AGREEMENT
THIS AGREEMENT (this "Agreement"), made and effective this 7th day of April,
1999, by and among First Institutional Marketing, Inc., a Texas corporation with
its principal place of business located at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 ("FIMI"), and iChargeit, Inc. a Texas corporation with its principal
place of business located at xxx.xxxxxxxxx.xxx, 0000 Xxxxxxxx Xxxxxx #000,
Xxxxxxxxxx Xxxxx, XX 00000 ("website").
RECITALS
WHEREAS, FIMI is a national insurance distributor and operates, among other
things, an Internet-based insurance and annuity comparison, insurance delivery
and case management system (the "InsureRate Network").
WHEREAS, Financial Institution desires to enter into this Agreement with FIMI to
establish a program employing the InsureRate Network for use in Financial
Institution's website (the "Website Integration Program") and by FIMI's brokers
and agents located at the branches of the Financial Institution in the marketing
of certain insurance, annuity, and related products (the "Electronic Commerce
Integration Program").
AGREEMENT
NOW THEREFORE, for and in consideration of the mutual covenants and agreements
herein set forth, the receipt and sufficiency of which are hereby acknowledged,
FIMI and Financial Institution agree as follows:
The Website Integration Program
1. (a) FIMI shall provide a hypertext link from the Financial Institution
Website to the InsureRate Network. Individuals accessing the InsureRate Network
through the Financial Institution's website will be able to estimate their life
insurance needs, obtain price comparisons of selected insurance products and
submit preliminary applications to purchase insurance products.
(b) FIMI shall: (i) develop and implement a co-labeled version of the InsureRate
Network incorporating Financial Institution's graphical design elements in the
following InsureRate Network web pages (and other pages that may be mutually
agreed upon by the parties): (A) comparison questionnaire and quote pages, (B)
company product and profile pages, and (C) life insurance and annuity glossary
pages; (ii) receive and process insurance and annuity applications in accordance
with the rules and regulations of the Selected Carriers, including, without
limitation, the coordination of paramed examinations; (iii) service policies
issued in connection therewith; (iv) receive premiums from Financial
Institution's customers with respect to such policies; (v) provide licensed
insurance agents to follow up with Financial Institution's customers that have
submitted preliminary product applications through the InsureRate Network under
the Website Integration Program; and (vi) use its reasonable best efforts to
maintain all licenses and Selected Carrier appointments and contracts necessary
for the selected products to be offered through the InsureRate Network.
(c) Financial Institution shall be responsible for prominently including and
displaying the InsureRate Network on its website and in promotions that
Financial Institution undertakes to promote its website.
(d) In return for the provision by Financial Institution of space within its web
site on the world wide web and as Financial Institution's sole payment under the
Website Integration Program, Financial Institution shall receive compensation as
set forth in Exhibit B, attached hereto and made a part hereof.
2. Financial Institution shall pay an installation fee in the amount of five
thousand dollars ($5,000.00) to FIMI for the set up and customization of the
Electronic Commerce and Website Integration Programs for the Financial
Institution. Financial Institution shall pay to FIMI a monthly maintenance fee
of $300.00, provided however, that all revenues generated by FIMI from the sale
of the products of the Selected Carriers pursuant to the Electronic Commerce and
Website Integration Programs shall offset the maintenance fee and no such fee
shall be payable if FIMI's monthly revenue exceeds or is equal to $300.00 per
month. Products and services other than term life insurance and annuities may be
offered under this Agreement, any setup or licensing fees and compensation for
the sale of any such products or services shall be determined by the mutual
consent of the parties hereto.
General Provisions
3. Each party to this Agreement hereby covenants and agrees that it will comply
with all applicable laws and regulations in performing its duties and
obligations under this Agreement.
4. FIMI shall be responsible for selecting the carriers described in Exhibit A,
attached hereto and incorporated herein by reference (as the same may be
modified from time to time with the mutual consent of each party hereto), which
shall be the carriers whose products are offered by FIMI under this Agreement
(the "Selected Carriers"). FIMI shall be responsible for selecting the
insurance, annuity and related products to be offered for sale and sold through
the Electronic Commerce and Web Site Integration Programs.
