BROKER NAME ________________________
BROKER AGREEMENT # _______________________
This Agreement entered into on the ___ day of _________________, 1997, (the
"Effective Date") by and between ____________________, a
__________________________ located in _________________ ("Broker") and
HealthCore Medical Solutions, Inc., a Delaware Corporation with its principal
offices located in Grandview, Missouri ("HealthCore").
WHEREAS, HealthCore has developed a system to allow individuals and families who
enroll in a program (the "Enrollees") to obtain vision care, dental care,
hearing, pharmacy and other benefits at reduced prices through provider networks
selected by HealthCore (the "Program); and
WHEREAS, Broker is an entity that does business primarily as a marketing
organization and has extensive dealings with those certain individuals,
associates, agents and representatives listed on Exhibit B attached hereto and
by reference incorporated herein and certain future associates to be nominated
in writing by Broker to HealthCore to be included as part of this Agreement,
subject to HealthCore's sole option to accept or reject said nominated
associates (collectively the "Associates"); and
WHEREAS, Broker and Associates have or desire to establish dealings with
organizations, corporations, groups, associations and others whose employees,
members and customers may decide to become Enrollees (collectively the "Broker's
Contacts"); and
WHEREAS, certain of Broker's Contacts (including all Broker's Contacts'
subsidiaries, sub-groups, affiliated entities and branch offices, wherever
located) may have a total number of potential Enrollees of every kind, including
but not limited to employees, agents, members or others, that exceeds 2,500 (a
"Major Account"); and
WHEREAS, HealthCore and Broker desire for Broker and Associates to solicit
Enrollees for the Program pursuant to the terms hereof;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Commencing on the Effective Date, Broker shall use its best efforts to
solicit Enrollees for the Program through Broker, Broker's Associates and
other related sources as shall be mutually agreed upon by HealthCore and/or
Broker. However, neither Broker and Associates nor anyone acting though
Broker and Associates shall solicit any Major Account or commence
enrollment of any Enrollees affiliated with any Major Account unless Broker
shall first have submitted in writing and received back in writing, in form
reasonably acceptable and approved in writing by HealthCore, that the
Broker (or the party operating through Broker) is approved to market the
Program to said Major Account. HealthCore, in its sole discretion, may
place certain restrictions, including but not limited to a requirement for
Broker to obtain an agent of record letter from said Major Account, or
reject any such request from Broker and/or Associates without disclosing
the reasons for such action. In addition, HealthCore, in its sole
discretion, may waive the requirement for such request regarding a Major
Account. If prior approval to market to a Major Account is not obtained
from HealthCore and this requirement has not been waived, then, not
withstanding anything else in this Agreement, neither Broker nor Associates
nor anyone acting though Broker and Associates shall be entitled to any
compensation regarding said Major Account and, in addition, such failure to
obtain prior approval shall authorize HealthCore, in its sole discretion,
to terminate this Agreement. The request to market to Major Accounts from
HealthCore shall include, but not be limited to, a description of the
relationship between the Broker and the Major Account (or one of its
representatives) and any other information that may be requested by
HealthCore from time to time.
2. All Program enrollment forms solicited by Broker shall be submitted to
HealthCore. Any enrollment forms received by HealthCore without proper
payment or that are illegible, incomplete or that have any similar type of
problem so as to not allow them to be properly processed by HealthCore, or
which for any other business reason are not acceptable to HealthCore, may
be rejected by HealthCore without notice and all monies
received by HealthCore from said rejected Enrollee shall be returned to the
party from whom payment was received.
3. The annual renewable Enrollment Fee payable to HealthCore for all Enrollees
submitted by or through Broker to HealthCore shall be payable in a single
annual payment by check, bank draft, money order, credit card or other form
acceptable to HealthCore and shall be in the amount of ________________
each or such other amount as shall be designated from time-to-time by
HealthCore (the "Annual Payment Fee"). The monthly renewable Enrollment Fee
payable to HealthCore for all Enrollees submitted by or through Broker to
HealthCore shall be payable only by bank draft or other form acceptable to
HealthCore, except for checks from employers for payroll deduction types of
payment, and shall be _________________ per month each or such other amount
as shall be designated from time-to-time by HealthCore (the "Monthly
Payment Fee"). (collectively the "Enrollment Fee(s)").
4. The appropriate Enrollment Fee for each proposed Enrollee shall be
submitted directly to HealthCore with the Program enrollment form by Broker
or Enrollee or, in the case of payroll deduction Enrollees, by the
Enrollee's employer. If any proposed Enrollee is rejected for any reason
whatsoever, HealthCore shall promptly refund the Enrollment Fee received
pertaining to the rejected Enrollee to the party from whom payment was
received.
