Exhibit 10.10
0xxxxxxxxxx.xxx(TM).Inc.
AGREEMENT FOR SERVICES
----------------------
THIS AGREEMENT is made as of the __ day of September 1999, by and between
0xxxxxxxxxx.xxx(TM).Inc. a New Jersey Corporation ("1/st/"), and Eye Care
International, Inc., a Delaware Corporation ("ECI"), to be effective on or about
September 30, 1999.
R E C I T A L S:
----------------
1. 1/st/ has developed a proprietary program (the "Program") under which a
1/st/inhealth Card is made available to Program members ("Cardmembers") that
entitles them to receive Preferred Pricing on health-related products and
services.
2. ECI maintains a national network of Vision Providers (the "Network") of
about 2,000 ophthalmologists and 10,000 opticians (the "Providers"). 1/st/ and
ECI wish to make the Network of Providers available to Cardmembers under the
Program.
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
A G R E E M E N T:
-----------------
1. MERCHANT AGREEMENTS. ECI represents and warrants that it has the
-------------------
legal contractual to cause each of the Network Providers to become a
merchant under the Program and be bound by the terms and conditions of
the Programs as attached in Exhibit C. Attached to this Agreement as
Exhibit A are specimen agreements, which have been completed, by ECI
and the Network Providers allowing ECI to enter into this Agreement on
their behalf.
1.1 1/st/ will provide a free authorization center for Network
Providers to call to receive authorization for goods and
services.
1.2 1/st/ will pay Network Providers pursuant to the ECI Preferred
Pricing Schedule(s) as attached as Exhibit B on the 10/th/ day of
each month immediately following the month services are rendered
or via ACH (as a primary option) within 3-4 business days if the
Network Provider so desires and furnishes 1/st/ with a copy of a
voided check for the account the funds are to be deposited into.
Both 1/st/ and ECI shall inform Providers of this option with the
initial Provider contact and each subsequent Provider contact
with 1/st/.
1.3 1/st/ will maintain a toll free merchant services telephone
number to assist Network Providers with questions regarding the
Program.
1.4 1/st/ and ECI agree that ECI shall be the exclusive eye
care/eyewear provider for the Program. ECI recognizes that 1/st/
has existing contractual relationships with Eye Masters, Xxxxx
Vision Optical and Sterling Vision and will exempt these entities
from the foregoing exclusivity commitment. If 1/st/ requires
optometric coverage in an area not currently available by a
Network Provider, it will notify ECI of such need and ECI will
then have thirty (30) days from the date of receipt of such
request to contract with a Provider in the needed geographical
area. If ECI is unsuccessful in arranging for such coverage,
1/st/ will have the right to contract directly with a provider in
that area.
1.5 1/st/ will submit to ECI for approval all material which 1/st/
intends to disseminate which describes the ECI eye care/eyewear
vision portion of the Program. ECI's review of said material
shall be limited to factual accuracy and will not be unreasonably
withheld or delayed.
1
1.6 1/st/ will commence its sales and marketing activities no later than
October 1, 1999.
2. Preferred Pricing
-----------------
2.1 Preferred Pricing for the benefit of Cardmembers will be as per
Exhibit B attached to the Agreement and are in the form of regional
fees schedules agreed to by the Network Providers and ECI.
2.2 Preferred Pricing for products and services at Network Providers shall
be based upon ECI's schedules.
2.3 ECI shall be compensated for all Network Providers pursuant to section
3.4. If a provider enrolled by ECI ceases to participate with 1/st/
and then reactivates as a participating provider; ECI shall be
credited for all transactions that originate from that Provider.
3. RELATIONSHIP OF ECI AND 1/ST/.
-----------------------------
3.1 The relationship between ECI and 1/st/ is that of independent entities
contracting for the sole purpose of carrying out the provisions of
this Agreement and nothing herein or otherwise shall be construed to
create any other relationship, including without limitation, that of
employee, agent or representative.
3.2 This is an Agreement between ECI and 1/st/ and is not intended to
create any rights or remedies in favor of any other party, including
without limitation, a Cardmember.
3.3 1/st/ retains all authority to interpret the Program to which this
Agreement relates including, but not limited to, eligibility and
interpretation of the Program's terms.