5. Financial Institution shall facilitate the collection of premiums generated
from the sale of products under this Agreement by maintaining access to VISA
and/or MasterCard Intercharge Network and/or the Federal Reserve Automated
Clearing House.
6. Premium payments for products purchased through the Electronic Commerce and
Website Integration Programs will be collected in a manner acceptable to FIMI
and Financial Institution, including without limitation pre-authorized debits to
Financial Institution's customer's checking accounts when authorized by the
customer and direct xxxxxxxx.
7. (a) The term of this Agreement shall commence as of the date hereof and shall
extend for a period of three (3) years. This Agreement shall automatically renew
for successive periods of one (1) year, unless earlier terminated in accordance
with this Section 11 or by the mutual consent of the parties hereto.
(b) During the term of this Agreement, any party shall have the right to
terminate this Agreement for cause if any other party breaches or is in default
of any material obligation under this Agreement if the breach or default is
incapable of cure or, if being capable of cure, has not been cured within thirty
(30) days after receipt of written notice of such breach or default or such
additional time as the non-defaulting party or parties may authorize in writing
in its or their sole discretion.
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(c) Any party to this Agreement shall have the right to terminate this Agreement
upon the expiration of the initial three (3) year period or any one (1) year
renewal period by providing notice to the other parties hereto within sixty (60)
days of the anniversary date of this Agreement.
8. During the term of this Agreement, and extending for a period of five (5)
years commencing on the date of policy coverage effectiveness or product
effectiveness, as the case may be, Financial Institution will not sell and will
not attempt to sell replacement policies or products, directly or indirectly, to
Financial Institution's customers who have purchased policies or products under
this Agreement. The provisions of this Section 8 shall survive the termination
of this Agreement.
9. (a) In performing its obligations under this Agreement, each party may have
access to and receive disclosure of certain information about the other parties,
including without limitation, marketing strategies, plans and objectives;
competitive advantages and disadvantages; financial results; technological
developments; product and services strategies, plans and objectives; software
source code and object code; names, addresses, telephone numbers and account
numbers of Financial Institution's customers; computer magnetic tapes and a
variety of other information and materials that such other party considers
confidential and/or proprietary (herein referred to together as "Confidential
Information"). All Confidential Information of one party obtained pursuant to
this Agreement by any other party is and shall be considered to be confidential
and proprietary to the disclosing party. Each of the parties hereto shall (1)
protect and preserve the confidential and proprietary nature of all Confidential
Information; (2) not disclose, give, sell or otherwise transfer or make
available, directly or indirectly, and Confidential Information to any third
party; (3) not use the Confidential Information, except in furtherance of this
Agreement and as provided herein; (4) return all Confidential Information, any
copies thereof (in whatever form) and any reports, summaries, memoranda or
descriptions that describe any Confidential Information immediately upon
request; (5) limit the dissemination of the Confidential Information within its
own organization to such individuals whose duties justify the need to know the
Confidential Information and restrict its use solely to the purposes set forth
herein.
(b) Financial Institution may not use, copy, modify or distribute the InsureRate
Network (electronically or otherwise), or any derivative, copy, adaptation,
transcription or merged portion thereof, except as expressly authorized in
writing by FIMI. Financial Institution may not reverse, assemble, reverse
compile or otherwise translate the InsureRate Network. No service bureau work,
multiple-use license or time-sharing arrangement is permitted, except as
expressly authorized in writing by FIMI. If Financial Institution uses, copies
or modifies the InsureRate Network of if Financial Institution transfers
possession of any copy, adaptation, transcription or merged portion of the
InsureRate Network to any other party in any way not expressly authorized in
writing by FIMI, the rights granted herein to Financial Institution shall
automatically terminate.
(c) The provisions of this Section 9 shall survive the termination of this
Agreement.
