[ EXHIBIT 10.1 - MARKETING AGREEMENT ]
MARKETING AGREEMENT
This Marketing Agreement is to be effective July 15, 2003, between
Universal Insurance Services, Inc., a Michigan corporation, 000 Xxxxxx Xxxxxx,
X.X., Xxxxx Xxxxxx, Xxxxxxxx 00000 ("UIS"), and Perfect Health Care Corp, a
Nevada corporation, d/b/a National Health Care Corp, 0000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000 ("NHC").
RECITALS
UIS is a duly licensed independent insurance agency engaged in the business
of marketing insurance and products related to insurance to the general public
including corporations, associations, individuals, and businesses.
NHC is in the business of making available certain health care Products, as
set forth on Exhibit A, at discounted prices through the Program
UIS and NHC desire to enter into this Agreement whereby Universal will
market the Card with NHC assistance to Customers referred through Quixtar
Corporation's IBOs, Members and Clients.
Therefore in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
1. Definitions. The following definitions are incorporated for their meaning
throughout this Agreement:
1.1 "UIS" is Universal Insurance Services, Inc.
1.2 "NHC" is National Health Care Corp.
1.3 "Products" are the certain health care products as set forth on Exhibit
A as amended from time to time.
1.4 "Card" is the National Healthcare Card issued by NHC.
1.5 "Term" is the term of this Agreement including beginning period and all
renewal periods.
1.6 "IBO" is the Independent Business Owner(s) member(s) through whom
Quixtar Corporation markets and distributes its products.
1.7 "Member" is a person/entity registered with Quixtar Corporation who
buys products and services through Quixtar Corporation at a discount price.
1.8 "Client" is a person' entity registered as such with Quixtar
Corporation who buys products and services through Quixtar Corporation.
1.9 "Customers" are IBOs, Members, Clients, and persons solicited and/or
sponsored by mos, members, or Clients to purchase the Card.
1.10 "Client Data" is all information about the lBO, which is obtained
and/or known by UIS in connection with the marketing of the Cards.
1.11 "Customer Data" is information about Customers such as names,
addresses, telephone numbers, credit card and credit information obtained
by either UIS or NHC with regard to the marketing and sale of the Card.
1.12 "Program" is the process of utilizing the Products and Providers and
marketing and sale of the Card to Customers.
1.13 "Providers" are those persons and entities enrolled/enlisted by NHC
providing the Products.
1.14 "Purchase Amount" is the purchase price for the Card on an annual
basis and also on a monthly basis and is set forth on Exhibit B, as amended
from time to time.
1.15 "Commission" is the amount of the gross Purchase Amount to be paid UIS
for the sale of the Card to a Customer.
2. Endorsement and Duties of the Parties. NHC hereby endorses UIS as the
exclusive party for the marketing and sale of the Card to IBOs and Customers. In
connection therewith, the parties shall perform the following duties:
2.1. NHC Duties.
2.1.1. NHC shall cause the Products, as set forth on Exhibit A, to be
covered by the Card and provided to the Customers.
2.1.2. NHC shall continuously recruit and cause Providers to be
enrolled/enlisted in the NHC network to provide the Products for which
they are recruited.
2.1.3. NHC shall amend Exhibit A, adding, subtracting, modifying
Products set forth therein, only in accordance with the procedure set
forth herein for amendments to the Agreement.
2.1.4. NHC shall continuously provide, maintain, and create an
up-to-date web site and "Provider Look Up Page" accessible to
Customers in location, form, and substance satisfactory to U1S, which
Provider Look Up Page shall include, among other things, the names,
addresses, telephone numbers, and related information as to active
Providers. Further, the current Products being offered shall also be
listed in form and substance acceptable to UIS.
2.1.5. NHC shall provide UIS an electronic, telephonic or other means
to locate providers by geographic area and Product offered. NHC may,
at its option, periodically supply to UIS a listing by area and
Product offered of current Providers, Providers added to the list
since the prior report, and Providers deleted from that list. UIS
shall reimburse NHC its reasonable costs of preparing such listings.
