EXHIBIT 10.28
CAREXPRESS BROKER AGREEMENT
This CARExpress Broker Agreement (the "Agreement") is made this 28th
day of March, 2005 (the "Effective Date") by and between National Health
Partners, Inc., an Indiana corporation ("CARExpress") and Trident Marketing
International Inc. ("Broker").
R E C I T A L S:
A. CARExpress is engaged in the business of offering
comprehensive medical and consumer discount programs (such
programs and discounts collectively referred to herein as
"CARExpress") whereby CARExpress members can receive discounts
off the standard rates and charges assessed by participating
providers.
B. Broker is an independent contractor engaged in the business
of marketing various insurance and/or non-insurance products
and services.
C. CARExpress and Broker desire to enter into an arrangement
whereby Broker will market and make CARExpress available to
its members, employees, customers, contacts and affiliated
organizations (collectively referred to herein as the "Broker
Parties") and CARExpress will compensate Broker for new
CARExpress subscribers, all in accordance with the terms and
provisions set forth in this Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the covenants set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by CARExpress and Broker, the parties hereto agree as
follows:
1. OFFER OF CAREXPRESS. During the term of this Agreement, Broker will actively
market CARExpress programs and CARExpress related programs where financially
viable and will make such programs available to Broker Parties. Broker shall be
solely responsible for determining the means and methods by which Broker shall
market, offer and make available CARExpress programs to the Broker Parties;
provided however, that Broker shall act with diligence and in good faith in the
performance of its obligations under this Agreement. CARExpress shall cooperate
with Broker by providing Broker with written materials, brochures, group
presentations and other information deemed reasonably necessary by CARExpress to
enable Broker to effectively distribute information regarding the CARExpress
programs to the Broker Parties. All marketing materials and information to be
distributed by Broker and/or all marketing programs to be implemented by Broker
must be approved by CARExpress prior to the distribution of such materials and
information and/or the implementation of such marketing programs by Broker.
2. DELIVERY OF NEW MEMBER PACKETS. Notwithstanding any provision to the contrary
set forth in this Agreement, in no event shall CARExpress be required to mail,
ship or otherwise deliver a New Member Packet (defined below) to any Broker
Party unless and until CARExpress (i) has received (a) complete membership
information for the applicable Broker Party via a hard copy of the membership
application information attached hereto as EXHIBIT A (the "Membership Form") or
via telephonic, internet, or electronic download of the membership information
set forth on EXHIBIT A; and (b) the full amount (or the applicable monthly
payment if such option is available) of such Broker Party's annual membership
enrollment in the applicable CARExpress program (such payment referred to herein
as the "Membership Payment"); and (ii) has approved the applicant Broker Party
for membership in the applicable CARExpress program. Immediately upon
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CARExpress's receipt and approval of a Broker Party's Membership Form and
receipt of the Membership Payment due from such Broker Party, CARExpress will
process such Broker Party's membership into the applicable CARExpress program.
CARExpress shall send a New Member Packet to each qualifying Broker Party on or
before thirty (30) days following CARExpress's receipt and approval of the
Broker Party's Membership Form and receipt of such party's applicable Membership
Payment. Each Broker Party accepted and enrolled into a CARExpress program (such
party referred to herein as a "Member") shall be entitled to receive the
applicable CARExpress program discounts immediately after receipt of his/her/its
New Member Packet. For purposes of this Agreement, a "New Member Packet" shall
be defined as a package of materials which shall include, but shall not be
limited to, (i) the CARExpress Medical Benefits Network Card which specifies the
Member's name, group number, member number and expiration date; and (ii) printed
materials which detail the applicable CARExpress program benefits, providers,
retailers and other relevant information.
3. BROKER'S COMPENSATION. a. Subject to the limitations specified herein, upon
the acceptance and enrollment of a Broker Party into a CARExpress program,
Broker shall be entitled to receive compensation in the amounts designated on
the payment schedule attached hereto as EXHIBIT B (the "Payment Schedule").
