INCENTIVE SALES CONSULTING AND SERVICES AGREEMENT
THIS INCENTIVE SALES CONSULTING AND SERVICES AGREEMENT (“Agreement”), effective as of the date of online signup (the “Effective Date”) by and between OneLife Cares, Inc., a non-profit Delaware corporation with its registered address at 13600A 300 Delaware Avenue, Suite 210-A, Wilmington, DE 19801 (the “Company”) and the Affiliate (the “Sales Consultant”). Both Client and Sales Consultant may be individually referred to as a “Party” and collectively referred to as the “Parties” throughout this Agreement.
WHEREAS, Company is a non-profit medical cost-sharing group selling cost-sharing plans directly to the consumer; and
WHEREAS, Company desires to retain the services of Sales Consultant (“Services”), and Sales Consultant desires to provide services to Company, upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and obligations hereinafter set forth, the Parties hereto, intending to be legally bound, hereby agree as follows:
- Term of Engagement
Company hereby agrees to engage Sales Consultant as an independent consulting firm for an initial one (1) year term, unless terminated pursuant to Section 5 below. This Agreement shall automatically renew, thereafter, for one (1) year periods, unless either party provides 30 days’ written notice of its termination.
- Incentive Sales Compensation.
As consideration for work performed during the term of engagement pursuant to the Roles & Responsibilities (as defined below) as listed in Exhibit “B” (below), the Company agrees to pay Sales Consultant incentive sales compensation based on the fee schedule attached hereto as Exhibit “A” (hereinafter referred to as “Incentive Sales Compensation”). Payment of such Incentive Sales Compensation shall be made within 15 calendar days of receipt of payment from a customer.
- Roles & Responsibilities.
During the term of engagement, the Sales Consultant’s roles and responsibilities shall be those as listed in Exhibit “B” (hereinafter referred to as “Roles & Responsibilities”).
(a) Cause. Company shall have the right, upon notice to Sales Consultant, to immediately terminate Sales Consultant’s engagement under this Agreement for “Cause” (as defined below), effective upon Sales Consultant’s receipt of such notice (or such later date as shall be specified in such notice), and Company shall have no further obligations hereunder, except to pay Sales Consultant any unpaid consulting fees as well as commissions earned. For purposes of this Agreement, “Cause” means:
(i) a material breach of, or the willful failure or refusal by Sales Consultant to perform and discharge duties or obligations it has agreed to perform or assume under this Agreement (other than by reason of disability or death) that, if capable of correction, is not corrected within ten (10) business days following notice thereof to Sales Consultant by Company, such notice to state with specificity the nature of the breach, of such failure or refusal;
(ii) willful misconduct by Sales Consultant or any of its subsidiaries or affiliates that could reasonably be anticipated to have a material adverse effect on Company or any of its affiliates (the determination of Cause to be made by Company’s management team in its reasonable judgment);
(iii) Sales Consultant’s gross negligence, whether related or unrelated to the business of Company that could reasonably be anticipated to have a material adverse effect on Company that, if capable of correction, is not corrected within ten (10) business days following notice thereof to Sales Consultant by Company or any of its affiliates, such notice to state with specificity the nature of the conduct complained of (the determination of Cause to be made by Company’s management team in its reasonable judgment);
(iv) Sales Consultant’s failure to follow a lawful directive of the Company’s management team or any of its affiliates that is within the scope of the Sales Consultant’s duties for a period of ten (10) business days after notice specifying the performance required.
(b) Without Cause. Either Party shall have the right, exercisable at any time during the term of engagement, to terminate this engagement for any reason whatsoever, upon thirty days (30) days’ prior written notice to Company. Upon such termination of service, and Company shall have no further obligations hereunder other than to pay Sales Consultant any commissions earned and due.
