Attached files
Exhibit 10.6
SALES
AND SERVICES AGREEMENT
THIS
SALES AND SERVICES AGREEMENT (hereinafter referred to as “Agreement”) is made,
entered into and effective as of the date set forth below by and between New
Benefits, Ltd. whose principal place of business is located at 14240 Proton
Road, Dallas, Texas 75244 (hereinafter referred to as “NB”) and NEW MILLENNIUM
CONSULTANTS, LLC, its affiliates, related entities, and subsidiaries,
(hereinafter referred to as “Reseller”) whose principal place of business is
located at 6 Alton Avenue, Voorhees, New Jersey 08042.
WITNESSETH
WHEREAS,
NB is engaged in the business of the development, design, marketing, sale and
distribution of discount cost containment programs of either NB’s or
third-parties for whom NB is an authorized representative (hereinafter referred
to as “Vendor”); and
WHEREAS,
Reseller is in the business of marketing various types of discount healthcare
and consumer services and benefits to its clients, members, etc.;
and
WHEREAS,
Reseller desires to purchase from NB certain discount healthcare and consumer
benefits and services as well as purchase certain administrative services
relating to same; and
WHEREAS,
NB is ready and willing to sell to Reseller certain discount healthcare and
consumer benefits and services as well as certain administrative services
relating to same desired by Reseller.
NOW
THEREFORE, in consideration of the mutual agreements and covenants herein
contained, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto intending to be
legally bound hereby agree as follows:
1. COVERAGE
AREA
This
Agreement, and all the rights, duties and responsibilities set forth in this
Agreement, apply to, and are applicable in, the fifty (50) United States (with
the exception of Vermont), Washington DC and Puerto Rico (where
available).
2. NB
DUTIES AND RESPONSIBILITIES
As
hereinafter set forth, NB understands and agrees to perform the following duties
and accepts the responsibilities as herein identified:
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(A)
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Sell
the products and services for discount benefits listed in Schedule 1 to
Reseller (hereinafter referred to as “Program”). Annual memberships may be
purchased in one-year increments paid monthly or annually and are
renewable in one-year increments for members in good
standing.
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(B)
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Perform
customer service on behalf of
Reseller.
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(C)
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Provide
toll-free telephone service for eligible members to access providers and
member service functions (hereinafter referred to as “Membership
Services”). Except on NB recognized holidays, trained member
service representatives shall be available from 7:00 am to 7:00 pm Central
Standard Time, Monday through Friday and Saturday from 8:00 am to 5:00 pm
Central Standard Time. NB reserves the right to modify these hours with
thirty (30) days notice to
Reseller.
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(D)
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Provide
an Internet web site for members to locate participating
providers.
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(E)
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Provide
Reseller the benefit marketing and fulfillment verbiage for NB’s products
and services to use in all marketing, enrollment, advertising, and
fulfillment materials. Any changes made to this verbiage must
be approved in writing by NB.
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(F)
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Provide
fulfillment materials as set forth in Schedule 1. Upon request, NB’s
marketing department may assist Reseller with the design of Reseller’s
fulfillment materials. Should Reseller’s fulfillment materials
require more than two (2) design revisions, the additional revisions will
be performed at a cost of one hundred dollars ($100.00) per
hour.
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(G)
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Reserve
the right to add to, modify, or delete parts of the Program and/or the
other services provided under the terms of this Agreement. NB
agrees to provide notice to Reseller of any Vendor change or termination,
which notice will in no event be shorter in duration than that provided to
NB by NB’s applicable Vendor(s).
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(H)
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Secure
and maintain all licenses, registrations and permits by any local, state,
federal, or governmental authority required of NB in the performance of
its obligations under this
Agreement.
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3. RESELLER
DUTIES AND RESPONSIBILITIES
As
hereinafter set forth, Reseller, on behalf of its employees, officers,
directors, agents, contractors, shareholders, clients, customers, and members,
understands and agrees to perform the following duties and accepts the
responsibilities as herein identified:
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(A)
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Submit
marketing/sales verbiage for approval electronically in Microsoft Word and
all marketing materials in their final approved format electronically as a
PDF file or mutually agreed upon
format.
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(B)
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Obtain
prior written approval from NB for any and all printed literature,
radio/television media, telemarketing scripts, press releases, web sites,
enrollment materials, membership cards, or similar items as to their
content, design, format, use of any trade names, use of any Vendor name,
trademark, or service mark of NB or any Vendor under contract with
NB. Reseller shall use only the exact marketing, enrollment,
and fulfillment verbiage approved by NB when describing or making
reference to the discount health benefits listed in Schedule
1. Failure to obtain written approval from NB concerning any
materials (printed, electronic or of any other kind or type whatsoever)
referencing the benefits set forth on Schedule 1 will result in NB, in its
sole discretion, having the right to immediately terminate this
Agreement. Such termination will result in Reseller’s members
being ineligible to use the Membership Services. In addition,
Reseller must secure written approval from NB for all reprints when any
changes have been made. Further, on the first (1st)
day of June each year, Reseller must submit to NB all current marketing,
solicitation, enrollment, and fulfillment materials (printed, electronic
or of any other kind or type whatsoever) for NB’s review and approval
along with an executed copy of Exhibit
B.
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(C)
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Submit
to NB any and all telephone numbers used for inbound and/or outbound
telemarketing of NB’s Program and/or any web site address(es), prior to
launch, containing benefit descriptions and/or Vendor information for any
NB product or service. NB reserves the right at its sole
discretion to monitor any and all such telephone numbers and web sites for
the purpose of ensuring compliance as related to NB’s
Program.
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(D)
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Pay
NB compensation as set forth in Schedule 1 for each membership under the
following terms and conditions:
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(1)
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Said
compensation shall be paid by the fifteenth (15th)
day of each month for all active members enrolled by the last day of the
previous month. If Reseller fails to pay NB within ten (10) days of
receipt of billing, NB may notify Reseller in writing of such failure to
pay and issue a warning to Reseller that if payment in full for all
previously billed amounts is not received within five (5) days from date
of notice, the Agreement may be terminated at the sole discretion of
NB. NB may consider the failure to make payment a breach of
Reseller’s obligations under this Agreement and then may elect, without
notice, to cease providing Reseller’s members access to the NB Membership
Services pending receipt of payment. Termination of this
Agreement does not relieve Reseller of the obligation to pay all monies
due.
