Terms of service

EQUIPMENT LEASE

THIS EQUIPMENT LEASE (“Lease”) is made and effective as of [Current Date] (the “Effective Date”), by and between M3D, Inc. with a principal address of 812 Avis Dr, Ann Arbor MI 4810 (“Lessor”) and [CUSTOMER NAME], with a principal address of [CUSTOMER ADDRESS] (“Lessee”).

Lessor desires to lease to Lessee, and Lessee desires to lease from Lessor, certain tangible personal property upon the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, the parties hereto agree as follows:

1. Lease. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment described in Exhibit A hereto (the “Equipment”), including (a) all parts, components, ancillary equipment or devices thereof (“Parts”), (b) all alterations, additions, attachments and upgrades thereof (“Upgrades”), (c) certain support services including but not limited to, unlimited user licenses, on-demand technical support, and annual Equipment calibration (collectively, the “Support Services”).

2. Term. The term of this Lease commences on the date of delivery and shall expire Two weeks thereafter (the “Term”), unless earlier terminated pursuant to the provisions hereof. Lessee may terminate this Lease at any time prior to the end of the Term by returning to Lessor the Equipment in accordance with Section 20 below.

3. Rent. In consideration of Lessee’s right to possess and use the Equipment during the Term, Lessee shall pay to Lessor zero and 00/100 Dollars ($0.00) (the “Rent”).

4. Net Lease. This is a net lease. Lessee's obligation to pay all Rent and other amounts under this Lease is absolute and unconditional and is not subject to any abatement, counterclaim, defense, deferment, interruption, recoupment, reduction, or setoff for any reason whatsoever.

5. Use of Equipment.
(a) Lessee shall use the Equipment in a proper manner and shall comply with and conform to all national, state, municipal, police and other laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment.

(b) Lessee shall not affix or attach any item of Equipment to real property or any improvements. The parties intend that each item of Equipment remains at all times personal property and not a fixture under applicable law, even if the item of Equipment, or any part thereof, may be or becomes affixed or attached to real property or any improvements.

6. Repairs. Lessee shall keep the Equipment in good repair, condition and working order. Lessee shall not incorporate nor install any Parts or Upgrades to the item of Equipment.

7. Loss and Damage. Lessee hereby assumes and shall bear the entire risk of loss or damage to the
Equipment from every cause whatsoever. No loss or damage to the Equipment, or any part thereof, shall impair any obligation of Lessee under this Lease which shall continue in full force and effect through the Term. In the event of loss or damage of any kind whatever to the Equipment (other than normal wear and tear resulting from proper use of the Equipment in accordance with the instructions of the applicable manufacturer), Lessee shall, at Lessor’s option: (a) place the same in good repair, condition and working A-2 order; (b) replace the same with like equipment in good repair, condition and working order; or (c) pay to Lessor the replacement cost of the Equipment, as reasonably determined by Lessor.

8. Taxes.
(a) Lessor is entitled to all deductions, credits, and other tax benefits that are provided in the Internal Revenue Code of 1986, as amended, to an owner of property (“Tax Benefits”). Lessee shall not take or omit to take any action that results in the disqualification of the Equipment for, or recapture of, all or any portion of the Tax Benefits.

(b) Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances. Lessee, or Lessor at Lessee’s expense, shall report, pay and discharge when due all license and registration fees, assessments, sales, use and property taxes, gross receipts, taxes arising out of receipts from use or operation of the Equipment, and other taxes, fees and governmental charges similar or dissimilar to the foregoing, together with any penalties or interest thereon, imposed by any state, federal or local government or any agency or department thereof upon the Equipment or the purchase, use, operation or leasing of the Equipment, or otherwise in any manner with respect thereto and whether or not the same shall be assessed against or in the name of Lessor or Lessee. However, Lessee shall not be required to pay or discharge any such tax or assessment so long as it shall, in good faith and by appropriate legal proceedings, contest the validity thereof in any reasonable manner which will not affect or endanger the title and interest of Lessor to the Equipment; provided, Lessee shall reimburse Lessor for any damages or expenses resulting from such failure to pay or discharge.

9. RESERVED.

10. Indemnification. Lessee shall indemnify, defend and hold harmless Lessor against and any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees and costs, arising out of, connected with or resulting from Lessee’s use of the Equipment or Lessee’s negligence, willful misconduct, Default or other breach of this Lease.

11. Default; Remedies. If Lessee fails to pay any amount herein provided within 10 days after the same is due and payable or if Lessee fails to observe, keep or perform any other provision of this Lease required to be observed, kept or performed by Lessee (each of the foregoing constituting a “Default”), Lessor shall have the right to exercise any one or more of the following remedies:

(a) To sue for and recover all other payments then accrued or thereafter accruing.

