According to the Ben Jerrys Development Agreement, what constitutes a default?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
ed by any court of competent jurisdiction; if proceedings for a composition with creditors under any state or federal law should be instituted by or against DEVELOPER; if a final judgment remains unsatisfied or of record for thirty (30) days or longer (unless supersedeas bond is filed); if DEVELOPER is dissolved; if execution is levied against DEVELOPER'S business or property; if suit to foreclose any lien or mortgage against any asset of DEVELOPER or DEVELOPER'S Scoop Shops is instituted against DEVELOPER and not dismissed within thirty (30) days; or if any asset of
DEVELOPER or of DEVELOPER'S Scoop Shops shall be sold after levy thereupon by any sheriff, marshal, or constable.
- 6.2 Upon the occurrence of any of the following events of default or upon any breach of any of the covenants listed in Section 8 of this Agreement, BEN & JERRY'S may, at its option, terminate this Agreement and all rights granted hereunder, without affording DEVELOPER any opportunity to cure the default, effective immediately upon the provision of notice to DEVELOPER (in the manner provided under Section 9 of this Agreement):
- 6.2.1 If the Franchise Agreement for any Scoop Shop operated by DEVELOPER (or a person or entity affiliated with DEVELOPER) is terminated; and
- 6.2.2 If DEVELOPER or any of its owners of a beneficial interest in DEVELOPER commits, is convicted of, pleads guilty or "nolo contendere" to a felony, a crime involving moral turpitude, or any other act, crime, or offense that BEN & JERRY'S believes is injurious to the System, the Proprietary Marks, the Products, the goodwill associated therewith.
- 6.3 Except as otherwise provided in Sections 6.1 and 6.2, above, if DEVELOPER fails to comply with any material term and condition of this Agreement, or fails to comply with the terms and conditions of any Franchise Agreement or development agreement between DEVELOPER (or a person or entity affiliated with or controlled by DEVELOPER) and BEN & JERRY'S, such action shall constitute a default under this Agreement.
Source: Item 23 — RECEIPTS (FDD pages 134–358)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, several actions can trigger a default under the Development Agreement. These include the termination of a Franchise Agreement for any Ben Jerrys Scoop Shop operated by the developer or an affiliated entity. Additionally, a default occurs if the developer or any owner with a beneficial interest commits or is convicted of a felony, a crime involving moral turpitude, or any act that Ben Jerrys deems harmful to the system, proprietary marks, products, or associated goodwill.
Furthermore, the Ben Jerrys Development Agreement states that failure to comply with any material term or condition of the Development Agreement, or any Franchise Agreement or development agreement between the developer (or an affiliated entity) and Ben Jerrys, also constitutes a default.
Upon any default, Ben Jerrys can terminate the Development Agreement with written notice at least thirty days before termination. However, the developer can avoid termination by promptly initiating and curing the default to Ben Jerrys's satisfaction within that thirty-day period. If the default remains uncured, the agreement terminates, and all development rights are lost. It is important to note that a default under the Development Agreement does not automatically trigger a default under any existing Franchise Agreements between the parties.