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(2)
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If
Reseller believes there is an error on any billing or commission statement
received from NB or Reseller requires additional information regarding a
specific transaction, Reseller should submit a written request for
information within ninety (90) days of the statement date to the address
specified on the statement. Any inquiry regarding an alleged
error not submitted to NB within ninety (90) days will be considered
waived by Reseller. Any correspondence should include
Reseller’s name, account number, and a full description of the error
and/or the transaction in question.
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(E)
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Work
within the parameters of the Program as set forth by NB and/or NB’s
Vendors. It is Reseller’s responsibility to obtain the
appropriate training information from NB for each applicable benefit
included in the Program. Reseller is authorized to recruit
independent sales representatives and/or entities (hereinafter referred to
as “ISR”) to market the Program on behalf of Reseller. Reseller
is responsible for thoroughly training each ISR in respect to the benefits
and services purchased from NB. Reseller is responsible for ensuring each
ISR represents all NB benefits accurately and in conformity with NB’s
existing practices, procedures and requirements by requiring each ISR to
execute Exhibit A. Further, Reseller agrees to indemnify,
defend and hold NB harmless from any and all loss, claims, demands,
damages, suits, liabilities and any costs or expenses, including
reasonable attorney’s fees, arising from or in any way connected with (i)
the failure of the ISR to perform its duties in conformity with NB’s
existing practices, procedures and requirements or (ii) any
misrepresentation made by ISR which is false, misleading or containing any
material misstatement of fact or omitting any material fact required to be
stated to make the statements therein not
misleading. Additionally, NB retains the right to refuse any
opportunity brought to NB by
Reseller.
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(F)
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Send
to NB all new member information electronically or hardcopy in a mutually
agreed upon format within ten (10) days of receipt by
Reseller. Reseller agrees to use best efforts to ensure all
data supplied to NB for processing is in good condition, correct,
complete, and in proper format as set forth by NB. NB agrees all such
member information is considered the confidential property of Reseller and
as such, said information shall not be utilized by NB for any reason other
than the furtherance of this Agreement without the express written consent
of Reseller.
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(G)
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Be
responsible for all costs and expenses associated with Reseller’s
responsibilities under this Agreement, including marketing
materials.
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(H)
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Forfeit,
along with NB, the membership fees to provide a refund to members
commensurate with the prevailing law in the state the membership is
sold.
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(I)
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Authorize
NB to reference Reseller as a
client.
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(J)
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Agree
that its purchases hereunder from NB are sold to customers on a
non-exclusive basis.
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(K)
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Submit
a completed Group Information Form to NB for each new group setup in NB’s
system a minimum of three (3) weeks prior to the group’s initial
enrollment date. After thirty (30) days from the execution of
this Agreement, all new Group Information Forms must be accompanied by a
nonrefundable administrative fee of fifty dollars ($50.00)
each.
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(L)
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Provide
NB the name of any client, along with the name of their program if it is
private-labeled, to whom Reseller resells NB’s products and
services. Reseller shall not wholesale benefits to any other
person or entity without NB’s prior written
consent.
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(M)
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Agree
to link Reseller’s web sites, or any affiliated web sites created for the
purpose of marketing NB products and services, exclusively to the links
provided by NB in order for benefit descriptions and Vendor information to
remain up to date.
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(N)
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Secure
and maintain all licenses, registrations and permits by any local, state,
federal, or governmental authority required of Reseller in the performance
of its obligations under this Agreement. Reseller shall notify
NB in writing within five (5) business days of the commencement of any
material action, suit or proceeding, and of the issuance of any order,
writ, injunction award or decree of any court, agency or other
governmental instrumentality involving
Reseller.
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(O)
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Agree
not to resell by multilevel marketing NB benefits without prior written
agreement from NB.
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(P)
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Obtain
NB’s approval on the retail pricing for any benefit package including one
or more of NB’s benefits. Reseller agrees to list each benefit
package along with the corresponding retail pricing in a Price Filing
Form. Should Reseller offer any benefit package which includes
NB’s benefits without obtaining NB’s prior written approval in a Price
Filing Form or a subsequent Addendum, NB will consider such action a
breach of Reseller’s obligations under this Agreement and may result in
NB, in its sole discretion, terminating this
Agreement.
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(Q)
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Reseller
cannot sell multiple year memberships without prior written consent from
NB.
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(R)
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Pay
NB a one-time setup fee of $2,500.00 via check upon execution of this
Agreement. Should Reseller enroll a minimum of twenty-five
hundred (2,500) active members within the first twelve (12) months
following the execution of this Agreement, Reseller may submit a Request
for Credit Form to NB and NB will then credit the $2,500.00 setup fee back
to Reseller. Should Reseller fail to enroll a minimum of
twenty-five hundred (2,500) members by the one-year anniversary date of
this Agreement, NB will permanently retain the initial setup fee in its
entirety. The aforementioned $2,500.00 fee includes setup of
Reseller’s groups in NB’s system during the initial thirty (30) days
following the execution of this Agreement. After thirty (30)
days from the execution of this Agreement, Reseller agrees to pay NB a
nonrefundable administrative fee of fifty dollars ($50.00) per
group. Once Reseller’s total enrollment reaches a minimum of
twenty-five hundred (2,500) active members, NB agrees to waive the fifty
dollar ($50.00) administrative fee for any additional
groups.
