Can Cream waive obligations under the agreement through oral agreements?
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 Cream's 2025 Franchise Disclosure Document, any waiver of obligations or restrictions under the franchise agreement must be made through a written instrument. This written waiver becomes effective upon delivery of written notice to the other party or on another effective date as specified in the notice of waiver.
Any waiver granted by Cream is not absolute. It is subject to ongoing review and can be revoked at any time, for any reason. To revoke a waiver, Cream must provide 10 days' prior written notice to the franchisee. This ensures that the franchisee is informed of the revocation and has time to adjust accordingly.
The franchise agreement also specifies that no right, power, or option is waived due to custom, practice, or failure to exercise rights, nor is it waived through special endorsements on checks. This means that Cream's consistent practices or any leniency shown to a franchisee does not set a precedent for waiving any terms of the agreement. Cream retains the right to demand strict compliance with the franchise agreement's terms, regardless of past actions or inactions.