Exhibit 10.9
NETWORK SERVICE AGREEMENT
This Agreement entered into this 1st day of Oct, 2000 by and between Eye
Care International, Inc. whose principal mailing address is 0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxx, XX 00000 (hereinafter referred to as "ECI") and
Motivano, Inc. whose principal business address is 000 Xxxx Xxxxxx, 00/xx/
Xxxxx, Xxx Xxxx, XX 00000, (hereinafter referred to as "MOTIVANO").
WHEREAS, ECI is engaged in, among other things, the development and
administration of an "Eye Care/Eyewear Network," which Network consists of
medical providers and optical outlets (hereinafter referred to as the
"Network"); and
WHEREAS, MOTIVANO has selected ECI as provider of the discount vision
benefit MOTIVANO would like to offer to its clients and their employees
("Members"), and
WHEREAS, MOTIVANO desires to enter into a business relationship with ECI
pursuant to which MOTIVANO can include the ECI Vision Plan as privately labeled
(hereinafter called the "Plan") in as many of the products as MOTIVANO deems
feasible and appropriate; and
WHEREAS, ECI desires to enter into such a relationship with MOTIVANO; and
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained, the parties agree as follows:
WITNESSETH
1. The "WHEREAS" clauses are incorporated herein by reference and made a part
of this Agreement.
2. RESPONSIBILITIES OF MOTIVANO
a) Market the Plan as MOTIVANO'S exclusive private labeled vision program
and automatically include the ECI Plan in MOTIVANO'S general Product
offerings.
b) Use its best efforts to arrange for no less than one training session
of brokers and/or sales agents who are customarily involved in the
marketing of MOTIVANO programs which training sessions may be
conducted by a representative of ECI. ECI will be responsible for
preparing training material for distribution at such session and for
travel and other expenses of its representatives.
c) Submit (or direct its accounts to submit) to ECI a listing on a
computer floppy disk at least ten (10) days prior to activation; in a
format mutually agreed upon, identifying those new Members entitled to
access the Network. Initial payment for each new member shall
accompany said listing information. No member will be deemed enrolled
in the Plan until payment is received by ECI.
d) Bear all costs for marketing/enrollment materials, and submit for
ECI's review and approval those representations made to potential
Members in MOTIVANO'S marketing materials describing the Plan.
e) Motivano may include such ECI logo as my be designated by ECI, along
with ECI's 800 number on all Motivano membership cards.
3. RESPONSIBILITIES OF ECI
a) ECI shall accept all orders generated by MOTIVANO for membership in
the Plan.
b) Provide MOTIVANO with various pieces of promotional and fulfillment
material utilized by ECI in the promotion and fulfillment of the Plan.
During the term of this Agreement, MOTIVANO may, at its own expense,
reproduce and distribute said material for marketing/sales purposes.
MOTIVANO agrees that any material used in its marketing efforts that
may be different than the material supplied by ECI shall first be
approved by ECI, in writing, prior to dissemination. Motivano shall
have the right to modify the editorial content of all materials
submitted to it for inclusion on its website.
c) Maintain full customer service responsibilities for purposes of
responding to all Member inquiries related to the Network, and/or the
Plan and provide a high level of customer service to Motivano's
members.
d) Maintain a network customer relations toll-free number providing
access to the Network seven days per week, 24 hours per day in the
continental United States. In this connection, it is specifically
agreed that ECI will maintain a "private label" 800-telephone line for
MOTIVANO at MOTIVANO'S request, provided that MOTIVANO shall have
obtained not less than 25,000 vision program members. For this option,
it is further understood that ECI's customer service representatives
when answering such line will do so in such a manner as may be
designated by "MOTIVANO Vision Plan".
e) Provide MOTIVANO with artwork of ECI's logos, for placement on
MOTIVANO'S marketing material.
f) Use all reasonable efforts to assist MOTIVANO and its brokers in
marketing the Plan.