Notwithstanding the foregoing, Broker shall not be entitled to receive any
compensation from CARExpress unless and until (i) Broker has provided written
notice to CARExpress which identifies the particular person, entity, group
account or marketing sponsor claimed by Broker as being a Broker Party (such
notice referred to herein as the "Broker Party Identification Notice"); and (ii)
CARExpress has received all information requested on the Membership Form from an
identified Broker Party and CARExpress has received the applicable Membership
Payment from such Broker Party; and (iii) CARExpress has approved the applicant
Broker Party for membership in the applicable CARExpress program. As a condition
to CARExpress's obligation to compensate Broker, Broker must provide CARExpress
with the applicable Broker Party Identification Notice on or before the
expiration of thirty (30) days following the date on which the Broker Party
submits his/her/its Membership information and Membership Payment to CARExpress.
Broker's failure to timely submit the applicable Broker Party Identification
Notice shall void CARExpress's obligation to compensate Broker for the
applicable Broker Party's acceptance and enrollment into a CARExpress program as
well as any renewals of such Broker Party's membership.
b. Compensation which is payable to Broker pursuant to this Agreement
shall be paid weekly, in arrears, on Friday of each week. A payment representing
the compensation owed by CARExpress to Broker for the previous week shall be
wired to Broker at the account specified by Broker. It shall be Broker's sole
responsibility for notifying CARExpress of any change of address.
4. ACQUISITION AND PAYMENT OF GOODS AND SERVICES. Each Member shall obtain goods
and services from participating CARExpress service providers and CARExpress
medical product retailers in accordance with the terms and conditions specified
by CARExpress to such Member from time to time. CARExpress and/or its service
providers or retailers shall be solely responsible for billing Members and for
collecting any payments and other sums which may be owed by such Members under
an applicable CARExpress program.
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5. ELIGIBILITY DETERMINATION. CARExpress, at CARExpress's sole discretion, shall
determine the requirements for membership eligibility in any CARExpress program.
Without limiting the foregoing, CARExpress shall have the sole right to
disapprove any application for membership submitted by a Broker Party if such
Broker Party fails to meet the eligibility requirements. CARExpress's
eligibility requirements shall comply with all applicable laws and shall not
discriminate upon the basis of race, creed, color, religion, sex, national
origin, ancestry or other illegal basis. The eligibility requirements for
CARExpress program membership are set forth on EXHIBIT C CARExpress shall have
the right to supplement, delete, modify or otherwise change such eligibility
requirements as may be deemed reasonably necessary by CARExpress from time to
time by giving thirty (30) days' prior notice to Broker.
6. RENEWALS AND EXPIRATION OF MEMBERSHIPS. Prior to the expiration of a Member's
existing membership in an applicable CARExpress program, CARExpress shall have
the right (but not the obligation), either directly or through Broker, to
deliver to the Member a notice regarding the renewal of such Member's annual
membership in a CARExpress program. Upon CARExpress's receipt of the renewal
Membership Payment due from such Member for the renewal period, Broker shall be
entitled to receive compensation in the amount and manner set forth on the
attached Payment Schedule. Compensation due to Broker for Member renewals shall
be paid in accordance with Paragraph 3b above. A Member who fails to renew
his/hers/its membership in a CARExpress program on or before the expiration date
of such membership (i) will no longer be entitled to participate in any
CARExpress program after such expiration date, and (ii) will be required to
reactivate their membership by remitting the required Membership Payment before
the member is entitled to participate in any CARExpress program If any person or
entity attempts to obtain a CARExpress program benefit after the expiration of
his/hers/its membership in the applicable CARExpress program, neither CARExpress
nor any service provider or supply retailer participating in the CARExpress
program shall be obligated to grant any CARExpress program benefits nor shall be
required to honor any requests for CARExpress program services or products from
such persons or entities
7. CAREXPRESS'S RIGHTS TO MODIFY. No provision set forth in this Agreement shall
be deemed to waive or otherwise limit CARExpress's right to modify any of the
terms, conditions, provisions, benefits, obligations, providers, suppliers and
other matters associated with or relating to any CARExpress program. Without
limiting the foregoing, CARExpress shall have the right to increase, decrease or
otherwise modify the benefits offered under any CARExpress program at any time,
from time to time, and without notice to Broker. Notwithstanding the foregoing,
CARExpress shall use good faith efforts to provide to Broker thirty (30) days'
advance notification of any material changes or modifications to any CARExpress
program; provided however, that CARExpress shall not be liable to Broker for
CARExpress's failure to do so.
