THE ALLIANCE FOR AFFORDABLE SERVICES SUCCESS DRIVEN AWARDS, INC. FIELD SERVICES AGREEMENT

 

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                                                                 EXHIBIT 10.105

 

                                                                 EXECUTION COPY

 

                     THE ALLIANCE FOR AFFORDABLE SERVICES

 

                          SUCCESS DRIVEN AWARDS, INC.

 

                           FIELD SERVICES AGREEMENT

 

      This agreement (the "Agreement") is made and entered into effective as of

January 1, 2005 by and between Success Driven Awards, Inc., a Texas corporation

("SDA"), and the Alliance for Affordable Services, a membership organization

that is organized under the laws of the District of Columbia (the "ALLIANCE").

 

      WHEREAS, the ALLIANCE is a membership organization that provides and/or

makes available to its members a variety of services and benefits;

 

      WHEREAS, SDA is a nationwide sales and marketing organization that is

capable of performing the Services (as defined in Section 2, below) for the

ALLIANCE

 

      WHEREAS, SDA desires to perform the Services for the ALLIANCE on the

terms and conditions contained herein;

 

      WHEREAS, the ALLIANCE desires to retain SDA to perform the Services on

the terms and conditions contained herein.

 

      NOW, THEREFORE, for and in consideration of the mutual covenants and

agreements hereinafter set forth, the receipt and sufficiency of which is

acknowledged by the Parties hereto, the ALLIANCE and SDA hereby agree as

follows:

 

1.     FSRS.   SDA shall, during the Term of this Agreement, recruit, contract

with, train, supervise and compensate independent field service representatives

("FSRs") capable of performing the Services provided for herein.

 

2.     SERVICES TO BE PERFORMED BY SDA.   SDA agrees to perform and to cause

the FSRs to perform the following services (collectively, the "Services"):

 

      (a)   To solicit for the ALLIANCE "new members," as such term is defined

in the By-Laws of the ALLIANCE;

 

      (b)   To work with the members of the ALLIANCE to encourage such members

to maintain their continued membership in the ALLIANCE and to renew any

ALLIANCE benefit programs in which such members may be enrolled;

 

      (c) To submit each application for membership or completed enrollment

form to the ALLIANCE within fifteen days of receipt of same from the member or

prospective member;

 

      (d)   To collect and remit to the ALLIANCE or its designee the initial

fees and dues from applicants for membership in the ALLIANCE and any renewal

fees and dues from current members of the ALLIANCE in accordance with the

schedule of fees and dues set forth in Schedule 1 attached hereto and made a

part hereof, which Schedule 1 the ALLIANCE may revise upon not less than thirty

(30) days' written notice to SDA (the "Schedule of Fees and Dues");

 

THE ALLIANCE SDA FIELD SERVICES AGREEMENT                                  PAGE 1

 

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      (e) To maintain such facilities at such locations as shall be agreed to

between SDA and the FSRs in order to facilitate the performance of the Services;

 

      (f) To arrange for the FSRs to acquire leads for use in soliciting new

      memberships;

 

      (g) To render the reports to the ALLIANCE set forth in Section 4, below;

 

      (h) To take all reasonable steps to ensure that the marketing materials

      used by the FSRs: (i) comply with all applicable state and Federal laws

      and (ii) have been approved in writing by the ALLIANCE; and

 

      (i) To provide such other member recruitment, solicitation and retention

      services as the ALLIANCE reasonably may request in writing.

 

3.     LIMITATIONS ON SDA'S AUTHORITY.   It is agreed that SDA shall be

subject to the following limitations in carrying out its obligations hereunder:

 

      (a)   SDA has no authority, express or implied, to bind the ALLIANCE to

any contractual relationship, to any member, or for any benefits, services or

obligations, except as is expressly provided herein;

 

      (b)   SDA has no authority to waive any requisites or conditions of

membership prescribed by the ALLIANCE or to quote membership fees or dues that

vary in any way from the schedule of fees and dues provided from time to time

by the ALLIANCE to SDA on Schedule 1 hereto or any revision thereof that is

approved in writing by the Board of Directors of the ALLIANCE; and

 

      (c)   SDA and the FSRs shall   have the limited right and license to use

the trade names and service marks, "Alliance for Affordable Services,"

"ALLIANCE," as well as the "ALLIANCE design mark" as shown in Exhibit A

attached hereto (collectively, the "Marks") on advertising, promotional

materials and business cards used to market ALLIANCE memberships.   SDA and FSR

agree that all such uses of the Marks will be used in connection with marketing

services that are of good quality and high standard.   Such uses of the Marks by

SDA and the FSRs shall inure solely to the benefit of the ALLIANCE.

