Confidentiality Agreement

1.       Confidential Information

FSTH purposes to disclose certain of itsconfidential and proprietary information. Confidential Information shallinclude all data, materials, products, technology, computer programs,specifications, manuals, business plans, software, marketing plans, financialinformation, and other information disclosed or submitted, orally, in writing , or by any other media by FSTH Confidential Informationdisclosed orally shall be identified as such within five (5) days ofdisclosure, subject to community property law.

2.       Recipient’s Obligations

• Recipient agrees that the ConfidentialInformation is to be considered confidential and proprietary to FSTH andRecipient shall hold the same in confidence, shall not use the ConfidentialInformation other than for the purposes of its business with Owner, and shalldisclose it only to its officers, directors, or employees with a specific needto know. Recipient will not disclose, publish or otherwise reveal any of theConfidential Information received from FSTH to any other party whatsoeverexcept with the specific prior written authorization of FSTH.
• Confidential Information furnished intangible form shall not be duplicated by Recipient except for purposes of thisAgreement. Upon the request of Owner, Recipient shall return all ConfidentialInformation received in written or tangible form, including copies, or reproductionsor other media containing such Confidential Information, within ten (10) daysof such request. At Recipient’s option, any documents or other media developedby the Recipient containing Confidential Information may be destroyedRecipient. Recipient shall provide a written certificate to FSTH regardingdestruction.

3.       Term

The obligations of RECIPIENT herein shallbe effective date of issuance last disclose any Confidential Information toRecipient pursuant to this Agreement. Further, the obligation not to disclosehall be affected by bankruptcy, rejection of any agreement or seizureprocedures, whether initiated by or against RECIPIENT, nor by the rejection ofany agreement between FSTH and RECIPIENT, by the trustee of RECIPIENT inbankruptcy, or by the RECIPIENT as a debtor-in-possession or the equivalent ofany of the foregoing under local law.

4.       Other Information

RECIPIENT shall have no obligation underthis Agreement with respect to Confidential Information with is or becomespublicly available without breach of this Agreement by RECIPIENT; is rightfullyreceived by RECIPIENT without obligations of confidentiality; or is developedby RECIPIENT without breach of this Agreement; provided, however, suchConfidential Information shall not be disclosed until thirty (30) days afterwritten notice of intent to disclose is given FSTH along with asserted groundsfor disclosure.

5.       No License

Nothing contained herein shall be construedas granting or conferring any rights by license or otherwise in anyConfidential Information. It is understood and agreed that neither partysolicits any change in the organization, business practice, service or productsof the other party, and that the disclosure of Confidential Information shallnot be construed as evidencing any intent by a party to purchase any productsor services of the other party nor as an encouragement to expend funds indevelopment or research efforts. Confidential Information many pertain to prospective or unannouncedproducts. Recipient agrees not to use any Confidential Information as a basisupon which to develop or have third party develop a competing or similarproduct.

6.       No Publicity

RECIPIENT agrees not to disclose itsparticipation in this undertaking, the existence or terms and conditions of theAgreement, or the fact that discussions are being held with FSTH.

7.       Governing Law and Equitable Relief

This Agreement shall be governed andconstrued in accordance with the laws of the United Stated and State of CA andRECIPIENT consents to the exclusive jurisdiction of the state courts and U.Sfederal courts located there for any dispute arising out of this Agreement.RECIPIENT agrees that in the event of any breach or threatened breach byRECIPIENT. FSTH may obtain, in addition to any other legal remedies which maybe available, such equitable relief as may be necessary to protect FSTH againany such breach or threatened breach. 

8.       Final Agreement

This Agreement terminated and supersedesall prior understandings or agreement on the subject matter hereof. ThisAgreement may be modified only by a further writing that is duly executed byboth parties.

9.       No Assignment

RECIPIENT may not assign this Agreement orany interest herein without FSTH express prior written consent.

10.     Severability

If any term of this Agreement is held by acourt of competent jurisdiction to be invalid or unenforceable, then thisAgreement, including all of the remaining terms, will remain in full force andeffect if such invalid or unenforceable term had never been included.