What is the Developer responsible for regarding Ben Jerrys and its officers, directors, and employees?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
LOPER shall hold itself out to the public as an independent contractor. DEVELOPER agrees to take such action as may be necessary to do so, including exhibiting a notice of that fact in a conspicuous place in DEVELOPER'S offices the content of which BEN & JERRY'S reserves the right to specify.
- 12.3 Nothing in this Agreement authorizes DEVELOPER to make any contract, warranty, or representation on the behalf of BEN & JERRY'S, or to incur any debt or other obligation in the name of BEN & JERRY'S; and BEN & JERRY'S shall in no event assume liability (or joint liability) for, or be deemed liable (or jointly liable) hereunder as a result of, any such action; nor shall BEN & JERRY'S be liable (or jointly liable) by reason of any act or omission of DEVELOPER in connection with DEVELOPER'S or DEVELOPER'S employees operation of the business contemplated hereunder, or for any claim or judgment arising therefrom against DEVELOPER or DEVELOPER'S employees or BEN & JERRY'S. DEVELOPER hereby waives all claims against BEN & JERRY'S for damages to property or injuries to persons arising out of the operation of DEVELOPER'S business. DEVELOPER is solely responsible for and shall indemnify and hold BEN & JERRY'S and the officers, directors, and employees of BEN & JERRY'S ("Indemnitees") harmless against any and all causes of action, claims, losses, costs, expenses, liabilities, litigation, damages or other expenses (including settlement costs and attorneys fees) arising directly or indirectly from, as a result of, or in connection with DEVELOPER'S (or DEVELOPER'S employees') development of Scoop Shops and/or conduct under this Agreement, including (a) any labor and employment violations; (b) joint employer violations; and (c) those alleged to be caused by the Indemnitees' negligence. DEVELOPER agrees that, with respect to any threatened or actual litigation, proceeding or dispute that could directly or indirectly affect any of the Indemnitees, the Indemnitees shall have the right, but not the obligation, to: (i) choose counsel, (ii) direct, manage and/or control the handling of the matter; and (iii) settle, on behalf of the Indemnitees, any claim against the Indemnitees and/or DEVELOPER at their sole option. 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.
Source: Item 23 — RECEIPTS (FDD pages 134–358)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, the Developer has several responsibilities related to Ben Jerrys and its officers, directors, and employees. The Developer is required to indemnify and hold harmless Ben Jerrys and its officers, directors, and employees (referred to as "Indemnitees") against any causes of action, claims, losses, costs, expenses, liabilities, litigation, damages, or other expenses, including settlement costs and attorneys' fees. This indemnification covers issues arising directly or indirectly from the Developer's (or its employees') development of Scoop Shops and/or conduct under the Development Agreement. This includes any labor and employment violations, joint employer violations, and issues alleged to be caused by the Indemnitees' negligence.
Furthermore, in the event of any threatened or actual litigation, proceeding, or dispute that could affect any of the Indemnitees, the Indemnitees have the right, but not the obligation, to choose counsel, direct the handling of the matter, and settle any claim against the Indemnitees and/or the Developer at their sole option. This right to defense and indemnification exists even if joint claims are brought or if joint liability is imposed on Ben Jerrys by law. The Developer also agrees to pay all costs and expenses, including reasonable attorneys' fees, incurred by Ben Jerrys in connection with the enforcement of Section 8 of the agreement.
At Ben Jerrys's request, the Developer must obtain and furnish executed covenants similar in substance to those set forth in Section 8 from any or all of the following persons: all officers, directors, and holders of a beneficial interest of one percent (1%) or more of the securities of the Developer, and of any corporation directly or indirectly controlling, controlled by, or under common control with, the Developer, if the Developer is a corporation; and the general partners and any limited partners (including any corporation, and the officers, directors, and holders of a beneficial interest of one percent (1%) or more of the securities of any corporation which controls, directly or indirectly, any general or limited partner), if the Developer is a partnership. These covenants must be in a form approved by Ben & Jerry's, including specific identification of Ben Jerrys as a third-party beneficiary with the independent right to enforce them.
These stipulations ensure that Ben Jerrys is protected from liabilities and legal issues arising from the Developer's operations and conduct. The Developer's agreement to these terms is a critical part of the franchise relationship, providing Ben Jerrys with recourse in case of disputes or legal actions. Prospective developers should carefully consider these obligations and the potential financial implications of these indemnification and covenant requirements.