Master Producer Agreement & Contract - HMA Services€¦ · this master producer service agreement ... master producer agreement & contract a2015 section a ... distributorship

Form#: MPA2015

THIS MASTER PRODUCER SERVICE AGREEMENT (“Agreement”or “Contract”), made this _______ day of _____________, 2015, by and between National Prosperity Health Matching Services, (the “Company” or “NPHM Services”), a Texas corporation having its principal place of business located at 5120 Woodway Dr., Suite 10025, Houston Texas 77056 (“Company”), and ___________________________ having its principal place of business at ______________________________________________________ (“Producer”).

WHEREAS, NPHM Services desires to engage Producer to provide certain wholesale, marketing or distribution services as well as services related to product development more fully described hereto, and

WHEREAS, Producer, based on his experience and current positions, is capable of providing such services, and

WHEREAS, the Parties mutually desire to enter into this Agreement to set forth the terms and conditions under which Producer may provide referrals that generate revenue, sell, distribute and/or market the NPHM Services.

NOW, THEREFORE, in consideration of the mutual covenants set forth in the Agreement below, the Parties do hereby agree as follows:

WITNESSETH

WHEREAS, the Company offers to Producer a unique insurance product and services (“Services”), as detailed below in Exhibit A, for its clients, their client’s employees and their families (“Clients” or “Employers”). Any reference to Client or Employer shall be assumed to be a Client of Producer, to which Producer has provided such Services of NPHM Services to Client; references to Client/Employer or Producer shall be applicable to both, unless indicated otherwise.

WHEREAS, NPHM Services desires to engage Producer to provide certain distribution, marketing, or wholesale services for purposes of NPHM’s Services and products.

WHEREAS, Producer, based on his experience and current positions and market, is capable of providing such services, and

WHEREAS, Producer desires to have the Services made available to its Employers and their employees and their dependents (“Employees”).

WHEREAS, the Company desires to grant to the Producer/Employer the right to use Company’s Services in administering its health and wellness plans, policies and services to its Employees.

WHEREAS, Producer/Employer desires to utilize the Services solely for the purpose of managing its health and wellness plans and benefits to be used in conjunction with, and not as a substitute for, medical services and acknowledges that by providing the Services, the Company is not engaged in the practice of medicine of such benefit plans.

MASTER PRODUCER AGREEMENT & CONTRACT

5120 Woodway Drive, Suite 10025Houston, Texas 77056

(713) 850-8534Fax: (713) 850-8579

www.nationalprosperity.com

Master Producer Agreement & Contract

Revised Date: 8/4/15

5120 Woodway Drive, Suite 10025, Houston, Texas 77056Tel: (713) 850-8534 Fax: (713) 850-8579 | www.nationalprosperity.com


Form#: MPA2015

RECITALS

This Agreement (including all schedules, and all other service agreements, which are incorporated herein by reference) contains general contractual terms for the Services to be provided to Employer. The Company pursuant to this Agreement will provide the Services and such other service agreements entered into by Employer and/or Company. This Agreement and the attachments hereto, if applicable, shall describe the Services, the provisions for payment, the term for performance, applicable service levels, and other provisions that are specific to this Agreement.

The Services provided to Employer shall consist of various services related to the Employer’s employee benefit programs in order to allow Employer to effectively manage and control the Employer’s health care spending by having a coordinated single health policy platform/product that helps manage the Employer’s benefit programs. The specific Services agreed to shall be specified in the attached Section A to this Agreement.

In the event of a conflict between this Agreement, a schedule and/or any agreement, the order of precedence shall be: first, this Agreement; second, any other agreement; and third, any exhibits or schedules. All of the terms of this Agreement shall apply to each service agreement except to the extent negated or contradicted by the express terms of a service agreement or any schedule (defined as “any schedule, exhibit, agreement or other document either (i) attached to this Agreement, (ii) attached to other written agreements; or (iii) executed by the parties at any time hereafter, if such document states that it is a schedule to this Agreement or any service agreement”) to a service agreement.

The Agreement, as stated below, is governed by the rules of the State of Texas and Harris County, and includes the following terms and conditions, as more fully detailed below:

Section A – Agreement Terms

Section B – Schedules of Compensation & Expense Allowance

Section C – Certification and Acknowledgement

In WITNESS THEREFORE, NPHM Services and Producer, intending to be legally bound hereby, have executed this Agreement on the date(s) indicated below, and as referenced further in the Agreement.

NATIONAL PROSPERITY HEALTH MATCHING SERVICES

By

Print Name

Title

Date

PRODUCER

By

Print Name

Title

Date

Revised Date: 8/4/15 | 2



Form#: MPA2015

SECTION A – PRODUCER CONTRACT & AGREEMENT TERMS

Article 1: Definitions

As used in this Agreement, the term:

1.1. “Client” or “Employer” shall mean any client to which NPHM Services and Producer attach to this Agreement, which a summary description identifying each employer or other entity subject to this Agreement is set forth. Each summary will also set forth the Products to which Employer is buying and the price at which such Products shall be bought and sold, if not already agreed to pursuant to this Agreement. Unless otherwise evidenced via email or other written form, an officer of NPHM Services and Producer will sign off each summary. For purposes of this Agreement, Producer agrees to include the NPHM Services for any prospects or potential Employers that are in the Territory, as well as any renewals in said Territory.

1.2. “Distribution Rights” shall mean the rights to import, market, and promote the Products of NPHM Services under the terms of the Agreement. However, under no terms does this Agreement provide exclusive territory or distribution rights to Producer. If applicable, such Producer shall use NPHM Services business cards in the distribution, marketing and promoting of NPHM Services and the Services/Products therewith.

