JOINT MARKETING AND REFERRAL AGREEMENT
THIS JOINT MARKETING AND REFERRAL AGREEMENT, is made and entered into as of
the 1 day of July 2005, by and between First National Bank of Xxxxxxx County
("First National"), First National Wealth Advisory Services ("FNWAS") and The
Elite Group, LLC ("Elite Group").
WITNESSETH:
WHEREAS, First National is a national banking association chartered by the
Office of the Comptroller of the Currency;
WHEREAS, FNWAS is a wholly-owned subsidiary of First National and is
licensed as a corporate producer under the insurance laws of Pennsylvania;
WHEREAS, Elite Group is a Pennsylvania limited liability company, licensed
as a corporate producer under the insurance laws of Pennsylvania, and provides
human resource and insurance products and services to small-to-mid sized
companies;
WHEREAS, First National has clients who are small-to-mid sized companies
who may be in need of human resource and insurance products and services;
WHEREAS, First National and Elite Group desire to jointly market their
respective products and services to select First National clients, and to share
the expenses of such marketing;
WHEREAS, Elite Group desires that First National will refer clients in need
of human resource and insurance products and services to Elite Group;
WHEREAS, Elite Group is willing to compensate First National for the
referral of such clients to Elite Group; and
WHEREAS, First National and Elite Group are entering into this Agreement
for the purpose of setting forth terms and conditions of their agreement.
NOW THEREFORE, in consideration of good and valuable consideration, the
adequacy and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties do hereby agree as follows:
1. Joint Marketing and Referral of Clients. First National, FNWAS and Elite
Group shall conduct periodic marketing forums to select First National clients,
at times and locations to be determined by the parties. Each First National
client who from time to time purchases any of the human resource and insurance
products or services offered by Elite Group, including those Commission Based
Services and Fee Based Products and Services set forth on Exhibit A attached
hereto, at or following any marketing forum conducted by the parties, shall be
referred to in this Agreement as a "Referred Client". Except as set forth in
Section 2 below, all right, title and interest, in and to the revenues and
profits relating to the Referred Clients (whether original or renewal), shall be
the sole property of Elite Group.
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2. Fees and Payment.
(a) So long as FNWAS maintains the requisite state insurance licenses
and in accordance with the termination provisions set forth in Section
6(c), Elite Group shall pay referral fees (the "Commission Based Fees") to
FNWAS for each Referred Client purchasing Commission Based Services,
including those set forth on Exhibit A. The amount of the Commission Based
Fees shall equal a percentage of the total commissions Elite Group receives
from the Referred Client for such Commission Based Services, as set forth
on Exhibit B attached hereto.
(b) Elite Group shall pay referral fees (the "Fee Based Referral
Fees") to First National for each Referred Client purchasing Fee Based
Products and Services, including those set forth on Exhibit A. The amount
of the Fee Based Referral Fees shall equal a percentage of the total fees
Elite Group receives from the Referred Client for such Fee Based Products,
as set forth on Exhibit B.
(c) Elite Group shall pay all Commission Based Fees to FNWAS and all
Fee Based Referral Fees to First National not later than (30) days after
receipt of the commissions and/or fees by Elite Group from the Referred
Clients. The Commission Based Fees and the Fee Based Referral Fees are
collectively referred to as the "Fees".
(d) Elite Group shall pay to First National on demand a portion of
First National's out-of-pocket costs to conduct the marketing forums
(including but not limited to, the costs for advertising, printing,
supplies, facility fees, and food and beverage cost), such portion to be
agreed upon by the parties prior to each such forum.
3. Representations and Warranties.
(a) Each of First National and FNWAS represents, warrants and
covenants to Elite Group that (i) it has the right and authority to enter
into and fully perform this Agreement in accordance with the terms and
conditions hereof; and (ii) the execution, delivery and performance of this
Agreement does not and will not violate or cause a breach of any other
agreements or obligations to which it is a party or by which it is bound,
and no approval or other action by any governmental authority, or any other
individual or entity, is required in connection herewith.