4. PRIVATE LABEL
Private Label shall be deemed to mean any trade name utilized by MOTIVANO for
its sole purposes as opposed to MOTIVANO entering into a third-party transaction
whereby MOTIVANO services a health care program for a customer. For example,
should MOTIVANO enter into a transaction with "Bank A," whereby "Bank A" issued
its "private label" bank health card, which card is, in fact, serviced by
MOTIVANO, via ECI, such a transaction would not be within the definition of
"Private Label" and would thus, not be a permitted transaction, except with the
express prior written permission of ECI. By contrast, if MOTIVANO issued to
"Bank A" a card designed as "Y," which card is 100% owned by MOTIVANO, said
transaction would be deemed to be within the definition of "Private Label" as
used herein. Private Label sales material and membership cards (if any) shall
indicate that the program is "Administered by ECI".
5. TERM AND TERMINATION
The term of this Agreement shall commence and will continue for an Initial Term
of three (3) years. It will automatically renew after the Initial Term for
consecutive one (1) year renewal periods (Renewal Terms). Either Party may
terminate this Agreement upon ninety (90) days prior written notice to the other
Party. Notwithstanding anything to the contrary provided for herein, should this
Agreement be terminated or expire according to its terms, ECI agrees, at
MOTIVANO'S option, that access to ECI's services will continue for Members
active in a MOTIVANO Program at the termination or expiration date of this
Agreement, with the condition that the associated payments are made to ECI by
MOTIVANO with respect to providing access to ECI services for those active
Members.
Should MOTIVANO elect to terminate this Agreement for any reason, MOTIVANO will
give written notice thereof to ECI and pay all fees incurred and due to ECI to
the effective date of termination and any and all other fees provided for herein
incurred subsequent thereto, resulting from utilization by existing Members of
ECI services.
6. CONSIDERATION
a) In consideration of ECI's making available to MOTIVANO ECI's network
and otherwise undertaking the responsibilities set forth herein,
MOTIVANO will remit to ECI, on a per membership basis, the sum of
$8.40 per member per year, said sum representing a wholesale private
label price to MOTIVANO. MOTIVANO shall be free to market the Program
under its private label at such prices as it chooses.
b) Payment for all transactions shall be directed to ECI at its above
address and be sent along with the necessary membership information on
computer disk in a format specified by ECI. If MOTIVANO collects the
annual fee up front, the full annual fee due ECI shall be submitted at
the same time as membership enrollments are submitted to ECI. If
MOTIVANO collects the enrollment fee on a monthly basis, then the
initial $.70 monthly fee shall be paid to ECI at the same time as
membership enrollments are submitted to ECI. Subsequent $.70 monthly
payments shall be paid by MOTIVANO to ECI by the 10/th/ of each month.
No Member will be deemed enrolled in the ECI Plan until the initial
payment is received by ECI.
7. CONFIDENTIALITY
The parties hereto have executed a Confidentiality Agreement which is annexed
hereto as Exhibit A.
8. LICENSES
ECI grants Motivano a revocable, non-exclusive, non-transferable, worldwide,
royalty-free license to use and reproduce any marks provided to it for inclusion
on its website. In addition, ECI grants Motivano a revocable non-exclusive
worldwide, royalty-free license to use and reproduce its marks for the purposes
of advertising and promoting the Plan to Members and potential Members on its
website, in its quarterly magazine, in its corporate newsletter and in other
marketing or promotional materials directed to potential Members.
9. REPRESENTATIONS AND WARRANTIES
a) ECI represents and warrants to Motivano that (i) ECI has the full
corporate right, power and authority to enter into this Agreement, to
offer the Plan to Members, to grant the licenses granted hereunder and
to perform the acts required of it hereunder; (ii) ECI's execution of
this Agreement and the performance by ECI of its obligations and
duties hereunder do not violate any applicable laws and regulations or
any agreement to which ECI is a party or by which it is otherwise
bound; and (iii) to its knowledge, none of ECI's marks shall infringe
on or violate the trademark or other proprietary rights of any third
party; and
b) Motivano represents and warrants to ECI that (i) Motivano has the full
corporate right, power and authority to enter into this Agreement, and
to perform the acts required of it hereunder; and (ii) Motivano's
execution of this Agreement and the performance by Motivano of its
obligations and duties hereunder do not violate any applicable laws
and regulations or any agreement to which Motivano is a party or by
which it is otherwise bound.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL A PARTY TO THIS AGREEMENT BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOSS OF
USE OR DATA, BUSINESS INTERRUPTION, OR LOST PROFITS, IN ANY WAY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED AS TO
THE POSSIBILITY OF SUCH DAMAGES.