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4. NATURE
OF RELATIONSHIP
No terms
or provisions of this Agreement are intended to create nor shall they be deemed
or construed to create any relationship between NB and Reseller other than that
of independent entities contracting with each other hereunder solely for the
purpose of effecting the terms and provisions of this Agreement. The
parties hereto are not and shall not be deemed for any purpose to be joint
ventures, partners, or agents of each other. Neither of the parties
hereto, nor any of their respective officers, directors, or employees, shall
represent themselves as the partner, employee, servant, or agent of the other
party, and shall not be deemed or construed to be the partner, employee,
servant, or agent of the other party. Both parties agree to adhere to
all applicable laws, rules, and/or regulations pertaining to the solicitation
and marketing of NB products and services. Neither party is
authorized to represent the other party for any purpose, except as specifically
provided in this Agreement, without the prior written consent of that
party. Further, Reseller is not authorized to make, alter, or
discharge contracts, extend the time or method of payment, or waive or retain
any money due NB unless previously agreed to in writing by
NB. Reseller understands and acknowledges that in respect to this
Agreement, it is the intent of the parties that Reseller is only purchasing from
NB certain products and related services for certain prices and nothing
more.
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5. RECOGNITION OF VALIDITY OF
TRADEMARK
Reseller
hereby agrees and shall at all times recognize the validity of any and all
trademarks, service marks, and trade names of NB and the ownership thereof by NB
as herein granted and shall not at any time put in issue or contest, either
directly or indirectly, the validity of such trademarks, service marks or trade
names. In addition, nothing in this Agreement shall give Reseller any
interest in such trademarks, service marks, trade names, or in any design used
in connection therewith. It is further understood and agreed NB
grants to Reseller during the term of this Agreement a permission, not coupled
with an interest, to use any such trademarks, service marks, trade names, or
designs in connection with the license herein granted; such use to be in the
manner and with the result of designating NB as the source of and origin of such
services and/or products.
Reseller
also agrees in the event of any actual or suspected infringement of any trade
name, trademark, or service mark that is owned by NB, Reseller shall promptly
report the same in writing to NB. Determination of whether to
institute any demand, suit or action with reference to any such suspected or
actual infringement shall be made solely by NB and, if instituted, it shall be
instituted, controlled and maintained at the expense of NB. Reseller
agrees to cooperate fully with NB with reference to any such demand, suit, or
action.
NB agrees
to extend to Reseller the same rights and cooperation as set forth herein
regarding the trademarks, service marks, and trade names of Reseller as Reseller
has extended to NB.
6.
TERM AND TERMINATION
The
initial term of this Agreement shall begin on the date of this Agreement as set
forth below, and shall continue for a period of one year from that date, unless
terminated sooner pursuant to the provisions contained in this
Agreement. This Agreement shall automatically renew on the same terms
and conditions for successive one-year periods, unless terminated in writing, by
certified mail, as outlined below. Notwithstanding the foregoing,
should Reseller fail to generate new and/or renewal memberships for twelve (12)
consecutive months, this Agreement will automatically terminate with no action
required by either party. Upon expiration of the initial term, NB
reserves the right to change the pricing contained in this Agreement or in any
subsequent addendum with a minimum of thirty (30) days written notice to
Reseller. Any change in pricing will not apply to existing members enrolled in
one of Reseller’s active groups until their membership comes up for annual
renewal. Should Reseller not agree to the change in pricing, Reseller
may terminate this Agreement according to the provisions of item (A)
below. This Agreement may be terminated at any time as
follows:
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(A)
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with
thirty (30) days notice by either party without cause. In the event this
Agreement is terminated by NB without cause, existing business will
continue to be serviced as long as membership fees are paid to
NB. Renewals will continue to be serviced if mutually agreed
upon in writing by both parties.
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(B)
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with
seven (7) days notice by NB with cause for misrepresentation by Reseller
and/or Reseller’s ISR of the Program in the marketplace. In the event this
Agreement is terminated by NB with cause, existing business may continue
to be serviced at the sole discretion of NB as long as membership fees are
paid to NB.
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(C)
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with
thirty (30) days notice by either party with cause in the event of any
default or breach by the other party of the terms of this Agreement or
those contained in any subsequent amendments or schedules. The
non-breaching party may give written notice demanding said default be
remedied within thirty days, and if the default is not remedied, this
Agreement is deemed terminated with no further action. In addition to any
other rights and/or remedies available at law, in equity or under contract
available to the non-breaching party, the party responsible for breaching
this Agreement also agrees damages and remedies at law for such breaches
would be inadequate and that the non-breaching party may apply to a court
of competent jurisdiction for, and shall be entitled to, a temporary
restraining order and an injunction by such court to prevent further
breach thereof on the part of the party responsible for breaching this
Agreement without the necessity of posting any bond or other security. In
addition, the party responsible for breaching this Agreement agrees to pay
all court costs and reasonable attorneys' fees incurred by both parties in
obtaining specific performance of, or any equitable relief against
violation of, or continuous violation of, the requirements of this
Agreement. In the event this Agreement is terminated with cause, existing
business may continue to be serviced at the sole discretion of NB as long
as membership fees are paid to NB.
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(D)
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notwithstanding
the foregoing, immediately by NB if Reseller is found to have any
unauthorized memberships (memberships that have not been enrolled with NB
and/or have not been paid for by Reseller). Unauthorized
memberships shall constitute a breach of this Agreement by Reseller and
shall be cause for immediate termination of this Agreement and/or
deactivation of Reseller’s enrolled members. Termination of this Agreement
does not relieve Reseller of the obligation to pay all monies
due.
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(E)
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notwithstanding
the foregoing, immediately by NB if Reseller, its affiliates,
related entities, and/or subsidiaries, or any agent acting on behalf of
Reseller, is found to be engaged directly or indirectly in any unethical
and/or illegal marketing practices, including but not limited to any form
of fax blasting. Unethical and/or illegal marketing practices
shall constitute a breach of this Agreement by Reseller and shall be cause
for immediate termination of this Agreement and/or deactivation of
Reseller’s enrolled members. Termination of this Agreement does not
relieve Reseller of the obligation to pay all monies
due.
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(F)
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notwithstanding
the foregoing, immediately if any state, local or federal law or
regulation is enacted or promulgated that prohibits the performance of any
of the duties hereunder, or if any law is interpreted to prohibit such
performance.