3.4 ECI will receive the following compensation from 1/st/ as a result of
it participation in the Program: two per cent (2.0%) of the amount
charged to the Cardmember's credit/debit card account of each
transaction occurring at an ECI Network Provider. This fee will be
paid monthly, on or before the fifteenth day of each month, thirty
days in arrears and will be net of charge backs, credits and returns.
Monthly statements will be submitted along with payment detailing all
transaction occurring at Network Providers. The consideration being
paid to ECI as specified in this Sub-Paragraph 3.4 is for, among other
things, ECI permitting 1/st/ to utilize the ECI network as the eye
care/eyewear provider network in the Program.
3.5 If 1/st/ is sold, merges or becomes publicly traded, all terms of
this Agreement will survive.
4. RESPONSIBILITIES OF ECI.
-----------------------
4.1 ECI will cause all Network Providers currently under contract with ECI
and any and all additional Network Providers who contract with ECI to
participate in the Program in the various geographical areas where
Cardmembers are located.
4.2 ECI will use its best efforts to cause the Network Providers to
utilize advertising materials relating to the Program, together with
decals and displays showing participating in the Program, to be
supplied by 1/st/, provided all expenses involved in promoting and
arranging for the Network Providers to utilize advertising materials
relating to the vision portion of the Program, together with decals
and displays will be borne by 1st.
4.3 ECI will provide 1/st/ an electronic listing of all participating
Network Providers along with the fee schedule that applied to each
Provider.
4.4 ECI shall inform the Network Providers that 1/st/ shall be authorizing
payments for services through the 1/st/ toll free merchant
authorization center.
2
4.5 ECI shall inform Network Providers that 1/st/ will be paying for all
authorized purchases on or about the tenth (10/th/) day of each month
immediately following the month services were rendered by check
directly to the Provider at the address provided to 1/st/ by ECI or as
otherwise provided for in paragraph 1.2 hereof.
4.6 With respect to the "no cost" eye exam portion of the ECI Program, it
is understood that only those providers identified by ECI as providing
one eye exam per membership at no additional cost participate in said
"no cost" part of the ECI Program. Those providers are indicated by
an asterisk (*) next to their name on the electronic disk of providers
provided by ECI to 1/st/. It is specifically understood that with
respect to the "free eye exam" portion of the Program, 1/st/ will
prepare an appropriate "free eye exam coupon" which coupon will have a
short term expiration date and be approved by ECI prior to
dissemination. ECI's approval will not be unreasonably withheld or
delayed.
4.7 It is specifically understood that:
i) The basic fee schedule to be utilized by 1/st/ with respect to
ECI's optometric panel will consist of the FRAMES FAX pricing
structure which is obtained either by ECI or 1/st/ from the
publication "FRAMES" as may exist from time to time along with
the other component parts of ECI's pricing schedule as set forth
by Exhibit B annexed hereto.
ii) With respect to the medical fee for "coded" procedures utilized
by ECI's ophthalmology panel, it is understood that since said
fee schedule is based upon the Medicare fee schedule as same may
exist, from time to time, region by region, since such schedule
is "public information" it shall be 1st's responsibility to
obtain said fee information in those areas where it has members
or is otherwise on a "need to know basis."
iii) With respect to ECI's ophthalmology fee schedule as same may
exist for "non-coded" procedures (electives), since ECI's
providers discount their fees for non-coded procedures by 20% off
of their usual and customary fee, it shall be 1st's
responsibility to inquire as to the provider's usual and
customary fee at the time the provider contacts 1/st/ for
purposes of receiving authorization for payment. The fee to be
charged shall be calculated at that time. In all cases, it is
understood that ECI's pricing structure with its ophthalmology
providers is as set forth in Exhibit B annexed hereto.
Notwithstanding the foregoing, ECI will make reasonable effort to
determine the usual and customary fees of its ophthalmology
providers with respect to elective non-coded procedures; i.e.,
PRK, Lasik, laser cosmetic skin resurfacing.
iv) ECI will use its best efforts to negotiate more favorable
discounts on elective procedures.
5. INDEMNITY.
---------
5.1 ECI shall indemnify and hold 1/st/, its officers, directors, employees
and agents (each an "Indemnified Party") harmless against any claim,
injury, damage, loss, expense (including attorneys' fees) demand or
judgment asserted against or incurred by any indemnified party arising
out of a breach of the Agreement or negligent act, failure to act, or
other faults, in connection with this Agreement by ECI, or any of its
officers, directors, employees or agents.