8. RELATIONSHIP BETWEEN PARTIES: a. Broker and CARExpress shall have the status
of, and shall act in all matters hereunder as, independent contractors. Each
party shall be free to exercise its own judgment in the performance of its
respective obligations under this Agreement. Broker is not an agent of
CARExpress, nor shall have any authority to create, extinguish or modify any
right, obligation or liability of CARExpress or any of its affiliates to any
person or entity whatsoever. Broker shall have no authority to amend, modify,
supplement or delete any provision, requirement and/or term set forth in any
written document, instrument or other material provided by CARExpress and/or
relating to any CARExpress program. Broker shall have no authority to expend
monies or otherwise incur expenses on behalf of CARExpress. Notwithstanding the
execution of this Agreement and the covenants and agreements contained herein,
(i) CARExpress shall have the unconditional right to sell CARExpress program
memberships and benefits to other parties, with or without the assistance of
Broker, and may engage the services of other brokers, marketers or third parties
to do so; and (ii) Broker shall have the unconditional right to sell, market or
promote other products and services on behalf of itself and/or third parties,
even if such products may be deemed "competitive" with those of CARExpress.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL BROKER HAVE THE RIGHT TO
CONTRACT EITHER DIRECTLY OR INDIRECTLY WITH CAREXPRESS'S VENDORS, RETAILERS
AND/OR SERVICE PROVIDERS IN VIOLATION OF THE PROVISIONS SET FORTH IN THE
NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT ATTACHED HERETO AS EXHIBIT D AND
MADE A PART HEREOF FOR ALL PURPOSES.
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b. Nothing contained herein shall create any partnership,
principal-agent or joint venture arrangement or relationship between Broker and
CARExpress.
9. INDEMNITY AND HOLD HARMLESS OBLIGATIONS. a. Broker shall indemnify, defend
and hold CARExpress and its officers, directors, agents, employees and
representatives harmless from any and all actions, causes of action, suits,
judgments, damages, obligations, costs, fines, penalties, liabilities and claims
of any kind, whether based on tort, contract, or otherwise, whether for damages
classified as compensatory, exemplary, punitive, or otherwise, whether based on
any fiduciary duty or trust relationship or otherwise, whether known or unknown,
whether now existing or that might arise hereafter, or whether accrued or to be
accrued, (collectively referred to herein as the "Claims"), arising out of or in
any way directly or indirectly relating to any misrepresentations, breaches of
contract or other acts of malfeasance committed by Broker and/or any officer,
director, agent, employee or representative of Broker in connection with the
performance of Broker's obligations or the observance of Broker's covenants as
set forth in this Agreement and in any Exhibits and addenda attached hereto.
b. CARExpress shall indemnify, defend and hold Broker and its officers,
directors, agents, employees and representatives harmless from any and all
Claims arising out of or in any way directly or indirectly relating to any
misrepresentations, breaches of contract or other acts of malfeasance committed
by CARExpress and/or any officer, director, agent, employee or representative of
CARExpress in connection with the performance of CARExpress's obligations or the
observance of CARExpress's covenants as set forth in this Agreement and in any
Exhibits and addenda attached hereto.
c. The indemnity and hold harmless obligations set forth in this
Section shall survive the expiration and/or termination of this Agreement.
10. TERM OF AGREEMENT. a. This Agreement shall extend for a period of one (1)
year from the Effective Date identified above and shall automatically renew for
successive twelve month periods (each twelve month period referred to herein as
a "Term"), unless written notice of termination is delivered by either party to
the other at least thirty (30) days prior to the expiration of the then-current
Term. This Agreement shall automatically terminate if Broker files or has filed
against it any proceeding involving bankruptcy, dissolution, insolvency,
receivership or similar action.
b. Upon termination of this Agreement by either party, all obligations
of CARExpress to Broker shall immediately cease; provided however, CARExpress
shall compensate Broker for any acceptances and enrollments of Broker Parties
into CARExpress programs if such acceptances and enrollments occurred prior to
the termination of this Agreement, and the obligations set forth in Section 9
shall survive and continue. Furthermore, CARExpress shall remain obligated to
compensate Broker for membership renewals involving Broker Parties accepted and
enrolled as Members in a CARExpress program as long as acceptance and enrollment
occurred prior to the termination of this Agreement.