(a) During the course of Sales Consultant’s engagement with Company, Sales Consultant will have access to certain trade secrets and confidential information relating to Company that is not readily available from sources outside Company, including, but not limited to, its customer, supplier and vendor lists, contract terms, databases, competitive strategies, computer programs, frameworks or models, it’s marketing, its sales, financial, marketing, training, and technical programs and/or information, product development (and proprietary product data), business plans and strategies (including, but not limited to, acquisition and divestiture plans), regulatory matters and any other information, whether communicated orally, electronically, in writing or in other tangible forms concerning how Company and any of its affiliates creates, develops, acquires or maintains its products and marketing plans, targets potential customers and operates its business (collectively, “Confidential Information”). Confidential Information is one of the most valuable assets of the Company and any of its affiliates. Company has invested and continues to invest, considerable amounts of time and money in developing and maintaining its Confidential Information, and any misappropriation or unauthorized disclosure of Confidential Information in any form would irreparably harm Company. Sales Consultant acknowledges that Confidential Information constitutes valuable, highly confidential, special and unique property of the Company.
Sales Consultant will hold in a fiduciary capacity for the benefit of Company any and all Confidential Information that is obtained by Sales Consultant resulting from its relationship with Company and any its affiliates and that does not become public knowledge (other than by acts by Sales Consultant or representatives of Sales Consultant which are required to market and sell the products of Company under this Agreement).
Except as required by law, an order of a court or governmental agency with appropriate jurisdiction, or by written or other permission and/or direction of authorized representatives of Company, Sales Consultant will not, during the period of Sales Consultant’s contractual relationship with Company, or at any time thereafter, disclose any Confidential Information, directly or indirectly, to any person or entity for any reason or purpose whatsoever, nor will Sales Consultant use it in any way, except in the course of Sales Consultant’s contractual relationship with Company, and for the benefit of the sales and marketing of Company’s products, or to enforce any rights or defend any claims under this Agreement. Sales Consultant will take all reasonable steps to safeguard the Confidential Information and to protect it against disclosure, misuse, espionage, loss, and theft. The sales Consultant understands and agrees that the Sales Consultant will acquire no rights to any Confidential Information.
(b) All files, records, documents, drawings, specifications, data, computer programs, evaluation mechanisms, and analytics and similar items containing Confidential Information or related to the business of Company, as well as all customer lists, specific customer information, compilations of product research and marketing techniques of Company, whether prepared by Sales Consultant or otherwise coming into Sales Consultant’s possession through and during Sales Consultant’s contractual arrangement with Company, shall remain the exclusive property of Company, and Sales Consultant may not remove any of those items from the premises of the Company except in furtherance of Sales Consultant’s duties under this Agreement.
(c) As requested by Company, and at the expense of Company, from time to time and upon the termination of Sales Consultant’s contractual arrangement for any reason, Sales Consultant will promptly deliver to Company all copies and embodiments, in whatever form, of all Confidential Information in Sales Consultant’s possession or within its control (including without limitation memoranda, records, notes, plans, photographs, manuals, notebooks, documentation, program listings, flow charts, magnetic media, disks, diskettes, tapes and all other materials containing any Confidential Information), irrespective of the location or form of that material. If requested by Company, the Sales Consultant will provide Company with written confirmation that all required materials have been delivered to Company and/or safely removed or destroyed.
(d) This confidentiality provision will continue for a period of 5 (five) years post-termination, regardless of the reason for termination of the Sales Consultant’s relationship with the Company.
During the term of Sales Consultant’s employment with the Company, and for a period of three (3) years following the termination of Sales Consultant’s contractual arrangement for any reason, Sales Consultant may not directly or indirectly solicit or attempt to solicit or induce any party who is a customer of Company or who was a customer of Company at any time within the previous 12 months, for the purpose of marketing, selling or providing to that party any services or products offered by or available from Company and relating to Company’s business, or any products or services that are in any way similar to the products and services offered by Company.
Sales Consultant acknowledges that all originals and copies of materials, equipment, computers, laptops, records, and documents generated by Sales Consultant or coming into Sales Consultant’s possession during the term of this Agreement are the sole property of the Company (“Property”). During the term of Sales Consultant’s contractual arrangement with Company, and at all times thereafter, Sales Consultant may not remove, or cause to be removed, from the premises of Company copies of any Property, except in furtherance of Sales Consultant’s duties under this Agreement. When Sales Consultant’s employment terminates, or upon request of Company at any time, Sales Consultant will promptly deliver to Company all copies of Company’s Property and/or equipment in Sales Consultant’s possession or control.
- Rights Granted.
Nothing in this Agreement shall be construed as granting any rights under any patent, copyright or other intellectual property right of Company to Sales Consultant, nor shall this Agreement grant Sales Consultant any rights in or to Company’s Confidential Information other than the limited right to review such Confidential Information solely for the purpose fulfilling Sales Consultant’s obligations under this Agreement.
