Scanner Lease Agreement
Contents
1. 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 commences on the date on which the first Initial Payment is due and payable and shall continue on a month to month basis C Rental Basic Rental of 209 00 CAD monthly plus all Assessments shall be due and payable in arrears on the 8th 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 credit card D Initial Payment 150 00 CAD which amount shall be non refundable and includes shipping processing and scan unit warranty shipment fees The Initial Payment shall be due and payable upon the execution by Lessee of this Signature Page This payment is in addition to the first month s rental payment E Credit Card Information for Rentals Initial Payment Assessments and Other Amounts TWO REQUIRED Primary Card Used always Ist attempt VISA Master Card CARD HOLDER NAME CREDIT CARD NUMBER PRINT CLEARLY EXP DATE BILLING ADDRESS POSTAL CODE Secondary Card Only if Primary decline VISA Master Card CARD HOLDER NAME CREDIT CARD NUMBER PRINT CLEARLY EXP DATE BILLING ADDRESS POSTAL CODE Cardholders Signature Use of these cards is aut2. For example do not say that the scanner score will let consumers know if their conditions are healthy or unhealthy 7 Do not claim that medical intervention is necessary or unnecessary because of a scanner score Consumers should always be advised to consult their health care professionals before they make significant changes in their diets or ifestyles but the scanner score by itself will not under any circumstances let consumers know if medical intervention is necessary 8 Do not under any circumstances make any statements that claim or imply that any Pharmanex product service or tool can pre vent diagnose cure treat or mitigate any disease or symptoms of disease The foregoing is a general summary of what can and cannot be said about the scanner and other Pharmanex products The summary is not intended to be an exhaustive list of all prohibited claims Nu Skin and Pharmanex will continue to review Lessee websites and other materials and will when necessary take disciplinary action against distributors found to be in violation of the rules up to and including termination of distributorships May 31 2006 Guidelines for BioPhotonic Scanner in Medical or Clinical Settings Page 2 of 2
3. Have fun and show your enthusiasm for the product the business and the ability to live better longer DON T Don t make claims that the Scanner will diagnose any disease e Don t make claims suggesting any medical use Don t claim the Scanner will have an effect on the structure or function of the body Don t claim that using the Scanner will prevent disease of any kind e Don t tell consumers that their antioxidant levels are high low or average e Don t promise specific Skin Carotenoid Scores Don t persuade customers to leave purchasing relationships with other distributors e Don t perform scans without a scan certificate Don t open the Scanner or modify any part of the Scanner Don t tell customers that because of their scores they should seek the advice of their healthcare professional Don t compare the Scanner to other measurement or testing equipment such as cholesterol tests pregnancy home test kits or diabetic testing strips or devices These are all medical devices the scanner is not FAILURE TO COMPLY WITH ANY OF THESE GUIDELINES CAN RESULT IN SANCTIONS OR THE LOSS OF YOUR SCANNER 09110016 Pharmanex Official Company Communication W PHARMANEX Official Company Communication Subject Background Newly Acquired License Business Guidelines Limitations Legal Regulatory Guidelines Created by Approved by May 31 2006 Official Legal Regulatory and Marketing Guidelines rega
4. scan card w brochures can be purchased separately with item 02005015 S3 Scan Cards full pv Alternately have the option to purchase digital scan cards on the S3 Scanner software and agree to terms of digital scan card use YES Please include me in the online directory as a Scan Operator for web browsers to contact me for a scan grant Nu Skin per mission to make my city and province as listed on my account along with my name viewable by those visiting www pharmanexscanner com in search of Scanner Operators understand if become unproductive with my scanner and fail to perform scans on a regular basis may be removed from the online directory INSTRUCTIONS amp CHECKLIST OF COMPLETION Please check upon completion 1 The lease applicant is listed as an associate on the Distributor Account with NSE 2 Page 2 of Master Lease Licensing Agreement is attached and complete ss ssssssssssssessecssessecsscssecsesssesuecancsnecsscsueesecsneaneesneaneess 3 The primary location is filled out on page 1 section H 4 The credit cards listed on the Lease belong to the applicant Only credit cards belonging to the applicant are accepted 5 Details for two credit cards are complete sesssssssssssssssseessesssneesnessecsensesnscsusecssessnesusessseesessaneessessnsssueeeseecsessasesetessuseaeeestesseeesetenseess Two cards must be listed if more than one will show up on