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7. CONFIDENTIALITY
NB and
Reseller each acknowledge that, in the performance of its duties and obligations
under this Agreement, it may receive or have disclosed to it Confidential
Information. For the purpose of this Agreement, Confidential Information shall
mean any and all information of a confidential or proprietary nature, whether
written, oral, embodied in magnetic tape, computer software (including but not
limited to source code), or other medium for storage of information, documents,
names of customers/clients/members, software, present and future products, price
quotes, proposed commission structures, and policies (including listing thereof
and documentation related thereto) disclosed by either party hereto to the
other, its employees, officers, directors, agents, or representatives, during
the term of this Agreement. The parties acknowledge and agree the
Confidential Information is proprietary to, and a valuable trade secret of, the
disclosing party, and any disclosure or unauthorized use thereof will cause
irreparable harm to the disclosing party. Reseller will not disclose
to any third party any of the terms and conditions of this
Agreement. NB reserves the right to terminate this Agreement at any
time by giving written notice to Reseller in the event of any impermissible
disclosure hereunder.
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Accordingly,
the parties each agree and undertake:
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(A)
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to
treat Confidential Information in confidence and use it only in connection
with this Agreement;
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(B)
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not
to copy, in whole or in part, Confidential Information except insofar as
is reasonably necessary for performance of the Agreement and without first
obtaining the prior written consent of the disclosing
party;
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(C)
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not
to disclose Confidential Information except that such information may be
disclosed to the receiving party’s directors, officers, and employees to
the extent necessary for purposes directly related to the performances of
receiving party’s duties under this
Agreement;
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(D)
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to
return Confidential Information, including all copies and records thereof,
at the expiration or earlier termination of this Agreement, provided
however, the parties may retain such information as is reasonably
necessary for the performance of the parties’ respective duties and
obligations after expiration of the
Agreement;
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(E)
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not
to use Confidential Information to compete or assist any person or entity
in competing with the business of the other party or its
affiliates;
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(F)
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not
to use, sell or in any way violate the privacy of the clients/members
names which shall become available to each other through the servicing of
this relationship; and
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(G)
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to
keep strictly confidential the terms and conditions of this
Agreement. Should Reseller divulge pricing information from
this Agreement to a third party, NB reserves the right to change the
pricing described in any schedules or exhibits at NB’s sole
discretion.
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If the
receiving party or anyone to whom it discloses the Confidential Information
becomes legally compelled to disclose all or any part of the Confidential
Information (by deposition, interrogatory, request for documents, subpoena,
civil investigative demand, or other order issued by a court of competent
jurisdiction, or by a government agency), the receiving party shall (i)
promptly, and prior to compliance with the request, notify the disclosing party
of the existence, terms, and circumstances comprising such a request; (ii)
consult with the disclosing party on the advisability of taking steps to resist
or narrow that request, and to the extent legally permissible, delay such
disclosure until the disclosing party has taken all reasonable steps necessary
to resist or narrow that request; (iii) if disclosure of the Confidential
Information is required, after notifying the disclosing party, furnish only such
portion of the Confidential Information as the receiving party is advised by
counsel is legally required to be disclosed; and (iv) cooperate with the
disclosing party, at the disclosing party’s expense, in its efforts to obtain a
protective or limiting order or other reliable assurance that confidential
treatment will be afforded to that portion of the Confidential Information that
is required to be disclosed.
8. NON-COMPETITION
Reseller
for and on behalf of its officers, agents, directors, and principal shareholders
agrees during the term of this Agreement, and for a period of one (1) year after
the termination of this Agreement (with the exception of NB terminating this
Agreement without cause), it and they shall not directly or indirectly contract
with any Vendors listed in Schedule 1 of this Agreement, nor shall they hire any
employee of NB during this time period, nor shall they utilize NB’s confidential
provider lists to solicit and/or contract with any providers in the event
Reseller elects to establish its own vision, chiropractic, or any other provider
network made available to Reseller by NB under the terms of this
Agreement. Reseller is not prohibited from establishing its own
provider network(s) when soliciting providers from lists in the public domain or
from establishing a business relationship with another party that maintains a
provider network which includes one or more of the providers in NB’s provider
network.
The
covenants by Reseller contained in this paragraph are of the essence of this
Agreement and NB would not sell the Program hereunder to Reseller in the absence
of such covenants. In consideration of such covenants and to entrust to Reseller
provider lists, marketing materials, and other related Confidential Information
pertaining to the business of NB, Reseller hereby expressly agrees the
utilization of such training and sales information in competition against NB or
its affiliates as hereinafter expressly prohibited would be grossly unfair to NB
and would cause continuing irreparable damage to NB.
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9. NON-CIRCUMVENTION
Any
direct sales leads or referrals developed, created or furnished by Reseller in
the promotion and/or marketing of memberships in any of NB benefit program which
result in sales of, or negotiations for sales of memberships, shall be
considered a potential client of Reseller. In order to prevent
Reseller’s potential clients from trying to contract directly with NB, Reseller
must complete NB’s Non-Circumvention Agreement. Upon receipt of each
completed Non-Circumvention Agreement, NB will notify Reseller if the client
listed has been registered as Reseller’s prospect. Should the named
organization or one of their representatives try to contact NB, NB will
immediately direct them back to Reseller. NB’s Non-Circumvention
Agreement is valid for a period of ninety (90) days. In the event Reseller and
Reseller’s potential client do not enter into a written Agreement within ninety
(90) days from the date NB accepts the Non-Circumvention Agreement, said
Non-Circumvention Agreement shall be terminated. Reseller may prevent
termination by presentation of a “Broker of Record” letter from their respective
client. In the absence of a properly executed and valid
Non-Circumvention Agreement, NB will have no obligations to Reseller under this
paragraph and will be free to deal with such leads, references, and/or clients
as NB deems appropriate.
From time
to time, more than one reseller may try to secure the same client’s business at
the same time. The Non-Circumvention Agreement does not preclude
other resellers of NB’s Program from working with a prospective client listed in
the Non-Circumvention Agreement. However, it does prevent the client
from going directly to NB for the purpose of negotiating a
contract. In the event two entities have presented NB’s benefits to
the same client or their representative, the client will be asked to issue a
“Broker of Record” statement designating which reseller has been
selected.
