EXHIBIT 10.25
AGREEMENT
THIS AGREEMENT is entered as of this 1st day of September, 2003 by
and between Fortis Insurance Company and its affiliates Fortis Benefits
Insurance Company and Xxxx Xxxxx Life Insurance Company ("Insurer"), whose
primary office is located at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx,
00000 ("Insurer") and National Administration Company ("NAC"), a Missouri
corporation, whose office is located at 0000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxxx, 00000.
WHEREAS, Insurer is engaged in the business of marketing insurance
products and has agents and employees at its disposal who commonly come into
contact with members of the public; and
WHEREAS, the purpose of NAC is to act as Administrator for Health
Advocates Alliance, a Missouri domiciled non-profit corporation, whose executive
offices are located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx, 00000, ("the
Association") and to provide informational, educational and other benefits and
services to Association members, and to help members take advantage of the mass
purchasing power and other benefit enhancements through health awareness; and
WHEREAS, NAC desires to utilize the services of Insurer, its agents
and employees to procure new members for the Association and to collect required
fees and dues therefrom; and
WHEREAS, Insurer desires to have access to and to utilize the
membership roster of the Association for the purpose of offering certain
Insurance products and/or services to members of the Association.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
I. Authorization of Insurer
NAC hereby authorizes Insurer, and Insurer hereby agrees to accept
authorization from the Association, to offer products and services to new
and existing members of the Association and to collect and remit, or
provide for the collection and remittance of, fees and dues owing by such
members to the Association through NAC.
II. Duties of Insurer
Insurer agrees to perform the following functions under this Agreement:
A. To use commercially reasonable efforts to offer its products and
services to members of the Association;
B. To collect all membership fees, administrative fees, and dues, then
in effect, for Association membership, including any renewal fees or
dues from persons who enroll and continue to be members of
Association, and to remit or cause to be
remitted all membership fees and dues to on a monthly basis. The
membership fee for Association memberships solicited through Insurer
shall be collected by the Insurer. In consideration for soliciting
membership in the Association through its distribution network,
billing and collecting membership fees and dues and providing
marketing materials describing the benefits of Association
membership, Insurer may retain a portion of the Association fee as
identified in Exhibit A attached hereto. This amount may be
collected monthly, quarterly, semi-annually or annually.
C. To forward or cause to be forwarded to the NAC, on a monthly basis,
a list of all membership applications taken by Insurer, along with a
separate listing of such members showing names, addresses, effective
coverage dates and any cancellations, accompanied by applicable fees
and dues, as stated in paragraph B above.
D. To refer to the NAC all member communication which it may receive
from Association members, other than inquiries as to any insurance
products offered through Insurer to members of Association.
E. To be responsible for the preparation, printing and costs of all
marketing material to be utilized by Insurer in its efforts to
secure additional members for Association; provided, further, that
such marketing materials may not be used by Insurer without the
prior review and written approval of the Association.
III. Duties of the NAC
NAC agrees to perform and be responsible for the cost of providing the
following functions under this Agreement:
A. To provide for all administration of Association, including the
obtaining of services or benefits to be automatically provided to
all members, and to make payment to providers of such services or
benefits, including those services listed on the attached Exhibit A,
which may be modified from time to time by written agreement of the
parties.
B. To print membership newsletter, kits and cards.
C. To provide Insurer access to Association's membership roster as
required by Insurer for purposes of marketing insurance products
and/or services to such members, provided that each insurance
product or service shall have the prior written approval of NAC
before Insurer may solicit Association members for any such
insurance product or service, which approval shall not be
unreasonably withheld.
D. To receive and administer all member inquiries concerning membership
status and benefits and to furnish a toll free telephone number for
members to use in such regard, except that the NAC shall refer to
Insurer any inquiries relative to any insurance products offered
through Insurer to Association members.
E. To reasonably cooperate with Insurer with respect to insurance
matters concerning Association members who are covered by, or may
purchase coverage from, Insurer; provided, however, that applying
for or obtaining any insurance products offered through Insurer
shall not be a requirement for membership in Association.
Termination or cancellation of any insurance product offered through
Insurer shall have no effect on any person's membership in
Association.
F. NAC shall be responsible for all services required by Association
members that do not select a product or service from Insurer,
including, but not limited to, the following: (i) generating and
mailing dues notices; (ii) receiving and depositing dues; (iii)
making disbursements to various service and benefit providers; and
(iv) establishing and maintaining a database of these members.
G. NAC shall not offer any insurance products to its members other than
those underwritten by Insurer or any insurance provider designated
by Insurer.
IV. Indemnification
Insurer agrees to indemnify, and hold NAC harmless from, any loss or
damage award, cost or expense, including reasonable attorney's fees and
court or governmental agency costs which NAC may incur or be required to
pay as a result of any action concerning the performance or
non-performance of Insurer regarding the duties of the Insurer as
specified in Article II of this Agreement.
NAC agrees to indemnify, and hold Insurer harmless from, any loss or
damage award, cost or expense, including reasonable attorney's fees and
court or governmental agency costs which Insurer may incur or be required
to pay as a result of any action concerning the performance or
non-performance of NAC or the Association regarding the duties of NAC as
specified in Article III of this Agreement.