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11. DEFAULT BY BROKER. Notwithstanding any provision set forth herein to the
contrary, if Broker breaches or defaults in the performance or observance of any
duty, covenant, warranty or obligation as set forth in this Agreement and/or in
any Exhibit and Addenda attached hereto and such breach or default remains
uncured for five (5) days after written notice of the breach or default is given
by CARExpress, CARExpress shall have the unconditional right to terminate this
Agreement immediately upon giving written notice of such termination to Broker.
If this Agreement is terminated by CARExpress as a result of a breach or default
committed by Broker, this Agreement shall be deemed "Terminated for Cause."
Furthermore, CARExpress shall be entitled to pursue any and all other remedies
against Broker, which may be available to CARExpress pursuant to the terms of
this Agreement or at law or in equity.
12. DEFAULT BY CAREXPRESS. If CARExpress breaches or defaults in the performance
of any of its obligations under this Agreement and such breach or default
remains uncured for a period of twenty (20) days after written notice of the
breach or default is given by Broker, Broker may terminate this Agreement
immediately upon giving written notice of such termination to CARExpress and
receive compensation as set forth in 10b, above. Broker shall be entitled to
pursue any and all other remedies against CARExpress, which may be available to
Broker pursuant to the terms of this Agreement or at law or in equity.
13. TRADEMARKS, TRADE NAMES, LOGOS, DESIGNATIONS AND COPYRIGHTS. a. Broker shall
not alter, erase, deface, overprint or otherwise modify or obliterate any
trademark, trade name, logo, designation, copyright and/or notice of proprietary
rights printed or indicated on any brochure, document, flyer or other instrument
provided by CARExpress and/or relating to any CARExpress program. To the extent
Broker markets any CARExpress program via promotional and advertising materials,
Broker shall include all appropriate CARExpress proprietary marks on such
promotional and advertising materials.
b. Broker acknowledges and agrees that it has paid no consideration for
the use of any of CARExpress's trademarks, trade names, logos, designations,
copyrights and/or notices of proprietary rights relating to the CARExpress
programs (collectively referred to herein as the "Proprietary Interests"), and
nothing contained herein shall give Broker any right, title or interest in any
of the Proprietary Interests. Broker acknowledges and agrees that CARExpress
owns and retains all rights, title and interest in and to the Proprietary
Interests and agrees that it shall not assert or claim any interest in such
Interests or do anything which may adversely affect such Proprietary Interests.
Upon the expiration and/or termination of this Agreement, Broker shall
immediately cease the display, advertising and use of all materials displaying
CARExpress Proprietary Interests.
c. Broker agrees to use reasonable efforts to protect CARExpress's
Proprietary Interests and to cooperate in CARExpress's efforts to protect its
Proprietary Interests. Broker shall promptly notify CARExpress of any known or
suspected unauthorized use of CARExpress's Proprietary Interests.
14. REPRESENTATIONS OF BROKER. Broker represents and warrants to CARExpress the
following:
a. The individual or individuals executing this Agreement are the
authorized representatives of Broker and have full authority to bind Broker in
accordance with the terms and provisions of this Agreement.
b. Broker understands and agrees that the CARExpress programs are
medical discount programs and do not constitute insurance programs. Although
Broker may market the CARExpress programs as low-cost alternatives to health
insurance, Broker shall not market or represent that CARExpress programs
constitute health insurance programs.
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c. Broker will abide by all applicable Federal, state and local laws,
rules and regulations.
15. CONFIDENTIALITY. Broker shall hold all information concerning CARExpress
and/or the CARExpress programs negotiated pricing, transactions, suppliers,
service providers, distributors, members and customers in confidence and shall
not disclose any such information to any third party except to the extent (and
only to the extent) required by law or by court ordered directive. Broker
acknowledges and agrees that any information emanating from CARExpress's
operations and/or the operations of any CARExpress program shall constitute
"Confidential and Proprietary Information." Broker (on behalf of itself, its
employees, agents, representatives and contractors) agrees that it shall not
duplicate or disclose any Confidential and Proprietary Information unless (i)
specifically authorized pursuant to the terms of the
Non-Disclosure/Non-Circumvention Agreement (defined below); and (ii) Broker
obtains CARExpress's prior written authorization to such duplication and/or
disclosure. Prior to or simultaneously with the execution of this Agreement,
Broker and CARExpress have executed that certain
Non-Disclosure/Non-Circumvention Agreement, a copy of which is attached hereto
and made a part hereof for all purposes as EXHIBIT D. The terms, provisions and
conditions set forth in the Non-Disclosure/Non-Circumvention Agreement shall be
fully incorporated into this Agreement as if such terms, provisions and
conditions were expressly set forth herein.
