Exhibit
10.2
MARKETING AND SALES
AGREEMENT
This AGREEMENT is made and entered
into this 30th day of July, 2009 by and between
The Amacore Group, Inc. a Delaware Corporation, with
offices at 450 N Keller Rd, Maitland, Florida 32751
(“Amacore”) and Zurvita, Inc., a Delaware Corporation,
with offices at 800 Gessner Rd, Suite 110, Houston, Texas, 77024
(“Zurvita”).
WHEREAS,
AMACORE was primarily founded to be a provider and marketer of
healthcare-related products (the “Amacore
Products”);
WHEREAS, Zurvita is the wholly owned subsidiary
of Amacore and is the seller of certain products (the
“Zurvita Products”) as well as certain Amacore Products
through the use of independent marketing
representatives. A list of the Amacore Products and the
Zurvita products that utilize the Amacore Benefits (as hereinafter
defined) that are sold through Zurvita’s sales
representatives (the “Products”) is attached hereto as
Schedule A ;
WHEREAS, AMACORE and Zurvita desire to enter
into an agreement under which Zurvita will continue to sell the
Products through its various marketing techniques, including the
use of independent marketing representatives;
NOW THEREFORE, in consideration of the mutual
covenants and agreements of the parties herein contained and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as
follows:
I
ADVERTISING & MARKETING
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1.01
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Services of
AMACORE : AMACORE will
provide merchant processing services to Zurvita in accordance with
the “per-transaction charges” as detailed in Schedule
B. In addition, monthly accounting support, access to
accounting software and assistance with the preparation and filing
of documents required by the Securities and Exchange
Commission reporting requirements will be provided by Amacore at a
fee of $13,000 per month. Amacore will also continue to
provide benefits being used within Zurvita products as well as any
benefits utilized in any future Zurvita product at cost plus 15%
(the “Amacore Benefits”). For purposes of
this Agreement, the “Amacore Benefits” will include the
benefits attributed to each of the Products as set forth on
Schedule A.
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Zurvita’s Services:
Zurvita will continue to utilize
Amacore Benefits for those Zurvita’s products currently
utilizing the Amacore Benefits and being actively marketed by
Zurvita representatives. Zurvita will offer Amacore a
right of first refusal to provide the Amacore Benefits for future
Zurvita products. Zurvita will have the right of first refusal on
all new Amacore products to sell through its network of independent
marketing representatives. Zurvita will have ten
business days from the date it is first notified of a new Amacore
product to respond to Amacore in writing of its decision to sell
the new Amacore product. Zurvita will be responsible for all credit
card processing fees and will be responsible for the payment of all
refunds, charge-backs and or/fines associated with such
sales.
II.
ZURVITA’S OBLIGATIONS
2.01
Indemnification : (a) Zurvita agrees to indemnify AMACORE
forthwith on demand and hold AMACORE harmless against any and all
expenses, damages and losses of any kind (including reasonable
legal fees and costs) incurred by AMACORE in
connection with any claims, actual or threatened, of any kind
(including, without limitation, breach of contract, any claim of
trademark or copyright infringement, libel, defamation, breach of
confidentiality, false or misleading advertising or sales
practices) arising from the advertisement and/or any material of
the Zurvita to which users are subjected too and any
other contract entered into for the purchase of the advertised
goods or services.
(b) Zurvita
will defend or settle at its own expense any action or other
proceedings brought against AMACORE that relates to the
advertisements and/or any material of the Zurvita to which users
are exposed.. AMACORE shall notify the Zurvita promptly of any such
claim and shall permit the Zurvita to assume and
control the defense of such action with Counsel chosen by the
Zurvita (who shall be reasonably acceptable to AMACORE) and shall
not enter into any settlement or compromise of any such claim
without AMACORE prior written consent. The Zurvita shall
pay any and all proper costs, damages and expenses (including but
not limited to reasonable legal fees and costs) awarded against or
incurred by AMACORE in any such action or proceedings.
2.02
Insurance : Zurvita shall carry at all times during the time
that the Products are offered and sold. Commercial General
Liability Insurance with a minimum of $2,000,000 per occurrence for
bodily injury and/or property damage liability, said insurance to
cover, liability arising from personal injury/advertising injury,
products liability and/or contractual liability. All insurance
policies shall be issued by insurance carriers licensed to do
business in New York and which have an AM. Best rating of A VIII or
better. AMACORE shall be named as additional insured on all
insurance policies listed above and required hereunder. Insurance
policies which are secured by Zurvita pursuant to this Agreement
shall be “occurrence” type policies and shall not be
‘claims made” policies. All Certificates of insurance
shall provide evidence of the type of policies being provided. Such
insurance policies shall also provide that they may not be canceled
or non-renewed without the insurance carrier endeavoring to provide
thirty (30) days written notice to the AMACORE. Zurvita shall
furnish AMACORE with certificates of such insurance within thirty
(30) days after the execution of this Agreement.
2.03
Merchant Reserve Deposit – AMACORE has previously
funded Zurvita an aggregate amount of $115,333 to secure merchant
processing services with Paymentech. When Paymentech
releases the $115,333 reserve (the “Reserve”), to
Zurvita, Zurvita will remit to Amacore the Reserve within five (5)
business days of Zurvita’s receipt thereof.
III.
LIMITATION OF LIABILITY
3.01 AMACORE
will not be liable, in contract, tort (including,
without limitation, negligence), pre-contract or other
representations (other than fraudulent or negligent
misrepresentations) or otherwise arising out of or in connection
with these terms and conditions for any economic losses (including
without limitation loss of revenues, profits, contracts, business
or anticipated savings); or any loss of goodwill or reputation; or
any special or indirect or consequential losses; in any case
whether or not such losses were within the contemplation by either
party at the date on which the event giving rise to the loss
occurred, suffered or incurred by a party arising out of or in
connection with the provisions of any matter contained in this
Agreement. In particular, and without limitation, the Zurvita
acknowledges that AMACORE will not be liable for such losses
whether arising from a failure to publish an advertisement, or from
the inaccuracy of any data contained in any advertisements (whether
such inaccuracy arises from any action, or failure to act, of
AMACORE, Zurvita or a third party).
3.02 Subject
to the above, the liability of AMACORE in contract, tort,
negligence, pre-contract or other representations or otherwise
arisin
