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DISPLAY LEASE AGREEMENT

 

DISPLAY LEASE TERMS AND CONDITIONS

 

AGREEMENTS

 

In connection with your entering into the Anodyne Product Sale Agreement and electing one or more of the Display Lease Options, you as Buyer, agree that the following Terms and Conditions, and no other, shall apply to your lease of a Display from Anodyne:

 

(1) Lease of Display; Term.  Anodyne leases to Buyer, and Buyer leases from Anodyne, the Display on the Terms and Conditions contained in this Lease.  The lease term for the Display shall commence on the date of execution of the Anodyne Product Sale Agreement (the "Commencement Date") and continue for a period of thirty-six months (the "Term"). 

 

(2) Lease Payments.  Buyer covenants and agrees to pay to Anodyne monthly lease payments in the amount indicated in the Anodyne Product Sale Agreement to which Buyer is a party (individually, a "Lease Payment" and collectively, the "Lease Payments").

 

(3) Option to Buy.  At the end of the thirty-six-month lease term, Buyer shall have the option to purchase the Display from Anodyne and, if Buyer exercises such option in writing, Anodyne shall sell the Display to Buyer for the amount of one dollar ($1.00).  Buyer may accelerate the termination of this Lease and consummate the purchase of the Display at any time by paying in full the remaining Lease Payments in a lump sum.

 

(4) Use; Maintenance.  Buyer, at its expense, shall cause the Display to be operated in accordance with any applicable operating manuals and manufacturer's instructions.  Buyer shall bear the expense of all necessary repair, maintenance, operation and replacements required to be made to maintain the Display in good condition, reasonable wear and tear excepted, and to comply with all laws to which the use and operation of the Display may be or become subject.  Buyer shall use, operate and maintain the Display only (a) in a commercially reasonable manner; (b) in the normal course of Buyer's business; (c) for the purposes for which the Display is designed; (d) in accordance with the manufacturer's requirements for warranty coverage; and (e) in accordance with all applicable insurance policies.

 

(5) Loss or Damage.  Buyer assumes and shall bear the entire risk of loss, theft, damage or destruction of the Display in whole or in part.  If any item of Display becomes lost, stolen, damaged or destroyed, Buyer shall, at Anodyne's option, (a) promptly repair and restore such item of Display to the condition required by this Lease or (b) promptly pay to Anodyne the replacement value (at the time of loss) of such Display item.

 

(6) Title

 

(a) Title.  Anodyne and Buyer confirm their intent that title to the Display shall remain with Anodyne (or its successors or assigns) exclusively until the option set forth above is exercised. 

 

(7) Display Warranties.  ANODYNE MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE DISPLAY INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE AND DISCLAIMS THE SAME AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES.  Anodyne shall have no liability for any damages, whether direct, indirect, general, special, incidental, exemplary or consequential, caused directly or indirectly by the Display or the inadequacy thereof for any purpose, or for any deficiency or defect therein, or for the use or maintenance thereof, or for any repairs, servicing or adjustments thereto, or for any loss of business or any damage or injury whatsoever and however caused. 

 

(8) Events of Default.  An Event of Default shall occur if (a) Buyer fails to make any Lease Payment when due and such failure continues for a period of 15 days; or (b) Buyer fails to perform or observe any other covenant, condition or agreement to be performed or observed by it or breaches any provision contained herein or in any other document furnished to Anodyne in connection herewith, and such failure or breach continues for a period of 30 days; or (c) Buyer shall file for bankruptcy, become insolvent or bankrupt, make an assignment for the benefit of creditors or consent to the appointment of a trustee or receiver or either shall be appointed for Buyer, as applicable, or for a substantial part of such party's property without its consent, or bankruptcy, reorganization or insolvency proceedings shall be instituted by or against Buyer, as applicable, and, if instituted against Buyer, shall not be vacated or dismissed within 60 days (each an "Event of Default"). 

 

(9) Remedies.  Upon the occurrence of any Event of Default and at any time thereafter, provided such Event of Default is then continuing, Anodyne may, in its discretion, do any one or more of the following:

 

(a) terminate the lease hereunder, upon written notice to Buyer;

 

(b) require that Buyer return the Display at its own risk and expense in the same condition as when delivered, ordinary wear and tear excepted, at such location as Anodyne shall designate;

 

(c) enter the premises where such Display is located and take immediate possession of and remove the same, all without liability to Buyer or its agents for such entry; and

 

(d) exercise any other right or remedy which may be available to it under the Uniform Commercial Code or other applicable law including the right to recover damages for the breach hereof.

 

(10) Indemnification.  Buyer assumes liability for, and shall pay when due, and shall indemnify, reimburse and hold Anodyne and its agents, successors and assigns harmless from and against any and all losses, damages, liabilities, obligations, judgments, settlements, costs and other expenses incurred or suffered by such parties, by reason of the assertion of any claim or the institution of any litigation against them at any time (whether during the Term or subsequent to its termination or expiration), directly or indirectly relating to or arising out of the acquisition, use, transportation, delivery, installation or sublease, ownership, operation, possession, control, storage, return or condition of the Display (regardless of whether such the Display is at the time in the possession of Buyer) or of Buyer's failure to comply with the terms of the lease during the Term; provided, however, that Buyer shall not indemnify Anodyne for any liability incurred by Anodyne as a direct and sole result of Anodyne's gross negligence or willful misconduct.

 

(11) Notices.  Any notices or demands required or permitted hereunder shall be given to the parties in writing and by personal delivery, regular or certified mail, facsimile, email or telegram.  Such notices or demands shall be deemed given upon receipt in the case of personal delivery and upon mailing or transmission in the case of mail, facsimile, email or telegram.

 

(12) Further Assurances.  Buyer will promptly execute and deliver to Anodyne such further reasonable documents and take such further reasonable action as Anodyne may request in order to more effectively carry out the intent and purpose of this Lease, perfection of Anodyne's security interest in the Display or an assignment of Anodyne's interest herein.

 

(13) Governing Law.  This Lease shall in all respects be governed by, and construed in accordance with, the laws of the State of Wisconsin, without reference to conflict of laws principles.

 

(14) Amendments, Modifications, Waivers.  None of the provisions of this Lease may be amended, modified or waived except in a writing signed by the parties hereto.

 

(15) Waiver.  The failure of either party to insist, in any one or more instances, upon full performance of any term, covenant or condition of this Lease shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of any term, covenant or condition of this Lease.

 

(16) Entire Agreement.  This Lease constitutes the entire agreement between the parties with respect to the Display.