In the context of a Ben Jerrys franchise, what is the purpose of the Warehouse Addendum?

ooping at festivals, fairs, concerts, sporting events and other events ("Special Events"), scooping at customers' homes, offices, celebrations and other locations ("Catering") (hereinafter, Special Events and Catering are collectively referred to as "Off-Premises Activities"), [and/or the scooping of Products from a mobile scooping facility such as a truck or trailer ("Mobile Vending")] from the Authorized Warehouse (as that term is defined in Section 3, below), provided that such Off-Premises Activities [and/or Mobile Vending] are held at locations within the Territory of OPERATOR as specified in Exhibit A to the Franchise Agreement of OPERATOR. Such Off-Premises Activities [and/or Mobile Vending] must be conducted in accordance with the terms and conditions stated in this Agreement, in BEN & JERRY'S Confidential Operating Manual (the "Manual"), which is more fully described in Section 9 hereof, or otherwise by BEN & JERRY'S in writing. In the event OPERATOR discontinues the use of the Warehouse and OPERATOR is not in default under the terms of the Franchise Agreement, OPERATOR may continue to provide Off-Premises Activities [and/or Mobile Vending] pursuant to the terms in the Franchise Agreement from the OPERATOR'S Scoop Shop. OPERATOR agrees that, as long as the Warehouse Addendum remains in full force and effect, [OPERATOR/the Catering Entity] shall conduct all Off-Premises Activities [and/or Mobile Vending] solely from the Authorized Warehouse in accordance with the Warehouse Addendum and shall not otherwise conduct Off-Premises Activities [and/or Mobile Vending] through the Scoop Shop.

• 1. Section 1.3 of the Franchise Agreement shall be renumbered as Section 1.3.1, and the following Section 1.3.2 shall be added:
  • 1.3.2 **[**OPERATOR/The Catering Entity] shall conduct all Off-Premises Activities [and/or Mobile Vending] solely from the authorized Warehouse (the "Authorized Warehouse") specified in Exhibit A to the Warehouse Addendum. **[**OPERATOR/The Catering Entity] shall not relocate the Authorized Warehouse without the prior written approval of BEN & JERRY'S, which approval shall be subject to the terms of Section 7.26

below. Any authorizations furnished by BEN & JERRY'S pursuant to this Section 1.3 shall be at the sole discretion of BEN & JERRY'S, and are not, and shall not be, a guarantee or assurance by BEN & JERRY'S that Off-Premises Activities [and/or Mobile Vending] operated from the Authorized Warehouse be profitable or successful. [OPERATOR/The Catering Entity] acknowledges and agrees that approval of the Authorized Warehouse's proposed location under this Section 1.3 does not constitute any assurance, representation, or warranty of BEN & JERRY'S of any kind, that the OPERATOR'S Off-Premises Activities [and/or Mobile Vending] shall be profitable or successful.

• 1. Section 1.5 of the Franchise Agreement shall be deleted and shall be replaced by the following Section 1.5:
  • 1.5 The grant given herein is limited to the right to operate one (1) Scoop Shop at the Authorized Location only, and does not include any right to sell any products (including any Products) (i) at any location other than the Authorized Location (except the Authorized Warehouse from which to operate authorized Off-Premises Activities [and/or Mobile Vending], and except for authorized On-Demand Sales); (ii) through any other channels or methods of distribution, including the Internet (or any other existing or future channel or method of distribution (except in connection with authorized On-Demand Sales), including any form of electronic commerce); or (iii) to any person or entity for resale or further distribution.

Fees

• 1. Section 4.5 of the Franchise Agreement shall be amended by the addition of the following Section 4.5.3:
  • 4.5.3 With respect to Off-Premises Activities [and/or Mobile Vending], monthly payments and contributions shall be made in the same manner and in conjunction with OPERATOR's individual Scoop Shop payments and contributions. Any reports or statements required under Section 11.3, below, shall include such information related to Off-Premises Activities [and/or Mobile Vending] as BEN & JERRY'S shall require.

