Does the Ben Jerrys Franchise Agreement require the OPERATOR to engage in Off-Premises Activities?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
n this Agreement, and for other good and
valuable consideration, the sufficiency and receipt of which is hereby acknowledged, agree as follows:
1. GRANT
- 1.1 BEN & JERRY'S grants to OPERATOR the right, and OPERATOR hereby undertakes the obligation, upon the terms and conditions set forth in this Agreement: (a) to establish and operate a Ben & Jerry's Shop that offers a full assortment of products designated by BEN & JERRY'S (the "Scoop Shop"), and (b) to use the Proprietary Marks and the System solely in connection therewith.
- 1.2 BEN & JERRY'S grants to OPERATOR the right, but not the obligation, to engage in off-premises activities, including scooping 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"), delivery by third parties (e.g., Uber Eats, GrubHub and DoorDash) to customers' homes, offices and other locations ("On-Demand Sales"), and the scooping of Products from a mobile scooping facility such as a truck or trailer ("Mobile Vending") provided that such Off-Premises Activities, On-Demand Sales and Mobile Vending are held within the Territory specified in Exhibit A, and are conducted in accordance with the terms and conditions stated in this Agreement and as may be set forth 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. All Off-Premises Activities, On-Demand Sales and Mobile Vending shall be subject to the terms of this Agreement.
- 1.3 OPERATOR shall operate the Scoop Shop only at the authorized location (the "Authorized Location") specified in Exhibit A. OPERATOR shall not relocate the Scoop Shop without the prior written approval of BEN & JERRY'S, which shall be subject to the terms of Section 7.26 below.
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 not obligate the OPERATOR to participate in off-premises activities. Instead, Ben Jerrys may grant the OPERATOR the right, but not the obligation, to engage in these activities. These off-premises activities include scooping at special events like festivals and concerts, catering at private locations, on-demand sales through third-party delivery services, and mobile vending using a truck or trailer.
However, if the OPERATOR wishes to engage in Off-Premises Activities, On-Demand Sales or Mobile Vending at a location other than the Premises, the OPERATOR must submit a written request to Ben & Jerrys in accordance with the Manual for the prior approval of Ben & Jerrys.
Ben Jerrys retains significant control over these activities, including the right to approve or deny an OPERATOR's involvement. Furthermore, Ben Jerrys can revoke permission for off-premises sales if another operator or developer gains territorial rights in the area where the activities are taking place. This indicates that while franchisees have the opportunity to expand their services beyond the traditional scoop shop, their ability to do so is subject to Ben Jerrys's discretion and strategic considerations.