Exhibit 10.1
EXCLUSIVE AGENCY
AGREEMENT
THIS EXCLUSIVE AGENCY AGREEMENT
(this “Agreement”), is made and entered into this
1 th day of October 2006, by and between
CREATIVE INSURANCE MANAGERS, INC. (hereinafter
“Agent”), a corporation organized and existing under
the laws of the State of Georgia, having its principal offices at
3855 Shallowford Road Marietta, GA 30062, and SUBCONTRACTING
CONCEPTS, INC. (hereinafter “Customer”), a corporation
organized and existing under the laws of the State of New York,
having its principal offices at 1 Lawrence Street, Glens Falls, NY
12801. This Agreement replaces the prior Agency Agreement that was
entered into on April 4, 2002.
WHEREAS, Agent is in the business of
obtaining insurance products and related services for its customers
and has experience and expertise in the brokerage and procurement
of insurance products and related services for the benefit of its
customers; and
WHEREAS, Customer wishes to appoint
Agent as its exclusive agent for the brokerage, analyses and
procurement of all types of insurance coverage which may be
beneficial to Customer in the operation of its business
enterprise;
NOW, THEREFORE, in consideration of
the promises and mutual covenants contained herein, the parties
hereto, intending to be legally bound, hereby agree as
follows:
Section 1.
GENERAL TERMS OF
RETENTION
This Agreement is a master agreement
under which Agent shall act as Customer’s exclusive agent to
broker and procure insurance Products and provide other such
Services subject to the terms and conditions set forth in this
Agreement. Customer hereby appoints Agent and Agent hereby accepts
such appointment as Customer’s exclusive agent and
representative for the purpose of brokering and procuring, on
behalf of Customer, insurance Products and Services necessary or
advisable for the operation of Customer’s business. Agent
agrees to provide Customer with the Products and Services set forth
in one or more written schedules, in a form substantially similar
to Exhibit A attached hereto (the
“Schedule(s)”) within the ability of the Agent and
provided such Products and Services are readily available for the
Customer in the marketplace which may or may not preclude Agent to
be successful in securing the Scheduled product lines shown in
Exhibit A for the Customer. A Schedule shall include and refer to
this Agreement and specify the Products and Services to be procured
and performed by Agent and to be paid for by Customer. Schedules
shall, once executed, become a part of, and subject to the terms
and conditions of, this Agreement, and shall provide a fee or
commission for accomplishment of this work.
Section 2.
DUTIES AND REPRESENTATIONS OF
PARTIES
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2.1
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Duties and
Representations of Agent.
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2.1.1
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Agent shall
commit and utilize sufficient resources to perform and complete its
duties under this Agreement as shall be reasonably
necessary.
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1
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2.1.2
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Agent shall
perform all Services hereunder in a professional and efficient
manner. Agent further agrees that the Services provided will be
performed by employees or sub-agents qualified to perform such
Services and that the Services performed will be of a quality
conforming to standards generally accepted in Agent’s
industry.
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2.1.3
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All Services
will be performed as required by any Schedule and completed in a
manner that conforms to the Schedule’s
specifications.
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2.1.4
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The commitment
to provide such services does not represent a warranty or guarantee
on the part of the Agent to the successful implementation or
placement of any of the Products or Services listed in the
Schedule.
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2.2
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Duties and
Representations of Customer.
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2.2.1.
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Customer shall
timely provide Agent with such information and documentation as
Agent may reasonably request, including Customer’s written
authorization for the release of information from third-parties, to
enable Agent to perform its obligations under this Agreement and
any Schedule hereunder.
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2.2.2.
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Without
limiting the generality of Section 2.2.1 above, Customer
agrees to provide Agent with timely, accurate and complete
information which Agent deems necessary for the assessment of
Customer’s insurability, risk, retention, scope of
coverage(s) and premium issues, including but not limited to,
Customer’s claim and loss history, financial condition and
creditworthiness.
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2.2.3.
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In performing
its duties under this Agreement and any Schedule hereunder, Agent
shall have the authority to deal directly with, solicit, make
application for, negotiate and acquire, on Customer’s behalf,
those Products specified in any Schedule from any insurer offering
such Products which Agent may reasonably deem capable of providing
same.
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2.2.4.
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Customer agrees
to timely pay all premiums and other charges, in accordance with
the terms imposed by the insurer issuing any binder, policy or
contract of insurance brokered or procured by Agent pursuant to any
Schedule hereunder. Customer further agrees to do all other things
necessary to maintain and keep such contracts and policies of
insurance in full force and effect during their respective
terms.
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Section 3.
TERM, TERMINATION AND
DEFAULT
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3.1
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Term. The
initial term of this Agreement (the “Initial Term”)
shall commence upon the execution of this Agreement, and shall
continue in full force and effect for a period of seven months
(October 1, 2006 to April 30, 2007) from the date hereof.
Thereafter, the terms of this Agreement shall automatically renew
for another one (1) year term, (each, a “Renewal
Term”; the Initial Term and any and all Renewal Terms
collectively, the “ Term ”) unless either party
shall give written notice to the other party of its intention to
terminate this Agreement no later than 90 days prior to the
expiration of the then current Term. In the event that this
Agreement expires prior to the completion of all Services under
outstanding Schedules, the terms of this Agreement will continue to
govern the performance of such Services.
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2
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3.2
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Termination by
Customer. Customer may terminate this Agreement in the event of a
Default by Agent, or the Schedule under which such Default has
occurred, which Default is not cured by Agent in accordance with
the terms hereof.
