Under the Cream franchise agreement, are the rights of both Cream and the franchisee considered cumulative?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
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 Cream FDD, neither Cream nor the franchisee will have any right, power, or option waived due to a failure to exercise said right, regardless of custom or practice. This also applies to any failure to insist upon compliance with the franchise agreement. This extends to any System Standard, as well. The rights are not waived even if Cream fails to exercise a right, power, or option with other Jeni's Ice Creams Scoop Shops, or if other franchise agreements contain different provisions. Acceptance of payments from the franchisee after a breach of the agreement also does not constitute a waiver of rights.
In practical terms, this means that Cream retains all of its rights under the franchise agreement, even if it doesn't always enforce them to the letter. For example, if Cream doesn't initially enforce a specific requirement, it can still choose to enforce it later without having waived its right to do so. This protects Cream's ability to maintain brand standards and ensure compliance across all franchise locations.
For a prospective Cream franchisee, this clause emphasizes the importance of adhering strictly to the franchise agreement. The franchisee cannot assume that a lack of enforcement in the past means that a particular rule or standard can be ignored. Cream has the right to demand strict compliance at any time, and the franchisee's failure to comply could result in penalties or termination of the franchise agreement. This provision aims to ensure that both parties understand their obligations and that Cream retains the power to enforce the agreement consistently.