Does the Ben Jerrys agreement allow for joint claims to be brought against Ben Jerrys and the Developer?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
Such right to defense and indemnification will exist even if joint claims are brought, or if joint liability is imposed on BEN & JERRY'S by law.
All vouchers, canceled checks, receipts, receipted bills or other evidence of payments for any such losses, liabilities, costs, damages, charges or expenses of whatsoever nature incurred by any Indemnitee shall be taken as prima facie evidence of DEVELOPER'S obligation hereunder.
13. APPROVALS AND WAIVERS
- 13.1 Whenever this Agreement requires the prior approval or consent of BEN & JERRY'S, DEVELOPER shall make a timely written request to BEN & JERRY'S therefor, and such approval or consent must be obtained in writing.
Source: Item 23 — RECEIPTS (FDD pages 134–358)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, the agreement addresses the possibility of joint claims. Specifically, it states that the right to defense and indemnification for Ben & Jerry's will exist even if joint claims are brought or if joint liability is imposed on Ben & Jerry's by law. This suggests that while Ben & Jerry's aims to be indemnified and held harmless by the Developer, the agreement acknowledges that joint claims might still occur.
This clause is significant for a prospective Ben Jerrys franchisee because it clarifies the responsibilities and potential liabilities in case of legal disputes. The Developer is responsible for indemnifying Ben & Jerry's against claims arising from the Developer's operations, including those alleging negligence by Ben & Jerry's. This means that if a lawsuit names both the Developer and Ben & Jerry's, the Developer is expected to cover the legal costs and any damages awarded against Ben & Jerry's.
However, the document also states that any legal action brought by either party against the other shall be conducted on an individual basis, and not as part of a consolidated, common, representative, or class action. Furthermore, Ben & Jerry's and the Developer waive trial by jury in any action or proceeding brought by either of them against the other, whether or not there are other parties in such action or proceeding. This indicates that while joint claims might be brought, the agreement seeks to prevent class action lawsuits and mandates that disputes be resolved individually, without a jury trial.
In summary, while the Ben Jerrys agreement doesn't prevent joint claims from being initiated against both Ben & Jerry's and the Developer, it includes provisions designed to protect Ben & Jerry's through indemnification by the Developer, and it restricts the nature of legal actions to individual cases without jury trials. This framework allocates risk and defines the legal relationship between Ben & Jerry's and its Developers.