RECITALS

WHEREAS, PP has developed a unique treatment protocols, access to manufacturers and manufactured products, skin and beauty treatment, informational materials, training techniques, devices, and other plasma pen products, along with access to various plasma pens and other beauty devices (the “Product”); and

 

WHEREAS PP and the Interested Party have expressed interest in establishing a business relationship with respect to the Product; and

 

WHEREAS, in order for the Interested Party to evaluate whether it desires to enter into a business relationship with PP regarding the Product, it is necessary for PP to disclose certain confidential information to the Interested Party regarding the Product; and

 

WHEREAS, PP is willing to communicate to the Interested Party certain information related to the Product only upon the terms and conditions hereinafter set forth.

 

AGREEMENT

NOW THEREFORE, the parties hereby agree to the terms and conditions as follows:

 

1. Incorporation of Recitals.  Each of the Recitals above is incorporated herein and made a part of this Agreement by this reference.

2. Confidential Information. Unless otherwise agreed to in writing, as used herein, Confidential Information shall include all information provided by PP to the Interested Party regarding the Product, in whatever form or via any and all means of transmission, including but not limited to all products, training materials, supply sources, specifications, data, materials, techniques, ideas, processes, trade secrets, innovations, discoveries, improvements, research, strategies, forecasts, ideas, processes, technology, manuals, designs, plans, business plans, marketing plans, financial information, and any other information related to the Product that is communicated by PP to the Interested Party or could have been designated as confidential or that (i) has or could have commercial value, and (ii) all information that, if disclosed without authorization, could be detrimental to the interests of PP. In addition, Confidential Information shall include all information of PP that is disclosed or submitted by PP or PP’s agents to the Interested Party, whether disclosed orally, in writing or in any other form, and whether identified as confidential or not.

3. Confidentiality Obligation.  The Interested Party agrees that the Confidential Information is to be considered confidential and proprietary to PP, and that the Interested Party shall hold the same in confidence, shall not use the Confidential Information other than for the purposes stated in this Agreement and for the benefit of PP, and shall disclose it only to its officers, directors, or employees with a specific need to know, if any, in order to facilitate the relationship between PP and the Interested Party. The Interested Party expressly agrees not to use, directly or indirectly, any of the Confidential Information in connection with any current business or affairs, or in furtherance of any business, including additional parties or providing information or materials to any other parties, or for any other purpose whatsoever, except for the purposes stated in this Agreement.

4. No Liability Regarding Product. The Interested Party expressly agrees that only the Interested Party, and not PP, shall be responsible for the use, results, or consequences of use of any Product supplied by PP, and that the Interested Party shall and does indemnify PP for the use of any products, materials, supplies, information, or any other materials obtained from PP by members of the Interested Party’s group, business, or entities and the Interested Party agrees not to use, directly or indirectly, any of the Confidential Information in connection with any current business or affairs, or in furtherance of any business, including additional parties or providing information ials to any other parties, or for any other purpose whatsoever, except for the purposes stated in this agreement.

5. Indemnification.  The Interested Party, and not PP, shall be responsible for the use, results, or consequences of use of any product supplied by PP, and that the Interested Party shall and does indemnify PP for the use of any products, materials, supplies, information, or any other materials obtained from PP by the Interested Party, members of any of the Interested Party’s groups, business, or entities, and the Interested Party agrees not to use, directly or indirectly, any of the Confidential Information in connection with any current business or affairs, or in furtherance of any business, including additional parties or providing information or materials to any other parties, or for any other purpose whatsoever, except for the purposes stated in this Agreement.

6. Responsibility For Breach. The Interested Party acknowledges that PP will sustain substantial damage and irreparable injury if any of the Confidential Information is used in contravention of the terms of this Agreement, and therefore, agrees to accept responsibility for any breach of this Agreement that may result from its own actions or the actions of its officers, directors, employees, agents, affiliates or subsidiaries, if any.  The Interested Party agrees further to indemnify and hold PP harmless for, from and against any claim or loss resulting from any breach of this Agreement by the Interested Party or its officers, directors, employees, agents, affiliates or subsidiaries.