5. the Parties in writing by their authorized representatives EXHIBIT A TO MASTER LEASE AND LICENSING AGREEMENT INTERNAL USE ONLY Quantity Vendor Serial No s of Scanner S3 System s Nu Skin Enterprises Canada Inc Description The term Scanner as used in this Agreement means Pharmanex BioPhotonic Carotenoid Antioxidant Scanner System version 3 S3 the S3 Scanner Sys tem manufactured by Pharmanex consisting of hardware and software including the following i one BioPhotonic scanner which emits a blue light source ii one encasement which houses the light source and spectrometer iii all Related Software and Mobile Device Applications 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 S3 Scanner System and whether embedded in the S3 Scanner System or residing on the mobile device application 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 iv carrying cases for the S3 Scanner System whether any of the foregoing i through iv are now owned or hereafter acquired or developed together with all additions replacements enhancements an
6. to Customer Support within 90 days after it occurs this Waiver shall be null and void and Lessee shall retain full liability for loss or damage in accordance with the terms of the Lease Agreement Definitions All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Lease Agreement Equipment shall have the meaning set forth in the Lease Agreement and each Schedule thereunder Lease Agreement means that certain Master Lease and Licensing Agreement dated entered into between Lessee and Lessor for the rental and or lease of a Pharmanex Scanner Schedule means all of the Schedules to Master Lease and Licensing Agreement entered into between Lessee and Lessor pursuant to the Lease Agreement General Payment of Lessee Waiver Payments Coverage is not effective unless all Lessee Waiver Payments are current and paid prior to a loss or damage occurrence Transfer of Waiver Lessee shall not transfer or assign this Waiver without the prior written consent of Lessor Conflict If there are any conflicts between this Waiver and the Lease Agreement the Lease Agreement shall govern Miscellaneous This Waiver shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein The parties hereby attorn to the non exclusive jurisdiction of the courts of the Province of Ontario This Waiver shall ensure to the benefit of and be bi
7. your credit report in your name 6 The applicant SIN on this cover page matches what is on the lease agreement Section 1 cscseescsesssesstessesesseesnesseeeseesneeeneeeee 7 If you are a Healthcare Professional Section G is required to be complete with stated OCCUPAtION ceecsesseeceesteeeeteeteeeeees If this page is not complete your 3 Scanner shipment will be delayed Fax completed pages 1 2 and optionally 6 to 1 801 345 6869 V 8 2016 9 21 16KC MASTER LEASE AND LICENSING AGREEMENT Version S3 BioPhotonic Scanner Canada Canada GST Registration 126004290 This Master Lease and License Agreement Agreement is entered into as of this day of 20 the Effective Date between Nu Skin Canada Inc a Utah corporation having a place of business at 3350 Ridgeway Drive Unit 1 Mississauga Ontario L5L 5Z9 Lessor and the below identified Lessee This Agreement consists of this page Signature Page the cover sheet exhibits 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
8. Damage or Loss Waiver If the Equipment is lost or stolen and not recovered or damaged then Lessor hereby waives any claim against Lessee for loss or damage to the Equipment in excess of the first 500 00 CAD The amounts set out above for each option are exclusive of any applicable federal provincial and territorial sales and use taxes or excise taxes and without limitation in the Prov ince of Quebec Quebec Sales Tax Any such applicable taxes are payable by the Lessee and where applicable collectible by the Lessor in addition to and with the Lessee Waiver Payment which the Lessee hereby authorizes The waiver intended to be given under the Option does not apply in any province or territory of Canada where this Waiver is prohibited by law in which case this Waiver will be deemed to be null and void and the Lessee Waiver Payments will be returned to the Lessee Coverage does not apply in countries or states where this Waiver is prohibited by law This Waiver shall not apply to any loss or damage due to a any obligation Lessee has assumed under the Lease Agreement but is not specifically waived hereunder b a viola tion by Lessee of any term or condition of the Lease Agreement c Lessee s delay or failure to report the loss to Lessor and or proper local authorities in a timely manner or d loss theft or damage caused by any willful or reckless act of Lessee or person acting on Lessee s behalf Duties of Lessee in the Event of Loss o
