What are some distinguishing characteristics of the Ben Jerrys System, as defined in the agreement?

• C.

The System is identified by means of certain trade names, service marks, trademarks, logos, emblems, and indicia of origin as are now designated and may hereafter be designated by BEN & JERRY'S in writing for use in connection with the System including the mark "Ben & Jerry's" and other marks (the "Proprietary Marks").

• D.

OPERATOR desires to enter into the business of operating an ice cream and frozen yogurt shop under the System and using the Proprietary Marks, and wishes to enter into this agreement with BEN & JERRY'S for that purpose, and to receive the training and other assistance provided by BEN & JERRY'S in connection therewith.

• E.

OPERATOR understands and acknowledges the importance of the high standards of BEN & JERRY'S for quality, cleanliness, appearance, and service and the necessity of operating the business franchised hereunder in conformity with the standards and specifications of BEN & JERRY'S.

• NOW, THEREFORE, the parties, in consideration of the undertakings and commitments of each party to the other set forth in this Agreement, and for other good and

valuable consideration, the sufficiency and receipt of which is hereby acknowledged, agree as follows:

1. GRANT

• 1.1 BEN & JERRY'S grants to OPERATOR the right, and OPERATOR hereby undertakes the obligation, upon the terms and conditions set forth in this Agreement: (a) to establish and operate a Ben & Jerry's Shop that offers a full assortment of products designated by BEN & JERRY'S (the "Scoop Shop"), and (b) to use the Proprietary Marks and the System solely in connection therewith.

• 7.11.2 BEN & JERRY'S shall have the right from time to time, and at any time, to retrieve data and information relating to the operations of the Scoop Shop from OPERATOR's Computer System, by modem or other requested means, and use it for any reasonable business purpose both during and after the term of this Agreement.

BEN & JERRY'S may, from time to time, specify in the Manual or otherwise in writing the information that OPERATOR shall collect and maintain on the Computer System installed at the Scoop Shop, and OPERATOR shall provide to BEN & JERRY'S such reports as BEN & JERRY'S may reasonably request from the data so collected and maintained, which shall be in the form and format prescribed or approved by BEN & JERRY'S;

• 7.11.3 OPERATOR shall keep its Computer System in good maintenance and repair and, at its expense, shall promptly install such additions, changes, modifications, substitutions, and/or replacements to the Computer System, telephone and power lines, and other computer-related facilities, as BEN & JERRY'S directs (including those pertaining to the processing of credit/debit cards as described in Section 7.11.7 and 7.11.8, below).

• 7.19 Without limiting any other provision in this Agreement, BEN & JERRY'S has the perpetual and exclusive right to own and use and to authorize other Scoop Shops to use, and

OPERATOR will fully and promptly disclose to BEN & JERRY'S, all ideas, plans, innovations, improvements, concepts, formulas, recipes, methods and techniques relating to the development or operation of a Scoop Shop or any similar business conceived or developed by OPERATOR or OPERATOR'S employees during the term of this Agreement (collectively, "Innovations"). BEN & JERRY'S shall have all right, title, and interest in any Innovations, without compensation to OPERATOR and OPERATOR shall have no right, title, or interest whatsoever in any and all Innovations. BEN & JERRY'S shall not be obligated to approve or accept any request to implement any Innovations. BEN & JERRY'S may from time to time revoke its approval of a particular change or amendment to the System. Upon receipt of written notice of such revocation, OPERATOR shall modify its activities in the manner described by BEN & JERRY'S.

• 7.20 OPERATOR shall comply with all terms of its lease or sublease, its financing agreements (if any), and all other agreements affecting the operation of the Scoop Shop; shall undertake best efforts to maintain a good and positive working relationship with its landlord and/or lessor; and shall not engage in any activity which may jeopardize OPERATOR's right to remain in possession of, or to renew the lease or sublease for, the Premises.

• 7.21 OPERATOR must at all times pay its distributors, independent contractors, suppliers, trade creditors, landlord, lender, employees and other creditors promptly as the debts and obligations to such persons become due, and failure to do so shall constitute a breach of this Agreement.

• 12.7 If OPERATOR desires to use marketing and promotional plans and materials that have not been provided or previously approved by BEN & JERRY'S, OPERATOR shall submit samples of all such marketing and promotional plans and materials to BEN & JERRY'S (as provided in Section 12.5 herein) for prior approval (except with respect to prices to be charged).

If written notice of disapproval is not received by OPERATOR from BEN & JERRY'S within ten (10) business days of the date of receipt by BEN & JERRY'S of such samples or materials, BEN & JERRY'S shall be deemed to have approved them.

• 12.8 OPERATOR specifically acknowledges and agrees that any Webpage (as defined below) shall be deemed "advertising" under this Agreement, and will be subject to (among other things) BEN & JERRY'S approval under the provisions of Section 12.5 above.

• 17.1 OPERATOR covenants that, during the term of this Agreement, except as otherwise approved in writing by BEN & JERRY'S, OPERATOR (or, if OPERATOR is other than an individual, an Owner) shall devote full time and best efforts to the management and operation of the Scoop Shop. "Full time and best efforts" shall be as set forth by BEN & JERRY'S in the Manual or otherwise in writing, and shall constitute a minimum of 40 hours per week with certain additional availability to attend to issues that OPERATOR determines need to be attended to outside of normal business hours. OPERATOR will devote full time and best efforts to the management and operation of the business and must be present at the Scoop Shop for such minimum hours of each day 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) and also be directly responsible for (i) marketing the Scoop Shop; (ii) customer service and customer relations; (iii) complying with the operation standards, the Manual and other directives in writing; and (iv) management of the staff. OPERATOR acknowledges and agrees that the success of the Scoop Shop and the System is dependent upon the marketing, solicitation, and sale of the Products under the System. To that end, OPERATOR shall use best efforts to: (1) maximize the sale of the Products in the Territory; (2) promote the Scoop Shop; and (3) implement recommendations from BEN & JERRY'S.

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 OPERATOR'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 OPERATOR 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 OPERATOR 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 OPERATOR's rights and obligations hereunder.

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