11. INDEMNIFICATION
Each Party hereby agrees to indemnify, defend and hold harmless the other Party
and its directors, officers, employees and agents, from and against any and all
liability, claims, losses, damages, injuries or expenses (including reasonable
attorneys' fees) arising out of or relating to the indemnifying Party's
performance or failure to perform its obligations hereunder or a breach by the
indemnifying Party of any of its representations herein and, in the case of a
claim related to the products and services provided pursuant to the Plan, ECI
shall indemnify Motivano, its directors, officers, employees and agents, from
and against all liability, losses, damages, injuries or expenses, (including
reasonable attorneys fees) relating to such claim. The indemnifying Party may
not consent to an entry of judgment or enter into any settlement without the
prior written consent of the indemnified Party, not to be unreasonably withheld
or delayed. The indemnified Party will have a right to participate in any
defense of a claim and/or to be represented by counsel of its own choosing at
its own expense.
12. RECORDS AND AUDITS
ECI shall have the right at its expense, upon reasonable prior written notice
and at reasonable times during normal business hours, by a duly appointed
representative, to review/audit the membership records of MOTIVANO on no more
than two (2) times per calendar year, as said records relate to the sale and
cancellation of Memberships. The cost of any such audit will be borne by ECI.
13. COMMUNICATIONS
Except as may otherwise be agreed upon, MOTIVANO shall use ECI's logo or name on
Member's I.D. cards, in advertisements, media promotion, in print, broadcast, or
on the internet or other media, in order to promote MOTIVANO'S services to
Members. Communication materials, including, but not limited to, I.D. cards,
enrollment, fulfillment and marketing materials, will be submitted to ECI for
review and approval prior to distribution to Members whenever these materials
change in substance from documents previously reviewed and approved by ECI.
14. 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 and is otherwise approved by the other party. Approval shall be
predicated solely upon factual accuracy. Notwithstanding the above, either party
may issue any press release that it reasonably believes is required by law. Such
party shall attempt to give prior notice to the other party.
15. NOTICES
A written notice given under this Agreement by either Party shall be directed to
the addressee at the address as here before set forth, unless prior written
notice of change of address has been furnished.
16. SEVERABILITY
If a court of competent jurisdiction finds any provision of this Agreement to be
unenforceable, such provision will be modified to render it enforceable in a
manner calculated as to effect the original intent of the Parties as nearly as
possible, and the remainder of this Agreement will continue in full force and
effect.
17. MODIFICATION/WAIVER
No modification to this Agreement, nor any waiver of any rights, shall be
effective unless consented to in a writing signed by both Parties and the waiver
of any breach or default shall not constitute a waiver of any other right or any
subsequent breach or default.
18. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of each of the
Parties, their successors and permitted assigns. Neither Party may assign or
transfer this Agreement without the prior written consent of the other Party,
which consent shall not be unreasonably withheld. Notwithstanding the foregoing,
either Party may assign this Agreement, without the prior written consent of the
other Party, if such assignment is to: (i) a wholly owned subsidiary of the
assigning Party, or (ii) an entity that has acquired all or substantially all of
the assigning Party's assets as a successor to the business of the assigning
Party (whether by way of merger, reverse merger, consolidation, sale and
purchase of assets or otherwise) an such entity has agreed in writing prior to
the effective date of such assignment to be bound by and to perform in
accordance with this Agreement as if it were the assigning Party. Any attempted
assignment in violation hereof shall be void.
