Can Ben Jerrys operate, develop, and change the Ben Jerrys System in any manner?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
- 13.4 BEN & JERRY'S shall have the right to operate, develop and change the System in any manner that is not specifically precluded by this Agreement.
Whenever BEN & JERRY'S reserves or is deemed to have reserved a right, option, or discretion in a particular area or where BEN & JERRY'S agrees or is deemed to be required to exercise its rights reasonably or in good faith, BEN & JERRY'S will satisfy its obligations whenever it exercises reasonable business judgment in making its decision or exercising its rights.
A decision or action by BEN & JERRY'S will be deemed to be the result of reasonable business judgment, even if other reasonable or even arguably preferable alternatives are available, if BEN & JERRY'S is intended, in whole or significant part, to promote or benefit the System generally even if the decision or action also promotes a financial or other interest of BEN & JERRY'S and/or is adverse to DEVELOPER'S interests.
Examples of items that will promote or benefit the System include enhancing the value of the Proprietary Marks, improving customer service and satisfaction, improving product quality, improving uniformity, enhancing or encouraging modernization, and improving the competitive position of the System.
BEN & JERRY'S reasonable business judgment shall not be subject to any limitation or review and neither DEVELOPER nor any third party (including a trier of fact), shall substitute its judgment for BEN & JERRY'S reasonable business judgment.
If applicable law implies a covenant of good faith and fair dealing in this Agreement, BEN & JERRY'S and DEVELOPER agree that such covenant shall not imply any rights or obligations that are inconsistent with a fair construction of the terms of this Agreement and that this Agreement grants BEN & JERRY'S the right to make decisions, take actions and/or
refrain from taking actions not inconsistent with DEVELOPER'S rights and obligations hereunder.
Source: Item 23 — RECEIPTS (FDD pages 134–358)
What This Means (2025 FDD)
According to Ben Jerrys's 2025 Franchise Disclosure Document, Ben Jerrys has the authority to operate, develop, and modify the Ben Jerrys system in any way that isn't specifically restricted by the Development Agreement. This means Ben Jerrys retains considerable control over the evolution of the brand and its operational standards.
Ben Jerrys's decisions are considered valid as long as they demonstrate reasonable business judgment, even if other options exist or if the decision benefits Ben Jerrys financially while potentially impacting the developer's interests. Actions that enhance the Proprietary Marks, improve customer service, product quality, uniformity, modernization, or the competitive position of the Ben Jerrys system are examples of decisions that benefit the system.
Neither the developer nor any third party can substitute their judgment for Ben Jerrys's reasonable business judgment. Even if applicable law implies a covenant of good faith and fair dealing, this covenant does not grant rights or obligations inconsistent with the agreement's terms, which allows Ben Jerrys to make decisions and take actions that align with the developer's rights and obligations.