revoked at any time, for any reason. To revoke a waiver, Cream must provide the franchisee with 10 days' prior written notice.
It is important to note that the FDD also states that Cream's failure to enforce any right or insist on compliance with the Franchise Agreement does not constitute a waiver of those rights. This means that even if Cream does not always strictly enforce every term of the agreement, they still retain the right to do so in the future.