Version: S2 Everest Scanner 36 Month Lease Agreement
Contents
1. hereby licenses to Lessee the Related Software all in accordance with the terms and conditions of this Agreement LESSEE WARRANTS THAT IT SHALL USE THE SCANNER PRIMARILY FOR BUSINESS PURPOSES AND NOT FOR PERSONAL FAMILY OR OTHER PURPOSES LESSEE FURTHER WARRANTS THAT IT SHALL ONLY USE THE SCANNER FOR THE PURPOSES EXPRESSLY ALLOWED IN SECTION 7 3 Term ADR No Medical Device The term of this Agreement shall be a period of 36 consecutive months Initial Term commencing on the Effective Date If Lessee is not in breach this Agreement shall renew automatically for additional 12 consecutive month periods Renewal Term unless either party gives the other written notice of its intent not to renew this Agreement at least 60 days prior to the expiration date as set forth in the Signature Page and hereinafter the Expiration of its Initial Term or any Renewal Term If Lessee fails to comply with Lessor s Automatic Delivery Rewards ADR requirements as announced and revised by Lessor from time to time the Minimum ADR Requirement Lessor may disable the Scanner and terminate this Agreement Lessee acknowledges that a the Scanner is not a medical device is not and cannot diagnose treat cure or prevent any disease has not been cleared as an approved medical device and Lessee assumes the risk that this Agreement may be terminated if the Scanner is deemed to be an unapproved medical device by the FDA and b Lessor2. makes no representation or warranty that the Scanner is not a medical device Lessee may terminate this Agreement at any time subject to i thirty days prior written notice to Lessor ii the return of the Scanner iii payment of any Rental and other amounts accrued or owed through the termination date and thereafter for obligations surviving termination and iv payment of all remaining Rental and other amounts which otherwise would have accrued through Expiration discounted by five percent 5 per annum provided however that if Lessor re leases the Scanner within sixty days of receipt of notice of early termination Lessee shall be released from its payment obligation under the foregoing subsection but shall forfeit the Down Payment 4 Rent Prepayment Lessee shall pay Lessor the Down Payment Basic Rental and Renewal Term Rental collectively the Rental for the use of the Scanner and the licensing of the Related Software in the amounts and on the dates Rental Payment Dates specified in the Signature Page So long as there is no Default or termination under this Agreement the Down Payment shall be applied towards the final payments of the Initial Term If any amount payable is not paid within five 5 business days after it is due Lessee shall immediately pay Lessor a late charge equal to 5 of such amount Lessee shall also pay Lessor interest on all overdue amounts at the rate of 18 per annum or the maximum amount al
3. replacing the Scanner and or Related Software or component thereof or by repairing any defective part or parts at Lessor s option The foregoing warranty shall be null and void if Lessee has modified abused or damaged the Scanner or Related Software or if the Scanner or Related Software is lost or damaged in shipping in which event Lessee shall indemnify Lessor for all losses resulting therefrom and provided further that the foregoing warranty shall be null and void if Lessee removes the Scanner or Related Software outside the United States or Canada THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OF LESSOR AND LESSOR SHALL NOT BE DEEMED TO HAVE MADE ANY OTHER WARRANTIES OF MERCHANTABILITY FITNESS FOR PURPOSE OR OTHER WARRANTIES EXPRESS OR IMPLIED Lessor shall have no liability to Lessee or any third party for any special direct indirect incidental or consequential damages of any sort 2 7 Use and Operation of Scanner Lessee understands and agrees that the Scanner and the Related Software is a measuring tool for use in determining whether to increase a person s intake of certain selected dietary ingredients specifically carotenoids The information derived from the measurement obtained from the Scanner is only part of an over all well rounded approach to good health practices including regular monitoring of certain dietary intakes and is not intended to provide an overall nutritional profile Lessee shall use the
4. GN OR TRANSFER ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR LESSOR MAY ASSIGN ITS RIGHTS UNDER THIS AGREEMENT AT ANY TIME 16 True Lease Nothing contained herein shall give or convey to Lessee any right title or interest in and to the Scanner or Related Software except as a lessee or licensee thereof It is the express intent of the parties that this Agreement constitutes a true lease of personal property and a software license and in no event shall it be considered a sale of the Scanner or the Related Software to Lessee 17 Tax Benefits Lessee acknowledges that Lessor is the owner of the Scanner for Federal and state income tax purposes and as such is entitled to take all Federal and corresponding state depreciation deductions 18 Force Majeure The obligations of Lessor hereunder shall be suspended to the extent it is hindered or prevented from complying therewith because of the manufacturer s inability to perform for any cause whatever beyond its control 19 Miscellaneous The rights herein granted to Lessor shall also apply to its affiliated and subsidiary companies The failure of a party to insist upon the performance of any term or condition of this Agreement or to exercise any right hereunder on one or more occasions shall not constitute a waiver or relinquishment of its right to demand future performance of such term or condition or to exercise such right in the future If any t