(b) Elite Group represents, warrants and covenants to First National
and FNWAS that (i) it has the right and authority to enter into and fully
perform this Agreement in accordance with the terms and conditions hereof;
and (ii) the execution, delivery and performance of this Agreement does not
and will not violate or cause a breach of any other agreements or
obligations to which it is a party or by which it is bound, and no approval
or other action by any governmental authority, or any other individual or
entity, is required in connection herewith.
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4. Limitation of Liability. EXCLUSIVE OF LIABILITY UNDER SECTION 6 BELOW,
IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON, FOR
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF
PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF
CONTRACT, TORT OR OTHERWISE EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EACH OF THE PARTY'S RESPECTIVE TOTAL LIABILITY FOR
DAMAGES SHALL BE LIMITED TO THE AMOUNT OF THE TOTAL FEES DUE FIRST NATIONAL
HEREUNDER AT THE TIME OF THE DISPUTE.
5. Mutual Indemnification. Each party will at all times (notwithstanding
the expiration or termination of this Agreement) indemnify and hold harmless the
other party, their parent corporations and affiliates and their respective
officers, directors, shareholders, members, employees and representatives, and
the successors and assigns of any of them, from and against, and reimburse them
for, all claims, damages, costs and expenses, including, without limitation,
interest, penalties, court costs and reasonable attorneys' fees and expenses,
arising out of or resulting from (i) any breach of any representation, warranty
or covenant made by the indemnifying party herein, or (ii) any negligent or
willful act or omission by the indemnifying party in connection with the
performance of its obligations hereunder.
6. Term; Termination of Agreement.
(a) This Agreement shall continue in effect until terminated by either
party hereto upon sixty (60) days prior written notice to the other party.
(b) If a party hereto fails to perform any of its material obligations
under this Agreement, or (b) is otherwise in material default under this
Agreement, and fails to cure, or commence the cure of such failure or
default within fifteen (15) days after receipt of written notice thereof,
then the non-breaching party may, in its sole discretion, terminate this
Agreement without further notice of any kind.
(c) If this Agreement is terminated as provided in this Section 6,
then Elite Group shall immediately pay to First National and FNWAS, as the
case may be, the Fees owing under this Agreement that have accrued up to
the date of termination and are unpaid, and thereafter, so long as any
Commission Based Services remain in force, Elite Group shall pay to FNWAS,
the Commission Based Fees, and, so long as any Fee Based Products and
Services continue to be provided by Elite Group to Referred Clients, Elite
Group shall pay to First National the Fee Based Referral Fees until the
earlier of 12 months after termination of this Agreement or the renewal of
the Referred Client's account.
(d) The provisions of Sections 2, 3, 4, and 7 shall survive the
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termination of this Agreement.
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7. Confidentiality; Privacy.
(a) First National, FNWAS and Elite Group will keep the existence of
this Agreement in confidence; and will not discuss the transaction
contemplated by this Agreement with any person or entity, except their
respective accountants, attorneys, agents and advisors.
(b) If a party prepares standard written materials for public
distribution that describes or mentions the other party, the party
preparing the materials will provide the other party with copies of such
materials prior to their use. No marketing materials or press releases,
concerning the transactions described in this Agreement shall be
disseminated unless both parties have approved such marketing materials or
press releases.
(c) First National, FNWAS and Elite Group agree to comply with all
applicable privacy laws and regulations with respect to the nonpublic
personal information of the Referred Clients or their employees, as the
case may be ("NPI"). Elite Group agrees not to share the NPI with any other
person or entity, except as permitted by federal law, specifically, Title V
of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, without the prior written approval
of (a) First National, or (b) the Referred Client. Elite Group further
agrees to maintain the security of the NPI and restrict access of such
information to persons who need to know that information in order to
provide the human resource and insurance services contemplated hereunder.
8. Relationship. Neither this Agreement, nor the transactions contemplated
hereunder, shall in any respect be interpreted, deemed or construed to make
First National, FNWAS and Elite Group partners or joint venturers with one
another or to create or constitute any partnership, joint venture, association
or other such relationship between First National or FNWAS and Elite Group.
