THE MEGA LIFE AND HEALTH INSURANCE COMPANY
SPECIALIZED ASSOCIATION SERVICES, INC.
VENDOR AGREEMENT
This Agreement is made as of January 1, 2005 (the "Effective Date") by and
between Specialized Association Services, Inc., a Texas corporation with offices
at 3801 William D. Tate Ave., Suite 800, Grapevine, TX 76051 ("SAS") and The
MEGA Life and Health Insurance Company, an Oklahoma domiciled health and life
insurance company with an administrative office located at 9151 N. Grapevine
Highway, North Richland Hills, TX 76180 ("Vendor"). Vendor and SAS are sometimes
referred to herein individually as a "Party" and collectively as the "Parties."
SECTION I. RESPONSIBILITIES OF VENDOR
A. Vendor shall provide "Products", as described in Addenda I, II and III to
members of associations serviced by SAS and set forth in Addendum IV,
which associations are hereinafter referred to as "Clients." Vendor shall
provide Products through Clients or directly to members of Clients as
mutually agreed upon between Vendor and SAS or as Clients may direct
through SAS. Vendor shall provide Products in accordance with the
provisions set forth in Addenda I, II and III.
B. During the term of this Agreement, Vendor shall provide SAS with a report
in a mutually agreeable format on Product usage for each Client during the
preceding month by the 15th day of the then current month.
C. Vendor shall provide SAS with (and permit SAS and Clients to use)
advertisement copy, photographs, illustrations and/or other available
marketing materials (collectively, "Marketing Material") as needed by
Clients for promotion of the Products in printed or electronic media as
requested by SAS or Clients. Vendor will work with SAS and/or Clients to
determine the placement, usage and size of any Marketing Material
submitted by Vendor for promotional purposes.
D. Vendor shall provide a toll-free telephone access number as set forth in
Addenda I, II and III for use by Clients and members of Clients, which
numbers will offer the services specified in such Addenda.
E. Vendor shall provide fulfillment and other materials to SAS as set forth
in Addenda I, II and III and as SAS and/or Clients may reasonably request
from time to time.
F. Vendor shall take necessary steps to respond to any and all oral and
written complaints from members of Clients regarding Products in a timely
manner. Vendor further shall send copies to SAS of any and all such
written complaints within five (5) business days of Vendor's receipt
thereof and Vendor shall inform SAS when and how each written complaint
was addressed and ultimately resolved.
G. Vendor shall issue a Blanket Accident and Health Insurance Policy
outlining details of coverage for each of the Clients listed in Addendum
IV.
H. Vendor agrees to contact SAS to verify member eligibility prior to any
payment of claims.
SECTION II. RESPONSIBILITIES OF SAS
A. SAS shall preserve in its files all original Marketing Material provided
by Vendor for promotional purposes for at least twelve (12) months.
Marketing Material shall be maintained by SAS for use in Client
catalogues, brochures, web sites and other publications used to promote
the Products. SAS shall return all original Marketing Material in its
possession to Vendor within thirty (30) days after any termination of this
Agreement.
Mega Life /s/ JA SAS /s/ RW
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B. From time to time, and at any time, SAS may propose amendments to Addendum
IV to add or delete Clients. Any such amendment to Addendum IV shall
become effective ninety (90) days after written approval of such change by
Vendor, which approval shall not be unreasonably withheld. In addition, if
SAS's right to service any Client is terminated for any reason, SAS shall
notify Vendor and upon Vendor's receipt of said notice such Client shall
be deemed deleted from Addendum IV.
C. SAS shall pay Vendor by the 20th of each calendar month for services
performed by Vendor during the previous calendar month, as outlined in
Addenda I, II and III.
SECTION III. CONFIDENTIALITY
Neither Vendor, SAS, nor their respective officers, directors, employees or
agents (collectively, "RELATED PARTIES") shall disclose the terms of this
Agreement to any third party without the written consent of the other Party.
Except as set forth in this Section III, each Party agrees that it will not (and
will cause its Related Parties not to) publish, communicate or disclose any
membership list, names, addresses or phone numbers of Client members, database
or other confidential documents or information concerning the business, goods,
or services of the other Party, including any association directly or indirectly
serviced by SAS, furnished to such Party in connection with this Agreement
(collectively "Confidential Information"). Each Party agrees that it shall not
use in any way for its own account or the account of any third party, nor
disclose to any third party, any such Confidential Information revealed to it by
the other Party for any purpose other than to carry out its obligations or
enforce its rights under this Agreement. Each Party shall protect the other
Party's Confidential Information from disclosure or misuse with the same degree
of care it uses to protect its own Confidential Information of a similar nature,
but in no event with less than reasonable care. This Section III shall survive
any termination of this Agreement. Upon any termination of this Agreement each
Party shall return to the other Party all copies of the other Party's
Confidential Information and erase the other Party's Confidential Information
from its databases except such information as is necessary for SAS to continue
to provide services to members of clients and for Vendor to continue to provide
service to those members of Clients to whom Vendor is permitted to continue
rendering services pursuant to Section V(C) of this Agreement. Each party is
required to notify the other, in writing, at least fifteen (15) days prior to
disclosing the existence of this Agreement, the terms of this Agreement and/or
the Confidential Information.