9. TY IS IN LIEU OF ALL OTHER WARRANTIES OF LES SOR 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 7 Use and Operation of Scanner Lessee understands and agrees that the Scanner and the Related Software is a measuring tool for use in determin ing 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 Scanner in accor dance with this Agreement and the User Manual accompanying the Scanner in particular shall not i make any claims related to the scanner that have not been approved by Lessor 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 a
10. WD PHARMANEX S Month to Month Lease Agreement BIOPHOTONIC SCANNER D3 Lease Agreement CANADA 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 Business Name amp Name CA ACCOUNT NO EXAMPLE CA000100 PROVINCE DATE OF BIRTH SOCIAL INSURANCE NO Month Day Year PHONE NO EMAIL ADDRESS NAME OF ACCOUNT MANAGER Loss and Damage Waiver Attached YES or NO circle one SPECIAL SHIPPING LEASING AND SCAN CARD PURCHASE INSTRUCTIONS understand will need to provide my own Apple iPad device to use with the Scanner By my signature on the Master Lease and Licensing Agreement authorize Nu Skin Enterprises United States to perform SIN verification By my Initials here __________ have read and understand Section 8 Mobile Device Use of the Scanner Lease 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 Address Line 1 City Province Address Line 2 Postal Code YES am aware that need to purchase SCAN CARDS in order to be able to perform scans with my BioPhotonic Scanner 20pk
11. d modifications and all proceeds and products thereof The term Related Software 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 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 V 8 2016 9 21 16KC CANADA SCANNER EQUIPMENT LOSS DAMAGE WAIVER OPTIONAL SERVICE This Damage Waiver Waiver is entered into between the undersigned Lessor and Lessee of the Equipment covered by the Lease Agreement defined below in order to release Lessee from certain obligations occurring as a result of an approved loss or damage event described below Waiver Consideration In consideration of the damage waiver and release from liability provided herein Lessee shall pay Lessor a waiver fee of 20 CAD per month the Lessee Loss amp Damage Waiver Payment for the Equipment Lessee Waiver Payments shall be charged to Lessee s credit card in the same manner as Rental under the Lease Agreement which charges Lessee hereby authorizes by signature below
12. ded to help you with your Pharmanex business when used properly The following is a general summary of what can and cannot be said about the Scanner It is not an exhaustive list of all permissible and prohibited claims If you have a question about what statements can be made about the Scanner please contact your distributor representative The Pharmanex BioPhotonic Scanner is intended to show consumers that Pharmanex SCS Certified products can increase carotenoid antioxidants in the skin The Pharmanex BioPhotonic Scanner is not intended to be used for medical purposes It is not a medical device or diagnostic tool of any kind and cannot diagnose treat mitigate cure or prevent any disease or affect the structure or any function of the body nor is it a health assessment tool e Emphasize that the Scanner is intended to show that Pharmanex SCS Certified products work Clearly separate claims for dietary supplements from claims about the Scanner If you encounter consumers who believe that the Scanner can diagnose prevent or cure disease immediately make clear to them that the Scanner does not diagnose any disease or precondition of any disease e Use only information that has been approved by the company e Refer customers to their doctors for questions regarding the use of Pharmanex products with specific medical conditions e Refer media questions to Pharmanex Public Relations 801 345 1000 e Dress appropriately for the occasion
13. e for obtaining repairs or a suitable replacement device in order to operate the S3 Scanner Rental payments are not subject to reduction or prorated rates of the monthly S3 Scanner rental fee for any lapse of available or functioning mobile device by the Lessee Lessor shall support functionality of the S3 Scanner Application only and shall not provide support for the Licensee s mobile device 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 the cost of replacing such Scanner as applicable plus any other amounts owed under this Agreement whereupon this Agreement shall terminate 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 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 Indemnification Lessee assumes liability for and hereby agrees to indemnify p