5. HealthCore shall pay to Broker, as compensation for the services to be
rendered by Broker hereunder, such amount or amounts calculated in
accordance with Exhibit A attached hereto and by reference incorporated
herein. All Broker's compensation shall be paid monthly to Broker, or, in
the event of Broker's death, to Broker's designated heir(s), on or before
the last day of each calendar month for each Enrollee for whom the proper
payment in full was received by HealthCore during the previous calendar
month.
6. Broker shall be solely responsible for paying all compensation, expenses
and costs of any kind whatsoever incurred by Broker and/or Associates in
performing its obligations herein or as a result of this Agreement, whether
or not such compensation, expenses and costs are greater than or less than
the Broker's compensation. If HealthCore is required to directly pay any
compensation, expenses and costs of any kind whatsoever incurred by Broker
as a result of this Agreement to any entity or individual other than
Broker, and if HealthCore pays any fees directly to any Association,
employer or any other entity as a result of this Agreement, then the total
amount of such payments shall be deducted from Broker's compensation by
HealthCore, provided however that said deduction shall not limit any other
rights HealthCore may have. Broker shall also be solely responsible for
providing all governmental and other reporting documents to Associates
and/or any other entities to whom Broker may be responsible as a result of
this Agreement. The parties shall reasonably cooperate to provide to each
other any necessary documentation as each shall need to comply with the
provisions of the preceding sentence of this paragraph 6.
7. Notwithstanding the foregoing or anything else contained in this Agreement,
HealthCore may, for promotional or other purposes, distribute enrollments
in its Program to certain Enrollees of HealthCore's choice without charge
("Promotional Enrollees"), including Enrollees enrolled by Broker under the
terms of this Agreement. With respect to those Promotional Enrollees, no
Broker's compensation or other amount whatsoever shall be payable to Broker
pursuant to this Agreement. However, all such Promotional Enrollees shall
otherwise be governed by all other provisions of this Agreement.
8. Also, notwithstanding the foregoing or anything else contained in this
Agreement, if for any reason an Enrollee's enrollment in HealthCore's
Program terminates prior to the end of the term of said enrollment, and if
for that or any other reason HealthCore reimburses all or a portion of the
Enrollment Fee to the Enrollee, then Broker shall reimburse to HealthCore
(or allow a credit for) the same percentage of the amount paid to Broker as
provided above as the percentage of the Enrollment Fee reimbursed by
HealthCore to the Enrollee.
9. During the term of this Agreement and for a period of one year after
termination hereof for any reason, Broker shall specifically not market,
solicit enrollments for, promote or otherwise directly or indirectly assist
in the sale or marketing of any other healthcare benefit discount program
which is in competition with the HealthCore Program without the express
prior written consent of HealthCore. HealthCore hereby reserves
the right to enter into agreements for and with, and to participate in
other agreements of all kinds, including but not limited to agreements with
other Brokers which may directly or indirectly compete with Broker.
10. Notwithstanding the terms and conditions of this Agreement contained
herein, but subject to paragraph 9, if, at any time during this Agreement,
or at any time after termination of this Agreement, Broker markets,
solicits enrollments for, promotes or otherwise directly or indirectly
assists in the sale or marketing of any other healthcare benefit discount
program which is in competition with the HealthCore Program to any known
existing Enrollees without the express prior written consent of HealthCore,
or if HealthCore terminates this Agreement based on failure of Broker to
obtain prior approval to market to a Major Account as provided in paragraph
1, or if this Agreement is terminated by HealthCore for cause, then, at
HealthCore's sole option, this Agreement (if this Agreement is still in
effect) shall terminate immediately without notice and, in any such
termination event, Broker shall no longer be entitled to be receive any
future Broker's compensation for any Enrollees. This right by HealthCore to
cease paying any future Broker's compensation shall be in addition to all
other rights and remedies available to HealthCore by law or in equity.
11. Broker shall market the Program using only materials which have been
approved in advance in writing by HealthCore and for a price which has been
approved in advance in writing by HealthCore. Without limiting the
generality of the foregoing, Broker shall make no statement, promise,
agreement or representation regarding the Program or the benefits
thereunder which is not accurate and consistent with the benefits of the
Program which have been specifically represented in writing to Broker by
HealthCore.
12. Broker shall train all personnel working on its behalf regarding the
Program, including but not limited to the price reductions available
thereunder, and the proper methods of marketing.
