MARKETING SERVICES AGREEMENT
Exhibit 10.8
This
Agreement entered into this 25th day of July, 2001, by and between BNL EQUITY
CORPORATION,
an Arkansas corporation (“BNLE”), and EPSI BENEFITS, INC. (“EBI”) and its
wholly
owned subsidiary, EMPLOYERS PLAN SERVICES, INC. (“EPSI”), both of which are
Texas corporations,
upon the following terms and conditions and for the considerations herein set
forth.
1.
Effective Date and Term. This Agreement shall become effective July 25th, 2001
(the "Effective
Date") and shall continue in full force and effect until terminated as provided
in Section 9.
2.
Purpose of Agreement. BNLE is knowledgeable in areas of insurance marketing
and
has
developed procedures designed to facilitate the marketing of insurance products
and products eligible
for services provided by EPSI.
3.
Relationship of Parties. This Agreement describes the relationships between
the
parties concerning
the EBI and EPSI insurance and third party administrators programs (the
“Programs”).
4.
BNLE
Duties.
(a)
BNLE
will assist EBI and EPSI in the continued production, enhancement and
development
of the Programs to be directed towards new and existing customers. EPSI will
assist
in
creating information for BNLE as determined by mutual agreement of BNLE and
EPSI.
(b)
The
prior written consent of EBI and EPSI is required before BNLE may prepare
or publish any advertising or solicitation material of any kind regarding the
Programs.
5.
EPSI’s
Duties. EBI and EPSI will: (a) maintain all records and facilities to administer
and
maintain the Programs, (b) use reasonable efforts to renew the users’ contracts,
(c) collect charges with
respect to the Programs, (d) provide production reports for the Programs, (e)
pay fees to BNLE, as provided
in Section 6 below and (f) promote the Programs in a reasonable manner with
all
reasonable efforts.
6.
Compensation of BNLE. Beginning on the Effective Date, EPSI will pay to BNLE
a
monthly
fee of five per cent (5%) of all revenues from the provision by EPSI of third
party
administrative
service fees received by EPSI during such month. The fee will be paid monthly
within fifteen
(15) days after the close of the month for which the fee is being paid. BNLE
shall not undertake to
charge
nor shall it receive any charges or payments from purchasers of EPSI services.
EPSI will furnish
reasonable documentation with each payment. BNLE shall have the right on
reasonable notice to
EPSI
to review and make copies of all books and records of EPSI as they relate to
the
Programs and the
fees.
7.
Miscellaneous Provisions.
7.01
Subject to law and regulation, BNLE, EBI and EPSI shall give prompt written
notice
to
the other of, and cooperate fully with each other, with respect to any consumer
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complaint
or any governmental, administrative or judicial inquiry or proceeding with
respect to the
transaction of any Programs business.
7.02
The
prior written consent of EPSI is required before BNLE or any employee or
affiliate
of BNLE shall prepare or publish any advertising or solicitation material of
any
kind
whatsoever
for distribution to any purchaser or prospect which contains any reference
to
the Programs,
or EPSI, or an affiliate of EPSI.
7.03
BNLE
shall cooperate fully with EPSI in the provision of the services and
facilities
hereunder.
7.04
This
Agreement constitutes the entire agreement between the parties hereto with
respect
to the subject matter hereof and supersedes any prior negotiations, discussions,
or written or
oral
understanding or agreements between the parties with respect to the subject
matter. The terms
and
conditions of this Agreement shall inure to the benefit of the respective
successors and permitted
assigns of the parties hereto. Neither this Agreement nor any of the rights,
obligations, or
liabilities of either party hereto may be assigned without the prior written
consent of the other party,
which consent shall not be unreasonably withheld. BNLE shall have the right
to
make an assignment
to an affiliate of its right to receive revenues under this Agreement. A copy
of
any assignment
shall be furnished to both parties. This Agreement may be amended from time
to
time
by
written instrument signed by the president or other executive officer of both
parties.
7.05
This
Agreement shall be governed by and construed in accordance with the laws
of
the
State of Texas.
7.06
If
any act at law or in equity is necessary to enforce or interpret the terms
of
this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, court
costs, and
necessary
disbursements in addition to any other relief to which such party may be
entitled. Venue
for
any action brought to enforce or interpret the terms of this Agreement shall
be
in
Xxxxxx
County, Texas.
7.07
Any
notices to be given hereunder by one party to the other may be made either
by
personal delivery in writing (including facsimile transmission with confirmed
receipt) 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 this section of this
Agreement, but each party
may
change its address by written notice in accordance with this paragraph. Notices
delivered
personally or by facsimile transmission shall be deemed communicated upon actual
receipt.
A copy of a facsimile transmission with a confirmed receipt shall be sent to
the
addressee
on the date of transmission by overnight courier.
Notices:
If
to
BNLE:
Xxxxx
X.
Xxxxxx
BNL
Equity Corporation
0000
Xxxx
Xxxxxxx Xxxxxx, Xxxxx X
Xxxxxx,
Xxxxx 00000
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If
to
EPSI:
Xxxxxx
Xxxxx
EPSI
Benefits, Inc.
0000
Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
7.08
If
any portion of this Agreement should be declared void or invalid, the
remaining
portion of this Agreement shall be of full force and effect as if the void
or
invalid
portion
were severable and not a part of this Agreement.
7.09
Nothing herein is intended, nor shall be construed to permit, nor does it permit
BNLE,
directly or indirectly, to act as an insurance agent, insurer, or third party
administrator.
Nothing
herein shall be construed to permit nor does it permit, directly or indirectly,
EPSI to engage
in
any act in violation of the Insurance Code of Texas or the rules and regulations
adopted
under such Code by the Commissioner of Insurance or the Texas Department of
Insurance.
