For the Bens Soft Pretzels sublicense agreement, does a specific enumeration exclude the general?
Bens_Soft_Pretzels Franchise · 2025 FDDAnswer from 2025 FDD Document
We and our affiliates retain all rights that are not expressly granted to you under this Agreement. Further, we and our affiliates may, among other things, on any terms and conditions we deem advisable, without compensation to any franchisee, and without granting you any rights therein:
- (i) establish and/or license others to establish franchised or company-owned or affiliate-owned Stores at any location, regardless of the proximity of such stores to your Designated Area;
- (ii) merge with, acquire or become associated with ("Merger/Acquisition Activity") any businesses or stores of any kind (including those in competition with BEN'S SOFT PRETZELS) under other systems and/or marks, which businesses and stores may convert to or operate under the Trademarks and may offer or sell menu items, products and services that are the same as or similar to the Menu Items offered at or from the Store, and which may be located anywhere; and
- (iii) sell and distribute for ourselves and/or license others to sell and distribute through franchised businesses or any other method of distribution menu items the same as or different from the Menu Items offered under the System, and which are offered and distributed under marks different than the Trademarks.
We and our affiliates also have the right to offer, sell or distribute any proprietary items or other products or services associated with the System (now or in the future) or identified by the Trademarks, or any other trademarks, service marks or trade names through any distribution channels or methods, without compensation to any franchisee. The distribution channels or methods ("Alternative Methods of Distribution") include, without limitation, grocery stores, club stores, convenience stores, wholesale, business or industry locations (e.g. manufacturing site, office building), military installations, military commissaries or the Internet (or any other existing or future form of electronic commerce).
You acknowledge and agree that certain locations are by their nature unique and separate in character from sites generally developed as BEN'S SOFT PRETZELS stores. As a result, you agree that we have the right to develop or franchise Special Site locations ("Special Sites") which include, but are not limited to the following locations regardless of their location and their proximity to your Store: (1) military bases; (2) public transportation facilities (including airports); (3) sports facilities (including hockey arenas); (4) student unions or other similar buildings on college or university campuses; (5) amusement and theme parks; (6) malls or enclosed shopping centers; and (7) community and special events.
Source: Item 22 — CONTRACTS (FDD pages 46–47)
What This Means (2025 FDD)
According to the 2025 Bens Soft Pretzels Franchise Disclosure Document, the franchise agreement outlines specific instances where Bens Soft Pretzels retains rights not expressly granted to the franchisee. This means that while the agreement details certain permitted activities for the franchisee, Bens Soft Pretzels reserves the authority to undertake actions not explicitly mentioned in the agreement, without owing compensation to the franchisee.
Specifically, Bens Soft Pretzels and its affiliates have the right to establish franchised, company-owned, or affiliate-owned stores at any location, regardless of their proximity to a franchisee's designated area. They can also engage in mergers or acquisitions with other businesses, even those competing with Bens Soft Pretzels, and these businesses may operate under the Bens Soft Pretzels trademarks or offer similar menu items. Additionally, Bens Soft Pretzels can sell and distribute menu items through various methods, even under different trademarks.
Furthermore, Bens Soft Pretzels can distribute proprietary items or services through alternative channels like grocery stores, club stores, or the Internet, without compensating franchisees. The agreement also specifies that certain locations, such as military bases, airports, sports facilities, and amusement parks, are considered "Special Sites" that Bens Soft Pretzels can develop or franchise, irrespective of their proximity to existing stores. These clauses collectively indicate that the enumeration of specific franchisee rights does not exclude Bens Soft Pretzels from pursuing other business activities not explicitly addressed in the agreement.