2. 1.6. In the event NHC shall cease to have a class of securities
registered pursuant to section 12 of the Securities Exchange Act of
1934, as amended, NHC shall provide UIS quarterly profit and loss and
financial statements of NHC in a form consistent with generally
accepted accounting standards in the United States, or other form
acceptable to UIS.
2.1.7. Unless NHC shall provide an auditor's report or independent
accountant's report certifying the financial statements required by
section 2.1.6, NHC shall permit UIS at all reasonable times during
normal business hours to examine the books and records of NHC to
verify the accuracy of such financial statements. UIS shall reimburse
NHC its reasonable costs of providing such examination.
2.1.8. NHC shall provide, at its sole expense, its own facility with
trained staff to assist in accomplishing the obligations placed upon
it by this Agreement.
2.1.9. NHC shall cause each Card issued to set forth an expiration
date, which expiration date shall be one (1) year from the date of
issuance of the Card.
2.2. UIS Obligations.
2.2.1. UIS shall provide, at its sole expense, its own facility with
trained staff to assist in accomplishing the obligations placed upon
it by this Agreement.
2.2.2. UIS shall use commercially reasonable efforts to promote the
Card to Customers through Quixtar publications and advertisements, as
determined by UIS from time to time, with the cost of these
publication and advertisements efforts to be borne solely by UIS.
2.2.3. UIS shall provide the materials, advertisements, and
presentations to NHC for its prior review and input with regard to
promotion of the Card.
2.2.4. UIS shall timely perform the administrative functions,
accountings, and payment as set forth in this Agreement, which
functions shall include information relating to sales, renewals,
commissions, and refunds.
2.3. Other Obligations.
2.3.1. Each party shall cooperate in good faith with the other party
to maintain a consistent, high quality Program and also the continued
performance by each party of its respective obligations hereunder in
compliance with all applicable legal requirements. To the extent
necessary for each party to comply with all applicable legal
requirements, each party shall allow appropriate access by any and all
regulatory agencies having jurisdiction to all relevant files and
procedures. Each party shall pay it own cost for compliance.
2.3.2. NHC shall cause itself and its affiliates to timely perform and
maintain any licensing and/or other legal requirements necessary to
create and offer the Program to provide the Providers and the Products
through the Card. UIS shall comply with all regulatory requirements as
may be required to market the Card to and through IBOs for sale of the
Card to IBOs and Customers. 3. Marketing and Sale of Card to
Customers.
3.1. Authority. VIS shall market the Card to IBOs for IBO purchase of the
Card and for 180 sale of the Card to Customers. Nothing in this Agreement
shall be construed to directly or indirectly restrict UIS from offering or
marketing to IBOs or others, products that may compete with the Card.
3.2. Communicating with Customers, Providers, and Product Suppliers. NHC
shall have the right to communicate with Customers concerning Providers and
Products and/or service issues/inquiries related to the Card, which
communications shall require prior approval of UIS as to content. UIS shall
have the right to communicate with Providers and/or with Product Suppliers
with regard to Provider and/or Product issues.
3.3. Placement of Orders and Sale of Cards. All orders for purchase of a
Card by an IBO or by Customers of an IBO shall be made to UIS on order
forms and with information as required by UIS. NHC may receive information
and order(s) & from an IBO or IBO Customer and may assist the IBO and/or
Customer in completion of the required information and order form, but NHC
shall forward all completed order forms, information, and payment received
to UIS. UIS alone shall undertake the administrative tasks and make the
determination for the sale of the Card to an IBO or Customer. In performing
these tasks, by way of example and not exclusion, UIS must have received
payment for the Card in the proper method and amount, receive the complete
order form and information, and must ascertain and confirm with Quixtar
that the IBO (from whom the intended sale has been generated) is an IBO in
good standing with Quixtar. Upon completing the administrative tasks, UIS
shall deposit and clear payment and then advise NHC that the sale of the
Card has been approved. NHC shall thereupon complete the sale transaction
and cause the Card to be issued to the Customer.