(b) To take possession of the Equipment, without demand or notice, wherever same may be located, without any court order or other process of law. Lessee hereby waives any and all damages occasioned by such taking of possession.

(c) To terminate this Lease.

(d) To pursue any other remedy at law or in equity.

Notwithstanding any repossession or any other action which Lessor may take, Lessee shall be and remain liable for the full performance of all obligations on the part of the Lessee to be performed under this Lease. All of Lessor’s remedies are cumulative, and may be exercised concurrently or separately. 

12. Bankruptcy. Neither this Lease nor any interest therein is assignable or transferable by operation of law. If any proceeding under the Bankruptcy Act, as amended, is commenced by or against the Lessee, or if the Lessee is adjudged insolvent, or if Lessee makes any assignment for the benefit of creditors, or if a writ of attachment or execution is levied on the Equipment and is not released or satisfied within 10 days thereafter, or if a receiver is appointed in any proceeding or action to which the Lessee is a party with authority to take possession or control of the Equipment, Lessor shall have and may exercise any one or more of the remedies set forth in Section 13 hereof; and this Lease shall, at the option of the Lessor, without notice, immediately terminate and shall not be treated as an asset of Lessee after the exercise of said option.

13. Ownership. The Equipment is and shall at all times be and remain the sole and exclusive property of Lessor; and the Lessee shall have no right, title or interest therein or thereto except as expressly set forth in this Lease. Lessee shall keep the Equipment free from any marking or labeling which might be interpreted as a claim of ownership by Lessee or any party other than Lessor or any one claiming through Lessor.

14. Security Lease. The parties intend that this Lease constitutes a true lease under the UCC. Should it be determined, notwithstanding the express intent of the parties, that this Lease is not a “finance lease”or a lease under the UCC but rather an agreement intended for security, then solely in that event and for the expressly limited purposes thereof, Lessee grants Lessor a security interest in the Equipment, and all products and proceeds thereof, in each case together with any and all accessions, accessories, attachments, fittings, increases, parts, repairs, renewals, returns, substitutions and replacements of the Equipment or any part thereof whether now existing or hereafter arising, whether now owned or hereafter acquired, to secure the prompt payment and full performance, when and as due, of the obligations and indebtedness of Lessee to Lessor under this Lease. Lessee hereby authorizes Lessor to file financing statements describing the Equipment and the other collateral described above in such filing offices as Lessor may determine to be necessary or desirable for the purposes of perfecting, or continuing the perfection of, a first priority security interest in the Equipment and the such other collateral in favor of Lessor. Lessee hereby appoints the Lessor as agent for the benefit of the Lessee and grants Lessor an irrevocable power of attorney, to take any and all actions and to execute and file all documents necessary to establish, maintain, and continue the first priority perfected security interest of Lessor in the Equipment and such other collateral, in the name of and on behalf of Lessee, at Lessee’s sole cost and expense. This power of attorney is coupled with an interest and is irrevocable during the Term. Lessee shall take all actions and execute and file all documents reasonably requested by Lessor to establish, maintain, and continue the first priority perfected security interest of Lessor in the Equipment and such other collateral. Lessee shall, within ten (10) days after receipt of notice from Lessor, pay all costs and expenses of filing and recording (including the costs of all searches deemed necessary by Lessor) to establish, maintain, and determine the validity and priority of Lessor’s security interest in the Equipment and such other collateral.

15. Representations and Warranties of Lessee. Lessee hereby represents, warrants and covenants that with respect to the Lease executed hereunder:

(a) Lessee is duly organized, validly existing and in good standing under the laws of its state of organization and has full corporate power and authority to own, operate, or lease the properties and assets now owned, operated, or leased by it and to carry on its business as currently conducted. Lessee is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the lease of each item of Equipment or the operation of the business as currently conducted makes such licensing or qualification necessary.

(b) The execution, delivery and performance thereof by Lessee have been duly authorized by all necessary action. Lessee has full corporate power and authority to enter into this Lease, to carry out its obligations hereunder and to consummate the transactions contemplated hereby.

(c) The Lease constitutes the legal, valid and binding agreement of Lessee enforceable in accordance with its terms.

(d) Lessee’s execution and delivery of this Lease and its performance of its obligations hereunder do not and will not (i) be inconsistent with Lessee’s organizational documents, (ii) contravene any law, governmental rule or regulation, judgment or order applicable to Lessee, (iii) require the consent of, notice to, or other action by any other person or contravene any provision of or constitute default under any indenture, mortgage, contract or other instrument to which Lessee is a party or by which it is bound, or (iv) result in the creation or imposition of any lien on any item of Equipment.

