factual

What sections of the original Ben Jerrys Franchise Agreement are deleted and replaced by this addendum?

Ben_Jerrys Franchise · 2025 FDD

Answer from 2025 FDD Document

THIS ADDENDUM ("Addendum"), made and entered into on,
, by and between Ben & Jerry's Franchising, Inc., a Vermont corporation with its
principal place of business at 530 Community Drive, Suite 1, South Burlington, Vermont ("BEN
& JERRY'S"), and("OPERATOR").
BACKGROUND:
A.
BEN & JERRY'S and OPERATOR have this day entered into a Ben & Jerry's
Franchising, Inc. Scoop Shop Franchise Agreement (the "Franchise Agreement").
B.
BEN & JERRY'S and OPERATOR wish to amend the Franchise Agreement to
reflect changes to the duration of the Franchise Agreement and the amount of the initial franchise
fee.
C.
All capitalized terms not otherwise defined in this Addendum shall have the same
meaning as in the Franchise Agreement.
NOW THEREFORE, BEN & JERRY'S and OPERATOR, in consideration of the
undertakings and commitments of each party to the other party set forth herein and in the
Franchise Agreement, hereby mutually agree as follows:
1.
Sections 2.1 and 2.2 of the Franchise Agreement shall be deleted in their entirety
and shall have no force or effect, and shall be replace with the following:
2.1
This Agreement shall be in effect upon its acceptance and
execution by BEN & JERRY'S and, except as otherwise provided herein, the term
of this Agreement shall be () years from the date first above written.
2.
Section 4.1 of the Franchise Agreement shall be deleted in its entirety and
shall have no force or effect, and shall be replaced with the following:
4.1
In consideration of the franchise granted herein, OPERATOR has
paid to BEN & JERRY'S an initial franchise fee of dollars
($).
Receipt of the initial franchise fee is hereby acknowledged, which
amount is earned and non refundable in consideration of administrative and other
expenses incurred by BEN & JERRY'S in entering into this Agreement.
3.
This Addendum constitutes an integral part of the Franchise Agreement between
the parties hereto, and the terms of this Addendum shall be controlling with respect to the subject
matter hereof.
Except as modified or supplemented by this Addendum, the terms of the
Franchise Agreement are hereby ratified and confirmed.

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.

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:

Subsection 2.2.9 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced by the following:

  • 2.2.9 OPERATOR shall pay BEN & JERRY'S a renewal fee in an amount of Five Thousand Dollars ($5,000).
    1. Section 4.1 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:
    • 4.1 In consideration of the franchise granted herein, OPERATOR has paid to BEN & JERRY'S an initial franchise fee of Eight Thousand Dollars ($8,000), receipt of which is hereby acknowledged, which is earned and non-refundable in consideration of administrative and other expenses incurred by BEN & JERRY'S in entering into this Agreement.
    1. The first sentence in Section 5.6 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:

Unless delayed by the occurrence of events constituting "force majeure" as defined below, OPERATOR shall construct, furnish, and open the Scoop Shop in accordance with this Agreement and OPERATOR shall open the Scoop Shop by the opening date (the "Opening Date") specified in Exhibit A.

    1. The last sentence in Section 6.2 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect.
    1. Section 7.2 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:
    • 7.2 OPERATOR shall use the premises of the Scoop Shop (the "Premises") solely for the operation of the Scoop Shop; shall keep the Scoop Shop open and in normal operation continuously during the period specified in Exhibit A ("Minimum Period of Operation") for such minimum hours and days as may be specified by OPERATOR'S lease (or in the event that OPERATOR'S lease does not designate minimum hours and days, such minimum hours and days as BEN & JERRY'S may specify in the Manual or otherwise in writing); and shall refrain from using or permitting the use of the Premises for any other purpose or activity at any time without first obtaining the written consent of BEN & JERRY'S.
    1. Section 7.3 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:
    • 7.3 In performing Off-Premises Activities, On-Demand Sales and Mobile Vending, OPERATOR shall comply with the terms and conditions stated in this Agreement and in the Manual, including without limitation guidelines and requirements relating to insurance coverage, event size, event duration and vehicle use.
    1. Section 7.4.2 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:
    • 7.4 If OPERATOR desires to engage in Off-Premises Activities, On-Demand Sales or Mobile Vending at a location other than the Premises, OPERATOR must submit a written request to BEN & JERRY'S in accordance with the Manual for the prior approval of BEN & JERRY'S.