- Deductions and Withholding.
Company shall not withhold from any compensation paid to and required to be paid to Sales Consultant pursuant to this Agreement, any Federal, state, local and/or other taxes which Sales Consultant determines would otherwise be required to be withheld in accordance with applicable statutes or regulations from time to time in effect.
Company agrees to defend, indemnify and hold harmless Sales Consultant, its owner(s), affiliates, licensors and service providers, and each of both Parties’ respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assignees, against any and all claims, liabilities, deficiencies, damages, actions, judgments, settlements, interest, awards, losses, fines, penalties, costs, expenses or fees of any kind (including reasonable attorneys’ fees and costs) arising from or relating to Company’s products sold by Sales Consultant.
Company shall not be responsible for, and Sales Consultant shall indemnify and hold Company harmless from and against any and all claims, demands, losses, liabilities, damages, costs and expenses, including attorneys’ fees, incurred by Company resulting from or arising out of any negligent acts or omissions of Sales Consultant or of any employee, agent or representative of Sales Consultant. Sales Consultant shall not be responsible for, and Company shall indemnify and hold Sales Consultant harmless from and against any and all claims, demands, losses, liabilities, damages, costs and expenses, including attorneys’ fees, incurred by Sales Consultant resulting from or arising out of any negligent acts or omissions of Company or of any employee, agent or representative of Company.
- Limitation of Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS (WHETHER OR NOT FORESEEABLE), OR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT ONE PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
IN NO EVENT WILL ONE PARTY’S total liability to THE OTHER PARTY FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY exceed the total fees paid by ONE PARTY TO THE OTHER PARTY IN THE TWELVE-MONTH PERIOD PRECEEDING THE CLAIM OR ACTION GIVING RISE TO ANY LIABILITY.
- Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11, BOTH PARTIES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICES OF SALES CONSULTANT AND PRODUCTS OR PLANS OFFERED BY COMPANY WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING BOTH PARTIES DISCLAIM ANY WARRANTY THAT THE CONVERSA SERVICES AND PARTNER SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.
- Relationship of the Parties.
Sales Consultant shall perform the Services under the general direction of Company, however, Company shall determine, in its sole discretion, the manner and means by which the Services are accomplished, subject to the express condition that Sales Consultant shall at all times comply with applicable law. Notwithstanding any provision of this Section 13, the Sales Consultant is an independent contractor and is not an agent or employee of Company and has no authority whatsoever to bind Company by contract or otherwise. Sales Consultant acknowledges and agrees that it shall be the obligation of Sales Consultant to report as income all compensation received by Sales Consultant pursuant to this Agreement. Sales Consultant shall be solely responsible for the payment of all compensation to its employees, including making provision for payment of employment taxes, worker’s compensation and any similar taxes associated with the employment of Sales Consultant’s personnel. Sales Consultant’s employees shall not be entitled to any benefits paid or made available by the Company to its employees. Sales Consultant understands and agrees that its employees and other of the Sales Consultant’s personnel are not employees of the Company and will not become employees of Company by virtue of the performance of the Services. Sales Consultant shall not, at any time or in any manner whatsoever, represent or in any way imply that its employees or other Sales Consultant personnel are employees of Company.
- Entire Agreement.
This Agreement embodies the entire agreement of the parties with respect to Sales Consultant’s engagement, compensation, perquisites, and related items and supersedes any other prior oral or written agreements, arrangements or understandings between Company and Sales Consultant or any of its subsidiaries or affiliates, and any such prior agreements, arrangements or understandings are hereby terminated and are no longer in effect. This Agreement may not be changed or terminated orally but only by an agreement in writing signed by the Parties.
- Negotiation and Drafting.
Company and Sales Consultant agrees that each Party was given a reasonable period of time to review this Agreement and discuss it with counsel of its choice. Both parties further agree that this Agreement resulted from mutual negotiation and draftsmanship and that no Judge or Arbitrator should construe any language for or against any party on the premise that a given party drafted a certain language.