 

      All uses of the Marks must be submitted to the ALLIANCE, prior to such

use by SDA and/or the FSRs.   SDA and/or the FSRs   shall have the right to use

the Marks if the ALLIANCE does not respond to SDA within ten (10) business days

of   SDA submitting such advertising, promotional materials and business cards

to the ALLIANCE.   SDA and the FSRs will comply with conditions set forth from

time-to-time by the ALLIANCE with respect to the form, style, appearance and

manner of use of the Marks.   SDA and the FSR further agree to include, where

practical, in connection with the Marks, the proper designation "R" (R) or

"TM" as well as the recitation, where appropriate, that the "[Mark] is a

registered service mark of the Alliance for Affordable Services."   SDA shall be

responsible for and shall indemnify the ALLIANCE as provided for in Section 8

herein for any claims, damages, costs or expenses arising out of any non-

approved uses of the Marks by SDA and/or the FSRs.   Upon termination of this

Agreement, all rights to use the Marks shall immediately cease.   Upon

termination, SDA and the FSRs agree to provide a full accounting to the

ALLIANCE with respect to all remaining advertising, promotional materials,

business cards, broadcast scripts, web site content and all other forms of

communication in any medium which have been produced, but which have not yet

been distributed or used, and its intended method of disposing of such

materials.

 

THE ALLIANCE SDA FIELD SERVICES AGREEMENT                                  PAGE 2

 

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4.     SDA'S REPORTS.

 

      (a)   Annual Reports.   Within 90 days after the end of each calendar year

during the Term hereof, SDA shall submit written reports to the ALLIANCE

setting forth the following information:

 

              (i)   FSR Report.   The number of FSRs retained by SDA at the

      beginning of the year to solicit the ALLIANCE memberships, the number of

      such FSRs newly contracted with by SDA during such year, the number of

      such FSRs whose contracts with SDA terminated during such year and the

      number of such FSRs under contract with SDA at the end of such year;

 

             (ii)   New Member Report.   The number of applications for the

      ALLIANCE membership submitted by SDA during such year and the number of

      new ALLIANCE memberships sold by SDA during such year.

 

             (iii)   Complaint Report.   In summary form, the number, source

      (prospect, member, better business bureau, or other) and general nature

      of complaints made against FSRs in connection with their solicitation of

      ALLIANCE memberships during such year, the number of such complaints

      disposed of during such year and, in the case of any material complaints

      pending at year end, a brief description of the specific nature and

      status thereof; and

 

             (iv)   Litigation Report.   The number of legal actions brought

      against SDA or the ALLIANCE with respect to the solicitation of the

      ALLIANCE's members or SDA's carrying out of its other duties under this

      Agreement during such year, the number of such actions disposed of during

      the year and a brief description of any material litigation pending at

      year-end.

 

      (b)   Quarterly Reports.   Within the later of 30 days after the end of

each calendar quarter during the Term hereof (other than the fourth quarter of

each year) or ten days after the ALLIANCE's request, SDA shall also provide to

the ALLIANCE an FSR Report, a New Member Report, a Complaint Report and a

Litigation Report, as described in Section 4 (a)(i), (ii), (iii) and (iv)

above, in each case as of the end of and for such calendar quarter.

 

      (c)   Other Reports.   SDA shall also provide such other reports to the

ALLIANCE as may reasonably be requested by the ALLIANCE during the Term hereof.