7.10
This
Agreement may be executed in two (2) or more counterparts, each of which
shall
be
deemed a duplicate original.
7.11
Nothing in this Agreement is intended, nor shall it be construed, to create
the
relationship
of employer and employee, partner or joint venturer between BNLE and EPSI.
BNLE
and
EPSI and their producers, agents, sales staff and employees shall at all times
be independent
contractors.
7.12
It
is not intended that this Agreement, or performance hereunder, shall obligate
any
other
entity to EPSI to any extent whatsoever. In no event shall EPSI have any rights
as a
third
party beneficiary, or assignee, in respect of any agreement between BNLE and
any
other entity.
8.
Hold
Harmless.
(a)
BNLE
will defend and hold harmless EPSI and EBI from any liability caused
by
the
negligence, misconduct or omission of BNLE, or of any agent of BNLE, provided
that
EPSI
and
EBI did not materially cause or contribute to such negligence, misconduct,
or
omission,
and provided that EPSI and EBI shall have given BNLE prompt written notice
of
any
claim
which is known or given to EPSI or EBI.
(b)
EPSI
will defend and hold harmless BNLE from any liability caused by negligence,
misconduct or omission of EPSI, provided that BNLE or its employees or agents
did
not
materially cause or contribute to such negligence, misconduct or omissions,
and
provided
that BNLE shall have given EPSI prompt written notice of any claim which is
known
or
given
to BNLE.
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9.
Term.
This Agreement is made for a term of one (1) year and, after expiration of
the
one
(1)
year term, may be terminated by either party without cause upon one hundred
twenty (120)
days,
or
more, written notice.
10.
Arbitration
(a)
All
unresolved differences of opinion or disputes of any nature between BNLE
and
EPSI
relating to this Agreement, including its formation and validity, and whether
arising
during
or
after the period of this Agreement, shall be submitted to arbitration.
(b)
The
Board of Arbitration shall consist of three arbitrators. One arbitrator shall
be
chosen
by
BNLE and one arbitrator chosen by EPSI. The third arbitrator shall be chosen,
as
promptly
as possible, by the two arbitrators. The party demanding arbitration shall
communicate its
demand therefor by written notice, identifying the nature of the dispute and
the
name of its arbitrator
to the other. The responding party shall be bound to name its arbitrator within
thirty (30)
days
after receipt of the demand for arbitration. Failure or refusal of the other
party to name an
arbitrator timely shall empower the party demanding arbitration to name the
second arbitrator. If
the
two named arbitrators are unable to agree upon a third arbitrator within thirty
(30) days after
the
second arbitrator is named, each arbitrator shall provide to the other and
to
BNLE and EPSI
the
names of three candidates for the position of third arbitrator meeting the
requirements of
this
section. Within ten (10) days after receiving the names of the candidates,
if a
third arbitrator
has not been selected, either party may apply to a district court of Xxxxxx
County, Texas for
appointment of the third arbitrator.
(c)
Arbitrators selected for the Board of Arbitration shall be impartial. The Board
of Arbitration
shall have the power to fix all procedural rules for the conduct of the
arbitration
including
discretionary power to make orders as to any matter which it may consider proper
in the
circumstances of the case, including but not limited to pleadings, scope and
order of
discovery,
inspection of documents, examination of witnesses, the admissibility of
evidence, whether
oral or written, and any other matter whatsoever relating to the conduct of
the
arbitration.
(d)
The
decision of a majority of the arbitrators shall be in writing and signed, shall
be
made
within ninety (90) days after appointment of the third arbitrator and shall
be
final and
binding
upon the parties. If either of the parties fails to comply with the provisions
hereof or a decision
of the majority of the arbitrators, the other party may apply for its
enforcement to a court of
competent jurisdiction in Xxxxxx County, Texas.
(e)
Unless the Board of Arbitration shall otherwise determine, each party shall
bear
the
cost
of its own arbitrator, attorneys and witnesses, and each shall jointly and
equally bear
with
the
other party the expenses of the third arbitrator. The remaining costs of the
arbitration proceeding
shall be allocated by the majority decision of arbitrators.
(f)
Unless the Board of Arbitration shall otherwise determine, the arbitration
shall
be
held
in Xxxxxx County, Texas at a time and place agreed upon by a majority of the
arbitrators.
The
substantive internal laws of the State of Texas shall govern the arbitration.
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11.
If
either party to this Agreement is unable to perform all or any portion of this
Agreement
because of any order or decree issued by a court or governmental agency of
competent
jurisdiction
or because any governmental agency or department withdraws, for any reason,
any
approval or
non-objection to the activities contemplated by this Agreement, or for any
other
reason beyond the control
of such party, the party unable to perform any such obligation shall not be
liable to the other for any
damages, costs, fees or expense resulting therefrom. In the event any such
order, decree or withdrawal
of approval or non-objection, or any other action, prevents or otherwise
disables a party from
performing
any of its material obligations under this Agreement for m ore than thirty
(30)
consecutive days,
the
other party shall have the option to terminate this Agreement by written notice
without incurring
any liability for termination to the other party.
12.
Severability. If any part, term or provision of this Agreement shall be held
illegal or unenforceable,
the validity of the remaining provisions shall not be affected. The rights
and
obligations of
the
parties shall be enforceable without that provision.
13.
Waiver. The waiver by either party of any breach of any provision of this
Agreement shall
not
operate or be construed as a waiver of any subsequent breach of the same or
any
other provision
by such party.
BNL
EQUITY CORPORATION
By
/s/ Xxxxx Xxxxxx
________________
EPSI
BENEFITS, INC.
EMPLOYERS
PLAN SERVICES, INC.
By
/s/
Xxxxxx Xxxxx
________________
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