NT AND EMPLOYEES.**

As a consequence of Applicant's and Employees' acquisition or anticipated acquisition of Confidential Information, Applicant and Employees will occupy a position of trust and confidence with respect to PIU's affairs and business. In view of the foregoing, Applicant and Employees agree that it is reasonable and necessary that Applicant and Employees agree, while this Agreement is in effect, to the following:

• A. Limited Use. Applicant and Employees shall use the Confidential Information solely for the purpose of evaluating whether or not Applicant will invest in a Pump It Up franchise. Neither Applicant nor Employees shall make any other use of the Confidential Information. If Applicant does not invest in a Pump It Up franchise, the obligations set forth in this Section 2 will remain in effect for a period of 12 months from the date Applicant elects not to pursue such a franchise relationship. Within 12 months after the date Applicant elects not to pursue a franchise relationship with PIU, if Applicant or any Employee opens and operates a business whose method of operation or trade dress is similar to that of a Pump It Up Business or the System, a violation of this Agreement will be presumed.

• B. No Disclosure. Applicant and Employees shall not disclose the Confidential Information to any person or entity other than Applicant's attorney or accountant as necessary to evaluate the opportunity provided by PIU. Applicant and Employees agree to protect the Confidential Information against unauthorized disclosure using the same degree of care, but no less than a reasonable degree of care, as Applicant and Employees use to protect Applicant's confidential information.

• C. No Use, Copying or Transfer. Applicant and Employees shall not use, copy or transfer Confidential Information in any way and shall protect the Confidential Information against unauthorized use, copying or transfer using the same degree of care, but no less than a reasonable degree of care, as Applicant and Employees use to protect Applicant's confidential information. This prohibition against use, copying, or transfer of Confidential Information includes, but is not limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services which embody or are derived from Confidential Information. Applicant and Employees further agree not to remove, overprint, or deface any notice of copyright, trademark, logo, or other notices of ownership from any Confidential Information.

• D. Applicability. These covenants shall apply to all Confidential Information disclosed to Applicant or Employees by PIU at any time, including prior to the date of this Agreement.

• 3. RETURN OF CONFIDENTIAL INFORMATION. Nothing in this Agreement obligates either PIU or Applicant to enter into a franchise agreement for the operation of a Pump It Up Business. Applicant acknowledges that PIU's decision to consider Applicant for any franchise opportunity, as well as the location and type of franchise opportunity to be offered, if any, and the terms of any contracts, will be made by PIU in its sole discretion. If, at any time, PIU determines that it does not wish for Applicant to become a franchisee, or Applicant determines that it does not wish to invest in a Pump It Up franchise, or if PIU requests, at any time and for any reason, that Applicant and Employees do so, Applicant and Employees agree to: (A) immediately cease to use the Confidential Information; (B) immediately return to PIU the Confidential Information and all copies thereof (whether or not such copies were authorized) and cause any third party to whom disclosure was made to do the same; and (C) at the request of PIU, certify in writing that Applicant, Employees and all others to whom Applicant has provided such Confidential Information, have complied with subsections (A) and (B) above.

• 4. NOTICE TO PIU. Applicant and Employees shall immediately notify PIU of any information that comes to their attention which indicates that there has been or may be a loss of confidentiality of any of the Confidential Information or a breach of this Agreement

• 5. WAIVER. Applicant and Employees acknowledge that no waiver by PIU of any breach by Applicant or Employees of any provision of this Agreement shall be deemed a waiver of any preceding or succeeding breach of the same or any other provision of this Agreement. No such waiver shall be effective unless in writing and then only to the extent expressly set forth in writing.

6. ENFORCEMENT.

• A. Governing Law. This Agreement and any claim or controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Arizona without regard to conflicts of laws principles.
• B. Forum. To the extent any disputes cannot be resolved directly between Applicant, Employees and PIU, Applicant and Employees agree to file suit against PIU only in the federal or state court having jurisdiction where PIU's principal offices are located at the time suit is filed. As of the date of this Agreement, those courts are the Superior Court of Arizona, Maricopa County and the United States District Court for the District of Arizona in Phoenix, Arizona. Applicant and Employees acknowledge that PIU may file suit in the federal or state court located in the jurisdiction of PIU's principal offices, but it also may file suit where Applicant's principal offices are located at the time suit is filed or in the jurisdiction where Applicant resides or does business or where the claim arose. Applicant and Employees consent to the personal jurisdiction of those courts and to venue in those courts.
• C. Injunctive Relief. It is hereby understood and agreed that: (1) a breach of this Agreement by Applicant or Employees would result in irreparable harm to PIU, the extent of which would be difficult to ascertain; (2) monetary damages would be an inadequate remedy for such a breach; and (3) PIU shall be entitled to specific performance and injunctive or other equitable relief as a court may deem appropriate in the event of such a breach without posting a bond or other security and without waiving any additional rights or remedies otherwise available to PIU at law or in equity or by statute.
• D. Reimbursement of Costs and Expenses.

Source: Item 23 — RECEIPTS (FDD pages 60–225)