10. INDEMNIFICATION
NB
agrees, except as otherwise provided, to indemnify, defend and hold Reseller
harmless from any and all loss, claims, demands, damages, suits, liabilities and
any costs and expenses, including reasonable attorneys’ fees, arising from or in
any way connected with (i) the failure of NB to provide the Program in
accordance with its terms; or (ii) the failure of NB to perform its duties
pursuant to this Agreement and/or observe all of the terms, covenants and
conditions contained herein; or (iii) any representation by NB which is false,
misleading or containing any material misstatement of fact or omitting any
material fact required to be stated to make the statements therein not
misleading.
Reseller
agrees to indemnify, defend and hold NB harmless from any and all loss, claims,
demands, damages, suits, liabilities and any costs or expenses, including
reasonable attorney’s fees, arising from or in any way connected with (i) the
sale or furnishing of services of Reseller; (ii) the failure of
Reseller to perform its duties under this Agreement and/or observe all of the
terms, covenants and conditions contained herein; or (iii) any representation
made by Reseller which is false, misleading or containing any material
misstatement of fact or omitting any material fact required to be stated to make
the statements therein not misleading.
11. PARTIAL
INVALIDITY: SEVERABILITY
In case
any one or more of the provisions contained in this Agreement shall, for any
reason, be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed, so far as is
reasonable and possible, as if such invalid, illegal, or unenforceable provision
or provisions had never been contained herein or in a manner that is reasonable
and reflects the intent of the parties hereto.
|
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5/21/2008
|
12. ASSIGNMENT
Neither
this Agreement nor any of the benefits to accrue hereunder shall be assigned or
transferred, either in whole or in part, without the prior written consent of
the other party, which will not be unreasonably withheld. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, legal representatives, successors and assigns.
13. LEGISLATIVE
CHANGES
In
relation to the subject matter of this Agreement, each party shall perform its
duties in compliance with all applicable laws, ordinances, regulations and other
requirements that are now governing or may in the future govern the subject
matter of this Agreement. If the performance of a duty by either
party under this Agreement cannot be performed due to a legislative or
regulatory change, or if the performance by any party hereto of any term,
covenant, condition or provision of the Agreement should violate any statute,
ordinance, or be otherwise deemed illegal by any governmental body or agency
(collectively, “Jeopardy Event”), then NB will send notification to Reseller of
such Jeopardy Event. Within fifteen (15) days of receiving said notification,
Reseller must complete the accompanying acknowledgement documentation and submit
to NB. Failure to return the necessary acknowledgement paperwork
could result in, but not be limited to, contract termination and/or membership
suspension in a particular state.
14. WAIVERS
The
failure of any party to insist upon the prompt and punctual performance of any
terms or conditions in this Agreement, or the failure of any party to exercise
any right or remedy under the terms of this Agreement on any one or more
occasions shall not constitute a waiver of that or any other term, condition,
right, or remedy on that or any subsequent occasion, unless otherwise expressly
provided for herein.
15. CONSTRUCTION
This
Agreement shall be interpreted as though it were mutually
drafted. The masculine shall be deemed to include the feminine and
vice versa, and the singular shall be deemed to include the plural and vice
versa. All references to dollar amounts in this Agreement means
amounts in currency of the United States of America. In the event of a dispute
hereunder, this Agreement shall be interpreted in accordance with its fair
meaning and shall not be interpreted for or against any party hereto on the
grounds such party drafted or caused to be drafted this Agreement or any part
hereof, nor shall any presumption or burden of proof or persuasion be implied by
virtue of the fact this Agreement may have been prepared by or at the request of
a particular party or their counsel.
16. ENTIRE
AGREEMENT
This
Agreement contains the entire and only Agreement between the parties hereto and
supersedes all other prior Agreements between the parties whether written or
oral. This Agreement shall not be modified or amended in any manner except in
writing signed by all parties.
17. CAPTIONS
The
paragraph captions contained in this Agreement are intended for purposes of
convenience or reference only and shall not be considered in construing this
instrument.
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|
18. FORCE
MAJEURE
Neither
party shall be deemed to be in default of any provisions of this Agreement, or
for failure in performance, resulting from acts or events beyond the control of
any such party provided the party claiming force majeure gives the other party
prompt notice of such condition. Such acts shall include, but not be
limited to, acts of God, civil or military authority and disturbance, war,
strikes, fires, other catastrophes, or other events beyond the parties’
reasonable control. Force majeure conditions shall not excuse payment
obligations provided services remain current.
19. MISCELLANEOUS
SERVICES
Should
Reseller request additional services including, but not limited to, programming,
programming changes, commission disbursement restructure, system development,
etc., services will be performed at NB’s current Time & Material (T&M)
rates. T&M pricing will be quoted on a case-by-case
basis.
20. DATE
SENSITIVE
In the
event both parties do not sign this Agreement on or before the last day of May,
2008, it will be deemed null and void.
21. OPPORTUNITY
TO CONSULT AN ATTORNEY
Each
party to this Agreement agrees they have had an opportunity to review this
Agreement and consult with an attorney prior to accepting its terms, and by
signing below agrees there was no duress placed on them and there were no
representations made other than those contained in this Agreement.
22. RESPONSIBILITY
TO AND RIGHTS OF THIRD PARTIES
Reseller
acknowledges and agrees (a) NB does not practice medicine or any other
profession, (b) NB does not control the provision of services to Reseller’s
members, (c) NB does not control the actions of their Vendors and is not
responsible in the event one or more of these Vendors terminate, cease, or
modify the service(s) and/or product(s) offered in the Program, and (d) NB is
not responsible for the care and treatment of Reseller’s members rendered by the
participating professionals from the respective network in which they are
associated; such care and treatment being the sole responsibility of the
participating professionals from the respective network in which they are
associated. Further, Reseller acknowledges and agrees each member shall be
solely financially responsible for paying the usual and customary fees of
participating professionals, less applicable discounts established from time to
time by NB, for services received by such member. NB is not
responsible or accountable for providing funds to pay for such
services.
