Does Ben Jerrys grant the operator the right to engage in off-premises activities?

ments of each party to the other party set forth herein and in the Franchise Agreement, hereby mutually agree as follows:

1. The parties acknowledge and agree that the term "Scoop Shop," as used in the Franchise Agreement and this Addendum, and as it relates to the franchised "Ben & Jerry's" Scoop Shop to be owned and operated by OPERATOR pursuant to the Franchise Agreement, shall incorporate the term "Satellite Shop" as that term is defined in Paragraph D of the Recitals of this Addendum.

• 1. The parties acknowledge and agree that the rights granted to, and the obligations assumed by, OPERATOR under Section 1.1 of the Franchise Agreement to operate a "Scoop Shop" shall be for the operation of a Satellite Shop.
• 1. Section 1.2 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:
  • 1.2 BEN & JERRY'S may grant 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 Door Dash) to customers' homes, offices and other locations ("On-Demand Sales"), and the scooping of Products from a mobile scooping facility such as a truck of trailer ("Mobile Vending") with such Off-Premises Activity, On-Demand Sales and Mobile Vending to be approved by BEN & JERRY'S as described below in Section 7.3. All Off-Premises Activities, On-Demand Sales and Mobile Vending shall be subject to the terms 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.
• 1. Section 1.4 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:
  • 1.4 OPERATOR acknowledges that this Agreement does not grant or imply any protected area or territory for the Scoop Shop. During the term of this Agreement, BEN & JERRY'S may establish or operate, or license any other person to establish or operate, a Scoop Shop, other type of Ben & Jerry's Shops (collectively, "Shops") selling the Ben & Jerry's Products and Non-Proprietary Products (collectively, the "Products") at any location except the Authorized Location. BEN & JERRY'S retains the rights, among others, on any terms and conditions BEN & JERRY'S deems advisable, and without granting OPERATOR any rights therein:
  • 1.4.1 To own, acquire, establish, and/or operate and license others to establish and operate, Shops selling the Products at any location except the Authorized Location;
  • 1.4.2 To own, acquire, establish and/or operate and license others to establish and operate, businesses under the Proprietary Marks, at any location, and which may be similar to Shops, but which do not operate under the System and are not operating as retail scooped ice cream, sorbet and/or frozen yogurt businesses (this provision in no way limits the other rights reserved under Section 1.4.4);
  • 1.4.3 To acquire, own and/or operate, and license others to operate, businesses under other proprietary marks and other systems, whether such businesses are similar or different from Shops, at any location regardless of the proximity to the Authorized Location;

• 1.4.4 To own, acquire, establish, and/or operate and license others to establish and operate, Shops under the Proprietary Marks at limited purpose, limited access, and captive audience facilities, and other types of institutional accounts (which shall include, without limitation, airports, parks, stadiums, business and industrial complexes, theaters, museums, educational facilities, hospitals, and art centers) (collectively, "Institutional Facilities") at any location regardless of the proximity to the Authorized Location;

• 1.4.5 To give, donate, or contribute Products to charitable and community organizations and events for fund raising and other events, and to offer Products for sampling by consumers and organizations for product testing, promotions and demonstrations at any location except the Authorized Location unless approved by OPERATOR; and

• 1.4.6 To sell or distribute, directly or indirectly, or license others to sell or distribute, under the Proprietary Marks, at any location regardless of the proximity to the Authorized Location: (i) prepackaged and other Products at and/or to Institutional Facilities and other facilities serviced by contract feeders, and for sales made at restaurants; (ii) only prepackaged Products to retail outlets (including without limitation supermarkets, groceries, mom & pops, gourmet shops, convenience stores, and food carts) and non-food retail stores (including without limitation warehouse clubs, drug stores, and book stores); (iii) prepackaged and other Products to audiences at Special Events, subject to the terms of Section 7.3 and 7.4 below; and (iv) prepackaged and other Products to customers through mail order, toll-free numbers, or the Internet.

• 1. Section 2.1 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:
  • 2.1 This Agreement shall be in effect upon its acceptance and execution by BEN & JERRY'S and, unless this Agreement is sooner terminated as provided herein, this Agreement shall expire five (5) years from the date on which the Scoop Shop first opens for business..

Source: Item 22 — CONTRACTS (FDD pages 133–134)