SECTION IV. COMMUNICATIONS FROM REGULATORY AGENCIES
If either party to this Agreement receives any inquiry from any administrative
authority or regulatory agency, including any Department of Insurance (DOI) or
states' Attorneys General regarding the terms of this agreement, the services
provided by SAS or Vendor, and/or the Instant Benefits described herein, the
party receiving the inquiry shall notify the other party, in writing, of the
inquiry within five (5) days of receiving same. The party receiving notification
of the inquiry shall provide such assistance as may be reasonably requested by
the party responding to the administrative authority inquiry. Such assistance
may include, but is not limited to, providing the party responding to the
administrative authority inquiry with a written response as to the party
receiving notification of the inquiry knowledge of the matter of inquiry.
SECTION V. TERM AND TERMINATION
A. The term of this Agreement shall commence on the Effective Date and shall
continue until December 31, 2005 (the "Term"), and shall automatically be
extended from year to year thereafter unless either Party gives the other
Party not less than ninety (90) days written notice prior to the date on
which the Term would automatically renew (such date being the "Automatic
Renewal Date") that the Term will not be extended. During such ninety (90)
day period prior to the Automatic Renewal Date, the provisions of this
Agreement shall continue in full force and effect.
Mega Life /s/ JA SAS /s/ RW
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B. This Agreement may be terminated by either Party hereto (the "Terminating
Party") upon not less than ninety (90) days prior written notice to the
other Party (the "Defaulting Party") upon the occurrence of any of the
following events:
i. Any representation, warranty or certification made by the Defaulting
Party (or any of its respective officers) hereunder or in any
certificate, report, notice or financial statement furnished at any
time in connection with this Agreement shall be false, misleading or
erroneous in any material respect when made;
ii. The Defaulting Party shall fail to perform, observe or comply with
any material covenant, agreement or term contained in this Agreement
and such failure shall continue for a period of thirty (30) days
after the date the Terminating Party provides the Defaulting Party
with written notice thereof, which notice shall state with
reasonable specificity the facts underlying the alleged breach;
iii. A proceeding or case shall be commenced, without the application,
approval or consent of the Defaulting Party, in any court of
competent jurisdiction, seeking (a) its reorganization, liquidation,
dissolution, arrangement or winding- up, or the composition or
readjustment of the Defaulting Party's debts, (b) the appointment of
a receiver, rehabilitator, conservator, custodian, trustee,
liquidator or the like of such entity or of all or any substantial
part of its property, or (c) similar relief in respect of the
Defaulting Party under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts,
and such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall
be entered and continue unstayed and in effect, for a period of one
hundred eighty (180) or more days; or an order for relief against
the Defaulting Party shall be entered in an involuntary case under
the Bankruptcy Code;
iv. The Defaulting Party shall fail to discharge within a period of
ninety (90) days after the commencement thereof any ' unstayed
attachment, sequestration, forfeiture, or similar proceeding or
proceedings involving an aggregate amount in excess of $2.0 million
against any of its properties; and
v. A final judgment or judgments for the payment of money in excess of
$2.0 million in the aggregate shall be rendered by a court or courts
against the Defaulting Party and the same shall not be discharged
(or provision shall not be made for such discharge), or a stay of
execution thereof shall not be procured, within ninety (90) days
from the date of entry thereof and the Defaulting Party shall not,
within said period of ninety (90) days, or such longer period during
which execution of the same shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal.
C. Upon any termination of this Agreement, Vendor shall cease any
solicitation of Clients or former Clients and/or their respective members,
except that, if such Client members so desire, Vendor shall continue to
sell Products and provide related services to Client members to whom
Vendor is selling Products at the time of such termination, and, in such
case, Vendor shall continue to comply with Paragraphs (B), (D) and (F) of
Section I with respect to such Products and related services.