3.4. Renewals, Cancellations, Refunds. Renewals shall be handled in the
same manner as set forth in Section 3.3. If, for any reason, payment for an
issued Card is not current, UIS shall so notify NHC of this fact and NHC
shall cause the subject Card to be cancelled. If, for any reason, a refund
is due a Customer, UIS shall accomplish this task.
3.5. Payment for the Card and Accounting. All payments for the Card in the
gross Purchase Amount shall be made/forwarded to UIS for its administrative
actions and accounting as described in Section 3.3. The method for payment
of the Purchase Amount for the Card, in the event it is purchased by the
year, may be by charge card or check, all checks payable to UIS. The
Purchase Amount for the Card in the event it is purchased by the month
shall be by charge card with authorization for UIS to charge against the
charge card for succeeding months unless and until the authorization is
properly countermanded. On a weekly basis, UIS shall furnish an accounting
to NHC of Cards sold or renewed the prior week, along with any
cancellations and refunds. With the accounting, UIS shall remit payment to
NHC for the Net Purchase Amount due NHC for Cards sold/renewed the prior
week. "Net Purchase Amount" shall be the gross purchase price for Cards
sold, less compensation as set forth in Section 4, less any refunds as the
result of Card cancellation.
3.6. Purchase Amount. The gross Purchase Amount for the purchase of a Card
by the year and by the month is set forth on Exhibit B.
3.7. Card Sale by IBOs in Excess of Purchase Amount. It is understood that
IBOs may solicit purchase of the Card by Customers at prices in excess of
the gross Purchase Amount. Any such price or charge by the IBO over the
gross Purchase Amount shall be the sole prerogative and responsibility of
the IBO. Only the gross Purchase Amount is to be paid to UIS for the
purchase of the Card. Neither UIS nor NHC has any right, claim, interest,
or control over pricing by an IBO beyond the gross Purchase Amount.
4. Compensation. As consideration for marketing the Card, for every Card
purchased new or renewed by a Customer, UIS shall receive a commission
calculated in accordance with Exhibit B. The Commission shall be reduced by
application of the Commission formula to any refunds as the result of Card
cancellations. The payment of Commissions shall be accomplished by UIS paying
the Commission amount from the gross Purchase Amount (leaving the Net Purchase
Amount, which is then paid to NHC in accordance with Section 3.5). Payment of
Commissions with regard to Cards sold to and/or renewed with Customers procured
during the Term of this Agreement shall continue beyond the termination of the
Agreement and by made by NHC for as long as the Customer purchases the Card (or
successor replacement for the Card). Following termination or expiration of this
Agreement, NHC shall not utilize IBOs in any way to market the Card.
5. Term and Termination. The Term of this Agreement shall be for a beginning
period of two (2) years commencing the effective date of this Agreement. The
Term shall automatically continue for successive one (1) year periods thereafter
unless either party notifies the other at least ninety (90) days prior to the
expiration of the beginning period or any successive period thereafter of
intention not to renew. Irrespective of the Term set forth herein, this
Agreement may terminate upon the occurrence of the events set forth in
subsections (a) through (e) below. Upon termination or expiration of this
Agreement, NHC will not directly or indirectly market or sell the Card or
successor thereto to or through Quixtar Corporation, lBO's, Members, and/or
Clients for a period of three (3) years. This provision survives the termination
or expiration of this Agreement.
5.1. Upon thirty (30) days' written notice by UIS, in the event UIS
determines in its sole discretion that the financial information required
to be furnished pursuant to this Agreement is untimely or otherwise
discloses an unacceptable financial condition, and NHC fails to cure within
the thirty (30) day period.
5.2. Upon thirty (30) days' written notice by UIS, in the event UIS, in its
sole discretion, determines that the "Provider Look Up Page" is not to the
quality or completeness standard determined by UIS or is not maintained by
NHC in form and substance acceptable to UIS and NHC fails to cure within
the thirty (30) day period.