14. horized by Lessees signature on this Signature Page F Credit Authorization and Guarantee By signing below Lessee hereby authorizes the Lessor to obtain a credit report to verify the credit worthiness of the Lessee from such credit reporting agency selected by Lessor in its sole discretion Lessee hereby also personally guarantees any credit extended by Lessor if the Scanner is used for any business purposes G Occupation If the LESSEE LICENSEE is a health care professional or works in the health care industry please indicate specific profession or occupation e g chiropractor MD dentist nurse etc H Primary Location the Equipment and Related Software shall be kept primarily at LOCATION 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 THE INDIVIDUAL REQUIRED NU SKIN CANADA INC A UTAH CORPORATION NAME SIN TEL ADDRESS 3350 RIDGEWAY DRIVE UNIT 1 MISSISSAUGA ONTARIO L5L 5Z9 V 8 2016 9 21 16KC 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 Dist
15. ical or health care practice b Physicians and other health care professionals are responsible for compliance with state administrative rules federal regulations or local licensing boards if applicable in connection with their operation of the BioPhotonic Scanner c Physicians and other health care professionals are responsible for compliance with health care privacy requirements if applicable including HIPAA in connection with their operation of the BioPhotonic Scanner d Physicians and other health care professionals are responsible for compliance with the Stark Legislation Fraud and Abuse or any other federal or state anti kickback regulations if applicable in connection with their operation of the BioPhotonic Scanner and promotion of Pharmanex products J Engemann T Whitehead E Anderson T Whitehead J Beeson Guidelines for BioPhotonic Scanner in Medical or Clinical Settings Page 1 of 2 Pharmanex Official Company Communication W PHARMANEX ATTACHMENT 1 Pharmanex BioPhotonic Scanner Prohibited Claims The BioPhotonic Scanner measures carotenoid antioxidant levels in skin tissue of generally healthy people The scanner measurement will enable generally healthy consumers to assess the effect of LifePak in their diets as they choose to make dietary changes that will increase their antioxidant levels Lessee cannot make any of the following claims about the scanner on any website in any written or oral presenta
16. ncements 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 Lessors 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 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 WARRAN
17. nding upon each of the parties hereto and their respective heirs administrators legal personal representatives successors and assigns Time shall be of the essence in this Waiver The parties have agreed that this Waiver and all documents related thereto be drafted in the English language Les parties aux pr sentes ont convenu que cette convention et tous les documents qui s y rapportent soient r dig s en langue anglaise If any provision contained in this Waiver or its application to any person shall to any extent be invalid or nforceable the remainder of this Waiver or the application of such provision shall not be affected and each provision of this Waiver shall be separately valid and enforceable to the fullest extent permitted by law No changes modifications or amendments to any terms or conditions in this Waiver are valid or binding unless agreed to by the parties in writing by their authorized representatives In witness whereof the parties have caused this Waiver to be executed as of the day of 20 LESSOR LICENSOR 1 LESSEE LICENSEE THE INDIVIDUAL REQUIRED u Skin Enterprises Canada Inc NAME DISTRIBUTOR ID Address 3350 RIDGEWAY DRIVE UNIT 1 MISSISSAUGA ONTARIO L5L 5Z9 ADDRESS By Scanner equipment CS TEL SIGNATURES V 8 2016 9 21 16KC allo NU SKIN DISCOVER THE BEST YOU SCANNING DO S AND DON TS MARKETING GUIDELINES The Scanner is a marvelous tool inten
18. ny 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 V 8 2016 9 21 16KC 12 13 15 Mobile Device Use Lessee must download a mobile device application from the internet that controls the operation of the S3 Scanner via a Bluetooth connection the S3 Scanner Application The S3 Scanner Application is developed for mobile devices as made available by the Lessor and announced through company communications Lessee shall bear responsibility for downloading the S3 Scanner Application and maintaining a functioning mobile device in order to operate the Scanner Lessee is responsible for all content and data management as a result of using and owning a mobile device Lessee assumes all risk of loss damage theft or destruction of Licensee s mobile device Furthermore in the event of loss damage theft or destruction Lessee shall be responsibl
19. on 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 ter minated cause Lessee to promptly return 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 Ifa 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 Lessors remedies shall be cumulative and in addition to all other legal or equitable remedies No expre