7. PP To Retain Ownership Of Information. The Interested Party acknowledges and agrees that all materials or information furnished or made available by PP shall be and shall remain the exclusive property of PP, and shall include but not be limited to, all written documents, notes, memoranda, compilations, pro forma, sketches, drawings and specifications made by PP and/or the Interested Party, which contain Confidential Information. The Interested Party shall not duplicate any Confidential Information except for the purposes stated in this Agreement. Upon request of PP, the Interested Party shall return all Confidential Information to PP, within ten (10) days of such request.

8. Non-Disparagement. The Interested Party agrees and covenants to take no action and make no statement (including on public forums, blogs, social networks, etc...) at any time during the performance of or after termination of this Agreement that is intended, or could reasonably be expected, to harm, disparage, or negatively impact PP (or any of its employees, associates, affiliates or partners) or their reputations, or which would reasonably be expected to lead to unwanted or unfavorable publicity therefor. The Parties agree that the contents of this Agreement constitute Confidential Information that shall not be publicized or disclosed except as permitted herein.

9. Waiver and Release of Liability. In exchange for access to the Product, the right to obtain training information from Provider, and other good and value consideration, the sufficiency of which is hereby acknowledge, I, as the Interested Party, agree as follows:

 

a. I understand that participation in training with PP or the use of PP’s Product, devices,  or materials involves treatment of skin, both on myself and potentially others, and that such treatments may cause injury.

 

b. ​​I understand that Treatment may involve unique modalities, equipment, supplies, and techniques regarding the use of a plasma pen or other beauty devices, as heretofore defined as the Product, for the treatment on and of skin and other beauty treatments (the “Treatment”). I also understand that the application of Treatment could result in injury to others and myself. I expressly agree and acknowledge that PP is not responsible for any Treatment, or the result of any Treatment, performed by on or myself or others.

 

​​c. I acknowledge that I am fully aware of the risks and hazards involved in any training or the provision of any Treatment I may choose to undertake or may apply to myself or others under my control. Such risks include, but may not be limited to, those caused by physical Treatment, use of the Product on myself or others, the personal condition of participants, and actions of other people including, but not limited to, participants or the Interested Party, as defined herein.

 

​​d. I agree that I am solely responsible for determining whether it is appropriate for me to participate in training and Treatment based on my health. I also agree that I am solely responsible for any Treatment done on myself or provided by myself to others. The Interested Party hereby disclaims and waives any responsibility for Treatments provided by me to others or myself.  I understand that it is my sole responsibility to consult with a physician/medical professional prior to, and regarding, the provision of any Treatment, or the use of any Product, on myself or others. I certify that I am physically fit, have sufficiently prepared or trained for participation in this activity, and have not been advised to not participate by a qualified medical professional. I certify that there are no health- related reasons or problems that preclude my participation in training, the provision of any Treatment to myself or others, or the use of any Product or device provided by PP. I agree that it is my sole responsibility to cease the use of the Product or the provision of any Treatment if I feel it is best for me or others to cease Treatment. If at any time I believe an Training is unsafe for me or others, or that I or others are unable to participate due to physical or medical condition(s), I will immediately discontinue participation.​

 

e. As a condition of participating in training at the Provider, I agree that I am solely responsible for determining whether the training, Treatment, or use of the Product is permitted in the state, county, or city in which I reside or state, or states, in which I intend to provide services or Treatment to myself or others.  I also agree that I am solely responsible for determining the law of the state, county, city, or any other jurisdiction in which I reside or which can or does govern the use of the Product or the provision of any Treatment to others by me.  I further agree that the Provider provides no representations or warranties, and hereby disclaims and waives any responsibility, for the legality of the use of the Product or the provision of any Treatment provided by me to others or myself. I understand and agree that it is my sole responsibility to evaluate the laws, code, statutes, or other legal restrictions in the state, county, city, or other jurisdiction in which I live or intend to provide Treatment to myself or others.  I further understand and agree that it is my sole responsibility to consult with an attorney of my choosing, if I should so choose, to evaluate and determine the legality or my ability to provide Treatment to myself or others under any law, code, statutes, or other legal restriction in the state, county, city, or other jurisdiction in which I live or intend to provide Treatment to myself or others.