5. Scanner in accordance with this Agreement and the User Manual accompanying the Scanner in particular shall not i make any unapproved claims ii use the Scanner or Related Software to promote or sell nutritional supplements except those of Lessor or of Pharmanex LLC or iii represent that the Scanner can diagnose prevent mitigate treat or cure any disease or condition of the human body All Scanner use shall be in conformity with all applicable laws and regulations any insurance policies the warranties of Lessor herein any manufacturer warranties and any Scanner maintenance agreements Lessee may permit other Distributors to use and operate the Scanner for customers and clients of such Distributors provided however that Lessee shall continue to remain liable for all obligations under this Agreement Lessee shall not relinquish possession of the Scanner or Related Software to a Distributor until such Distributor has been trained in the use benefits and limitations of the Scanner and has obtained Distributor s agreement to abide by this Section 7 Lessee shall insure that Distributors do not permit any other person firm or corporation to use the Scanner or Related Software 8 Risk of Loss Lessee assumes all risk of loss damage theft or destruction of the Scanner If the Scanner is lost or stolen or if Lessor determines that it cannot be repaired Lessee shall within 30 days after such loss theft damage or destruction pay Lessor th
6. Version S2 Everest Scanner 36 Month Lease Agreement Scanner Lease Agreement USA Lease Cover Sheet and Checklist This completed cover sheet must accompany any submitted lease agreement Failure to do so will delay the processing of your lease agreement Name Social Security Number z US account number US000100 for example Phone Number State Email Address Name of Account Manager is Loss and Damage Waiver Attached YES or NO circle one Special shipping instructions C Option A 80 00 shipping and handling fee will be charged at the time of lease set up date and scanner shipment All scanners are sent out United Parcel Service with an upgraded two day delivery fully tracked and Signature required upon delivery If you want your scanner to ship to another address other than what you listed in the Primary Location section of the lease document please indicate the desired shipping address here L Option B 40 00 Pick up and Processing fee will be charged at the time of lease set up date All scanners can be picked up at Kress Building located at 40 South 100 West Provo UT 84601 Ll Yes Please include me in the online directory as a Scan Operator for web browsers to contact me for ascan I understand that my city and state as listed on my account along with my name will be viewable by those visiting www pharmanexusa com in search of Scanner Operators I understand if I become unproductiv
7. affiliates in any way and vii Lessee shall not and shall not permit any other person or entity to operate or use the Scanner so as to incur or impose any liability against or obligation on Lessor 14 Default Remedies and Adverse Credit Notice The following shall be Events of Default i Lessee s failure to pay any amounts hereunder when due ii the failure of any of Lessee s representations or warranties herein to be correct in any respect at any time iii Lessee ceases to do business as a going concern or sells substantially all of its assets merges consolidates or reorganizes with or into any entity iv Lessee s insolvency bankruptcy or assignment for the benefit of creditors v Lessee s failure to perform any obligation under its Distributor Agreement including compliance with all policies and procedures in force by Lessor or any other agreement with Lessor or Lessor s affiliates or any other creditor or vi an adverse change in Lessee s financial condition as a result of which Lessor in good faith deems itself or the Scanner to be insecure At any time after an Event of Default Lessor may exercise any one or more of the following remedies and any other remedies under applicable law i by written notice terminate this Agreement ii render the Scanner unusable iii enforce Lessee s performance of this Agreement and or recover damages for its breach iv whether or not this Agreement is terminated cause Lessee to promptly r
8. any proprietary software development tools software libraries rendering engines content and other software or computer programming code including all program output in the form of screen displays printer output plotter output and sounds that are part thereof relating to the Scanner and whether embedded in the Scanner or residing on the laptop used therewith that are in existence and owned by Lessor as of the Effective Date and in which Lessor shall retain all authorship and ownership rights title and interest subject to the licensing rights granted to Lessee under the Agreement