5.3. Upon thirty (30) days' notice by UIS in the event, for any reason,
Quixtar determines no longer to participate or no longer to permit the
Program for participation by IBOs.
5.4. Immediately without notice by either party in the event either party
seeks creditor or bankruptcy protection or is insolvent as that term is
defined in the Federal Bankruptcy Code.
5.5. Upon thirty (30) days' notice by the non-breaching party in the event
the breaching party breaches any of its obligations or warranties under
this Agreement and fails to cure within the thirty (30) day period.
6. Representations and Warranties.
6.1. UIS Corporate Authority. UIS represents and warrants that it is a
corporation duly organized and existing under the laws of the State of
Michigan, is properly authorized to perform its business including the
business under this Agreement, is not in violation of any provision of its
Articles of Incorporation or Bylaws, and has not received notice and has no
reasonable grounds to believe that it is in violation of any laws or
regulations in any manner material to its ability to perform its
obligations under this Agreement.
6.2. NHC Corporate Authority and Compliance with Regulations. NHC
represents and warrants that it is a corporation duly organized and
existing under the laws of the State of Nevada, is properly authorized and
licensed to perform the business required of it under this Agreement, the
Card sold pursuant to this Agreement is not in violation of any provision
of its Articles of Incorporation or Bylaws, and it is in compliance with
all governmental laws and regulations applicable to the Card, and has not
received notice and has no reasonable grounds to believe that it is in
violation of any laws, regulations, or contracts in any manner material to
its ability to perform its obligations under this Agreement.
7. Expirations and Renewals. UIS shall have exclusive ownership and control of
all expirations and renewals related to any Cards sold to Customers.
Notwithstanding the foregoing, after the expiration of termination of this
Agreement, NHC shall be permitted to communicate with any current Card holder to
service and/or renew any Card purchased, provided however, that NHC shall not be
permitted to use the UIS name or trademark in connection with such service.
8. Confidentiality/Ownership of Customer Data.
8.1. Confidential Information and Individual Customer Information. Any
records, materials, data or technical, business or financial information,
and any other material furnished or disclosed by one party to the other
pursuant to this Agreement, other than individual Customer Data shall be
deemed Confidential Information and the exclusive property of the
disclosing party. Any data identifying individual Customers, personal data,
Card use history, renewals, and related information or data shall be shared
between UIS and NHC and kept confidential by each and used as part of
administering the Card but shall belong to UIS and the Customer. All
Confidential Information, Customer Data and Client Data is to be used by
UIS and NHC in the performance of their respective obligations and duties
hereunder and is to be completely returned to UIS - if requested - upon
termination of this Agreement (or, in the case of the Customer, upon
Customer request). It is understood that, during the term of this
Agreement, an individual Customer may request from UIS and/or NHC its
Customer information. UIS and NHC (as the case may be) shall advise the
other of any Customer information request received from an individual
Customer. UIS and NHC shall at all times act in compliance with the
requirements of the Health Insurance Portability and Accountability Act of
1996 and regulations issued pursuant thereto (to the extent applicable)
with regard to Customer Data, Client Data, and Confidential Information.
8.2. Confidentiality. NHC agrees not to reveal, divulge, make known, sell,
exchange, lease or in any other way transfer any Confidential Information,
Customer Data, or Client Data to any thirdparty competitor of UIS or NHC or
to utilize or allow utilization of such information other than in
accordance with the terms of this Agreement. The parties agree that
monetary damages for beach of the obligations under this Section are not
adequate and that the nondisc1osing party shall be entitled to injunctive
relief in addition to any damages claimed with respect thereto. It is
understood that UIS may utilize Customer Data and Client Data in marketing
competitive Products to lBOs and/or Customers in the event it chooses to do
so.
8.3. Restriction Concerning Disclosure. UIS and NHC, in administering the
Program, shall restrict disclosure of the Confidential Information,
Customer Data, and Client Data to its employees with a need to know in
order to properly market and service the Products, Participants, and the
Card.
