How do the franchisee's obligations regarding site selection and acquisition/lease for Ben Jerrys (Item 9) interact with the territory provisions outlined in the Preliminary Agreement (Item 12)?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
| Obligation | Section(s) in Agreement | Disclosure Document Item | |
|---|---|---|---|
| a. Site selection and acquisition/lease | §§ 2 and 6 of Preliminary Agreement; §§ 3 and 5 of Development Agreement | Items 8 and 11 |
As described in Item 1, we may permit franchisees to establish an Authorized Warehouse in which to store Ben & Jerry's ice cream catering products for Off-Premises Activities or Mobile Vending. The location of the Authorized Warehouse will be designated in your Warehouse Addendum. You may only use the Authorized Warehouse for the following purposes: warehouse for Products and other products, storage of catering supplies, general storage space, office space, parking for cart(s) and truck(s), and such other uses and we may specify in the Manual, or otherwise approve in writing.
You may not relocate the Shop from the Authorized Location unless you obtain our prior written approval of your request to relocate, which request must meet certain criteria. The substitute location must be within the Territory of your Shop (or, in the case of a Satellite Shop, it must be within the Territory of your Shop). Among other factors, we will assess your financial ability to meet the necessary costs incurred in relocating. We are not required to approve any relocation request. If you qualify to relocate, we will require that you enter into our then-current form of Franchise Agreement (replacing your existing franchise agreement) for the remainder of the term of your franchise. Although you will not pay an initial fee for entering into our thencurrent form of franchise agreement (as it will cover only the remainder of term of your existing franchise), we will charge a fee for the re-location of a franchise to include our costs for the evaluation of you, your proposed site and the documentation of your proposed location and replacement franchise agreement. See Item 6 for more information regarding the relocation fee.
PROSPECTIVE OPERATOR represents and warrants to BEN & JERRY'S that (i) PROSPECTIVE OPERATOR has not executed a lease for the Shop; and (ii) PROSPECTIVE OPERATOR shall only execute a lease for the Shop after obtaining approval of the proposed site by BEN & JERRY'S in accordance with Section 6 of this Preliminary Agreement.
PROSPECTIVE OPERATOR acknowledges and agrees that if PROSPECTIVE OPERATOR executes a lease for the Shop prior to obtaining the approval of the site by BEN & JERRY'S, such action shall be a non-curable default and BEN & JERRY'S may, at its option, terminate this Preliminary Agreement immediately and all rights granted hereunder.
PROSPECTIVE OPERATOR hereby acknowledges and agrees that approval by BEN & JERRY'S of a site does not constitute an assurance, representation or warranty of any kind, express or implied, as to the suitability of the site for the Shop or for any other purpose. Approval by BEN & JERRY'S of the site indicates only that BEN & JERRY'S believes the site complies with acceptable minimum criteria established by BEN & JERRY'S solely for its purposes as of the time of the evaluation. Both PROSPECTIVE OPERATOR and BEN & JERRY'S acknowledge that application of criteria that have been effective with respect to other sites and premises may not be predictive of potential for all sites and that, subsequent to approval by BEN & JERRY'S of a site, demographic and/or economic factors, such as competition from other similar businesses, included in or excluded from criteria used by BEN & JERRY'S could change, thereby altering the potential of a site. Such factors are unpredictable and are beyond the control of BEN & JERRY'S. BEN & JERRY'S shall not be responsible for the failure of a site approved by BEN & JERRY'S to meet PROSPECTIVE OPERATOR's expectations as to revenue or operational criteria. PROSPECTIVE OPERATOR further acknowledges and agrees that its acceptance of a franchise for the operation of the Shop at the site is based on its own independent investigation of the suitability of the site.
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, Item 9 outlines the franchisee's obligations, including site selection and acquisition/lease, referencing sections 2 and 6 of the Preliminary Agreement and sections 3 and 5 of the Development Agreement. Item 12 discusses territory, indicating that a franchisee may be permitted to establish an Authorized Warehouse for storing Ben & Jerry's ice cream catering products for Off-Premises Activities or Mobile Vending, as described in Item 1. The location of the Authorized Warehouse will be designated in the Warehouse Addendum.
Specifically, the FDD states that the franchisee may not relocate the Shop from the Authorized Location without prior written approval from Ben Jerrys, and the substitute location must be within the Territory of the Shop. Ben Jerrys will assess the franchisee's financial ability to meet the relocation costs and is not required to approve any relocation request. If relocation is approved, the franchisee will be required to enter into Ben Jerrys's then-current form of Franchise Agreement for the remainder of the franchise term. While no initial fee will be charged for the new agreement, Ben Jerrys will charge a relocation fee to cover the costs of evaluating the franchisee, the proposed site, and the documentation of the proposed location and replacement franchise agreement. Item 6 provides more information on the relocation fee.
Furthermore, the Preliminary Agreement emphasizes the importance of Ben Jerrys's site approval. The document states that prospective operators represent that they have not executed a lease for the shop and will only do so after obtaining Ben Jerrys's approval, as per Section 6 of the Preliminary Agreement. Executing a lease before obtaining approval constitutes a non-curable default, allowing Ben Jerrys to terminate the Preliminary Agreement immediately. Ben Jerrys's approval of a site does not guarantee its suitability or potential revenue, as demographic and economic factors can change. The prospective operator is responsible for their own independent investigation of the site's suitability.