MARKETING
SERVICES AGREEMENT
This Agreement
entered into this 25th day of July, 2001, by and between BNL EQUITY
CORPORATION, an Arkansas corporation (“BNLE”), and EPSI
BENEFITS, INC. (“EBI”) and its
wholly owned
subsidiary, EMPLOYERS PLAN SERVICES, INC. (“EPSI”),
both of which are Texas corporations, upon the following terms and
conditions and for the considerations herein set forth.
1. Effective
Date and Term. This Agreement shall become effective July 25th,
2001 (the "Effective Date") and shall continue in full force and
effect until terminated as provided in Section 9.
2. Purpose of
Agreement. BNLE is knowledgeable in areas of insurance marketing
and has developed procedures designed to facilitate the marketing
of insurance products and products eligible for services provided
by EPSI.
3. Relationship
of Parties. This Agreement describes the relationships between the
parties concerning the EBI and EPSI insurance and third party
administrators programs (the “Programs”).
4. BNLE
Duties.
(a) BNLE will
assist EBI and EPSI in the continued production, enhancement and
development of the Programs to be directed towards new and existing
customers. EPSI will
assist in
creating information for BNLE as determined by mutual agreement of
BNLE and EPSI.
(b) The prior
written consent of EBI and EPSI is required before BNLE may prepare
or publish any advertising or solicitation material of any kind
regarding the Programs.
5. EPSI’s
Duties. EBI and EPSI will: (a) maintain all records and facilities
to administer and maintain the Programs, (b) use reasonable efforts
to renew the users’ contracts, (c) collect charges with
respect to the Programs, (d) provide production reports for the
Programs, (e) pay fees to BNLE, as provided in Section 6 below and
(f) promote the Programs in a reasonable manner with all reasonable
efforts.
6. Compensation
of BNLE. Beginning on the Effective Date, EPSI will pay to BNLE a
monthly fee of five per cent (5%) of all revenues from the
provision by EPSI of third party
administrative
service fees received by EPSI during such month. The fee will be
paid monthly within fifteen (15) days after the close of the month
for which the fee is being paid. BNLE shall not undertake to charge
nor shall it receive any charges or payments from purchasers of
EPSI services. EPSI will furnish reasonable documentation with each
payment. BNLE shall have the right on reasonable notice to EPSI to
review and make copies of all books and records of EPSI as they
relate to the Programs and the fees.
7.
Miscellaneous Provisions.
7.01 Subject to
law and regulation, BNLE, EBI and EPSI shall give prompt written
notice to the other of, and cooperate fully with each other, with
respect to any consumer
complaint or
any governmental, administrative or judicial inquiry or proceeding
with respect to the transaction of any Programs
business.
7.02 The prior
written consent of EPSI is required before BNLE or any employee or
affiliate of BNLE shall prepare or publish any advertising or
solicitation material of any kind
whatsoever for
distribution to any purchaser or prospect which contains any
reference to the Programs, or EPSI, or an affiliate of
EPSI.
7.03 BNLE shall
cooperate fully with EPSI in the provision of the services and
facilities hereunder.
7.04 This
Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes any
prior negotiations, discussions, or written or oral understanding
or agreements between the parties with respect to the subject
matter. The terms and conditions of this Agreement shall inure to
the benefit of the respective successors and permitted assigns of
the parties hereto. Neither this Agreement nor any of the rights,
obligations, or liabilities of either party hereto may be assigned
without the prior written consent of the other party, which consent
shall not be unreasonably withheld. BNLE shall have the right to
make an assignment to an affiliate of its right to receive revenues
under this Agreement. A copy of any assignment shall be furnished
to both parties. This Agreement may be amended from time to time by
written instrument signed by the president or other executive
officer of both parties.
7.05 This
Agreement shall be governed by and construed in accordance with the
laws of the State of Texas.
7.06 If any act
at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, court costs, and
necessary
disbursements in addition to any other relief to which such party
may be entitled. Venue for any action brought to enforce or
interpret the terms of this Agreement shall be in
Travis County,
Texas.
7.07 Any
notices to be given hereunder by one party to the other may be made
either by personal delivery in writing (including facsimile
transmission with confirmed receipt) or by
mail,
registered or certified, postage pre-paid with return receipt
requested. Mailed notices shall be addressed to the parties at the
addresses appearing in this section