(e) Neither the consent or approval of, nor the giving of notice to, registration with or taking of any action in respect of or by any federal, state or local governmental agency or instrumentality, is required with respect to Lessee’s execution, delivery and performance and this Lease.

(f) There is no action or proceeding pending or threatened against Lessee before any court or administrative agency which might have a material adverse effect on the business, financial condition or operations of Lessee.

(g) The Equipment is personal property and will not be or become fixtures under applicable law.

16. Lessor Disclaimer of Warranty. LESSOR DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT THAT LESSOR WARRANTS THAT LESSOR HAS THE RIGHT TO LEASE THE EQUIPMENT, AS PROVIDED IN THIS LEASE.

17. Limitation of Liability. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS LEASE, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT LESSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
PURPOSE.

18. Surrender. Upon the expiration of the Term or earlier termination of this Lease, Lessee shall return
the Equipment to Lessor in good working order, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering the Equipment at Lessee’s cost and expense to such place as Lessor shall specify within the city or county in which the same was delivered to Lessee. If by the expiration of the Term, Lessee does not return any Item of Equipment to Lessor in the condition and on the terms and conditions of this Lease, Lessee shall continue to comply with all the terms and conditions of this Lease with respect to such item of Equipment, including the obligation to pay $_________ each day from the expiration of the Term until the date on which Lessee returns such item of Equipment to Lessor in the manner required under this Lease (“Holdover Rent”). Lessee shall not construe anything contained in this Section, including Lessee's payment of Holdover Rent, as Lessor’s waiver of Lessee’s failure to perform any obligation under this Lease.

19. Miscellaneous.

(a) If Lessor shall so request, Lessee shall execute and deliver to Lessor such documents as Lessor shall deem necessary or desirable for purposes of recording or filing to protect the interest of Lessor in the Equipment, including but not limited to, a UCC financing statement.

(b) This Lease constitutes the entire agreement between the parties on the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to the subject matter hereof. This Lease shall not be amended, altered or changed except by a further writing signed by the parties hereto.

(c) No waiver under this Lease is effective unless it is in writing and signed by an authorized
representative of the party waiving its right. No failure or delay of Lessor in exercising any right, remedy, power, or privilege or in enforcing any condition hereunder shall operate as a waiver thereof. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion.

(d) If any term or provision of this Lease is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Lease or invalidate or render unenforceable such term or provision in any other jurisdiction.

(e) All notices, requests, consents, claims, demands, waivers and other communications under this Lease must be in writing and addressed to the other party at its address first set forth above, or to such address as such party may provide in writing from time to time. All notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested, postage prepaid), or email of a PDF document (with confirmation of transmission). A notice is effective only on receipt by the receiving party.

(f) This Lease is binding on and inures to the benefit of the parties and their respective successors and assigns. Lessee shall not assign this Lease or its interest in the Equipment without the prior written consent of Lessor. Lessee shall not sublease any item of Equipment without the prior written consent of Lessor.

(g) Nothing in this Lease, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Lease.

(h) Nothing herein creates a joint venture or partnership between the parties to this Lease or an employee/employer relationship. Neither party to this Lease has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.

(i) This Lease shall be construed and enforced according to the laws of the State of Michigan.

(j) Headings used in this Lease are provided for convenience only and shall not be used to construe meaning or intent.

(k) All agreements, representations and warranties contained in this Lease or in any document delivered pursuant hereto or in connection herewith shall be for the benefit of Lessor and shall survive the execution and delivery of this Lease and the expiration of the Term or other termination of this Lease.

(l) Time is of the essence with respect to this Lease and each and all of its provisions.

(m) Lessee shall reimburse Lessor if a default shall occur under this Lease, for all reasonable costs including fees and disbursements of counsel in connection with Lessor’s enforcements of its rights under the Lease.

(n) Upon the request of Lessor, Lessee shall at all reasonable times during business hours make the Equipment available to Lessor for inspection at the place where it is located and shall make Lessee’s time usage records, log and maintenance records pertaining to the Equipment available to Lessor for inspection.

(o) The parties agree that should any dispute arise over the interpretation of this Lease, this Lease will be interpreted neutrally pursuant to Illinois law and any rule of law regarding interpretation against the party drafting various provisions of this Lease shall not apply.

(p) This Lease may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement. A signed copy of this Lease delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Lease.