9. e cost of replacing such Scanner as applicable plus any other amounts owed under this Agreement whereupon this Agreement shall terminate The Down Payment may be applied toward outstanding Rental late charges or Assessments 9 Maintenance and Repairs Except for normal cleaning and taking reasonable care of the Scanner Lessor shall be responsible for all maintenance defects or quality issues and Lessee shall promptly notify Lessor of all quality maintenance or repair issues 10 Taxes and Assessments Lessee shall be responsible for and shall hold Lessor harmless from all documentation and filing fees and all taxes relating to this Agreement the Scanner Assessments but excluding any Federal state or local income taxes of Lessor imposed upon Lessor in consequence of its receipt of Rental payments 11 Indemnification Lessee assumes liability for and hereby agrees to indemnify protect and keep harmless Lessor and its affiliates and their officers directors and employees from and against any and all liabilities obligations losses damages injuries claims demands penalties actions costs and expenses including reasonable attorney s fees and expenses of whatsoever kind and nature arising out of the use condition or maintenance of the Scanner whether authorized by Lessor or not or whether arising from use of the Scanner by another Distributor including but not limited to any use not authorized under Section 7 Any Lessee
10. e specific profession or occupation e g chiropractor MD dentist nurse etc H Primary Location the Equipment and Related Software shall be kept primarily at Telephone No IN WITNESS WHEREOF the parties have executed this Master Lease and Licensing Agreement as of this day of 20 and Lessee s signatory warrants his her authority to sign as Lessee or on Lessee s behalf LESSOR LICENSOR 1 LESSEE LICENSEE IF AN INDIVIDUAL NU SKIN ENTERPRISES UNITED STATES INC Name print or type Signature Address By Name Telephone Number Its Social Security No Address 75 West Center Street Provo Utah 84601 2 LESSEE LICENSEE IF A CORPORATION ATIN Name of corporation By Name of person signing Its Principal Corporate Address Telephone Number Terms and Conditions 1 Meaning of Words Scanner means the Scanner and related equipment described in Exhibit A Related Software means the software programs developed and owned by Lessor and described in such Exhibit A Distributor shall mean an independent contractor who has signed a Distributor Agreement with Nu Skin Enterprises United States Inc or its affiliate Capitalized terms not defined in this Agreement shall have the meaning set forth in the Signature Page 2 Lease and License Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor the Scanner and Lessor
11. e with my scanner and fail to perform scans on a regular basis I may be removed from the online directory CHECKLIST OF COMPLETION Lease Documents Please check upon completion 1 The lease applicant is listed as an associate on the Distributor account with NSE E 2 Page 1 is attached and compl tedsssssesrsssaskersassiusesrsases itu ak CENS ea EEIE pA Soas O f you are a corporation you need to fill out both sections 1 and 2 of page 1 3 The primary location is filled out on page 1 section H 0 eee ee ee nent eee eeee ee eee eeeee O 4 The credit cards listed on the Lease belong to the applicant ccc cee eee eee O Only credit cards belonging to the applicant are accepted 5 Details for two credit cards are complete cceeeeeeeeeeene seen eee e teen i nekeneka O Two cards must be listed if more than one will show up on your credit report in your name 6 The applicant SSN on this cover page matches what is on the lease agreement pg 1 O 7 If you are a Healthcare Professional Section G is required to be complete e eee O If this page is not complete your S2 Scanner shipment will be delayed Fax completed forms to 1 801 345 6869 Internal Processing Only Verified check list MASTER LEASE AND LICENSING AGREEMENT Version S2 BioPhotonic Scanner United States Everest Edition This Master Lease and License Agreement Agreement i
12. erm of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable then this Agreement will remain in full force and effect as if such invalid or unenforceable term had never been included All notices and other communications required or permitted to be given under this Agreement shall be transmitted in writing to the address on the Signature Page by Certified United States Mail by guaranteed overnight delivery by electronic mail or by facsimile The laws of the State of Utah shall govern this Agreement Any action brought to enforce it must be brought in Provo Utah or in the Federal Courts in Utah The Parties consent to the personal jurisdiction of such courts within Utah and waive any objection to improper venue This Agreement the Attachments and Exhibits embody the entire agreement between the Parties No changes modifications or amendments to any terms or conditions in this Agreement are valid or binding unless agreed to by the Parties in writing by their authorized representatives EXHIBIT A TO MASTER LEASE AND LICENSING AGREEMENT EQUIPMENT Quantity Vendor Serial No s of Scanner S2 System s Serial No s of Dell Laptop s Nu Skin Enterprises United States Inc Description The term Scanner as used in this Agreement means Pharmanex BioPhotonic Carotenoid Antioxidant Scanner System version 2 S2 the S2 Scanner System Everest Edition manufactured by Pharmanex consisting of hard