9. Non-Exclusivity. First National, FNWAS and Elite Group agree that
nothing in this Agreement shall create an exclusive marketing and referral
arrangement between First National or FNWAS and Elite Group.
10. Amendment. This Agreement may be amended, altered or modified only by a
writing signed by the parties hereto.
11. Notices.
(a) All notices, requests, demands and other communications hereunder,
shall be in writing and shall be (i) delivered by hand, or (ii) mailed by
registered or certified mail, returned receipt requested, first class
postage prepaid, or (iii) delivered by prepaid cable, telex or facsimile,
addressed as provided in this Section.
(b) Notice to First National or FNWAS shall be addressed as follows:
First National Bank of Xxxxxxx County
Attn: Xxxxxx X. Xxxxx
Senior Business Development Officer
00 X. Xxxxxx Xxxxxx
P.O. Box 3105 Xxxx Xxxxxxx, XX 00000 Facsimile:
_______________
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(c) Notice to Elite Group shall be addressed as follows:
The Elite Group, LLC
Attention: Xxxxxxx X. Xxxxxx
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000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Facsimile: 000-000-0000
(d) If delivered by hand or by cable, telex or facsimile, the date on
which a notice, request, instruction or document is delivered shall be the
date on which such delivery is made. If delivered by mail, the date on
which such notice, request, instruction or document is received shall be
the date of delivery.
(e) Any party hereto may change its address specified for notices
hereby designating a new address by notice in accordance with this Section.
12. Nonwaiver of Default. Any failure by any party hereto, at any time or
from time to time, to enforce and require the performance of any of the terms
and conditions of this Agreement shall not constitute a waiver of any such terms
or conditions at any future time and shall not prevent such party from insisting
on the performance of such terms and conditions at any later time.
13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
executors, administrators, successors and assigns.
14. Headings. The section headings in this Agreement are inserted solely as
a matter of convenience and for reference and are not a part of this Agreement.
15. Interpretation. Should a provision of this Agreement require judicial
interpretation, it is agreed that the judicial body interpreting or construing
the same shall not apply the assumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction that
any instrument is to be construed strictly against the party which itself or
through its agent prepared the same, it being agreed that the agents of all the
parties have participated in the preparation hereof equally.
16. Entire Agreement and Effect. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter of this
Agreement and shall supersede any prior agreements, representations, warranties,
or communications, whether oral or written, among the parties hereto with
respect to the matters contained in this Agreement.
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17. Governing Law. Regardless of the place of contracting, place of
performance or otherwise, this Agreement and all amendments, modifications,
authorizations or supplements hereto, and the right of the parties hereunder,
shall be construed under, and governed by the laws of the Commonwealth of
Pennsylvania, to the extent such laws are not superseded by Federal law.
18. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
19. Pronouns. All pronouns used herein shall be deemed to refer to the
masculine, feminine or neuter gender as the context requires.
IN WITNESS WHEREOF, each party hereto has executed or caused this Agreement
to be executed on its behalf under seal, as of the day and year first above
written.
First National Bank of Xxxxxxx County
By: Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Senior Business Development Officer
First National Wealth Advisory Services
By: Xxxxxx X. Xxxxx
---------------
Name: Xxxxxx X. Xxxxx
Title:
The Elite Group, LLC
By: Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title:
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EXHIBIT A
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PRODUCTS AND SERVICES
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Commission Based Services
o Group Medical Insurance
o Group Life, Accident and Disability Insurance
Fee Based Products and Services
o Group Benefits Administration
o Payroll Services
o Human Resource Consulting
o Risk Management Consulting
o Web Enabled Human Resource Management System
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EXHIBIT B
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FEES
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New Renewal
Commission Based Services Business Business
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Medical Insurance 20% 12%
Life, Accident and Disability Insurance 14% 10%
Fee Based Products and Services
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To be determined by agreement of the parties.
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