 

f. I agree and acknowledge that any certificate or recognition from PP is solely a certificate of completion. I acknowledge that such certificate is not acknowledged or accepted by any specific institution.​

 

g. I agree and acknowledge that any training provided by PP is limited to fibroblasting and plasma pens. Any other device or Product offered by PP, and accepted by the Interested Party, has no training or instruction provided by PP to the Interested Party. The Interested Party is solely responsible for his/her education regarding any of the devices offered by PP.

 

h. I agree and acknowledge that, due to the precise and technical nature of PP’s Product and devices, that PP does not accept refunds or exchanges on any Product or device. The Interested Party acknowledges and agrees that you cannot return or obtain a refund for any Product or device once it has been received by you.​

 

i. I agree and acknowledge that the information provided by PP, including but not limited to, all text, graphics, images, or other material provided by PP or contained on PP’s website, is for informational purposes only. Each person and Interested Party is solely responsible for doing his/her own research regarding PP’s Product or devices.

 

j. I hereby agree and take action for myself, my executors, administrators, heirs, next of kin, successors, and assigns as follows:

 

i. ​​I HEREBY ASSUME ALL OF THE RISKS OF THE USE OF ANY OF PP’s PRODUCTS OR DEVICES, AND/OR PROVIDING TREATMENT OR DEVICES TO OTHERS, including by

way of example and not limitation, any risks that may arise from negligence or carelessness on the part of the persons or entities being released, from any dangerous or defective equipment or property owned, maintained, or controlled by them, or because of their possible liability without fault.

 

ii. ​​I WAIVE, RELEASE, AND DISCHARGE from any and all liability, including but not limited to, liability arising from the negligence or fault of the entities or persons released, for my death, disability, personal injury, property damage, property theft, or actions of any kind which may hereafter occur to me or others under my control or Treatment including: (1) arising from or connected with my voluntary participation in training or any Treatment provided to others, (2) arising from or connected with any assistance provided to me in performance of training, instruction provided to me regarding use of Product, or physical assistance provided to me in the use of Product, by the Provider, (3) in connection with the use by me of the services and facilities of the Provider, and (5) in connection with the premises used by me of the Provider. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF THE FOLLOWING ENTITIES

OR PERSONS: The Provider (Plasma Perfecting Pen, LLC), its members, managers, employees, agents, teaching instructors, volunteers, participants, other students, and all other persons. THIS MEANS I AGREE TO GIVE UP ANY CLAIMS OR DEMANDS AGAINST THE FOREGOING RELEASED PARTIES.

 

iii. I AGREE TO DEFEND, INDEMNIFY, HOLD HARMLESS, AND PROMISE NOT TO SUE

the Provider, its members, managers, employees, agents, instructors, volunteers, participants, agents, and assigns, from any and all liabilities or claims made as a result of participation in training at the Provider, instructions or information provided by the Provider, the use of the Product or any devices provided by PP, whether caused by the negligence, gross negligence, or otherwise.

 

iv. I acknowledge that the Provider is not responsible for the errors, omissions, acts, or failures to act of any party or entity acting on its behalf.

 

k. No Warranties:  The Provider makes no representations and grants no warranties, express or implied, either in fact or by operation of law, by statute or otherwise. The Provider specifically disclaims any other warranties, whether written or oral, or express or implied, including any warranty of quality, merchantability or fitness for a particular use or purpose.

 

l. I represent and warrants that I have read this Agreement and either consulted with an attorney of my choosing regarding the contents and significance of this Agreement, or have knowingly and voluntarily waived my right to do so. I sign this Agreement with full knowledge of any and all rights I may have, and the contents of this Agreement and its meaning, which I have had a reasonable opportunity to review and discuss with an attorney.  I understand the contents and significance of this Agreement and enter into this Agreement voluntarily of my own free will.

 

10. Conflicts of Interest. Interested Party represents that it is free to enter into this Agreement and that this engagement does not violate the terms of any agreement between the Interested Party and any third party. To the fullest extent permitted by law, upon the termination of this Agreement for any reason, the Interested Party shall not use or disclose any of the Confidential Information to directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or any other individual or representative capacity, engage or participate in any business, wherever located, that is in direct or indirect competition with the business of PP. During the term of this Agreement and for a period of ten (10) years following any termination, the Interested Party will not, directly or indirectly solicit, divert, take away, or encourage to leave PP, any employee, contractor, subcontractors or customer of PP.

