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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
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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
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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
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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.
THE ALLIANCE SDA FIELD SERVICES AGREEMENT
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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
