How do the franchisee's obligations regarding site selection and acquisition/lease for Ben Jerrys (Item 9) relate to the franchisor's pre-opening assistance (Item 11)?
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 |
We are required by the Preliminary Agreement, Franchise Agreement and Development Agreement to provide the following types of assistance to you before you open the Shop:
If you sign a Preliminary Agreement, we will provide the following types of assistance and services to you:
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- We will review your request for a location and preliminary design approval, if you will lease or sublease the premises. (Preliminary Agreement § 6)
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- We will also review the lease or sublease to ensure that the lease contains the provisions required in the Preliminary Agreement, and that the duration of the lease is the same as
the term of your Franchise Agreement. (Preliminary Agreement § 7) The current form of required Lease Rider appears as Exhibit J to this Disclosure Document.
Before you open the Shop, we will provide the following types of assistance and services to you:
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- We will make available standardized plans and specifications for the Shop, which will include prototype interior design and layout, fixtures, equipment, furnishings, and signs and graphics. We also have the right to designate one or more design firms and architectural firms for use by all franchisees developing new Ben & Jerry's Shops. (Franchise Agreement §§ 3.1 and 5.1)
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, while Item 11 details the franchisor's pre-opening assistance. Specifically, the franchisee's obligation for site selection and acquisition/lease under Sections 2 and 6 of the Preliminary Agreement and Sections 3 and 5 of the Development Agreement is related to Items 8 and 11. This indicates that Ben Jerrys provides assistance related to site selection as part of their pre-opening support.
Ben Jerrys's pre-opening assistance includes reviewing the franchisee's location request and preliminary design if the premises are leased or subleased. They also review the lease or sublease to ensure it contains the provisions required in the Preliminary Agreement and that the lease duration matches the Franchise Agreement term. Ben Jerrys also makes available standardized plans and specifications for the shop, including prototype interior design and layout, fixtures, equipment, furnishings, and signs and graphics. They can also designate design and architectural firms for franchisees developing new Ben & Jerry's Shops.
This assistance is crucial for franchisees as it helps ensure that the selected site and lease terms align with Ben Jerrys's requirements and standards. While Ben Jerrys provides this assistance, prospective franchisees should note that Ben Jerrys's approval of a site does not guarantee its suitability or success. The FDD states that the franchisee's 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. Franchisees must conduct their own due diligence to assess the site's potential.
Therefore, while Ben Jerrys offers support in reviewing and approving the site and lease, the ultimate responsibility for selecting a suitable location rests with the franchisee. This highlights the importance of franchisees actively participating in the site selection process and conducting thorough market research to ensure the chosen location meets their expectations for revenue and operational criteria.