Section VI. Miscellaneous Provisions
A. INDEMNIFICATION AND HOLD HARMLESS -
i. Indemnification by Vendor. Vendor shall indemnify and hold harmless
SAS and each of SAS's Related Parties (collectively, a "SAS
Indemnified Party") from and against any and all losses, damages
(including, without limitation, actual damages, compensatory
damages, punitive damages and extra-contractual damages),
liabilities, penalties, regulatory fines, costs and expenses
(including, without limitation, attorneys' fees, investigation costs
and all other reasonable costs associated with the defense thereof)
(collectively, "Losses"), as incurred, arising out of or relating
to:
(a) any breach of, or any inaccuracy in, any representation
or warranty made by Vendor in this Agreement;
(b) any breach of, or failure by, Vendor to perform any
covenant or obligation of Vendor set out in this
Agreement;
Mega Life_____ SAS_____
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(c) any misrepresentation, fraud or violations of any sate
or federal statutes, rules or regulation by Vendor; and
(d) any claims by Clients or Members of Clients for coverage
or benefits under the Blanket Accident and Health
Insurance Policy or any claims by Clients or Members of
Clients alleging a failure by Vendor to provide the
Products; and
(e) any other Loss resulting from, or arising out of, any
acts, occurrences or matters caused by Vendor, provided
that such Loss was not caused in whole or in material
part by the act or omission of a SAS Indemnified Party.
ii. Indemnification by SAS. SAS shall indemnify and hold harmless
Vendor and each of Vendor's Related Parties (collectively, a
"Vendor Indemnified Party") from and against any and all
Losses, as incurred, arising out of or relating to:
(a) any breach of, or any inaccuracy in, any representation
or warranty made by SAS in this Agreement;
(b) any breach of, or failure by, SAS to perform any
covenant or obligation of SAS set out in this Agreement;
and
(c) any other Loss resulting from, or arising out of, any
acts, occurrences or matters caused by SAS, provided
that such Loss was not caused in whole or in material
part by the act or omission of a Vendor Indemnified
Party.
iii. Conduct of Indemnification Proceedings.
a. If any proceeding shall be brought or asserted against
any SAS Indemnified Party or Vendor Indemnified Party
entitled to indemnity hereunder (each an "Indemnified
Party"), such Indemnified Party promptly shall notify
the person from whom indemnity is sought (the
"Indemnifying Party") in writing. The Indemnifying Party
shall pay all reasonable fees and expenses incurred in
connection with the defense including reasonable
attorneys' fees; provided, however, that the failure of
any Indemnified Party to give such notice shall not
relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except to the
extent (and only to the extent) that it shall be finally
determined by a court of competent jurisdiction that
such failure shall have proximately and materially
adversely prejudiced the Indemnifying Party.
b. An Indemnified Party shall have the right to employ
separate counsel in any such proceeding and to
participate in the defense thereof. No Indemnifying
Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending
proceeding that any Indemnified Party is a party to,
unless such settlement includes an unconditional release
of such Indemnified Party from any and all liability on
claims that are the subject matter of such proceeding or
could have been the subject matter of such proceeding.
c. All fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent
incurred in connection with investigating or preparing
to defend such proceeding in a manner not inconsistent
with this Section IV(A)) shall be paid to the
Indemnified Party, as incurred, within ten (10) business
days after the Indemnified Party's delivery of a
detailed written notice thereof to the Indemnifying
Party (regardless of whether it is ultimately determined
that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the
Indemnifying Party may require such Indemnified Party to
undertake to reimburse all such fees and expenses to the
extent it is finally judicially determined that such
Indemnified Party is not entitled to indemnification
hereunder).
B. INSURANCE - Vendor shall procure, at its sole cost, professional liability
or errors and omissions liability insurance coverage for the Products
and/or services supplied pursuant to this Agreement in amounts and on
forms acceptable to SAS but in no event with limits less than $1 million
per claim and $2 million in the aggregate. Such insurance shall contain
Mega Life /S/J/A SAS /S/ RW
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contractual liability coverage for this Agreement and no exclusion for
breach of contract. Vendor shall supply SAS with a Certificate of
Insurance confirming these coverages within 30 days after the execution of
this Agreement. Upon reasonable notice, Vendor shall make available for
inspection and copying a true and correct copy of any applicable insurance
contract.