In order to avoid the expense and delay which often accompanies litigation, the Parties agree that any controversy, dispute or disagreement arising out of or relating to this Agreement, any breach thereof, or the subject matter thereof, shall be settled exclusively by binding and final arbitration, which shall be conducted in Clearwater, Florida, in accordance with the Rules and Procedures of the American Arbitration Association. The Parties further specifically agree that this arbitration provision extends to any and all questions regarding the validity and/or enforceability of this arbitration clause (Section 16) itself.
The Parties further agree that the Arbitrator chosen pursuant to this Section 16 shall have the authority to order equitable relief, liquidated damages, reimbursement of costs, and/or attorney’s fees pursuant to Section 10, the Indemnification provision, of this Agreement.
The obligations of the Sales Consultant may not be delegated and, except with respect to the designation of beneficiaries in connection with any of the benefits payable to Sales Consultant hereunder. Sales Consultant may not, without Company’s written consent thereto, assign, transfer, convey, pledge, encumber, hypothecate or otherwise dispose of this Agreement or any interest herein. Any such attempted delegation or disposition shall be null and void and without effect. Sales Consultant and Company agree that this Agreement and all of the Company’s rights and obligations hereunder may be assigned or transferred by Company to, and shall be assumed by and be binding upon, any successor to Company. Unless assumption occurs by operation of law, Company shall require any successor, by an agreement in form and substance satisfactory to Sales Consultant expressly, to assume and agree to perform this Agreement in the same manner and to the same extent as Company would be required to perform if no such succession had taken place. The term “successor” means, with respect to Company, any corporation or other business entity which, by merger, consolidation, purchase of the assets or otherwise, acquires all or a majority of the operating assets or business of Company.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree to renegotiate such provision in good faith. In the event that the Parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded, and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
- Judicial or Arbitral Modification.
If any Judge or Arbitrator determines that all or part of a covenant in this Agreement is invalid or unenforceable, the remainder of this Agreement will not be affected and will be given full effect, without regard to the invalid portion. If any Judge or Arbitrator determines that all or part of a covenant in this Agreement is invalid or unenforceable because of the geographic or temporal scope of that covenant, the Parties desire that the Judge or Arbitrator reduce the scope to the minimum extent necessary to make the covenant valid and enforceable.
- Training Costs.
Sales Consultant acknowledges that in the course of his employment with Company, it may be offered the opportunity to undergo training and certification for specific types of software or systems which may be beneficial to Sales Consultant and/or Company and/or customers of Company. Sales Consultant agrees to be bound by confidentiality agreements related to such training as an individual, as well as in his capacity as a sales consultant of Company.
All notices to Sales Consultant or Company permitted or required hereunder shall be in writing and shall be delivered personally, by telecopier or by courier service providing for next-day or two-day delivery or sent by registered or certified mail, return receipt requested, to the following addresses:
Attn: Chief Legal Officer
13600A ICOT BOULEVARD
CLEARWATER, FL 33760
Either Party may change the address to which notices shall be sent by sending written notice of such change of address to the other Party. Any such notice shall be deemed given, if delivered personally, upon receipt, if telecopied, when telecopied; if sent by courier service providing for next-day or two-day delivery, the next business day or two business days, as applicable, following deposit with such courier service; and if sent by certified or registered mail, three days after deposit (postage prepaid) with the U.S. mail service.
- No Conflicts.
Sales Consultant hereby represents and warrants to Company that the execution, delivery, and performance of this Agreement and any other agreement to be delivered pursuant to this Agreement will not (i) require the consent, approval or action of any other person or (ii) violate, conflict with or result in the breach of any of the terms of, or constitute a default, under any agreement, arrangement or understanding with respect to any other engagement to which Sales Consultant is a party or by which Sales Consultant is bound or subject.
All marketing or sales materials used by Sales Consultant in connection with Sales Consultant’s Services to the Company (“Collateral”) shall first be reviewed and expressly approved in writing by Company before being disseminated to any third party. To the extent any such Collateral is not expressly approved in writing by Company (“Non-Approved Collateral”), then the Sales Consultant agrees that Sales Consultant alone shall bear the responsibility for any liability that arises as a result of circulating such Non-Approved Collateral.
During the term of this Agreement and thereafter, the Sales Consultant shall provide reasonable cooperation in connection with any action or proceeding (or any appeal therefrom) that relates to events occurring during Sales Consultant’s employment with Company.
- Paragraph Headings.
The paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.