13. eturn the Scanner and v recover all of its costs and expenses including attorneys fees In addition to the foregoing remedies with respect to the Related Software Lessor shall also have the right to retain and fully exercise all of its rights and elections under Title 11 of the United States Code the Bankruptcy Code specifically including Section 365 of the Bankruptcy Code If a petition in bankruptcy is filed by or against Lessee Lessee shall assume or reject this Agreement including the license granted hereunder within sixty 60 days thereof The personal property lease of the Scanner and license of the Related Software may not be severed for purposes of this Agreement Lessor may also at its option recover by set off against bonuses due to Lessee under the Distributor Agreement or by charging to Lessee s credit card the amounts owing under this Agreement Lessor s remedies shall be cumulative and in addition to all other legal or equitable remedies No express or implied waiver of any Default shall waive any later Default Any action by Lessee against Lessor relating to this Agreement must be commenced within one 1 year after any such cause of action accrues AS REQUIRED BY UTAH LAW YOU ARE HEREBY NOTIFIED THAT A NEGATIVE CREDIT REPORT REFLECTING ON YOUR CREDIT RECORD MAY BE SUBMITTED TO A CREDIT REPORTING AGENCY IF YOU FAIL TO FULFILL THE TERMS OF YOUR CREDIT OBLIGATIONS UNDER THIS AGREEMENT 15 Assignment LESSEE MAY NOT ASSI
14. lowed by law whichever is less The Down Payment all Rental late charges and interest shall be payable automatically by a valid credit card as shown on the Signature Page which credit card Lessee hereby authorizes Lessor to charge to receive Rental and all other amounts due and payable under this Agreement Failure to maintain a valid active credit card to make Rental payments shall constitute grounds for immediate termination of the Agreement 5 Title Label Title to the Scanner including any replacements additions accessories modifications upgrades and enhancements shall remain with Lessor at all times and Lessee shall have no right title or interest therein other than its leasehold and licensing interests under this Agreement Lessee shall at its expense protect and defend Lessor s title to the Scanner and keep it free and clear from any claims liens and encumbrances The Scanner shall at all times be and remain personal property Lessor may affix or direct Lessee to affix a label to the Scanner and Lessee shall not alter deface cover or remove such identification or label 6 Limitation on Warranties The Scanner will be of the kind and quality described in the Signature Page free of defects in workmanship and with regard to the Scanner in the material Lessor shall upon receipt of written notification and receipt of the Scanner insured and shipped at Lessee s expense take steps to correct such nonconformity either by
15. redelivery or for the period of time reasonably necessary to perform such repairs together with the cost of such repairs as applicable Lessor s acceptance of such Rental on account of such delay or repair does not constitute a renewal of the Term or a waiver of Lessor s right to prompt return of the Scanner in proper condition If Lessor determines that the Scanner cannot be repaired then Section 8 shall apply 13 Representations and Warranties of Lessee Lessee represents and warrants that i this Agreement and all related documents are Lessee s legal valid and enforceable obligations ii it has entered into a Distributor Agreement with Lessor ili the credit card identified on the Signature Page is in Lessee s name and is valid and is in full force and effect and Lessee has authority to authorize Lessor to deduct or receive Rental and all other payments under this Agreement from such credit card and that such credit card shall remain valid during the Term iv LESSEE S DECISION TO LEASE THE SCANNER AND LICENSE THE RELATED SOFTWARE IS ENTIRELY DISCRETIONARY AND SUCH LEASE AND LICENSE MAY OR MAY NOT BENEFIT LESSEE S BUSINESS AS A DISTRIBUTOR FOR LESSOR OR ANY OF ITS AFFILIATES v LESSEE SHALL NOT RECEIVE ANY DISTRIBUTOR COMMISSIONS AS A RESULT OF LESSEE S DECISION TO LEASE THE SCANNER AND LICENSE THE RELATED SOFTWARE 3 vi Lessee is an independent contractor and as such shall not attempt to speak for or to bind Lessor or its
