Does Burneys Sweets More Brand Fund operate as a trust fund?
Burneys_Sweets_More Franchise · 2025 FDDAnswer from 2025 FDD Document
- (iv) Liability.
Neither Franchisor and its affiliates nor any of its respective officers, directors, agents or employees, shall be liable to Franchisee with respect to the maintenance, direction or administration of the Brand Fund, including without limitation,
with respect to contributions, expenditures, investments or borrowing, except for acts constituting willful misconduct. THE BRAND FUND IS NOT A TRUST FUND. FRANCHISOR SHALL HAVE NO FIDUCIARY DUTY TO FRANCHISEE IN CONNECTION WITH THE COLLECTION OR USE OF THE BRAND FUND MONIES OR ANY ASPECT OF THE OPERATION OF THE BRAND FUND. FRANCHISEE ACKNOWLEDGES AND AGREES THAT FRANCHISOR WILL HAVE NO LIABILITY TO FRANCHISEE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THE BRAND FUND OR ANY ADVERTISING PROGRAMS OR FRANCHISOR'S MODIFICATION OR DISCONTINUANCE FOR ANY REASON OF THE BRAND FUND OR ANY MARKETING, BRANDING, OR ADVERTISING PROGRAMS, OR FRANCHISEE'S PARTICIPATION THEREIN.
Source: Item 22 — CONTRACTS (FDD page 50)
What This Means (2025 FDD)
According to the 2025 Burneys Sweets More FDD, the Brand Fund is not a trust fund. The FDD explicitly states that the Brand Fund is not an asset of Burneys Sweets More or its designee. Furthermore, Burneys Sweets More has no obligation to provide franchisees with an accounting of how the Brand Fund's expenditures are allocated.
Burneys Sweets More, in its sole discretion, can spend more or less than the aggregate contributions to the Brand Fund in any fiscal year. The Brand Fund can also borrow from Burneys Sweets More or other lenders to cover deficits or invest any surplus. Franchisees acknowledge that other franchisees may not be required to contribute to the Brand Fund or may be required to contribute at a different rate. Burneys Sweets More is not obligated to maintain the Brand Fund contributions or income earned in a separate account from other Burneys Sweets More funds.
Burneys Sweets More and its affiliates, along with their respective officers, directors, agents, or employees, will not be liable to the franchisee regarding the maintenance, direction, or administration of the Brand Fund, except for acts constituting willful misconduct. Burneys Sweets More has no fiduciary duty to franchisees in connection with the collection or use of the Brand Fund monies or any aspect of the operation of the Brand Fund. Franchisees acknowledge that Burneys Sweets More will have no liability for any damages arising out of or connected to the Brand Fund or any advertising programs, or Burneys Sweets More's modification or discontinuance for any reason of the Brand Fund or any marketing, branding, or advertising programs, or franchisee's participation therein.