Does the release and covenant not to sue in the Ben Jerrys agreement survive the expiration or termination of the Franchise Agreement?
Ben_Jerrys Franchise · 2025 FDDAnswer from 2025 FDD Document
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 & Jerry's 2025 Franchise Disclosure Document, Section 18.5 of the agreement, which includes the release and covenant not to sue, explicitly states that it survives the expiration or termination of the agreement. This means that even after the franchise agreement ends, the franchisee is still bound by the terms of the release and covenant not to sue, preventing them from pursuing certain legal actions against Ben & Jerry's.
This survival clause is a significant consideration for prospective franchisees. It limits their ability to bring claims against Ben & Jerry's for events occurring before or during the franchise term, even after the agreement has ended. The release covers a broad range of potential claims, whether known or unknown, arising prior to or on the effective date of the agreement. However, it does not apply to claims arising under federal and state franchise laws, unless such claims can be legally released by the agreement.
Such clauses are relatively common in franchise agreements, as franchisors seek to protect themselves from future litigation. Franchisees should carefully review this section and understand its implications before signing the agreement. It is advisable to seek legal counsel to fully understand the scope and limitations of the release and covenant not to sue, and to assess how it might affect their rights and options in the future.