What obligation does a Ben Jerrys DEVELOPER undertake regarding Franchise Agreements?

a; and

• 1.3.7.5 through delivery, mail order, catalogue sales, direct mail, toll-free numbers, the Internet (e-commerce), third-party delivery services, and/or any other means of distribution, including through alternative channels or methods of distribution, whether existing now or in the future.
• 1.4 This Agreement is not a Franchise Agreement, and does not grant to DEVELOPER any right to use the Proprietary Marks or the System or to sell or distribute any Products.
• 1.5 DEVELOPER shall have no right under this Agreement to franchise others to use the Proprietary Marks or the System, or to sell, assign or otherwise transfer any portion of DEVELOPER's interest in the Development Area or its development rights under this Agreement.

2. TERM

Unless sooner terminated in accordance with the provisions of this Agreement, this Agreement shall commence on the date hereof and shall expire on the date upon which DEVELOPER is required to enter into a Franchise Agreement for the final Scoop Shop to be developed and opened pursuant to this Agreement.

3. DEVELOPMENT OBLIGATIONS

• 3.1 Recognizing that time is of the essence, DEVELOPER shall comply strictly with the Development Schedule. DEVELOPER acknowledges and agrees that the Development Schedule requires that DEVELOPER have executed and delivered Franchise Agreements for a cumulative number of Scoop Shops and opened a cumulative number of Scoop Shops within the time periods specified.

• 3.2 DEVELOPER agrees to locate and submit specific sites for Scoop Shops. DEVELOPER shall submit to BEN & JERRY'S a site evaluation package ("SEP"), in a form prescribed by BEN & JERRY'S, identifying each proposed site and describing the preliminary design, relevant demographic and cost factors concerning each site. BEN & JERRY'S shall have the right to require that DEVELOPER simultaneously submit SEPs for up to three (3) proposed sites. BEN & JERRY'S shall have ten (10) business days after receipt of a SEP from DEVELOPER to approve or disapprove each proposed site for each Scoop Shop. DEVELOPER must obtain written approval by BEN & JERRY'S of each proposed site, which will be in the form of a "Site Authorization Notice." DEVELOPER shall execute a lease that complies with the requirements set forth below, or a binding agreement to purchase each site within thirty (30) days of approval of each site by BEN & JERRY'S. Within seven (7) days after executing a lease or a binding purchase agreement for each site, DEVELOPER shall execute and deliver to BEN & JERRY'S the Franchise Agreement that shall be provided to DEVELOPER by BEN & JERRY'S for execution, which shall be the form of Franchise Agreement determined in accordance with Section 3.5 below.

• 3.3 If DEVELOPER will occupy the premises from which the Scoop Shop is operated under a lease or sublease, DEVELOPER shall, prior to the execution of the lease, submit the lease to BEN & JERRY'S for its review to ensure that the lease contains the conditions set forth in the Ben & Jerry's Lease Rider which may include, but are not limited to:

• a. That the initial term of the lease, or the initial term together with renewal terms, shall be for ten (10) years, unless otherwise approved in writing by BEN & JERRY'S;

• b. That the lessor consents to DEVELOPER'S use of such Proprietary Marks and initial signage as BEN & JERRY'S may prescribe for the Scoop Shop;

• c. That the use of the premises be restricted solely to the operation of the Scoop Shop;

• d. That the lessor provide to BEN & JERRY'S copies of any and all notices of default given to DEVELOPER under the lease; and

• e. That BEN & JERRY'S have the right to enter the premises to make modifications necessary to protect the Proprietary Marks or the System or to cure any default under the Franchise Agreement.

• 3.4 DEVELOPER hereby acknowledges and agrees that approval by BEN & JERRY'S of a site does not constitute an assurance, representation or warranty of any kind, express or implied, as to the suitability of the site for the Scoop Shop or for any other purpose. Approval by BEN & JERRY'S of the site indicates only that BEN & JERRY'S believes the site complies with acceptable minimum criteria established by BEN & JERRY'S solely for its purposes as of the time of the evaluation. Both DEVELOPER and BEN & JERRY'S acknowledge that application of criteria that have been effective with respect to other sites and premises may not be predictive of potential for all sites and that, subsequent to approval by BEN & JERRY'S of a site, demographic and/or economic factors, such as competition from other similar businesses, included in or excluded from criteria used by BEN & JERRY'S could change, thereby altering the potential of a site. Such factors are unpredictable and are beyond the control of BEN & JERRY'S. BEN & JERRY'S shall not be responsible for the failure of a site approved by BEN & JERRY'S to meet DEVELOPER'S expectations as to revenue or operational criteria. DEVELOPER further acknowledges and agrees that its acceptance of a franchise for the operation of a Scoop Shop at the site is based on its own independent investigation of the suitability of the site.

Source: Item 23 — RECEIPTS (FDD pages 134–358)