Can a Ben Jerrys developer avoid termination by curing a default?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
nst 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. Upon the occurrence of any such default, BEN & JERRY'S may terminate this Agreement by giving written notice of termination, stating the nature of such default to DEVELOPER at least thirty (30) days prior to the effective date of termination; provided, however, that DEVELOPER may avoid termination by immediately initiating a remedy to cure such default, curing it to BEN & JERRY'S satisfaction, and by promptly providing proof thereof to BEN & JERRY'S within the thirty (30) day period.
Source: Item 23 — RECEIPTS (FDD pages 134–358)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, a developer may be able to avoid termination for certain defaults. If the developer fails to comply with any material term or condition of the Development Agreement, or any Franchise Agreement or development agreement, this constitutes a default. Ben & Jerry's may terminate the agreement by providing written notice at least thirty days prior to termination.
However, the developer can avoid termination if they immediately begin to remedy the default, cure it to Ben & Jerry's satisfaction, and provide proof of the cure within the 30-day period. If the default is not cured within this timeframe, the agreement will terminate immediately upon the expiration of the 30-day period, or any longer period required by applicable law.
There are exceptions where Ben & Jerry's may terminate the agreement without an opportunity to cure. These include instances where the developer becomes insolvent, makes an assignment for the benefit of creditors, or faces bankruptcy proceedings. Additionally, if the Franchise Agreement for any Scoop Shop operated by the developer is terminated, Ben & Jerry's may terminate the Development Agreement immediately without an opportunity to cure.