Duties of Operator

• 1. Section 7.2 of the Franchise Agreement shall be renumbered as Section 7.2.1 and shall be replaced by the following:
  • 7.2.1 OPERATOR shall use the Premises solely for the operation of the Scoop Shop; shall keep the Scoop Shop open and in normal operation for such minimum hours and days as BEN & JERRY'S may specify; shall refrain from using or permitting the use of the Premises for any other purpose or activity at any time without obtaining the written consent of BEN & JERRY'S. As described in Section 1.2 herein, [OPERATOR/the Catering Entity] may engage in Off-Premises Activities [and/or Mobile Vending]within the Territory of OPERATOR, but only in accordance with the terms and conditions stated in this Agreement, in the Manual (including guidelines and requirements relating to insurance coverage and vehicle use in Off-Premises Activities [and/or Mobile Vending]) or as

otherwise provided by BEN & JERRY'S in writing. [OPERATOR/The Catering Entity] shall not enter territories of other BEN & JERRY'S scoop shop operators without the express written consent of BEN & JERRY'S. BEN & JERRY'S reserves the right to withhold consent in its sole discretion based on a variety of factors, including, without limitation, the requirements to provide proof of consent from the other BEN & JERRY'S operator to have [OPERATOR/the Catering Entity] enter his or her territory to provide Off-Premises Activities [and/or Mobile Vending] services and for [OPERATOR/the Catering Entity] to submit for approval the economic terms of the Special Events or Catering that [OPERATOR/the Catering Entity] will perform in the other BEN & JERRY'S operator's territory.

• 1. The following Section 7.2.2 shall be added to the Franchise Agreement:
  • 7.2.2 [OPERATOR/The Catering Entity] shall use the Authorized Warehouse solely for the provision of Off-Premises Activities [and/or Mobile Vending] services in accordance with the Agreement and the Warehouse Addendum. The Authorized Warehouse shall be used specifically only for the following purposes: warehouse for Products and other products, storage of catering supplies, general storage space, office space, parking for carts and truck(s), and such other uses as BEN & JERRY'S may specify in the Manual, or otherwise approve in writing. The Authorized Warehouse shall not be used for the preparation of any Products, shall not make use of signage on the exterior of the premises (except for such identifying information necessary for deliveries), provide Off-Premises Activities [and/or Mobile Vending] at or within the Authorized Warehouse or otherwise serve or sell Products or products directly to any customer at or within the Authorized Warehouse. [OPERATOR/The Catering Entity] shall also refrain from using or permitting the use of the Authorized Warehouse for any unauthorized or unlawful purpose; and shall refrain from using or permitting the use of the Authorized Warehouse for any purpose or activity other than those specifically listed in this Section 7.2 at any time without first obtaining the written consent of BEN & JERRY'S.
• 1. Section 7.4.1 of the Franchise Agreement shall be deleted and shall be replaced by the following Section 7.4.1:
  • 7.4.1 If BEN & JERRY'S desires the scooping of Products at an Off- Premises Activity in the Territory of OPERATOR, BEN & JERRY'S shall send [OPERATOR/the Catering Entity] a "Request for Notice." If BEN & JERRY'S sends [OPERATOR/the Catering Entity] a Request for Notice and [OPERATOR/the Catering Entity] desires to scoop Products at such Off-Premises Activity, [OPERATOR/the Catering Entity] must send BEN & JERRY'S a signed "Notice of Intent to Scoop" within five (5) business days after receipt by [OPERATOR/the Catering Entity] of such Request for Notice and [OPERATOR/the Catering Entity] must submit to BEN & JERRY'S proof of authorization to scoop Products at such Off-Premises Activity in accordance with the Manual or other writing. If the Catering Entity does not send BEN & JERRY'S a signed Notice of Intent to Scoop within five (5) business days after the date of receipt by [OPERATOR/the Catering Entity] of the Request for Notice or if [OPERATOR/the Catering Entity] does not submit proof of authorization to scoop at such Off-Premises Activity in accordance with the Manual or other writing, [OPERATOR/the Catering Entity] shall be deemed to have

waived [OPERATOR'S/the Catering Entity's] right to scoop Products at such Off-Premises Activity. If [OPERATOR/the Catering Entity] waives the right to scoop Products at any Off-Premises Activity, BEN & JERRY'S may sell scooped or other Products, or may grant another operator the right to sell scooped or other Products, at such Special Event. (The requirement in this Section 7.2.3 that BEN & JERRY'S provide a "Request for Notice" only applies if BEN & JERRY'S desires, either itself or through others, to sell scooped Products at an Off-Premises Activity within the Territory; this requirement does not apply to the sale of non-scooped Products, which BEN & JERRY'S has the right to sell within or outside of the Territory of OPERATOR pursuant to Section 1.4.6)

• 1. Section 7.4.2 of the Franchise Agreement shall be deleted and shall be replaced by the following Section 7.4.2:
  • 7.4.2 If [OPERATOR/the Catering Entity] desires to sell or scoop Products at an Off-Premises Activity [or through Mobile Vending] located outside the Territory of OPERATOR, [OPERATOR/the Catering Entity] must submit a written request to BEN & JERRY'S in accordance with the Manual or other writing, for the prior approval of BEN & JERRY'S.

Source: Item 23 — RECEIPTS (FDD pages 134–358)