10. (a) FIMI makes no warranty hereunder to Financial Institution that the
InsureRate Network will operate error-free or uninterrupted.
(b) FIMI shall not be responsible for obsolescence of the InsureRate Network
that may result from changes in Financial Institution's requirements.
(c) As Financial Institution's exclusive remedy for any material non-performance
in the InsureRate Network for which FIMI is responsible, FIMI shall attempt
through reasonable effort to correct or cure any reproducible non-performance.
In the event FIMI does not correct or cure such
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non-performance after it has had a reasonable opportunity to do so and, with
respect to any and all claims by Financial Institution relating to the
InsureRate Network and this Agreement, including any cause of action sounding
in contract, tort or strict liability, Financial Institution's exclusive
remedy shall be the termination of this Agreement. In no event shall FIMI be
liable for any loss of profits; any incidental, special, exemplary or
consequential damages; or any claims or demands brought against Financial
Institution, even if FIMI has been advised of the possibility of such claims
or demands. This limitation upon damages and claims is intended to apply
without regard to whether other provisions of this Agreement have been
breached or have proven ineffective.
(d) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, FIMI DISCLAIMS ANY AND ALL
PROMISES, REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE INSURERATE NETWORK,
INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION,
THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE AND ITS
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
(e) Notwithstanding anything contained herein to the contrary, FIMI shall have
the right, in its sole discretion, at any time during the Term hereof, to
replace or modify the InsureRate Network as long as the functionality of the
InsureRate Network shall remain materially unchanged.
11. During the term of this Agreement, Financial Institution shall not, and
shall not permit any of its employees or agents, nor shall Financial Institution
enter into any agreement with any third party, to use any other electronic
insurance delivery service, insurance comparison service or case management
system.
12. Neither FIMI nor Financial Institution shall have the right to assign this
Agreement or any financial interest in this Agreement without the express prior
written consent of the other parties, provided however that this agreement shall
inure to the benefit of and be obligations of any successors of the parties.
13. There can be no waiver of any term, provision or condition of this Agreement
except in writing signed by the party against whom the waiver is to be asserted.
No change, modification or amendment to or of any provision of this Agreement
will be deemed to be made or will be effective unless expressed in writing and
signed by FIMI and Financial Institution.
14. This Agreement represents the entire agreement of the parties and shall be
the complete and exclusive statement of the obligations and responsibilities of
each of the parties hereto. This Agreement shall supersede any other proposal,
representation, communication or other agreement by or on behalf of the parties
hereto relating to the subject matter hereof, and shall hereinafter govern the
relationship of the parties hereto.
15. FIMI shall not be liable to Financial Institution or any other person, firm
or company, for failure to fulfill its obligations hereunder resulting from
malfunction or failure of the Internet or the World Wide Web, the acts or
omissions of the Selected Carriers, any acts of God, public disaster, fire,
flood, riot, war, labor strikes or disputes, judicial orders or decrees,
government laws or regulations, or interruptions of communications,
transportation or electricity.
16. FIMI and Financial Institution hereby represent and warrant to the other
that it has the requisite authority to execute and perform this Agreement. Each
party hereby represents and warrants to the other that this Agreement and the
transactions provided for herein have been duly
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authorized and approved by all necessary corporate action, and that this
Agreement represents and constitutes its binding obligation. No party's
compliance with the terms, provisions and conditions of this Agreement will
constitute a default or prohibited activity by it under the terms of any
other Agreement to which it is bound.
17. Except as otherwise provided herein, if any action be instituted to compel
compliance with the provisions of this Agreement and/or to recover damages for
the breach thereof, the prevailing party or that party which substantially
prevails shall be entitled, in addition to any other remedies, to reimbursement
of all reasonable litigation expenses, including reasonable attorneys' fees and
disbursements.