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3.3
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Termination by
Agent.
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3.3.1
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In the event of
a Default by Customer, Agent may terminate the Schedule under which
such Default has occurred, which Default is not cured by Customer
in accordance with the terms hereof.
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3.4
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Default
Defined. Either party may be declared in default
(“Default”) of this Agreement if (a) it breaches
any material provision hereof and fails within thirty
(30) days after receipt of written notice of default to
correct such breach or to commence corrective action reasonably
acceptable to the other party and proceed with due diligence to
completion; or (b) it becomes insolvent, makes an assignment
for the benefit of its creditors, a receiver is appointed or a
petition in bankruptcy is filed with respect to the party and is
not dismissed within thirty (30) days. In the event of a
Default, the non-defaulting party may terminate this
Agreement.
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3.5
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Termination
Payment. In the event of a termination of this Agreement by
Customer pursuant to Section 2.2 above, Agent shall be
entitled to receive payment for all Products and Services performed
up to the effective date of termination at the applicable rates set
forth in the applicable Schedules.
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Section 4.
FEES AND COMMISSIONS;
PAYMENT
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4.1
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Compensation.
Agent shall be compensated for all Products brokered and Services
performed within the scope of this Agreement as set forth in the
applicable Schedule(s) or negotiated with applicable insurance or
service provider.
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Section 5.
CONFIDENTIAL INFORMATION
The parties shall execute that
certain Confidentiality and Non-Disclosure Agreement, in the form
attached hereto as Exhibit B , for the Term of
this agreement.
Section 6.
INJUNCTIVE RELIEF
The parties acknowledge that
violation of the provisions of Section 5 “Confidential
Information” would cause irreparable harm to the
non-breaching party which is not adequately compensable by monetary
damages. In addition to other relief, it is agreed that the
non-breaching party shall be entitled to seek injunctive relief
from a court of competent jurisdiction to prevent any actual or
threatened violation of such provisions, and the parties will waive
any requirement for the securing or posting of any bond in
connection with such injunctive relief.
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Section 7.
LIMITATION OF LIAIBLITY
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7.1
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Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AGENT MAKES NO
WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE
PRODUCTS OR SERVICES RENDERED HEREUNDER, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE.
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7.2
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Total
Liability. Agent’s liability hereunder for damages derived or
caused from the negligence of the Agent for any claim arising out
of this Agreement or the brokerage of any Products or performance
of any Services hereunder shall not exceed the total amount paid to
Agent for those Products or Services defined in the
Schedule.
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7.3
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Indemnification. Agent shall have no liability
to Customer for Products brokered or procured under this Agreement
or Schedule hereunder. Customer assumes all risk related to the
issuance, delivery, scope and extent of coverage afforded by and
performance of the Products procured pursuant to this Agreement.
Agent shall have no obligation or liability to perform any duty or
pay any premium or charge owed by Customer in connection with the
issuance, delivery or performance of any policy or contract of
insurance brokered pursuant with this Agreement. Accordingly,
Customer agrees to fully indemnify and hold Agent harmless from any
demands, claims or suits by any third party for losses,
liabilities, damages, costs or expenses (including, without
limitation, attorney’s fees) arising out of or related to any
Products or Services. The foregoing indemnity obligation shall
survive the expiration or termination of the Term, regardless of
the reason for, manner or method of same.
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Section 8.
ARBITRATION
Arbitration. Any controversy,
dispute or claim arising out of or relating to this Agreement shall
be finally determined and settled by binding arbitration in
accordance with the then applicable Commercial Rules of the
American Arbitration Association by one or more neutral arbitrators
having some experience in the insurance industry appointed in
accordance with said Rules, and judgment upon the award rendered by
the arbitrator(s) shall be final, binding and non-appealable, and
may be entered in any court of competent jurisdiction. Any award
rendered by the arbitrators shall be accompanied by a written
opinion giving the reasons for the award. Limited civil discovery
shall be permitted including interrogatories, production of
documents and the taking of depositions. The expenses of
arbitration shall be borne equally by the parties to the
arbitration, provided that each party shall pay for and bear the
cost of its own experts, evidence and legal staff. Any such
arbitration will be conducted in the City of Atlanta. The law
governing such arbitration shall be the law of the State of
Georgia. Notwithstanding anything to the contrary, arbitration is
waived and an exception to the parties; agreement to arbitrate
shall exist where (a) Agent, at its option, brings an action
in a court in any appropriate forum, to collect monies claimed by
Agent to be owing to it under this Agreement, or (b) either
party brings an action for injunctive relief. Except where clearly
prevented by the area of dispute, both parties agree to continue
performing their respective obligations under this Agreement,
including, without limitation, payment obligations, while the
dispute is being resolved.
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Section 9.
MISCELLANEOUS
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9.1.
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Assignment
Rights. This Agreement shall be binding upon and shall inure to the
benefit of Agent and its successors and assigns, including any
corporate affiliate or successor of Agent. Customer may not assign,
or otherwise transfer its rights under this Agreement to any other
person, firm or entity, without Agent’s prior written
consent.
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9.2.
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Notice. Any
notice to be given to a party in connection with this Agreement
shall be in writing addressed t o such party at the address set
forth on the first page of this Agreement (the “Notice
Address”), which Notice Address may be changed from time to
time by such addressee by notice thereof to each of the other
addressed as herein provided. Any such notice shall be deemed
effectively given to a party upon the first to occur of
(a) the third (3 rd ) business day following the
date on which it is mailed t
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