What is Ben Jerrys' definition of 'confidential information' in the context of the franchise agreement?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
10.1 OPERATOR agrees to use and permit the use of confidential information (as defined below) solely in connection with the operation of the Scoop Shop. OPERATOR shall not, during the term of this Agreement or thereafter, nor shall OPERATOR permit any employee, agent or affiliate to, communicate, divulge, or use for the benefit of OPERATOR (except in connection with operating the Scoop Shop), or any employee, agent or affiliate of OPERATOR, or any other person or entity, any confidential information, knowledge, or know-how concerning BEN & JERRY'S and/or the marketing, management or operations of the Scoop Shop that may be communicated to OPERATOR or of which OPERATOR may be apprised by virtue of OPERATOR's operation under the terms of this Agreement. OPERATOR shall divulge such confidential information only to such of its employees as must have access to it in order to operate the Scoop Shop. For purposes of this Agreement, "confidential information" means: (i) any and all information, knowledge, or know-how relating to BEN & JERRY'S and the System which may be communicated to OPERATOR, whether communicated in writing, orally, electronically, by inspection, or by sample, exhibit, training, demonstration, or other means; and (ii) all Manual, information, and materials received by OPERATOR from BEN & JERRY'S; provided, however, it shall not include information which OPERATOR can demonstrate came to its attention prior to disclosure thereof by BEN & JERRY'S, or which, at or after the time of disclosure by BEN & JERRY'S to OPERATOR, had become or later becomes
part of the public domain through publication or communication by others. Confidential information may include information relating to the development and operation of the System, including new products that may be in the testing stage; proprietary information regarding the Ben & Jerry's Products and the preparation of the Ben & Jerry's Products; advertising and marketing plans and materials for the System; information concerning the marketing, management and operation of scoop shops under the System; information concerning BEN & JERRY'S; electronic communications posted on the B&J Extranet; electronic mail distribution lists; and the Manual. The foregoing list of confidential information is illustrative only and does not necessarily include all matters considered confidential by BEN & JERRY'S.
Source: Item 22 — CONTRACTS (FDD pages 133–134)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, confidential information encompasses a wide array of data, knowledge, and know-how related to Ben Jerrys and its operational system. This includes any information communicated to the franchisee, whether in writing, orally, electronically, or through demonstrations and training. The definition extends to the contents of the Manual, along with all materials received by the franchisee from Ben Jerrys.
This broad definition means that franchisees must exercise caution in handling information related to new products still in testing, proprietary details about Ben Jerrys' products and their preparation, advertising and marketing strategies, and insights into managing and operating scoop shops within the Ben Jerrys system. Electronic communications on the B&J Extranet and electronic mail distribution lists also fall under this umbrella. The FDD explicitly states that this list is not exhaustive, implying that Ben Jerrys may consider other matters confidential as well.
However, the definition of confidential information does have some exceptions. Information that the franchisee can prove they already possessed before Ben Jerrys disclosed it, or information that becomes publicly available through no fault of the franchisee, is not considered confidential. This exception provides some protection for franchisees who may have independently acquired similar knowledge.
For a prospective Ben Jerrys franchisee, understanding this definition is crucial. It dictates how they must handle sensitive business information both during the franchise term and afterward. Failure to protect this information could lead to legal repercussions and potential termination of the franchise agreement. Franchisees should ensure their employees are also aware of these confidentiality obligations to prevent inadvertent disclosures.