19. INDEPENDENT CONTRACTORS
The relationship of Motivano and ECI established by this Agreement is that of
independent contractors, and nothing contained in this Agreement shall be
construed to: (i) give either Party the power to direct or control the day-to-
day activities of any other party, (ii) allow any Party to create or assume any
obligation on behalf of the other Party for any purpose whatsoever, or (iii)
constitute the Parties as partners (including limited partners), joint venturers
or co-owners. Neither Party shall have any right to act on behalf of the other
and neither Party shall represent that it has such right or authority.
20. REPORTS OF BREACH OF WARRANT OR INFRINGEMENT
Each Party will immediately report to the other any breach of any representation
or warranty under this Agreement or of any potential infringement of (i) any
of such Party's trademarks or intellectual property or (ii) any other person's
intellectual property by a Party's intellectual property.
21. ENTIRE AGREEMENT
This Agreement, including the exhibits, contains the sole and entire agreements
currently existing between the Parties. The Parties acknowledge and agree that
neither of them has made any representations with respect to the subject matter
of this Agreement, or any representation inducing the execution and delivery
hereof except representations as are specifically set forth herein, and each of
the Parties hereto acknowledges that is has relied on its own judgment in
entering into the same.
22. HEADINGS NOT CONTROLLING
Headings used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
23. GOVERNING LAW
This Agreement and any claims arising there from shall be subject to and
governed by the laws of the State of Florida.
IN WITNESS WHEREOF, this Agreement is executed this 29/th/ day of September,
2000.
MOTIVANO, Inc. Eye Care International, Inc.
By: /s/ Xxxxxx XxxXxxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------- ------------------------
Print Name: Xxxxxx XxxXxxxxx Print name: Xxxxx X. Xxxxxx
Title: Vice President, Product Development Title: President & CEO
[LOGO]
motivano
000 Xxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX
00000
Phone: 000-000-0000
Fax: 000-000-0000
April 18, 2001
Xxxxx Xxxxxx
Eye Care International
0000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xx 00000
Re: Vision Plan
Dear Xxxxx,
This is to confirm our agreement regarding fees payable to ECI.
Motivano markets, sells, produces ID cards with the ECI logo, prepares and
delivers member packages, implements the plan and provides ongoing customer
service to the corporate customers for the ECI vision plan. Our customer care
unit assists our members in setting eye care appointments and identifying
participating providers. We offer a packaged vision plan in all our proposals to
corporate customers. The only time the vision plan is removed from our offering
is when the customer already offers a vision plan and declines to replace it
with the ECI plan.
In addition, when we license our employee savings marketplace we will include
the ECI vision plan in the voluntary benefits section of our employee savings
marketplace unless the customer specifically requests that it be removed.
ECI will provide Motivano with standard member materials such as the eye
coupons, toll free member services and work with Motivano to quickly resolve
customer service issues.
For this, ECI will xxxx Motivano monthly based on actual members enrolled in the
ECI plan in that given month according to the following schedule:
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Enrolled members Fees payable to ECI
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Up to 25,000 $0.40 per enrolled member per month
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25,000 to 99,999 $0.125 per enrolled member per month
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100,000 to 499,999 $0.10 per enrolled member per month
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500,000 to 999,999 $0.08 per enrolled member per month
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I am enclosing a worksheet that outlines the revised fees and a check to bring
our account current with ECI. Although we did not discuss this, I applied an
offset of printing and mailing costs for ID cards that we were forced to
reprint and mail to all our existing customers due to service complaints we were
encountering. We worked with ECI to determine this solution. Since we took that
action, we have had minimal service issues. I hope you will agree to this
payment arrangement. If so, I will mail the check for $255.14 today.
We look forward to a long term, mutually beneficial relationship with ECI.
Sincerely,
/s/ Xxxxxx X. XxxXxxxxx
-----------------------
Xxxxxx X. XxxXxxxxx
Executive Vice President
Agreed to by: /s/ Xxxxx Xxxxxx
----------------------
Xxxxx Xxxxxx, CEO
Eye Care International
