What obligations within the Ben Jerrys agreement survive its expiration or termination?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
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- Confidentiality. During the Evaluation Period, certain confidential information about BEN & JERRY'S and its System may be disclosed or otherwise made known to PROSPECTIVE OPERATOR ("Confidential Information"). PROSPECTIVE OPERATOR agrees to respect and maintain the confidential nature of such Confidential Information, and not in any way disclose the Confidential Information in the operation of any business (excluding a Shop operated pursuant to a Franchise Agreement). It is agreed that PROSPECTIVE
OPERATOR's obligations under this Section 8 shall not expire upon termination of this Preliminary Agreement.
PROSPECTIVE OPERATOR, for itself and on behalf of its affiliates and related entities, and their respective shareholders, officers, directors, limited liability company members, managers and employees, and their respective successors and assigns, and on behalf of the PROSPECTIVE OPERATOR's Owners, hereby (i) releases and forever discharges BEN & JERRY'S, its parents, affiliates and related entities, and its and their respective current and former officers, directors, owners, shareholders, employees, agents, representatives and attorneys, and its and their respective successors and assigns, from any and all claims, demands and causes of action, whether known or unknown, of any kind or nature, vested or contingent, at law or in equity, arising prior to or on the Effective Date, and (ii) agrees that none of them will institute any litigation or other legal action or proceeding, at law or in equity, against BEN & JERRY'S, its parents, affiliates and related entities, and its and their respective current and former officers, directors, owners, shareholders, employees, agents, representatives and attorneys, and its and their respective successors and assigns, directly or indirectly, relating to any claim or demand released under this Section 19, provided, however, that this release and covenant not to sue shall not apply to any claim that arises under any applicable federal and state franchise sales laws, except to the extent such claims may by law be released by this Preliminary Agreement.
PROSPECTIVE OPERATOR shall take whatever actions are necessary or appropriate to carry out the terms of this release and covenant not to sue upon BEN & JERRY'S request.
This Section 19 shall survive the expiration or termination of this Agreement.
16.2 Any provision or covenant in this Agreement which expressly or by its nature imposes obligations beyond the expiration or termination of this Agreement (regardless of cause for termination), or transfer shall survive such expiration, termination, or transfer.
18.5 DEVELOPER, for itself and on behalf of its affiliates and related entities, and their respective shareholders, officers, directors, limited liability company members, managers and employees, and their respective successors and assigns, and on behalf of the DEVELOPER'S Owners, hereby (i) releases and forever discharges BEN & JERRY'S, its parents, affiliates and related entities, and its and their respective current and former officers, directors, owners, shareholders, employees, agents, representatives and attorneys, and its and their respective successors and assigns, from any and all claims, demands and causes of action, whether known or unknown, of any kind or nature, vested or contingent, at law or in equity, arising prior to or on the Effective Date, and (ii) agrees that none of them will institute any litigation or other legal action or proceeding, at law or in equity, against BEN & JERRY'S, its parents, affiliates and related entities, and its and their respective current and former officers, directors, owners, shareholders, employees, agents, representatives and attorneys, and its and their respective successors and assigns, directly or indirectly, relating to any claim or demand released under this Section 18.5, provided, however, that this release and covenant not to sue shall not apply to any claim that arises under any applicable federal and state franchise laws, except to the extent that such claims may by law be released by this Agreement.
DEVELOPER shall take whatever actions are necessary or appropriate to carry out the terms of this release and covenant not to sue upon BEN & JERRY'S request.
This Section 18.5 shall survive the expiration or termination of this Agreement.
Source: Item 23 — RECEIPTS (FDD pages 134–358)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, several obligations survive the expiration or termination of the agreement. For prospective operators entering into a Preliminary Agreement, the obligation to maintain the confidentiality of Ben & Jerry's Confidential Information, which includes sensitive details about their system, remains in effect even after the agreement ends. This means that operators cannot disclose or use this information in any business outside of a Ben & Jerry's Shop operated under a Franchise Agreement. Additionally, the clause releasing Ben & Jerry's from certain claims and agreeing not to sue them also survives the termination or expiration of the Preliminary Agreement.
For developers entering into a Development Agreement, any provision or covenant that expressly or by its nature imposes obligations beyond the expiration or termination of the agreement will remain in effect. This could include ongoing responsibilities or restrictions that extend beyond the agreement's term. Similarly, the clause releasing Ben & Jerry's from certain claims and agreeing not to sue them also survives the termination or expiration of the Development Agreement.
These survival clauses are typical in franchise agreements to protect the franchisor's confidential information, brand reputation, and legal interests even after the franchisee relationship concludes. Prospective franchisees should carefully review these clauses to understand their ongoing obligations and potential liabilities.