23. PROHIBITION
OF ILLEGAL MARKETING PRACTICES
NB and
Reseller each warrants and represents that all present and future marketing
practices used by their organization are in compliance with (i) the Telephone
Consumer Protection Act (“TCPA”) as defined under 47 U.S.C. section 227 which
strictly prohibits illegal telemarketing and unsolicited fax transmittal
activities (http://www.fcc.gov/cgb/consumerfacts/tcpa.html)
and (ii) the CAN-SPAM Act of 2003 which strictly prohibits unsolicited
commercial electronic mail (http://www.spamlaws.com/federal/can-spam/shtml). Either
party shall have the right to immediately terminate this Agreement upon learning
of any violation of the TCPA or CAN-SPAM Act by the other
party. Further, both parties agree the party responsible for
violating the TCPA or CAN-SPAM Act will be responsible for all costs and
expenses of both parties, including court costs and attorney’s fees, arising
from or in any way connected with said violation.
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|
24. AUDIT
Both
parties agree to allow each other access to, and audit privilege of,
proprietary, pertinent and relevant records, document and data in order to
validate compliance with the terms and conditions of this Agreement during
regular business hours, 9:00 AM to 5:00 PM Central Time. Upon receipt
and acknowledgement of a thirty (30) day prior written notice, either party will
reasonably grant such access and audit privileges (all expenses to be paid by
the requesting party).
25. NOTICES
All
notices required pursuant to this Agreement shall be in writing and shall be
sufficiently given and served upon the other party if given personally or mailed
by certified mail to the following addresses:
|
IF
TO NB:
|
IF
TO RESELLER:
|
|
Joel
Ray, CEO
|
Gerard
Ferro, CEO
|
|
New
Benefits, Ltd.
|
New
Millennium Consultants, LLC
|
|
14240
Proton Road
|
6
Alton Avenue
|
|
Dallas,
TX 75244
|
Voorhees,
NJ 08042
|
Any
notice mailed by certified mail or registered mail, return receipt requested,
postage prepaid to the above addresses, shall be effective forty eight (48)
hours after deposit in the United States mail, duly addressed and with postage
prepaid. Such addresses may be changed from time to time upon written
notice to the other party.
26. GOVERNING
LAW
This
Agreement is made in the County of Dallas, State of Texas, and shall be
construed and interpreted in accordance with the laws of the State of
Texas. Venue for any disputes is in Dallas, Dallas County,
Texas.
27. SCHEDULES;
EXHIBITS
All
schedules and exhibits attached hereto are incorporated in this Agreement by
reference for all purposes.
EXECUTED
BY THE PARTIES HERETO ON THE
DAY OF
, 2008:
|
RESELLER
|
NEW
BENEFITS, LTD.
|
|
|
Signature:
|
Signature:______________________
|
|
|
Name:
|
Gerard Ferro
|
Name:______________________
|
|
Title:
|
CEO
|
Title:______________________
|
|
Company:
|
New Millennium Consultants,
LLC
|
of
Neubene Management,L.L.C.,
|
|
Address:
|
6 Alton Avenue
|
its
General Partner
|
|
Voorhees, NJ 08042
|
||
|
Telephone
#:
|
||
|
Fax
Number:
|
||
|
Email
Address: William.swank@limesystems.com
|
||
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CONFIDENTIAL
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5/21/2008
|
SCHEDULE
1
Voluntary
Pricing for New Millennium Consultants, LLC
Reseller
shall remit to NB the following amounts per member per month for the following
benefits (first year and renewal):
| MEDICAL BENEFITS |
VOLUNTARY WHOLESALE
NET
PRICEE
|
|
Alternative
Health & Wellness (American Wholehealth)
|
$0.65
per member per month
|
|
Chiropractic
(UHS – Subject to availability)
|
$0.65
per member per month
|
|
Dental
(Aetna Dental Access)
|
$0.85
per member per month
|
|
Doctors
Online (eDocAmerica)
|
$0.75
per member per month
|
|
Doctors
Online Plus (eDocAmerica+)
|
$0.85
per member per month
|
|
Durable
Medical Supplies** (Allegro)
|
$0.10
per member per month
|
|
Elder/Long-Term
Care* (CHCS)
|
$0.75
per member per month
|
|
Family
Consultation* (Work & Family Benefits)
|
$0.35
per member per month
|
|
Hearing
Aids** (ClearSounds/Beltone/TruHearing/Lloyds)
|
No
Charge with 2+ Paid Benefits
|
|
Medical
Health Advisor (Health Advocate)
|
$1.25
per member per month
|
|
Medical
Records Storage* (Health Tracer)
|
$0.35
per member per month
|
|
Nurse
Hotline/Health Information Library* (FoneMed)
|
$0.75
per member per month
|
|
Personal
Wellness Online (My eWellness)
|
$0.50
per member per month
|
|
Pet
Care Savings (Pet Assure)
|
$0.85
per member per month
|
|
Pharmacy
- Retail (NB) and Mail Order (SunRX)
|
$0.75
per member per month
|
|
Pharmacy
- Tiered Pharmacy (NB) and Mail Order (SunRX)
|
$3.50
per member per month
|
|
Physician
and Hospital Network w/Medical Health Advisor (Beech
Street)
|
$4.25
per member per month
|
|
Physician
and Hospital Network w/Medical Health Advisor (Galaxy)
|
$1.95
per member per month
|
|
Physician
(Beech) & Hospital (Galaxy) w/Medical Health Adv.