5.2 1/st/ shall indemnify and hold ECI, its officers, directors, employees
and agents (each an "Indemnified Party") harmless against any claim,
injury, damage, loss, expense (including attorney's fees) demand or
judgment asserted against or incurred by any indemnified party
3
arising out of a breach of the Agreement or negligent act, failure to
act, or other faults, in connection with this Agreement by 1/st/, or
any of its officers, directors, employees or agents.
6. TERM AND TERMINATION.
--------------------
6.1 This Agreement shall commence on the date hereof and shall remain in
effect for an initial term of three (3) years from the effective date
and thereafter shall automatically renew for successive terms of two
(2) years each unless mutually terminated in writing pursuant to this
Section 6.
6.2 In the event of a breach of this Agreement by either party, the other
party may notify the party in breach in writing specifying the manner
in which this Agreement has been breached and this Agreement shall
terminate automatically thirty (30) days after such notice unless the
breach has been cured to the reasonable satisfaction of the non-
breaching party.
6.3 If at any time during the term of this Agreement there shall be filed
by or against either party in any court pursuant to any statute either
of the United States or any State a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver
or trustee of all or a portion of that party's property, or if either
party makes an assignment for the benefit of creditors or petitions
for or enters into such an assignment, the other party may immediately
terminate this Agreement upon written notice to such party who filed
or against whom was filed such petition or who made petition or
entered into such assignment. This Paragraph 6.3 shall not be
applicable if, notwithstanding the filing referred to in Paragraph
6.3, the party against whom such filing was made complies with all the
other material terms and conditions of this Agreement and is not
otherwise in material breach hereof.
7. EFFECT OF TERMINATION. Except as herein otherwise provided, this Agreement
---------------------
shall be of no further force or effect as of the date of termination except
that each party will remain responsible for any obligations or liabilities
arising from activities carried on by such party or its agents or employees
during the period this Agreement was in effect.
8. CONFIDENTIALITY. The information compiled, generated or provided to one
---------------
party (the "Receiving Party") pursuant to this Agreement by the other party
(the "Disclosing Party") or otherwise, including the identity of
Cardmembers and any records of Cardmembers, or dependents of Cardmembers,
are confidential and proprietary to the Disclosing Party and may not be
used for any purpose other than the discharge of the duties of the
Receiving Party hereunder. The Receiving Party will not, except as required
by law or government order, release to any third party without the
Disclosing Party's consent any such information or any other information
relating to the Disclosing Party which the Receiving Party obtains as a
result of or incident to the relationship described in the Agreement,
provided such information is not publicly available to the Receiving Party
of any request, subpoenas or other inquiry it receives to obtain any such
records in the Receiving Party's custody. In addition to this
confidentiality undertaking, the parties hereto agree to execute the form
of Confidentiality Agreement annexed to as Exhibit D. Further, the parties
agree specifically with respect to ECI's ophthalmological provider panel as
disclosed by ECI to 1/st/ from time to time, that 1/st/, for itself, its
successors and assigns and any and all other firms or corporations gaining
access to said list through 1/st/, that they will not during the time of
this Agreement and for a one (1) year period thereafter solicit or allow
said ophthalmological providers or any of them to become members of another
national discount fee for service network in which 1/st/, its successors or
assigns or any other person having access to the list of said providers
through 1/st/ have an interest, directly or indirectly. The foregoing shall
not apply to ophthalmologists who are, as of the date of the execution of
this Agreement, in 1st's network on a national discount fee for service
basis. In
--
connection with the foregoing, it is specifically understood that 1/st/
represents that it has an exclusive contract (not in conflict with this
Agreement) with Galaxy, which contract provides for Galaxy to provide
Medical doctors to the Program. Further, that Galaxy serves in the capacity
of this party administrator to 1/st/ in connection with 1st's Program. As
such 1/st/ further represents that Galaxy is on a "need to know basis" with
respect to the identity of ECI's ophthalmological panel. Having been
appraised by ECI of the highly confidential nature of such a list, it is
agreed between the parties hereto that, provided Galaxy first executes a
Confidentiality Agreement the same or similar to that annexed hereto as
Exhibit D, which Agreement will contain the restrictive covenant provisions
in this paragraph 8 only applicable to Galaxy, ECI agrees that said list
may be made available to Galaxy by 1/st/. Without the execution of said
Confidentiality Agreement by Galaxy and the delivery of same to ECI, said
list of ophthalmological providers shall not be so delivered to Galaxy.