16. FORCE MAJEURE. Notwithstanding any provision contained herein to the
contrary, in no event shall either party be deemed in default in the performance
of its obligations under this Agreement, nor shall either party be liable for
any damages or penalties by reason of the party's failure to perform under this
Agreement if such failure results directly or indirectly from fire, explosion,
strike, Act of God, public enemy, war, civil disturbance, act of government or
agency or official thereof, or any other cause beyond the reasonable control of
the party.
17. NOTICE. Any notice required or permitted to be given pursuant to the terms
of this Agreement must be in writing. Such notice will be deemed to be delivered
(whether actually received or not) three (3) days after such notice is deposited
with the United States Postal Service, postage prepaid, certified mail, return
receipt requested, and addressed to the intended recipient at the address shown
below for each party. Notice may also be given by regular mail, personal
delivery, courier delivery, facsimile transmission, or other commercially
reasonable means and will be effective when actually received. Any address for
notice may be changed by written notice delivered as provided herein.
Address for CARExpress:
National Health Partners, Inc.
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Address for Broker:
Trident Marketing International Inc.
0000 X. Xxxxxxxxxxxx Xxx., Xxxxx X
Xxxxx, XX 00000
Fax: (000) 000-0000
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18. WAIVER. Waiver by either party of any breach or failure to comply with any
provision of this Agreement by the other party shall not be construed as, nor
shall constitute, a continuing waiver of such provision or a waiver of any other
breach or failure to comply with any other provision of this Agreement.
19. ENTIRE AGREEMENT AND AMENDMENT. This Agreement and the attached Exhibits and
addenda constitute the entire agreement between Broker and CARExpress with
respect to the subject matter contemplated herein, and no representation,
statement, term or condition not expressly set forth herein shall be binding on
either party. This Agreement may not be amended or modified except by written
instrument executed by both Broker and CARExpress.
20. HEADINGS. The headings contained in this Agreement are for purposes of
convenience only and shall not affect the meaning or interpretation of this
Agreement or any section or provision set forth herein.
21. CONSTRUCTION. This Agreement shall be governed and construed in accordance
with the laws of the Commonwealth of Pennsylvania applicable to contracts made
and to be performed therein (excluding choice-of-law principles). Broker hereby
irrevocably submits to the jurisdiction of any state or federal court sitting in
Pennsylvania in any action or proceeding brought to enforce or otherwise arising
out of or relating to this Agreement, and hereby waives any objection to venue
in any such court and any claim that such forum is an inconvenient forum.
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22. EXECUTION/COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original document, but all of
which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as the
date first above written.
CAREXPRESS
National Health Partners, Inc.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: President & CEO
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BROKER:
Trident Marketing International, Inc.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: SVP - CFO
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SS#/Tax ID#
---------------------------------
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EXHIBIT A
REQUIRED CAREXPRESS MEMBERSHIP APPLICATION INFORMATION
1. Date of application
2. Member Name
3. Date of Birth
4. Gender
5. Relationship
6. Address
7. Telephone Number
8. Dependent Info
a. Name
b. Date of Birth
c. Gender
d. Relationship
9. CARExpress plan options selected
10. Sponsor code (if applicable)
11. Broker name (if applicable)
12. Method of payment as follows:
a. Enclosed check
b. Credit card number and date of expiration
c. Bank draft information
13. Signed and completed billing authorization when using Dr./Hosp. Program only
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EXHIBIT B
CAREXPRESS PACKAGE EXAMPLES
Programs Comprehensive Supplemental Preferred Dental/Vision Basic
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Retail Rx X X X X
Mail Order Rx X X X X
Vision Care X X X X X
Dental Care X X X X
24-Hr. Nurseline X X X
Chiropractic Care X X
Complementary/Alternative Care X X
Hearing Care X X
Medical Supplies/Equipment X X
Physician/Hospital/Ancillary X
Suggested Retail Price: $39.95/mo. $29.95/mo. $19.95/mo. $14.95/mo. $9.95/mo.