|
$4.25
per member per month
|
|
Two-Blend
PPO w/Medical Health Advisor
|
$2.50
per member per month
|
|
(Galaxy,
ppoNext, Health Advocate)
|
|
|
Three-Blend
PPO w/Medical Health Advisor
|
$3.75
per member per month
|
|
(Beech,
Galaxy, ppoNext, Health Advocate)
|
|
|
TelaDoc
(Subject to availability)
|
$1.50
per member per month
|
|
TelaDoc
w/No Consultation Fee (Subject to availability)
|
$2.00
per member per month
|
|
Telephonic
Counseling* (APS)
|
$0.85
per member per month
|
|
Travel
Assist* (Medex – Subject to availability)
|
$0.35
per member per month
|
|
VIP
Health & Wellness** (Vitamins-Vitacost, Diabetic-Diabetic
Solutions)
|
No
Charge with 2+ Paid Benefits
|
|
Vision
(Coast to Coast)
|
$0.65
per member per month
|
|
LIFESTYLE BENEFITS
|
|
|
Auto
Maintenance and Pricing* (Consumer Benefit Services)
|
$0.15
per member per month
|
|
Condo
Access* (Access Development)
|
$0.45
per member per month
|
|
Dining
Access* (Access Development)
|
$0.45
per member per month
|
|
Financial
Helpline* (Financial Lifeline)
|
$0.75
per member per month
|
|
Fitness
Advantage* (Preventure)
|
$0.35
per member per month
|
|
Flowers
for All Occasions* (Consumer Benefit Services)
|
$0.25
per member per month
|
|
Funeral
Services – Basic Plan (Tribute Direct)
|
$0.35
per member per month
|
|
Funeral
Services – Complete Plan (Tribute Direct)
|
$0.50
per member per month
|
|
Golf
Access* (Access Development)
|
$0.45
per member per month
|
|
Grocery
Coupons* - Online (Consumer Benefit Services)
|
$0.25
per member per month
|
|
CONFIDENTIAL
– Net Agreement (Net)
Rev. 1/2008
|
Page 12 of 15 |
5/21/2008
|
|
Grocery
Coupons* - Booklet (Consumer Benefit Services)
|
$2.50
per member per year (annual)
|
|
Home
Alarm Systems* (Monitronics)
|
No
Charge with 2+ Paid Benefits
|
|
Home
Repair Network* (Consumer Benefit Services)
|
$0.45
per member per month
|
|
Hotel
Access* (Access Development)
|
$0.45
per member per month
|
|
Proactive
Identity Theft Prevention ** (LifeLock)
|
$2.00
per member per month
|
|
Proactive
Identity Theft Prevention ** 60 Day Free Trial (LifeLock)
|
No
Charge with 2+ Paid Benefits
|
|
Identity
Theft Protection* (Identity Safeguards)
|
$0.75
per member per month
|
|
Legal
Care Direct* (Legal Club of America)
|
$0.35
per member per month
|
|
Local
& Interstate Moving* (Consumer Benefit Services)
|
$0.15
per member per month
|
|
Magazine
Program* (Consumer Benefit Services)
|
$0.25
per member per month
|
|
Movie
Ticket Discounts* (Consumer Benefit Services)
|
$0.15
per member per month
|
|
Real
Estate Benefits Program** (Century 21)
|
No
Charge with 2+ Paid Benefits
|
|
Recreation
Access* (Access Development)
|
$0.45
per member per month
|
|
Roadside
Assistance** (Nation Safe Drivers)
|
$1.50
per member per month
|
|
Shopping
Services* (Consumer Benefit Services)
|
$0.45
per member per month
|
|
Skiing
Access* (Access Development)
|
$0.45
per member per month
|
|
Tax
Advice & Preparation* (People’s Choice)
|
$0.85
per member per month
|
|
Theme
Park Tickets* (Consumer Benefit Services)
|
$0.25
per member per month
|
|
Travel
Reservation Service* (Consumer Benefit Services)
|
$0.25
per member per month
|
* This
benefit must be purchased with at least one other paid
benefit.
** This
benefit must be purchased with at least two other paid benefits.
Additional Terms:
|
¨
|
Member
is defined as the card purchaser and legal
dependents.
|
|
¨
|
All
benefits provided to Reseller at No Charge are subject to modification or
termination without notice to
Reseller.
|
|
¨
|
MARKETING
FEE. NB agrees to pay Reseller a marketing fee of $0.50
for each retail pharmacy utilization paid by the pharmacy benefit
processor to NB. (Note: In the event there is no
savings to a member on a prescription, the pharmacy benefit processor will
not pay a marketing fee to NB, thus no marketing fee will be paid to
Reseller.) Provided monthly utilization payment exceeds $100.00, Reseller
will receive marketing fees 100 days from the first day of the month
following utilization. For example, utilization fees incurred from
February 1st-28th
will be paid to Reseller no later than June 10th;
fees incurred from March 1st-31st
will be paid no later than July 10th.
Termination of this Agreement by NB for breach of contract may result in
permanent forfeiture of all marketing
fees.
|
|
¨
|
Physician
Visit/Hospital requires a separate member ID
card.
|
|
¨
|
Pricing
includes benefit access and customer service. (List billing
only available for monthly statements over
$50.00.)
|
|
¨
|
Pricing
does not include fulfillment. NB can provide membership
fulfillment materials under the following terms and
conditions: Reseller agrees to establish a prepaid fulfillment
account by submitting a minimum of $500.00 to NB prior to the enrollment
of Reseller’s initial members. NB will deduct payment for each requested
fulfillment package as set forth below. Reseller acknowledges
it is their responsibility to keep appropriate funds in the prepaid
account. NB will not print or mail fulfillment materials unless
there are available funds in the prepaid account. Upon
receiving written notice, NB agrees to refund any unused portion of the
prepaid account to Reseller within two (2) business days. All individual
membership kits returned to NB for invalid addresses will be sent to
Reseller for remailing.
|
|
|
o
|
Fulfillment Kit
Contents. NB will provide membership fulfillment
packages to eligible members for a nonrefundable payment of $3.95 per
membership kit including postage. Fulfillment materials include
two membership cards, a full-color 5”x8” booklet with a description of
benefits, and a listing of the five closest participating providers of
each applicable benefit.
|
|
¨
|
Pricing
does not include marketing/enrollment
materials.
|
|
¨
|
Reseller
shall not wholesale benefits to any other entity without NB’s express
written consent.
|
|
¨
|
Reseller
must submit retail prices for NB approval a minimum of one week prior to
launching marketing campaign.