 

11. Term. The obligations of the Interested Party hereunder shall be effective for a period of ten (10) years from the date PP last discloses any Confidential Information to the Interested Party pursuant to this Agreement. Further, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against the Interested Party, nor by the rejection of any agreement between PP and the Interested Party, by a trustee of the Interested Party in bankruptcy, or by the Interested Party as a debtor-in-possession or the equivalent of any of the foregoing under local law.

 

12. No License. Nothing contained herein shall be construed as granting or conferring any rights by license or otherwise in the Product or any Confidential Information.

 

13. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the United States and the State of Utah and shall be construed broadly to provide a release and waiver to the maximum extent permissible under law.

 

14. Remedies. The Interested Party expressly agrees that PP will be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Interested Party. Resort to such equitable relief, however, will not be construed to be a waiver of any other rights or remedies that PP may have for damages or otherwise. The various rights and remedies of PP under this Agreement or otherwise will be construed to be cumulative, no one of them will be exclusive of any other or of any right or remedy allowed by law. The Parties further agree that in the event of any breach of this Agreement by the Interested Party, PP shall be entitled to any relief as may be necessary to protect PP against any such breach or threatened breach including, but not limited to, all damages, attorneys’ fees, and costs incurred as a result of the Interested Parties’ breach of this Agreement.

 

15. Jury Waiver & Arbitration Clause: As a condition of the provision of the Confidential Information or the use of the Product or any other device or material provided by PP to the Interested Party, I agree to waive the right to a trial by jury regarding any dispute that may arise from this Agreement. Rather, if a dispute arises between the Provider and I, we each agree to (a) attempt to negotiate for a reasonable amount of time to reach a mutually-agreement resolution to such a dispute, or if such negotiations fail, to (b) submit and resolve such dispute to arbitration administered pursuant to the rules of the American Arbitration Association (“AAA”), or such other similar arbitration group as the Parties may agree upon, under the AAA’s Commercial Arbitration Rules, although the arbitration need not necessarily be managed by the AAA. The number of arbitrators shall be one. The place of arbitration shall be Provo, Utah or as close thereto as feasible. Utah law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This paragraph shall not limit PP’s rights to obtain injunctive or other equitable relief in the courts of the State of Utah, as specified in Paragraph 15.

 

16. Miscellaneous.

 

a. Final Agreement. This Agreement contains the entire and exclusive agreement among the parties and terminates and supersedes all prior understandings or agreements, whether oral or written, if any, related to the subject matter hereof.

 

​b. ​Modification or Amendment. No amendment, change, or modification of this Agreement will be valid unless in writing signed by the Parties hereto.

 

​c. ​No Assignment.  The parties may not assign this Agreement or any interest herein without the other party’s express prior written consent.

 

​d. ​Successors and Assigns. All of the provisions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, if any, successors, and permitted assigns.

 

​e. ​Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

 

​f. ​No Implied Waiver. Either party’s failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.

 

​g. ​Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by any party will be in writing and will be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. Any Party hereto may change its address for purposes of this section by written notice given in the manner provided above.

 

​h. ​Attorneys’ Fees. If the services of an attorney are required by any party to secure the performance of this Agreement or otherwise upon the breach or default of another party to this Agreement, or if any judicial remedy or arbitration is necessary to enforce or interpret any provision of this Agreement or the rights and duties of any person in relation thereto, the prevailing party will be entitled to attorney’s fees, costs, and other expenses, in addition to any other relief to which such party may be entitled. Any award of damages following judicial remedy or arbitration as a result of the breach of this Agreement or any of its provisions will include an award of prejudgment interest from the date of the breach at the maximum rate of interest allowed by law.

 

​i. ​Counterparts. This Agreement may be executed in counterparts, each of which shall be an original but all of which shall constitute one and the same instrument.

 

​j. ​Headings. The headings used in this agreement are provided for the convenience only and shall not be used

to construe meaning or intent.

​

BY SIGNING BELOW, I CERTIFY THAT I HAVE READ THIS DOCUMENT AND I FULLY UNDERSTAND ITS CONTENT. I AM AWARE THAT THIS IS NON-DISCLOSURE AGREEMENT, RELEASE OF LIABILITY, AND WAIVER IS A CONTRACT. I SIGN IT OF MY OWN FREE WILL.