Does the Ben Jerrys agreement limit or exclude any other rights or remedies available by law or equity?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
- 26.6 No right or remedy conferred upon or reserved to BEN & JERRY'S by this Agreement is intended to be, nor shall be deemed, exclusive of any other right or remedy provided herein or permitted by law or equity, but each shall be cumulative of every other right or remedy.
- 26.7 WAIVER OF JURY TRIAL: BEN & JERRY'S AND OPERATOR IRREVOCABLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO ANY CLAIM, INCLUDING ANY COUNTERCLAIMS, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER OF THEM AGAINST THE OTHER, WHETHER OR NOT THERE ARE OTHER PARTIES IN SUCH ACTION OR PROCEEDING.
- 26.8 Any and all claims and actions arising out of or relating to this Agreement, the relationship of OPERATOR and BEN & JERRY'S, or OPERATOR's operation of the Scoop Shop, brought by either party hereto against the other, whether in mediation, or a legal action, shall be commenced within one (1) year from the occurrence of the facts giving rise to such claim or action, or such claim or action shall be barred.
- 26.9 WAIVER OF PUNITIVE AND EXEMPLARY DAMAGES: BEN & JERRY'S AND OPERATOR HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO OR CLAIM OF ANY PUNITIVE OR EXEMPLARY DAMAGES AGAINST THE OTHER AND AGREE THAT IN THE EVENT OF A DISPUTE BETWEEN THEM, EACH SHALL BE LIMITED TO THE RECOVERY OF ANY ACTUAL DAMAGES SUSTAINED BY IT.
- 26.10 Nothing herein contained shall bar the right of either party to obtain, without invoking the ADR Process, injunctive relief against threatened conduct that will cause it loss or damages (including those matters set forth in the second sentence of Section 26.2, as well as potential violations of the terms of Sections 8, 9, 10, 14, 16 and 17 of this Agreement) under the usual equity rules, including the applicable rules for obtaining restraining orders and preliminary injunctions.
Source: Item 22 — CONTRACTS (FDD pages 133–134)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, the franchise agreement does contain some limitations and waivers of rights and remedies for both Ben Jerrys and the franchisee. Specifically, both parties waive the right to a jury trial and the right to claim punitive or exemplary damages against each other, limiting each party to the recovery of actual damages sustained. Any claims or actions arising from the agreement or the operation of the Scoop Shop must be commenced within one year of the facts giving rise to the claim, or the action will be barred. However, this does not bar either party from seeking injunctive relief against threatened conduct that would cause loss or damages.
For prospective Ben Jerrys franchisees, these limitations mean that in the event of a dispute, they cannot seek punitive damages, and they must bring any claims within one year, which is shorter than the statutory limitations period for many types of claims. The waiver of a jury trial means that disputes will be resolved by a judge. While these limitations apply to both Ben Jerrys and the franchisee, franchisees should carefully consider the implications, especially the shortened statute of limitations and the waiver of punitive damages, as these could impact their ability to seek certain types of compensation in a dispute.
Notably, a Minnesota amendment to the agreement exists, which modifies some of these limitations to comply with Minnesota law. For example, it extends the period to commence claims or actions to two years, except for actions arising under the Minnesota Franchises Law, which have a three-year limit. This amendment also clarifies that nothing in the agreement can reduce any of the franchisee's rights as provided by Minnesota Statutes, Chapter 80C, or their rights to any procedure, forum, or remedies provided by the laws of the jurisdiction.
It is important for prospective franchisees to understand these limitations and waivers and how they may affect their legal rights. Franchisees should consult with an attorney to fully understand the implications of these provisions and how they may be affected by the laws of their specific state, especially if they are located in Minnesota, given the specific amendments for that state.