20. 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 is not returned in a timely fashion or if repairs are necessary to place the Scanner 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 redelivery or for the period of time reasonably necessary to perform such repairs together with the cost of such repairs as applicable Lessors 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 9 shall apply 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 iii 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 i
21. r Damage In the event of loss of or damage to the Equipment Lessee shall as applicable i take all reasonable necessary steps to protect and prevent further damage to the Equipment ii report the loss to Lessor and if stolen to all appropriate local authorities as soon as possible and iii provide Lessor with documentation such as a police report and accurate information regarding the date of loss or damage a description of damages how the loss or damage occurred and any other pertinent information Claim Procedure Notice of Claim Lessee shall call Lessors Customer Support Scanner Customer Support at the number set forth below as soon as possible and report all details of the damage or loss to Customer Support Customer Support will thereupon confirm coverage option elected by Lessee and prepare a Loss or Damage Form to be reviewed by Lessor s corporate representatives If such representatives approve the Loss or Damage Form then Lessee shall not be responsible for any amounts of damages or loss in excess of the first 500 00 CAD Customer Support will then make arrangements for return and or replacement of the Equipment or to terminate the Lease Agreement as provided thereunder provided however that in all events Lessee shall be responsible for the first 500 00 CAD of loss or damage which amount Lessee hereby authorizes Lessor to charge to Lessee s credit card in the same manner as Rental If damage or a loss is not reported
22. rding the Use of the Pharmanex BioPhotonic Scanner in Medical or Clinical Settings In 2001 Nu Skin Enterprises NSE became the exclusive owner of licensing rights for the use of a technology devel oped and patented at the University of Utah using Raman Spectroscopy This licensing was specifically for the measure ment of skin carotenoids in non medical settings for the sale of supplements At that time a second license allowing use of Raman Spectroscopy in medical and clinical research settings was issued to a separate company not affiliated with NSE Their license did not allow them to sell supplements in any environment however certain contractual restrictions limited our ability to sell supplements in some medical settings and locations On March 7 2006 NSE acquired additional rights to use the patented technology for the promotion and sales of nutritional supplements in all settings both medical and non medical This newly acquired license contractually allows for placement and use of the BioPhotonic Scanner in medical and clinical settings for the sale of nutritional supplements The newly acquired license expands the Scanners field of use adding credibility and an opportunity to promote the Scanner to new distributors and prospects Where authorized distributors are encouraged to work with their local market to ensure that all distributor driven business initiatives advertising or sales materials meet these official guidelines With
23. resentation or warranty that the Scanner is not a medical device Either party may terminate this Agreement at any time subject to thirty days prior written notice to the other Upon notice of early termination and satisfactory return of equipment Lessee shall be released from further monthly payment obligation The Initial Payment is non refundable 4 Rent Prepayment Lessee shall pay Lessor the Initial Payment Basic Rental collectively the Rental for 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 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 allowed by law whichever is less The Initial 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 enha
24. ributor Agreement with Nu Skin Enterprises Canada 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 hereby licenses to Lessee the Related Software all in accordance with the terms and conditions of this Agreement provided however that this Agreement shall only become effective upon the signing of all documents required pursuant hereto by an authorized representative of Lessor which will occur only after i confirmation by Les sor that Lessee is a Distributor and ii credit approval of Lessee by Lessor LESSEE WARRANTS THAT IT SHALL USE THE SCANNER PRIMARI LY FOR BUSINESS PURPOSES AND NOT FOR PERSONAL FAMILY OR OTHER PURPOSES LESSEE FURTHER WAR RANTS THAT IT SHALL ONLY USE THE SCANNER FOR THE PURPOSES EXPRESSLY ALLOWED IN SECTION 7 3 Term No Medical Device The term of this Agreement shall commence on the Effective Date Lessee acknowledges that a the Scanner is not a medical device 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 Health Canada or similar government agency or restricted from marketing and sale by Health Canada and b Lessor makes no rep