9. ADVERTISING. ECI, 1/st/ and the Network Providers retains the exclusive
-----------
rights to their names and logos, together with all distinctive trademarks
and/or service marks. Upon termination of this Agreement, 1/st/ agrees to
discontinue the use of any name, symbol or trademark belonging to ECI or
the Network Providers and ECI and the Network Providers agree to
discontinue the use of any name, symbol or trademark belonging to 1/st/.
ECI and 1/st/ will receive mutual approval of all uses of their names and
marks prior to publication.
10. NOTICES. Any notices or other communications required or permitted
-------
hereunder may be sent by courier, facsimile transmission (receipt of which
is confirmed), or by U.S. Mail at the addresses indicated on the signature
page of this Agreement. Addresses for notices may be changed upon written
notice to the other party.
11. ASSIGNMENT. This Agreement may not be assigned by either party to any other
----------
person or entity without the express written consent of the other party,
and any attempted assignment without such consent shall be void and no
force and effect. Consent may not be reasonably withheld using good
business judgement. Any rights or duties hereunder may not be subcontracted
or otherwise assigned or delegated by either party.
12. FORCE MAJEURE. A party shall not be deemed to have breached the Agreement
-------------
if its delay or failure to perform all or any part of its obligations
hereunder results from a condition beyond its reasonable control, including
without limitation, acts of God or the public enemy, statute, or rule or
action of any federal, state or local government agency.
13. AMENDMENTS. This Agreement may not be amended or modified by either party
----------
without the express written consent of the other, except as otherwise
provided in the Agreement.
14. APPLICABLE LAW. This Agreement shall be governed by the laws of the State
--------------
of New Jersey without regard to choice of law provisions except to the
extent preempted by federal law. All disputes will be settled in Bergen
County, New Jersey.
15. PRESS RELEASE. Either party hereto shall have the right to issue a press
-------------
release referencing this affiliation provided said release does not
disclose the financial terms hereof as otherwise approved by the other
party. Approval shall be predicated upon factual accuracy.
16. RIGHT TO INJUNCTIVE RELIEF. Each party agrees that unauthorized disclosure
--------------------------
or use of Confidential Information will cause substantial and irreparable
injury to the other Party, that monetary
5
damages may not adequately compensate the injured Party for such injury and
that the Party whose Confidential Information is wrongly disclosed, is
entitled to among other remedies that may be available at law, immediate
injunctive or other equitable relief for any breach of this Agreement in
any court of competent jurisdiction.
17. RECORDS AND AUDITS. ECI shall the right at its expense, upon reasonable
------------------
prior written notice and at reasonable times during normal business hours,
by a duly appointed representative acceptable to 1st, to review/audit the
-----------------
records of 1/st/ on no more than two (2) time per calendar year, as said
records relate to utilization of the vision portion of the Program.
18. MISCELLANEOUS PROVISIONS. This Agreement constitutes the entire Agreement
------------------------
between ECI and 1/st/ and supersedes any and all prior agreements or
understandings between the parties. Failure by either party to exercise any
of its rights arising in respect to any breach or violation of this
Agreement shall not be a waiver of its right to exercise any rights arising
with respect to any subsequent breach or violation. In the event any term
or provision contained in this Agreement shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect the
validity or enforcement of any other term or provision contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this___day of September 1999.
0xxXXXXXXXX.XXX, INC. EYE CARE INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------- ------------------------
Print Name: Xxxxx Xxxxxx Print Name: Xxxxx X. Xxxxxx
------------ ---------------
Title: EXECUTIVE VICE PRESIDENT Title: PRESIDENT & CEO
------------------------ ---------------
Address: 000 Xxxxxxx Xxxxxx Address: 0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx, XX 00000 Boulevard, #925
(000) 000-0000 Xxxxx, XX 00000
(000) 000-0000 Fax (000) 000-0000
(000) 000-0000 Fax
6