8.4. Exceptions. Nothing in this Section shall be construed to prevent any
party from disclosing or using any data or information (1) which was in
possession or control prior to disclosure by the other party; (2) which was
in the public domain or enters the public domain through no improper act of
the parties hereto; (3) which is obtained from a third party under no
confidentiality obligation to the parties hereto; (4) which is
independently developed by the receiving party or (5) as required by a
court of law.
8.5. Retention of Individual Customer Information. It is understood that in
all events, NHC may keep copies of the Individual Customer Data on all
Individual Customers whose Card is continuing in effect for a period beyond
the termination date of the Agreement.
9. Relationships.
9.1. Relationships. Unless the context requires otherwise, for all purposes
under this Agreement each IBO shall be deemed to be the agent of UIS, and
not that of PHC. UIS may in its sole discretion determine the nature and
terms of such relationship. UIS shall use its best efforts to ensure that
its IBOs are of good character and conduct themselves professionally at all
times while representing NHC's products.
9.2. Training and Supervision. UIS shall be primarily responsible for
training and supervision of its agents. UIS shall ensure that its agents
accurately represent the nature and operation of the Card to customers and
prospective customers, and in particular that agents do not state, imply,
or permit an inference reasonably to be drawn that the Card is an insurance
product or that NHC is in the insurance business. UIS shall indemnify and
hold NHC harmless against any and all claims arising out of 180 activities
in violation of this section 9.2
9.3. Compliance With Franchise and Business Opportunitv Laws. UIS alone
shall be responsible for compliance with any Franchise or Business
Opportunity laws that may apply to UIS's activities in connection with its
recruitment of and relationship with IBOs or other sales agents. UIS shall
indemnify and hold NHC harmless against any and all claims arising out of
its activities under this section 9.3.
9.4. No Relationship Between Agent and PHCC. For all purposes and in all
matters respecting this Agreement, the relationship established by its
terms and provisions shall be between NHC and UIS exclusively. Nothing
herein shall give rise to any obligation on the part of NHC to any 180 or
other agent of UIS, or any responsibility of NHC for the conduct or
activities of any such 180 or agent.
10. Indemnification.
10.1. Indemnification. Each party shall indemnify, defend, and hold
harmless the other, as well as their respective directors, officers,
agents, employees and shareholders, from and against any and all claims,
suits, hearings, actions damages, and liabilities caused by or resulting
from any breach of this Agreement, misconduct, error, omission, or other
unauthorized act by that party, its officers, directors, shareholders,
employees, agents or representatives.
10.2. Notice of Claim for Indemnification. Upon obtaining knowledge of a
claim which could give rise to indemnification under this Section, the
party demanding such indemnification (the "Indemnitee") shall promptly
notify the party from whom indemnification is sought (the "Indemnitor"), in
writing, of the claim which the Indemnitee has determined could give rise
to a right of indemnification. This notice shall specify, in reasonable
detail, the nature of any such claim giving rise to the right of
indemnification.
10.3. Defense of Third-Party Claims. With respect to any claim set forth in
such notice of claim, Indemnitee may, in good faith, defend any such claim
and Indemnitor, at its expense, shall have the right to participate in the
defense. In connection with its defense, Indemnitee shall have the absolute
right to choose or approve the counsel for the defense or prosecution of
such action. So long as Indemnitee is defending in good faith, Indemnitor
shall not settle or compromise such claim. Each party shall make available
to the other or its representative all records and other materials
reasonably required in contesting any claim and shall cooperate fully with
the defense of all such claims. Indemnitor may settle any claim without the
consent of the Indemnitee in the event that the sole relief requested is
money damages and such money damages are paid in full by the Indemnitor and
all litigation with respect thereto is dismissed with prejudice.
10.4. Survival of Indemnification. The indemnification provided under this
Section shall survive the expiration or termination of this Agreement.