13. As part of the operation of HealthCore's Program, HealthCore shall provide
to Broker, in reasonable quantities as determined solely by HealthCore to
be sufficient to enable Broker and its Associates to solicit Enrollees in
the Program, certain generic selling pieces and enrollment forms.
HealthCore shall also provide a fulfillment package to all Enrollees and a
toll-free number for customer service.
14. The HealthCore Program shall operate under such name or names as shall be
selected by HealthCore from time-to-time.
15. HealthCore shall be the sole owner of all trademarks, tradenames and
similar names and marks used regarding its Program, and uses of any such
names and marks by Broker and/or anyone on its behalf or as a result of its
performance of its obligations hereunder shall accrue to the benefit of
HealthCore. Furthermore, HealthCore shall remain the sole owner of all
equipment, information, data, materials and enrollments in the Program, all
of which shall be promptly returned to HealthCore by Broker and anyone else
working through Broker hereunder if for any reason this Agreement
terminates.
16. Notwithstanding any termination of the Program, or of this Agreement,
HealthCore and Broker shall continue to perform their duties hereunder with
regard to Enrollees and/or organizations who have enrolled in the Program
as a direct enrollment from or through Broker prior to the termination of
this Agreement.
17. Neither Broker and its Associates nor any of their agents or other
representatives operating hereunder, shall use the names HealthCore,
HealthCore Medical Solutions, Inc., Healthcare Solutions Card or any other
name currently or in the future associated with the Program, or any
materials, literature, brochures or other documents regarding the Program,
without the prior written consent of HealthCore.
18. All materials, forms, data, manuals, records, reports and other
information, including but not limited to Enrollment Fees and the amount
and calculation of Broker's compensation, regarding the Program and
Enrollees in the Program and their participation in the Program shall be
the property of HealthCore and shall constitute confidential proprietary
business information of HealthCore which shall be maintained in strictest
confidence by Broker on behalf of HealthCore. Upon termination of
participation in the Program for any reason by Broker, Broker shall
promptly return to HealthCore all material regarding the Program, including
brochures, reports, data, supplies, equipment and manuals.
19. This Agreement shall not create a partnership, joint venture or similar
relationship between HealthCore and Broker or Broker's Associates, who for
all purposes shall be independent contractors. Nothing contained herein
shall be construed to the contrary.
20. In the event that any provision of this Agreement shall be held to be
illegal or otherwise unenforceable by any court of competent jurisdiction
for any reason whatsoever, such provision shall be severed and the
remainder of the entire Agreement shall continue in full force and effect,
provided however that if the severing of such provision shall result in in
a material alteration of this Agreement, the remaining provisions of this
Agreement shall be adjusted equitably so that no party benefits
disproportionately.
21. No omission or delay by either party at any time to enforce any right or
remedy reserved to it or to require performance of the terms, covenants or
provisions of this Agreement shall be a waiver of any such right or remedy
to which either party is entitled, nor shall it in any way effect the right
of either party to enforce such terms, covenants or provisions therafter.
22. This Agreement shall represent the sole and binding understanding between
the parties and shall supercede and replace all prior agreements, whether
written or oral, between the parties, and all such prior agreements shall
be deemed cancelled as of the Effective Date. This Agreement may not be
altered, modified or changed in any manner except by mutual written consent
of the parties.
23. HealthCore reserves the right to change any present or future provider
discounts, benefits, or other aspects of its Program from time-to-time
without prior consent of Broker.
24. HealthCore shall indemnify, defend and hold harmless Broker and its
officers, directors, members, shareholders, employees and agents from and
against any claims, liabilities, damages, expenses, duties, obligations and
causes of action directly or indirectly relating to or resulting from any
negligence, actions, transactions, occurrences, representations,
misrepresentations, omissions or other failure by HealthCore to properly
perform its obligations hereunder which is not materially contributed to by
the negligence or failure to perform its obligations hereunder by either
Broker or its Associates or anyone assisting in the performance by Broker
or its Associates of their obligations hereunder. Notwithstanding the
foregoing, under no circumstance shall HealthCore have any liability to any
Enrollee or potential Enrollee in its Program, other than the refund of the
current annual Enrollment Fee already paid by the Enrollee to Healthcore.
25. Broker and its Associates shall each indemnify, defend and hold harmless
HealthCore and its officers, directors, members, shareholders, employees,
agents, Enrollees and providers of services in the Program from and against
any claims, liabilities, damages, expenses, duties, obligations and causes
of action directly or indirectly relating to or resulting from any
negligence, actions, transactions, occurrences, representations,
misrepresentations, omissions or other failure by either Broker or its
Associates to properly perform its obligations hereunder which is not
materially contributed to by the negligence or failure to perform its
obligations hereunder by HealthCore.