 

5.     COMPENSATION.   The compensation payable to SDA hereunder is set forth

in Schedule 2 and Schedule 3, which are attached hereto and made a part hereof,

as the same may be amended or supplemented from time to time by written

agreement of the Parties.   Compensation based on the ALLIANCE's fees and/or

dues shall be deemed to be earned by and payable to SDA only upon actual

receipt by the ALLIANCE of the fees and/or dues from the ALLIANCE applicants or

members.   If any of the ALLIANCE fees or dues are refunded at any time and for

any reason, including rejection of an application or cancellation of a

membership, SDA shall refund, which may be by way of offset, to the ALLIANCE

any compensation SDA received that was based on such refunded fees or dues.

The ALLIANCE reserves the right to reject membership applications and to cancel

memberships and to refund to applicants and members all fees and dues related

thereto.   The obligation of the ALLIANCE to pay fees to SDA shall survive any

expiration or termination of this Agreement as to memberships that are in place

at such expiration or termination for so long as such memberships are renewed.

 

6.     CONFIDENTIALITY:   Each Party recognizes that in the course of exercising

its rights and performing its obligations under this Agreement it will come into

possession of confidential or proprietary information of the other Party or of

customers of the other Party ("Confidential Information"). Each Party agrees

that it will not disclose to anyone not a Party to this Agreement any

Confidential Information

 

THE ALLIANCE SDA FIELD SERVICES AGREEMENT                                 PAGE 3

 

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of the other Party or its customers, nor use any such Confidential Information

except to the extent necessary to carry out its obligations hereunder. Each

Party agrees to comply with the confidentiality requirements imposed on it by

state and Federal law. Confidential Information does not include information

which (i) is or becomes generally available to the public other than pursuant to

a violation of this Agreement, (ii) was available to a Party on a

non-confidential basis prior to its disclosure by the other Party or its

customer to the such Party or (iii) became available to a Party on a

non-confidential basis from a third party who was not bound by a confidentiality

agreement with respect to such information.

 

7.     REPRESENTATIONS AND WARRANTIES:

 

      (a) SDA hereby represents and warrants to the ALLIANCE as follows:

 

            (i) SDA is a corporation duly organized, validly existing and in

      good standing under the laws of the State of Texas and has all necessary

      corporate power and authority to enter into this Agreement and to

      consummate the transactions contemplated hereby and to perform its

      obligations hereunder.

 

            (ii) All corporate and other actions or proceedings required to be

      taken by or on the part of SDA to authorize and permit the execution and

      delivery by it of this Agreement, the performance by it of its obligations

      hereunder, and the consummation by it of the transactions contemplated

      herein have been duly and properly taken.

 

            (iii) This Agreement constitutes the legal, valid and binding

      obligation of SDA, enforceable against it in accordance with its terms,

      except as such enforceability may be limited by applicable bankruptcy,

      insolvency, moratorium, reorganization or similar laws in effect which

      affect the enforcement of creditors' rights generally and by equitable

      limitations on the availability of specific remedies.

 

            (iv) No authorization, approval, or consent of, and no filing or

      registration with, any Governmental Authority or third party is or will be

      necessary for the execution, delivery of this Agreement, or performance by

      SDA or for the validity or enforceability thereof, except for such

      approvals or consents that have been obtained or made.

 

      (b)    The ALLIANCE hereby represents and warrants to SDA as follows:

 

            (i) the ALLIANCE is a membership organization duly organized,

      validly existing and in good standing under the Not-For-Profit Corporation

      Law of the District of Columbia and has all necessary corporate power and

      authority to enter into this Agreement and to consummate the transactions

      contemplated hereby and to perform its obligations hereunder.

 

            (ii) All corporate and other actions or proceedings required to be

      taken by or on the part of the ALLIANCE to authorize and permit the

      execution and delivery by it of this Agreement, the performance by it of

      its obligations hereunder, and the consummation by it of the transactions

      contemplated herein have been duly and properly taken.

 

            (iii) This Agreement constitutes the legal, valid and binding

      obligation of the ALLIANCE, enforceable against it in accordance with its

      terms, except as such enforceability may be limited by applicable

      bankruptcy, insolvency, moratorium, reorganization or similar laws in

      effect which affect the enforcement of creditors' rights generally and by

      equitable limitations on the availability of specific remedies.

 

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            (iv) No authorization, approval, or consent of, and no filing or

      registration with, any Governmental Authority or third party is or will be

      necessary for the execution, delivery of this Agreement, or performance by

      the ALLIANCE or for the