Section 7.5.1 of the Franchise Agreement shall be deleted and shall have no force or effect.

Section 7.23 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect.

Sections 14.2 of the Franchise Agreement shall be supplemented by the addition of the following at the end of the section:

Section 15.3.3 of the Franchise Agreement shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:

  • 15.3.3 If OPERATOR fails to operate the Scoop Shop during the Minimum Period of Operation or during such days and hours as required by OPERATOR'S lease (or, in the event OPERATOR'S lease does not designate minimum days and hours, such minimum days and hours as BEN & JERRY'S may specify in the Manual or otherwise in writing); or

Default and Termination.

Section 15 of the Franchise Agreement shall be supplemented by the addition of the following Section 15.6, which shall be considered an integral part thereof:

  • 15.6 Any default under the Franchise Agreement for Affiliated Shop shall constitute a default under this Agreement, and any default under this Agreement shall constitute a default under the Franchise Agreement for Affiliated Shop.

In Section 17.1 of the Franchise Agreement, the last sentence shall be deleted in its entirety and shall have no force or effect, and shall be replaced with the following:

To that end, OPERATOR shall use best efforts to: (1) maximize the sale of the Ben & Jerry's Products at the Authorized Location; (2) promote the Scoop Shop; and (3) implement recommendations from BEN & JERRY'S.

    1. Exhibit A of the Franchise Agreement shall be deleted it its entirety and shall have no force and effect and shall be replaced with the Exhibit A attached hereto.

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

What This Means (2025 FDD)

According to Ben Jerrys's 2025 Franchise Disclosure Document, several sections of the original franchise agreement are deleted and replaced by addenda. Specifically, Section 1.2 regarding off-premises activities, on-demand sales, and mobile vending is replaced, clarifying Ben & Jerry's right to approve these activities. Section 1.4, concerning protected territories, is also replaced, emphasizing that Ben & Jerry's does not grant protected territories for Scoop Shops, allowing them to establish other shops at any location except the franchisee's authorized location.

Further changes include the deletion and replacement of subsection 2.2.9, which likely pertains to renewal fees, with a specific renewal fee amount of $5,000. Sections 2.1 and 2.2, and Section 4.1 regarding the initial franchise fee of $8,000 are also deleted and replaced. The first sentence of Section 5.6, related to the opening date of the Scoop Shop, is replaced, adding a condition for delays due to "force majeure" events. The last sentence in Section 6.2 is deleted entirely, without replacement.

Operational aspects are also modified, with Section 7.2, concerning the use of the premises and minimum operating hours as specified in Exhibit A, being replaced. Section 7.3, related to off-premises activities, on-demand sales, and mobile vending, is replaced to emphasize compliance with the agreement and manual. Section 7.4.2, requiring written approval for off-premises activities, on-demand sales, or mobile vending at locations other than the premises, is also replaced. Sections 7.5.1 and 7.23 are deleted entirely. Section 15.3.3 is replaced, relating to the failure to operate during minimum hours. Exhibit A of the Franchise Agreement is also deleted and replaced in its entirety.

Finally, changes affecting transfer and default conditions are made. Sections 14.2 and 14.3 are supplemented with additional conditions regarding the transfer of interests, particularly for Satellite Shops. Section 15 is supplemented with Section 15.6, stipulating that a default under the Franchise Agreement for an Affiliated Shop constitutes a default under the current agreement, and vice versa. Section 17.1 is modified, replacing the last sentence to focus on the operator's best efforts to maximize sales, promote the Scoop Shop, and implement Ben & Jerry's recommendations.

Disclaimer: This information is extracted from the 2025 Franchise Disclosure Document and is provided for research purposes only. It does not constitute legal or financial advice. Consult with a franchise attorney before making any investment decisions.
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