18. If any dispute shall arise among the parties to this Agreement, the parties
shall first use their best efforts to resolve such dispute among themselves,
and, in conjunction therewith, the agent(s) or employee(s) of each party
involved in a particular dispute shall be obligated to refer such dispute to the
person or persons to whom he or she reports or to the board of directors of such
party, if such person is the President of such party. After such referral has
occurred, the parties will diligently pursue a resolution of any dispute for a
period of not less than fifteen (15) days. If such dispute is not resolved in
the manner set forth above, then each such dispute shall be submitted to binding
arbitration under the rules then prevailing of the American Arbitration
Association.
18. All notices provided for herein will be in writing and will be deemed given
when (a) personally delivered; (b) sent by facsimile transmission with delivery
confirmed, such confirmation not to be withheld or unreasonably delayed; (c)
delivered by overnight receipted courier service; or (d) deposited in the United
States mail, registered or certified, postage prepaid, addressed as follows:
To FIMI: First Institutional Marketing, Inc.
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Mr. Xxxxx Xx. Xxxxxxxxx
With a copy to: Xxxxxx Xxxxxxxx, Esq.
Fourteen Piedmont Center, Suite 100
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
To Financial Institution:
19. Nothing contained herein shall constitute or be construed to create an
agency, joint venture, partnership, joint enterprise or any other similar
relationship among the parties.
20. The rights and obligations of the parties hereunder shall be governed by the
laws of the State of Texas.
21. In the event that any portion of this Agreement is determined to be invalid,
illegal or otherwise unenforceable, such invalidity, illegality or
unenforceability shall not impair the operation or effect of any remaining
portion of this Agreement.
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IN WITNESS WHEREOF, FIMI and Financial Institution have caused this Agreement to
be executed as of the date set forth above.
iChargeit Inc
--------------------------------------------------------------
Corporation Name
By: /s/ Xxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxx
-----------------------------------------------------
Title: CEO
-----------------------------------------------------
FIRST INSTITUTIONAL MARKETING, INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------------------------
Title: CFO
-----------------------------------------------------
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EXHIBIT A
TERM LIFE CARRIERS
------------------------- --------------------------------
CARRIER PRODUCT
------------------------- --------------------------------
AIG
------------------------- --------------------------------
AI-NY
------------------------- --------------------------------
Midland
------------------------- --------------------------------
Protective Life
------------------------- --------------------------------
Security -Connecticut
------------------------- --------------------------------
Transamerica
------------------------- --------------------------------
United of Omaha
------------------------- --------------------------------
ANNUITY CARRIERS
------------------------- --------------------------------
CARRIER PRODUCT
------------------------- --------------------------------
American National
------------------------- --------------------------------
CAN
------------------------- --------------------------------
The Midland
------------------------- --------------------------------
Xxxx Xxxxxx
------------------------- --------------------------------
Jefferson Pilot
------------------------- --------------------------------
Allianz
------------------------- --------------------------------
United of Omaha
------------------------- --------------------------------
United Life and Annuity
------------------------- --------------------------------
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EXHIBIT B
RENTAL FEES
All rentals connected with this Agreement are due and payable the month
subsequent to the month during which Financial Institution provides the
previously outlined services. Rental payments hereunder are based upon the
number of completed applications that FIMI generates from the Website
Integration Program each month as outlined. For purposes of this Agreement, a
"Completed Application" shall mean a fully filled out and executed life
insurance or annuity application, solicited by FIMI and returned by a
prospective client to FIMI. FIMI will pay Financial Institution monthly rent for
website space in the ichargeit website as provided in that certain InsureRate
Network License Agreement, attached hereto and made a part hereof; at an amount
equal to the total number of Completed Applications for life insurance and
annuities received by the InsureRate Network link to the xxxxxxxxx.xxx website
in the prior month times thirty dollars ($30.00) for each life insurance
Completed Application and sixty dollars ($60.00) for each annuity Completed
Application .
Effective this 7th day of April 1999.
FIRST INSTITUTIONAL MARKETING, INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------
Title: CFO
-----------------------------
iChargeit Inc
--------------------------------------
Corporation Name
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
-----------------------------
Title: CEO
-----------------------------
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