Assumptions:
1. Each membership includes all individuals living in the same household.
2. Cost includes CARExpress membership kit and card with sponsoring
organization name and/or logo imprinted on the card.
3. CARExpress will provide all customer service and fulfillment for
members.
4. Monthly payments must be via credit card or ACH.
EXHIBIT C
ELIGIBILITY REQUIREMENTS
CARExpress Programs
The CARExpress program has very few requirements/restrictions when determining
member eligibility and they are as follows:
o Member must complete and submit all the essential membership data as
depicted in Exhibit A, Membership Form, either via telephone, fax, on-line
or hard copy.
o Member will maintain a "member in good standing" status as long as
payment for their membership year remains current. Payment/payment method
must be submitted in conjunction with the membership application.
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EXHIBIT D
NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT
This Non-Disclosure and Non-Circumvention Agreement (the "Agreement")
is entered into on this 28th day of March, 2005, by and between National Health
Partners, Inc., an Indiana corporation, ("Company) and Trident Marketing
International Inc. ("Recipient").
R E C I T A L S:
A. Company is engaged in the business of offering comprehensive medical and
consumer discount programs whereby program members can receive discounts off the
standard rates and charges assessed by participating providers.
B. Recipient is an independent contractor engaged in the business of marketing
various insurance and/or non-insurance type products and services to the public.
C. Company and Recipient are negotiating (or will negotiate) a possible business
arrangement between the two entities. As part of the negotiations (and before
Recipient will be able to conduct business with Company) Company and Recipient
must disclose to each other certain information which is deemed confidential.
D. Company and Recipient desire to maintain the confidentiality of such
information and to protect each party's rights, title and interests in and to
the subject matter to which the information relates.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the covenants set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by Company and Recipient, the parties hereto agree as
follows:
1. Confidential Information For purposes of this Agreement, "Confidential
Information" shall be defined as follows:
a. Confidential Information shall refer to all proprietary information
of the Company, including without limitation: advertising and sales materials,
data processing reports, customer sales analyses, customer lists, invoices,
price lists and information, samples, process descriptions, manufacturing
processes, business methods, business policies, procedures, techniques, research
and development projects and results, trade secrets, writings, computer
programs, services software, technical data, research information, product data,
documents, specifications, diagrams, charts, models, marketing studies, and
other knowledge and processes of or developed by or on behalf of Company and all
projections, financial information, and other information relating to customers,
suppliers, distributors, projects under consideration or bid, profits, costs,
pricing or tooling, names, addresses and contacts of customers, clients,
suppliers and distributors, and any and all data on or relating to past, present
and/or prospective customers or clients, and any and all other materials and
information relating to or dealing with the business operations or activities of
Company, whether such information is written or oral, tangible or intangible,
whether machine readable or otherwise, which Company holds confidential.
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b. Confidential Information shall not include information which (i) is
known to Recipient at the time of Company's disclosure to Recipient (upon
Recipient's presentation of evidence to Company); (ii) has become a matter of
public knowledge through no wrongful act of Recipient or any Recipient Party; or
(iii) has been rightfully received by Recipient from a third party specifically
authorized to make such disclosures.
2. Non-Disclosure of Confidential Information. Each party shall use all
reasonable efforts to protect all Confidential Information received from or
disclosed by the other party from dissemination and disclosure to third parties
as follows:
a. During the term of this Agreement and at all times thereafter,
Recipient will use all reasonable efforts to ensure that (i) Recipient and
Recipient's employees, agents, consultants, officers, directors,
representatives, contractors and other personnel (collectively referred to
herein as the "Recipient Parties") will maintain the confidentiality of' the
Confidential Information; (ii) neither Recipient nor any Recipient Party shall
use such Confidential Information for its/his/her own benefit; and (iii) neither
Recipient nor any Recipient Party shall disclose, communicate, disseminate or
otherwise divulge such Confidential Information to any third party, nor shall
use or make such Confidential Information available for any purpose other than
those for which Recipient and/or the Recipient Parties have obtained Company's
prior express written consent.