16. s entered into as of this day of 200_ the Effective Date between Nu Skin United States Inc a Delaware corporation having a place of business at 75 West Center Street Provo Utah 84601 Lessor and the below identified Lessee This Agreement consists of this page Signature Page and the attached terms and conditions Terms and Conditions Each reference on this Signature Page shall be construed to incorporate all the terms provided in the Terms and Conditions In the event of any conflict between the provisions of this Signature Page and the Terms and Conditions the latter shall control The basic terms of this Agreement A Scanner This Agreement is for a lease of personal property and related software known as the Pharmanex BioPhotonic Scanner Scanner as more specifically described on the attached Exhibit A which is incorporated herein by this reference B Expiration Date This Agreement is for a period of _36_ months from the date on which the first Basic Rental is due and payable C Rental Basic Rental of 209 00 monthly plus all Assessments shall be due and payable in arrears on the 5th day of the following month Each Rental payment shall be prorated for any partial month and payments and all Assessments shall be payable by Lessee s credit card D Down Payment 500 00 which amount shall be applied to the final Rental payments due equivalent to the Down Payment amount so long as it ha
17. s not previously been applied to a Lessee obligation due to a Default under the Agreement or forfeited upon earlier Termination or Expiration The Down Payment shall be due and payable upon the execution by Lessee of this Signature Page E Credit Card Information for Rentals Down Payment Assessments and Other Amounts TWO REQUIRED Discover Card American Express VISA Credit VISA Debit MasterCard Credit MasterCard Debit Credit Card Number PRINT CLEARLY Exp Date Credit Card Billing Address Zip Code Card Holder Name as it Appears on the Credit Card Discover Card American Express VISA Credit VISA Debit MasterCard Credit MasterCard Debit Credit Card Number PRINT CLEARLY Exp Date l Credit Card Billing Address Zip Code Card Holder Name as it Appears on the Credit Card Cardholder s Signature Use of the card is authorized by Lessee s signature on this Signature Page F Renewal at Expiration This Agreement shall be automatically extended from year to year in accordance with the provisions of Section 3 Term of the Terms and Conditions for a Renewal Term Rental of 109 00 per month plus all Assessments due and payable monthly in arrears by valid credit card on the same Rental Payment Dates as under the original Term subject to the non renewal and early termination provisions of such Section 3 G Occupation If the LESSEE LICENSFE is a health care professional or works in the health care industry please indicat
18. ware and software including the following i one BioPhotonic scanner which emits a green light source ii one encasement which houses the light source and spectrometer iii one laptop computer the Laptop which receives the data from the optical scanner including but not limited to the processor AC adapter cables liquid crystal displays compact drive hard drive keyboard base battery memory modules internal modem connectors documentation and all software provided with the Laptop or embedded therein or in any of the foregoing Laptop components or accessories iv all Related Software which means any proprietary software development tools software libraries rendering engines content and other software or computer programming code including all program output in the form of screen displays graphics printer output plotter output and sounds that are part thereof relating to the S2 Scanner System and whether embedded in the S2 Scanner System or residing on the Laptop and in which Lessor shall retain all authorship and ownership rights title and interest subject to the licensing rights granted to Lessee under the Agreement and v carrying cases for the S2 Scanner System and the Laptop whether any of the foregoing i through v are now owned or hereafter acquired or developed together with all additions replacements enhancements and modifications and all proceeds and products thereof The term Related Software means
19. who is subject to the privacy rules of HIPAA and who uploads data from a scan to Lessor without a signed HIPPA Authorization shall indemnify protect and keep harmless Lessor and its affiliates and their officers directors and employees from and against any and all liabilities obligations losses damages injuries claims demands penalties actions costs and expenses including reasonable attorney s fees and expenses arising from Lessee s failure to obtain a HIPPA Authorization Lessee alone shall determine if Lessee is subject to HIPAA and Lessor hereby disclaims any responsibility or liability in connection with Lessee s failure to comply The indemnities hereunder shall survive the Expiration or termination of this Agreement 12 Return of Scanner At the Expiration or earlier termination of this Agreement Lessee shall return the Scanner and Related Software to Lessor at Lessor s address on the Signature Page properly packaged and fully insured at Lessee s expense and freight prepaid by Lessee in the same operating order repair condition and appearance as on the Effective Date except for reasonable wear and tear resulting from authorized use thereof If the Scanner and Related Software are not returned in a timely fashion or if repairs are necessary to place the Scanner or Related Software in the condition required in this Section Lessee shall continue to pay to Lessor Rental at the last prevailing rate for the period of delay in
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