|
|
CONFIDENTIAL
– Net Agreement (Net)
Rev. 1/2008
|
Page 13 of 15 |
5/21/2008
|
SCHEDULE
2
Pricing
for New Millennium Consultants, LLC
New
Benefits Individual Selection Plan Voluntary Retail Pricing
NB agrees
to pay a 30% commission on the NB retail prices listed below (first year and
renewal):
Products and
Services:
| ● |
Alternative
Medicine (American Wholehealth)
|
● |
Dental
(Aetna Dental Access)
|
● |
Pet
Pet Care Savings (Pet Assure)
|
| ● |
Chiropractic (UHS
– Subject to availability
|
● |
Elder/Long-Term
Care (CHCS)
|
● |
Physician
& Hospital Network (Galaxy Health Network)
|
| ● |
Counseling
(APS)
|
● |
Legal
Care Direct (Legal Club of America)
|
● |
Vision
(Coast to Coast)
|
| ● |
Doctors
Online (eDocAmerica)
|
● |
Nurse
Hotline/Health Information Library* (FoneMed)
|
Available with the purchase
of 2 or more additional products or services:
| ● |
Proactive
Identity Theft Prevention (LifeLock)
|
● |
Roadside
Assistance (Nation Safe Drivers)
|
|
| ● |
TelaDoc
(Subject to availability)
|
● |
Travel
Assistance (Medex – Subject to availability)
|
|
Complimentary
Benefits
(available with
the purchase of any benefit)*:
|
·
|
Family
Consultation Services (Work & Family
Benefits)
|
|
·
|
Hearing
Aids and Products
|
(ClearSounds/Beltone/TruHearing/Lloyds)
|
·
|
Medical
Records Storage and Retrieval (Health
Tracer)
|
|
·
|
Retail
and Mail Order Pharmacy Retail (NB) and Mail Order
(SunRX)
|
|
·
|
Vitamins
and Diabetic Supplies (Vitamins-Vitacost, Diabetic-Diabetic
Solutions)
|
NB Suggested Retail
Prices
|
Monthly
|
Annual
|
Monthly
|
Annual
|
||||||||||||
|
Any
1 Benefit
|
$ | 2.75 | $ | 31.90 |
Any
8 benefits
|
$ | 17.95 | $ | 207.90 | ||||||
|
Any
2 benefits
|
$ | 5.25 | $ | 60.50 |
Any
9 benefits
|
$ | 19.95 | $ | 229.90 | ||||||
|
Any
3 benefits
|
$ | 7.50 | $ | 86.90 |
Any
10 benefits
|
$ | 21.95 | $ | 251.90 | ||||||
|
Any
4 benefits
|
$ | 9.85 | $ | 114.40 |
Any
11 benefits
|
$ | 23.95 | $ | 273.90 | ||||||
|
Any
5 benefits
|
$ | 11.95 | $ | 139.70 |
Any
12 benefits
|
$ | 25.95 | $ | 295.90 | ||||||
|
Any
6 benefits
|
$ | 14.25 | $ | 163.90 |
Any
13 benefits
|
$ | 27.95 | $ | 317.90 | ||||||
|
Any
7 benefits
|
$ | 16.05 | $ | 185.90 |
Any
14 or 15 benefits
|
$ | 29.95 | $ | 341.40 | ||||||
Additional
Terms:
|
¨
|
Member
is defined as the card purchaser and legal
dependents.
|
|
¨
|
Pricing
includes benefit access, customer service, membership kits, bank draft and
list bill (only available with 100% participation in groups of 50 or more)
charges. Kits include two membership cards, a full-color 5”x8”
booklet with a description of benefits, and a listing of the five closest
participating providers for each applicable benefit. (Full-color 8”x10”
booklets may be substituted for the 5”x8” booklets on a group by group
basis for an additional one-time nonrefundable charge to Reseller of $2.00
per member.)
|
|
¨
|
Prices
exclude marketing/enrollment
materials.
|
|
¨
|
Physician
Visit/Hospital requires a separate membership
card.
|
|
¨
|
Pricing
deviations must be pre-approved by
NB.
|
|
¨
|
MARKETING
FEE. NB agrees to pay Reseller a marketing fee of $0.50
for each retail pharmacy utilization paid by the pharmacy benefit
processor to NB. (Note: In the event there is no
savings to a member on a prescription, the pharmacy benefit processor will
not pay a marketing fee to NB, thus no marketing fee will be paid to
Reseller.) Provided monthly utilization payment exceeds $100.00, Reseller
will receive marketing fees 100 days from the first day of the month
following utilization. For example, utilization fees incurred from
February 1st-28th
will be paid to Reseller no later than June 10th;
fees incurred from March 1st-31st
will be paid no later than July 10th.
Termination of this Agreement by NB for breach of contract may result in
permanent forfeiture of all marketing
fees.
|
|
CONFIDENTIAL
– Net Agreement (Net)
Rev. 1/2008
|
Page 14 of 15 |
5/21/2008
|
FREE
PHARMACY CARD PROGRAM
Reseller
is authorized to market a Free Pharmacy Card Program. As there is no per member
per month fee for the pharmacy benefit, Reseller is prohibited from charging the
member a monthly fee to access this Program. Further, NB agrees to pay Reseller
a marketing fee of $0.50 for each pharmacy utilization paid by the pharmacy
benefit processor to NB. In the event there is no savings to a member on a
prescription, the pharmacy benefit manager will not pay a marketing fee to NB,
thus no marketing fee will be paid to Reseller. Provided monthly utilization
payment exceeds $100.00, Reseller will receive marketing fees 100 days from the
first day of the month following utilization. For example, utilization fees
incurred from February 1st-28th will
be paid to Reseller no later than June 10th;
fees incurred from March 1st-31st will
be paid no later than July 10th.
Termination of this Agreement by NB for breach of contract may result in
permanent forfeiture of all marketing fees.
Reseller
agrees that NB will print a minimum of three thousand (3,000) Free Pharmacy Card
brochures at a cost of $0.07 per brochure, payable prior to printing. This price
includes a 3.5” x 7.5” single panel card stock brochure (full-color front,
black-and-white back) with a perforated membership card and benefit description
as well as Reseller’s desired logo. Price does not include applicable tax
or shipping charges. NB will print additional Free Pharmacy Card brochures at
this same price when printing a minimum of one thousand (1,000)
brochures.
|
CONFIDENTIAL
– Net Agreement (Net)
Rev. 1/2008
|
Page 15 of 15 |
5/21/2008
|