b. To the extent information is provided by Recipient and is identified
as confidential by Recipient or by its nature or method of transmittal a
reasonable person would conclude that it is confidential, Company will use all
reasonable efforts to ensure that (i) Company and Company's employees, agents,
consultants, officers, directors, representatives, contractors and other
personnel (collectively referred to herein as the "Company Parties") will
maintain the confidentiality of' the confidential information; (ii) neither
Company nor any Company Party shall use such confidential information for
its/his/her own benefit; and (iii) neither Company nor any Company Party shall
disclose, communicate, disseminate or otherwise divulge such confidential
information to any third party, nor shall use or make such information available
for any purpose other than those for which Company and/or the Company Parties
have obtained Recipient's prior express written consent.
c. The obligations of Recipient and Company as set forth in this
Section 2 shall expressly survive the expiration or other termination of this
Agreement.
3. Presumption of Confidential Information. All materials and information
disclosed or disseminated by Company to Recipient and/or any Recipient Party
(save and except printed marketing materials which are clearly intended for
distribution to third parties) will be presumed to constitute Confidential
Information and will be so regarded by Recipient and all Recipient Parties.
4. Non- CircumventionBoth parties do hereby agree that, during the term of this
Agreement and for a period of two (2) years following the expiration or other
termination of this Agreement, neither party shall, either directly or
indirectly (i) attempt in any manner to commercially circumvent, avoid, bypass,
or obviate the other party in any transaction with any of the other party's
suppliers, brokers, agents, customers or distributors (collectively referred to
herein as "Business Entities") in an effort to avoid the payment of, or decrease
the amount of, fees, commissions or other compensation which would have
otherwise been payable to the other party had the party included the other party
in the transaction; or (ii) attempt in any manner to commercially exploit or
circumvent the other party's existing or proposed business concepts, plans
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and/or business contacts, unless the party first obtains the other party's prior
written consent (which such consent may be given or withheld at the other
party's sole discretion). Both parties specifically understand and agree that
the foregoing prohibitions preclude, without limitation, any attempt by either
party to contact, negotiate with or enter into any contract or transaction with
any of the other party's Business Entity(ies) to the extent that any information
relating to the other party's Business Entity(ies) and/or the subject matter of
such contact, negotiation, contract and/or transaction with the other party's
Business Entity(ies) is contemplated, discussed, disclosed or revealed, in whole
or in part, directly or indirectly, in the Confidential Information disclosed by
either party to the other party. It is mutually understood and agreed that if
either party decides to grant its consent to any proposed circumvention activity
by the other party, that party shall have the right (but not the obligation) to
condition such consent upon the execution of a written agreement by and between
the parties concerning remuneration to be paid to the party pursuant to the
consummation of the proposed transaction. Nothing contained herein shall
obligate either party to consent to any circumvention activity by the other
party.
5. Contact With Company. Recipient shall obtain and/or order goods and services
directly from Company. Any of Recipient's customers that order Company goods or
services shall be required to place such order to Company through Recipient.
Neither Recipient nor any customer of Recipient shall obtain goods or services
and/or place orders for such good or services directly to any Company Business
Entity.
6. Term Except as indicated below, this Agreement will continue and remain in
full force and effect until terminated by either party upon ten (10) days' prior
written notice to the other. Notwithstanding the foregoing sentence, in no event
shall this Agreement and the obligations, duties and covenants set forth herein
be deemed to terminate or otherwise expire as long as any other contract or
agreement between Company and Recipient remains in force and effect.
7. Recipient. Unless the context otherwise requires, any reference contained
herein to "Recipient" will encompass Recipient and its employees, agents,
consultants, officers, directors, representatives, contractors and other
personnel and any subsidiaries and/or affiliates of Recipient. Any reference to
Company's customers will include the end user(s) of any particular goods and/or
services offered by Company, as well as Company' s distributors, agents and
other persons or entities to whom or through whom Company sells, or negotiates
for the sale of, goods and/or services.