25. rotect and keep harmless Lessor and its affiliates and their officers direc tors 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 who is subject to the privacy rules of HIPAA and who uploads data from a scan to Lessor without a signed HIPAA Authorization shall indemnify protect and keep harmless Lessor and its affiliates and their officers directors and employees from and against any and all liabilities obli gations 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 HIPAA Authorization Lessee alone shall determine if Lessee is subject to HIPAA and Lessor hereby disclaims any respon sibility or liability in connection with Lessee s failure to comply The indemnities hereunder shall survive the Expiration or termination of this Agreement Return of Scanner At the Expiration or earlier termination of this Agreement Lessee shall return the Scanner to Lessor at Lessor s address on the Signature Page
26. s inability to perform for any cause whatever beyond its control 20 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 term 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
27. ss or implied waiver of any Default shall waive any later De fault 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 V 8 2016 9 21 16KC 16 Assignment LESSEE MAY NOT ASSIGN OR TRANSFER ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT WITH OUT THE PRIOR WRITTEN CONSENT OF LESSOR LESSOR MAY ASSIGN ITS RIGHTS UNDER THIS AGREEMENT AT ANY TIME 7 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 8 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 19 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
28. this model distributors are empowered to create their own initiatives within the current compensation plan business model to leverage the BioPhotonic Scanner Although the BioPhotonic Scanner can now be located in medical or clinical settings its regulatory status as a non medi cal device remains the same The Scanner is not a medical device and cannot be used for the diagnosis of any disease or medical condition Use of the BioPhotonic Scanner will continue to be limited to the promotion of healthy diet and life style habits in any location and then only in connection with the sale of Pharmanex nutritional and dietary supplements Please be aware that in some markets the placement of the BioPhotonic Scanner in a medical or clinical setting is pro hibited by local regulation Any questions can be directed to your local office distributor representative 1 All Distributors must agree to abide by the BioPhotonic Scanner marketing guidance documents a Prohibited Claims attachment 1 b Marketing Guidelines attachment 2 2 With regards to physicians and other health care professionals the following additional requirements apply a BioPhotonic Scanner results documentation and nutritional advice related to the promotion of Pharmanex products must be maintained and reported separately from any medical reports diagnostic charts and other medical records generated by physicians or other medical professionals in connection with their med
29. tions in speeches in PowerPoint presenta tions on flyers in brochures in descriptions etc 1 Do not claim that the scanner is a medical device or that it is intended for medical use Do not refer to it as a device at any time 2 Do not claim that the scanner is a diagnostic tool of any kind Do not represent that the scanner can tell consumers that their skin carotenoid antioxidant levels are high low normal or optimal You can tell consumers that the scanner can measure the level of carotenoids in the body associated with the consumption of LifePak z Do not claim that the scanner can diagnose a disease or pre condition to a disease 4 Do not claim that the scanner can by itself contribute to good health or prevent poor health The scanner is not a health assessment tool of any kind and do not represent it as such 5 If customers have incorrect ideas about what the scanner can do correct the misunderstanding immediately For example if someone says that they heard that the scanner helped diagnose an illness or helped someone prevent an illness firmly tell them that their understanding is incorrect because the scanner cannot treat or diagnose a medical condition or illness or promote good health in any way Then tell them what the scanner can do namely measure the level of carotenoids associated with the use of LifePak 6 Do not claim that the scanner can diagnose a condition or affect the structure or function of the body
30. v 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 vi Lessee is an independent contractor and as such shall not attempt to speak for or to bind Lessor or its 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 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 pro cedures 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 conditi
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