26. The terms of this Agreement shall be in full force and effect as of the
Effective Date and shall continue for a period of one year thereafter
unless terminated earlier by HealthCore for cause. Thereafter, this
Agreement shall automatically renew and continue in effect until terminated
by either party upon 60 days written notice.
27. This agreement may not be assigned by either party without the express
written consent of the other party, except that the rights and duties of
HealthCore may be assigned to any subsidiary or parent entity or any other
entity to which substantially all of the assets of HealthCore may be
transferred.
28. All notices hereunder shall be considered sufficiently given when actually
delivered or when sent or received by facsimile transmission; or three (3)
business days after being deposited in the US mail, postage prepaid,
certified mail, return receipt requested; addressed as follows:
A. To Broker:
________________________________
________________________________
________________________________
Fax Number: (____)_____-_______
B. To HealthCore:
HealthCore Medical Solutions, Inc.
Attn: Chief Operating Officer
00000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
With a Copy to: Xx. Xxxxxx X. Xxxxxxxx
Xxxxxxx, Midglen, Gangwere,
Xxxxxxx & XxXxxxxx
000 Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
Either party, by notice to the other party, may change the address(es)
and/or number to which notices to it are to be given.
29. This Agreement shall inure to the benefit of the parties hereto and their
successors and permitted assigns, and shall be governed by the laws of, and
for all purposes deemed to have been entered into in, the State of
Missouri. Any action or other judicial proceeding for the enforcement of
this Agreement or any of its provisions shall be instituted only in a court
of competent jurisdiction in the County of Xxxxxxx, State of Missouri, and
each party hereby waives the right to change venue.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first written above.
HealthCore Medical Solutions, Inc.: Broker:
By____________________ By_________________________
Xxxxx X Xxxxxxxxxxx
Chief Operating Officer Fed Tax I.D.# ________________
EXHIBIT A
PAYMENTS TO BE MADE TO BROKER
BROKER NAME: ______________________
With respect to collecting Enrollment Fees from all new or existing Enrollees in
HealthCore's Program identified at the time of enrollment as originating from
Broker under the terms of this Agreement, HealthCore shall pay to Broker as
compensation the amounts determined from the calculations below:
1. During the initial one-year term of this Agreement, the portion of the
Enrollment Fees received from those prospective Enrollees identified at the
time of enrollment as having originated from the sales and marketing
activities of Broker or Broker's Associates that shall be retained by
HealthCore from the Enrollment Fees received (the "Retainage"), shall be
____________________ each for all Single Payment Fees received by
HealthCore and __________________ per month each for all Monthly Payment
Fees received by HealthCore. Enrollment Fees received by HealthCore from
all new or existing Enrollees in HealthCore's Program identified at the
time of enrollment as originating from Broker under the terms of this
Agreement in excess of the Retainage shall be paid to Broker as Broker's
sole compensation calculated and payable to Broker under the terms of this
Agreement.
2. Beginning the first day of the month immediately following first
anniversary of the Effective Date of this Agreement and continuing
thereafter until this Agreement is terminated, the calculation of Broker's
compensation shall be determined in the same manner as described in
paragraph 1 of this Exhibit A, except that HealthCore shall have the sole
option to change the Retainage amounts to reflect HealthCore's then current
Retainage rate structure, provided however that in no event shall the
Retainage be increased to an amount that is greater than 70% of the then
current HealthCore standard Enrollment Fee and that at least 15 days prior
to such change, HealthCore shall have notified Broker in writing of any
such change.
3. After termination of this Agreement, subject to the provisions of paragraph
10, for Enrollees who remain enrolled in the Program through the same group
through which they were initially enrolled in the Program through Broker,
Broker shall continue to be paid Broker's compensation for a period of time
equal to the duration that this Agreement was in effect. Said Broker's
compensation shall be calculated on all Enrollment Fees and renewals
thereof which Broker identified at the time of enrollment as originating
from Broker under the terms of this Agreement. The calculation of Broker's
compensation shall be determined in the same manner as described in
paragraph 1 of this Exhibit A, except that HealthCore shall have the sole
option to change the Retainage amounts to reflect HealthCore's then current
Retainage rate structure, provided however that in no event shall the
Retainage be increased to an amount that is greater than 70% of the then
current HealthCore standard Enrollment Fee and that at least 15 days prior
to such change, HealthCore shall have notified Broker in writing of any
such change.
EXHIBIT B
BROKER'S NAME _____________________
BROKER'S ASSOCIATES LIST
1. _________________________
2. _________________________
3. _________________________
4. _________________________
5. _________________________
6. _________________________