8. Reasonableness of Provisions. Each party acknowledges that the provisions,
prohibitions, restrictions and obligations contained in this Agreement, in view
of the nature of the business in which both parties are engaged, are reasonable
and necessary in order to protect the legitimate interests of both parties, and
that any violation thereof by either party would result in irreparable injury to
the other party. Both parties agree that, if it or any of its representatives
violates any of such provisions, prohibitions, restrictions and obligations, or
if either party threatens to violate any such provisions, prohibitions,
restrictions and obligations, the other party shall be entitled to obtain from
any court of competent jurisdiction temporary, preliminary and permanent
injunctive relief against the other party, which right will be cumulative and in
addition to any other rights or remedies to which that party may otherwise be
entitled at law or in equity.
9. Ownership of Confidential Information. All Confidential Information disclosed
or disseminated pursuant to this Agreement (including information contained in
computer software or held in electronic storage media) shall be and remain the
property of the disclosing party. All such information in tangible form,
including without limitation, printed material, computer disks, and similar
items, shall be returned to Company promptly upon written request by Company to
Recipient or the termination or expiration of this Agreement, whichever is
sooner. In no event shall Recipient or any Recipient Party thereafter retain any
Confidential Information in any form whatsoever.
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10. No Intellectual Property Rights Implied. No intellectual property rights,
including but limited to, licenses or rights under any patent, copyright,
trademark or trade secret, are granted to Recipient nor are to be implied by
this Agreement. Neither party is obligated under this Agreement to purchase from
or provide to the other party any service or product.
11. Provisions Severable. In the event any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein, and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement, a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and as shall
be deemed valid and enforceable.
12. No Assignment. Neither this Agreement nor Recipient's rights, obligations
and covenants hereunder may be assigned or transferred, in whole or in part, to
any other party.
13. No Relationship of Parties. This Agreement is intended to provide only for
the handling and protection of Confidential Information and the avoidance of
circumvention of parties. It shall not be construed as a teaming, joint venture,
partnership or other similar arrangement or relationship. Specifically, this
Agreement shall not be construed in any manner to create an obligation on the
part of either party to enter into any contractual service or sales arrangement
or to perform any obligations not expressly set forth herein.
14. Notice. Any notice required or permitted to be given pursuant to the terms
of this Agreement must be in writing. Such notice will be deemed to be delivered
(whether actually received or not) three (3) days after such notice is deposited
with the United States Postal Service, postage prepaid, certified mail, return
receipt requested, and addressed to the intended recipient at the address shown
below for each party. Notice may also be given by regular mail, personal
delivery, courier delivery, facsimile transmission, or other commercially
reasonable means and will be effective when actually received. Any address for
notice may be changed by written notice delivered as provided herein.
Address for Company:
National Health Partners, Inc.
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Address for Recipient:
Trident Marketing International Inc.
0000 X. Xxxxxxxxxxxx Xxx., Xxxxx X
Xxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx, Sr. VP/CFO
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15. Waiver. Waiver by either party of any breach or failure to comply with any
provision of this Agreement by the other party shall not be construed as, nor
shall constitute, a continuing waiver of such provision or a waiver of any other
breach or failure to comply with any other provision of this Agreement.
16. Entire Agreement and Amendment. This Agreement constitutes the entire
agreement between Company and Recipient with respect to the subject matter
contemplated herein, and no oral representations, statements, terms or
conditions shall be binding on either party. This Agreement may not be amended
or modified except by written instrument executed by both Company and Recipient.
17. Headings The headings contained in this Agreement are for purposes of
convenience only and shall not affect the meaning or interpretation of this
Agreement or any section or provision set forth herein.
18. Construction This Agreement shall be governed and construed in accordance
with the laws of the State of Pennsylvania applicable to contracts made and to
be performed therein (excluding choice-of-law principles). Recipient hereby
irrevocably submits to the jurisdiction of any state or federal court sitting in
Pennsylvania in any action or proceeding brought to enforce or otherwise arising
out of or relating to this Agreement, and hereby waives any objection to venue
in any such court and any claim that such forum is an inconvenient forum.
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19. Execution/Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original document, but all of
which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as the
date first above written.
COMPANY:
National Health Partners, Inc.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------
Title: President & CEO
-----------------------------------
RECIPIENT:
Trident Marketing International, Inc.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: SVP - CFO
-----------------------------------
SS#/Tax ID#
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