V. Confidentiality
The parties to this Agreement acknowledge that the Association's
membership list is the sole property and a trade secret of Association,
and that Insurer's list of covered persons is the sole property and a
trade secret of Insurer, and that each shall hold the other's list in
strictest confidence to the extent such lists include members of
Association who are also insured through Insurer. Subject to the provision
of Article VII herein, neither Insurer nor NAC shall be authorized to
utilize the other's list for any purpose whatsoever, other than as stated
in this Agreement, nor to divulge to any third party the nature and
provisions of this Agreement, other than as may be required by law, court
order or regulatory authorities. This confidentiality requirement shall
survive the expiration or termination of this Agreement. Additionally, to
the extent such lists overlap on the date of such expiration or
termination, NAC agrees not to divulge to any insurance marketing entity
the identity of such members nor the nature and provision of this
Agreement for a period of three (3) years from the date of such
termination or cancellation. NAC further agrees to execute such documents
as may be necessary in order for Insurer to be in compliance with federal
and state privacy laws, including, but not limited to, the Health
Insurance
Portability and Accountability Act and the Xxxxx-Xxxxx-Xxxxxx Act,
including but not limited to, Insurer's Business Associate Agreement in
the form attached as Exhibit B.
VI. Exclusivity
During the term of this Agreement and any extension thereof, and, prior to
any termination of the Agreement, NAC agrees that: (a) Insurer shall be
the sole insurance organization with which the NAC shall contract for
purposes of soliciting prospective members for the Association and for
marketing insurance products; and (b) Insurer shall be the sole insurance
marketing organization which NAC shall allow to have access to
Association's membership list. Nothing herein shall restrict the NAC from
contracting with any non-insurance marketing organization for purpose of
procuring new members for Association.
VII. Term
The initial term of this Agreement shall be a period of three (3) years
commencing effective September 1, 2003 which term shall be automatically
extended for an additional term of two (2) years, unless, one hundred
twenty (120) days prior to the expiration of the initial three (3) year
term, Insurer has given NAC or NAC has given Insurer, specific written
notice of intent to terminate this Agreement. Any subsequent extension of
this Agreement shall automatically be extended for an additional one (1)
year term, unless one hundred twenty (120) days prior to the expiration of
any subsequent one (1) year term, insurer provides NAC, or NAC provides
Insurer, written notice of the intent to terminate this Agreement at the
conclusion of such subsequent one (1) year term.
VIII. Termination
A. Either party may terminate this Agreement without cause upon six
months advance written notice to the other party.
B. If either party defaults in fulfilling any of its obligations under
this Agreement, the other party may serve a written fifteen (15) day
notice upon the defaulting party, specifying the nature of said
default, and, upon the expiration of said fifteen (15) days, if the
defaulting party shall have failed to comply with the Agreement, or
remedy such default, or if the said default or omission complained
of shall be of a nature that cannot be completely cured or remedied
in said fifteen (15) day period, then this Agreement, and terms
hereunder, shall terminate and expire.
C. Either party may terminate any part of its obligations and duties
under this Agreement immediately, upon receipt of a request or
direction to terminate such activity, or of an allegation that such
activity is unlawful, whether oral or written from authorized
representatives of governmental agencies responsible for the
regulation of Insurer, NAC or the Association, either formal or
informal, concerning activities engaged in, pursuant to this
Agreement. If either party shall desire to terminate any part of its
obligations and duties under this Agreement, pursuant to the
provisions of this paragraph B, such party shall send fifteen (15)
days written notice of the same to the other party.
D. Subsequent to the termination of this Agreement, Insurer will have
no obligation whatsoever to continue to cause to be collected or
remitted to NAC, membership fees and dues, as provided in Article II
hereof, of those members of the Association who are no longer
insured by Insurer.
IX. Sole Agreement
This Agreement embodies the entire agreement and understanding between the
parties. There are no promises, terms, conditions, or obligations other
than those contained herein, and this agreement shall supersede all
previous communications, representations, or agreements, either verbal or
written, between the parties hereto.
X. Offset
if, at any time, NAC is in possession of funds due the Insurer, and, at
the same time the Insurer is in possession of funds due the Association,
then the parties may offset amounts owed them from the funds by them owing
to the other party.
XI. Assignment
Under no circumstances shall this Agreement, or any of the rights,
responsibilities, or duties enumerated hereunder be assignable by either
party without the prior written consent of the other party. The request
for such written consent shall not be unreasonably withheld. NAC shall
indemnify and hold harmless Insurer from any action brought by NAC or
Association members against Insurer which concern matters arising out of
the contractual relationship between NAC and Association.
XII. Modification
This Agreement may not be modified, altered or amended in any manner,
except by an agreement in writing duly executed by the parties hereto, or
as may be required by any law, regulation or governmental agency in order
to be in compliance with law.
XIII. Severability
Should any portion of this Agreement be void or invalid, the remaining
portion of this Agreement shall be of full force and effect, as if the
void or invalid portion was severable and not a part of this Agreement.
XIV. Notices
Any notices to be given hereunder by one party to the other may be
effected either by personal delivery, in writing or by mail, registered or
certified, postage pre-paid, with return receipt requested. Mailed notices
shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but each party may change its
address by written notice in accordance with this paragraph. Notices
delivered personally shall be deemed communicated as of five (5) days
after mailing.
XV. Governing Law
This Agreement shall be governed and interpreted under the laws of the
State of Wisconsin. Any legal proceeding to enforce, construe or otherwise
declare the obligations of either party under this Agreement shall be
brought in state court in the County of Milwaukee, Wisconsin.
XVI. Relationship
Nothing in this Agreement is intended to, nor does it, create the
relationship of employer and employee, partner of joint venturer between
Insurer and NAC or Insurer and Association.
XVII. Binding Effect
This Agreement shall insure to the benefit of, and be binding upon, the
parties hereto and their respective successors and assigns.
XVIII. No Implied Waiver
The failure by any party hereto, from time to time, to exercise any right
or power provided it herein shall not be construed as a waiver of such
party to exercise such right or power at any subsequent time.
IN WITNESS WHEREOF, the undersigned parties hereto have duly
executed this Agreement on the date and year first above written.
NATIONAL ADMINISTRATION COMPANY FORTIS INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------- --------------------------------
Title: President Title: Vice President
---------------------------- -----------------------------