C. GOVERNING LAW; ARBITRATION - This Agreement shall be governed by and shall
be construed in accordance with the laws of the State of Texas, excluding
its conflict of laws provisions. The Parties agree that all controversies
that may arise between Vendor and SAS concerning any transaction or the
construction, performance or breach of this Agreement, including any
controversy over whether an issue is arbitral, shall be determined by
binding arbitration, and the Parties hereby expressly waive any right to a
trial in a court of law and the right to a trial by a jury. This
arbitration agreement is governed by the Federal Arbitration Act. Any
arbitration under this Agreement shall be conducted before a single
arbitrator of the American Arbitration Association ("AAA") under its
commercial arbitration rules or as otherwise agreed to by the parties and
shall be conducted in Dallas County, Texas. The cost of the arbitration
will be borne equally by the parties. The arbitration decision will be
enforceable through a judgment to be entered in a court of competent
jurisdiction upon the motion of either Party. The duty to arbitrate shall
survive any termination of this Agreement.
D. WAIVER AND REMEDIES - The failure of either Party to enforce at any time
for any period any provision of this Agreement shall not be construed to
be a waiver of such provision or of the right of such Party to thereafter
enforce such provision, nor shall any single exercise of any right or
remedy hereunder preclude any other or future exercise thereof or the
exercise of any other right or remedy. In the event any Party hereto
breaches or threatens to breach any provisions of Section III, then the
other Party, in addition to any other remedies it may have at law, shall
be entitled to immediate injunctive relief without the necessity of bond
to prohibit such breach or threatened breach, it being acknowledged by the
Parties hereto that an adequate remedy at law does not exist for
protection of the Party's interests with respect to such provisions and in
the event of litigation, the prevailing party shall be entitled to recover
reasonable attorneys' fees and court costs from the non- prevailing party.
Remedies provided herein are cumulative and not exclusive of any remedies
provided at law.
E. INDEPENDENT CONTRACTOR - The Parties hereto are independent contractors.
Neither Party shall have the right or power to enter into any agreement or
commitment in the name or on behalf of or otherwise to obligate or bind
the other, and neither of them shall hold itself out as having any
authority to do so. It is understood that this Agreement does not give SAS
the power or the right to control the material details of the work Vendor
performs in connection with this Agreement and Vendor has the sole and
exclusive power and right to control the details of Vendor's work.
F. INVALIDITY - If any provision of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality or enforceability of the
other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
G. NOTICE - Any notice to be given to the other Party shall be in writing and
shall be deemed to be given if: (i) delivered in person, upon delivery
(ii) by facsimile or other wire transmission with a record of receipt, on
the first business day after the date of the receipt (iii) mailed by
certified mail, postage prepaid, return receipt requested, on the third
business day after the date of mailing or (iv) sent by prepaid messenger
or overnight courier, with a record of receipt requested, on the first
business day after the date of mailing. If to SAS, at 3801 William D. Tate
Ave., Suite 800, Grapevine, TX 76051; Attention: Ralph Wolfe. If to
Vendor, at 9151 N. Grapevine Highway, North Richland Hills, TX 76180;
Attention: John Ames. Each Party may change its address by written notice
to the other.
H. ENTIRE AGREEMENT; AMENDMENT; ASSIGNMENT- This Agreement constitutes the
entire Agreement between the Parties with respect to the subject matter
hereof and supersedes all prior understandings, agreements and
arrangements between the Parties. No amendment or modification of this
Agreement shall bind either Party hereto unless made in writing and signed
by both Parties, except that SAS may, in SAS's sole discretion, amend
Addendum III as set forth in Section II(C). Neither Party may assign this
Agreement without the prior written consent of the other Party.
Mega Life /s/ JA SAS /s/ RW
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I. INTERPRETATION - The headings preceding the text of Sections included in
this Agreement are for convenience only and shall neither be deemed part
of this Agreement nor be given any effect in interpreting this Agreement.
The use of the masculine, feminine or neuter gender herein shall not limit
any provision of this Agreement. The use of the terms "including" or
"include" shall in all cases herein mean "including, without limitation"
or "include, without limitation," respectively. The Parties have jointly
participated in the negotiation and drafting of this Agreement. In the
event of any ambiguity or if a question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by both
Parties and no presumption or burden of proof shall arise favoring either
Party by virtue of the authorship of any provisions of this Agreement.
IN WITNESS OF THE PROVISIONS OF THIS AGREEMENT AS SET FORTH ABOVE, THIS
AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY THE DULY AUTHORIZED
REPRESENTATIVES OF THE PARTIES HEREIN AS OF THE DAY AND YEAR FIRST ABOVE
WRITTEN.
THE MEGA LIFE AND HEALTH SPECIALIZED ASSOCIATION SERVICES, INC.
INSURANCE COMPANY
By: /s/ John Ames By: /s/ Ralph Wolfe
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Ralph Wolfe
Printed Name: John Ames CFO
Title:_____________
Date: 11/10/04
Date:_____________________
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