10.5. Dispute Resolution. The parties consent to personal jurisdiction in
the state or federal courts of and/or within the state of Michigan. The
laws of the state of Michigan shall apply. Service of process upon any
party shall be sufficient if made in accordance with the laws of the state
of Michigan. The prevailing party shall be entitled to recover its actual
attorney's fees and costs from the other party.
10.6. Errors and Omissions Coverage. Each party, during the term of this
Agreement, shall provide errors and omissions insurance ("E&O") reasonably
acceptable to the other with regard to coverage and deductible, with limits
of at least $5,000,000 and, upon request by a party, shall furnish that
party with a copy of this insurance policy.
10.7. Independent Contractor. In the performance of this Agreement, each
party shall be deemed an independent contractor and not an employee of the
other party. Each party shall supervise the performance of its own services
and shall have control of the manner and means by which its obligations are
performed.
11. Dispute Resolution. The parties consent to personal jurisdiction in the
state of federal courts of and/or within the state of Michigan. The laws of the
state of Michigan shall apply. Service of process upon any party shall be
sufficient if made I accordance with the laws of the state of Michigan. The
prevailing party shall be entitled to recover its actual attorney's fees and
costs from the other party.
12. Errors and Omissions Coverage. Each party, during the term of this
agreement, shall provide errors and omissions insurance ("E&O") reasonably
acceptable to the other with regard to coverage and deductible, with limits of
at least $5,000,000 and, upon request by a party, shall furnish that party with
a copy of this insurance policy.
13. Independent Contractor. In the performance of this Agreement, each party
shall be deemed an independent contractor and not an employee of the other
party. Each party shall supervise the performance of its own services and shall
have control of the manner and means by which its obligations are performed.
14. Delay In Enforcement. Neither NHC's nor UIS' failure at any time to insist
upon the performance of any provision in this Agreement shall operate as a
waiver of any of NHC's or UIS' future rights or remedies under this Agreement.
15. Modification. This Agreement may be modified or amended in whole or in part
from time to time only by written agreement signed by an officer of both parties
and delivered by each to the other prior to the effective date of such
modification or amendment.
16. Assignment, Transfer of Ownership. No party shall have the right to assign
its rights or obligations under this Agreement without the prior written consent
of the other party and any such attempt shall be void. Any material change in
management of either party or the sale of a substantive amount of stock or
assets shall permit the other party, in its sole election, to terminate this
Agreement.
17. Notices. All notices under or regarding this Agreement shall be in writing
and shall be sent by firstclass mail, postage prepaid, or by certified mail,
return receipt requested, to the address given below or to such other addresses
as either party may designate by notice to the other:
If to UIS:
Universal Insurance Services, Inc.
000 Xxxxxx, X.X., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
If to NHC:
National Health Care Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, X A 98201
Attn: Xxxxxxx Xxxxxxx
18. Entire Agreement. This Agreement constitutes and expresses the whole
Agreement of the parties with reference to the provision and marketing of the
Program, Providers, Products, and the Card to and/or with regard to IBOs and
Customers and all prior promises, undertakings, representations, agreements,
writings, understandings, and arrangements with reference to such provision and
marketing are merged herewith. This Agreement shall be binding on and inure to
the benefit of the parties respective affiliates, subsidiaries, related
companies, administrators, successors, and legal representatives.
19. Agreement Preparation. This Agreement has been prepared by the combined
efforts of the parties and is to be interpreted as such.
20. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which, when taken together,
shall constitute one in the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date and year first above written.
WITNESSES:
NATIONAL HEALTH CARE CORP.
By
/s/ Xxxxxxx Xxxxxxx
--------------------------------
President
UNIVERSAL INSURANCE SERVICES, INC.
By
/s/Xxxxxxx X. Xxxxxxxx
-----------------------------------
President
EXHBIIT A
Products List
National Healthcare Card (currently including):
Medical Doctor and Hospital
Chiropractic
Dental
Hearing
Mental Health
CAM (Alternative Health)
24-Hour Nurse Hotline
SOS Travel Referral and Expense Reimbursement
Patient Advocacy
Extended Care
Vision
Pharmacy
Diabetes