1.3. “Marketing Services” as used in this Agreement shall include the wholesale, marketing and distribution of NPHM’s Products by Producer to Employers who may include, but not be limited to, self-funded and fully-insured employers, Third Party Administrators and insurers; and any other services that NPHM Services and Producer mutually agree that Producer will market and distribute.

1.4. “Products” means the products and services of NPHM Services, as more fully described and set forth in the Exhibits, hereto.

1.5. “Proprietary Information” means any document, materials or information that (i) is clearly marked or identified as being proprietary, confidential or sensitive or (ii) NPHM Services and/or Producer can reasonably infer is Proprietary in nature from its context and content. Proprietary Information includes, but is not limited to, all training, information and data provided by NPHM Services pursuant to Section 8, below, and any guidelines, manuals, descriptions of processes and procedures, memoranda or forms produced by NPHM Services. Proprietary Information also includes that which is further described below.

1.6. “Territory” means the United States of America, or such other territory as determined by the NPHM Services and reflected herein.

1.7. “Product Development” means the development, design, establishing or protocols and processes to create a product or solution offered by NPHM Services.




Form#: MPA2015

Article 2: Appointment & Authority of Producer

2.1. Distributorship. Producer acknowledges and agrees that the arrangement set forth in this Agreement is non-exclusive (unless otherwise stated for a particular area or section), and, that the Producer as well as other third parties with whom it decides to contract (i.e., brokers, etc.), will also be referring, marketing, selling, and distributing the NPHM Services Products.

2.2. Best Efforts. Producer agrees to use its good faith and reasonable best efforts to preserve the goodwill that is associated with the name and reputation of NPHM Services and its Products, now and up to a period of one year after termination of the Agreement. Producer agrees to also accurately represent NPHM Services Products in the marketplace. Furthermore, Producer shall have the sole and exclusive control over where, when and how Producer performs the marketing and distribution of NPHM Services Products. Lastly, Producer agrees to use its best efforts in its Distribution Rights and Marketing Services to prospects or potential Employers, as well as existing renewal Employers.

2.3 Use of Name. NPHM Services grants to Producer the right to use NPHM’s name and reflect that NPHM Services is associated with Producer and the services the Producer provides related to NPHM Services or NPHM Services Products. Upon mutual written agreement between NPHM Services and the Producer, NPHM Services grants to Producer the right to label and brand NPHM’s Products with such other name as agreed upon by the parties, for use of Producer’s marketing and distribution efforts. Upon termination of this Agreement, the right to label and brand NPHM’s Products shall automatically terminate, with exception to clients using NPHM Services or Products.

2.4. Relationship. This Contract is not a contract of employment and does not create the relationship of employer and employee between NPHM Services and Producer. It is understood and agreed that this Contract calls for results and does not purport to control the time or manner of performance of Producer. Rather, Producer is an independent contractor and shall exercise his/her/its own judgment and discretion in the conduct of the business contemplated under this Contract, subject to the provisions hereof. Producer specifically recognizes his/her/its responsibility for payment of any applicable taxes levied by Federal, State or Local authorities as a result of compensation arising hereunder.

2.5 Authority - General Provision. The powers and authority of Producer are only those expressly provided under this Contract. Any and all such powers and authority shall continue only while this Contract is in effect and shall terminate on the date of termination thereof. Any personal financial or health-related information gathered from applicants in the process of applying for insurance coverage or from those with an interest in an existing insurance contract in the process of servicing that contract must be held as strictly confidential information and will only be disclosed to third parties as consented to by the applicant or contract owner, as applicable, or as otherwise permitted by law. Any personal financial or health-related information provided to you by NPHM Services to market or service its insurance products will be held by you as strictly confidential and will only be used by you for the purposes for which it was provided, except as otherwise permitted by law.

2.6 Solicitation. Producer is hereby empowered and authorized to solicit applications for individual life, annuity, accident and health policies on forms then being issued or offered by NPHM Services (hereinafter individually and collectively referred to as “products”) both personally and through Producers appointed and assigned by NPHM Services to Producer.




Form#: MPA2015

2.7 Limitation of Authority. Producer shall have no power or authority to, and hereby agrees and warrants that he/she/it will not, do any of the following:

1. Waive, alter, amend, modify or discharge any policy or contract of NPHM Services;2. Waive forfeiture under any policy;3. Quote rates other than as provided in writing by NPHM Services;4. Extend time for the payment of any premiums due NPHM Services;5. Receive any funds for the benefit of NPHM Services except initial gross premium which must be paid by check from the

policyholder and made payable to the order of NPHM Services;6. Incur any liability, obligation or indebtedness on account of NPHM Services;7. Endorse or negotiate any checks or other instrument payable to or to the order of NPHM Services;8. Voluntarily accept services of process on behalf of NPHM Services;9. Producer will have no authority with respect to payment of premiums and considerations (i) to accept a partial payment of any

premium or of any installment of premium; (ii) to accept any premium after the expiration of the grace period for the payment of that premium unless authorized by NPLH Services; (iii) to accept on behalf of NPHM Services as payment of any insurance premium or annuity consideration any negotiable instrument, promissory note, foreign currency, or anything else of value other than United States currency or checks drawn to the order of NPHM Services on United States funds payable on demand; and

10. Producer will not deliver or authorize anyone to deliver any insurance policy issued by NPHM Services when coverage will be effected by such delivery except during the lifetime of and while there has been no known change in the insurability of the proposed insured and after payment of the premium required by the policy, or in exchange for an inspection receipt executed on a form furnished by NPHM Services. Producer will return promptly to NPHM Services all undelivered insurance policies, annuity contracts, and undelivered receipts for premiums, interest charges, and annuity considerations.

2.8 Sub-Agents. The term Sub-Agent when used in this Contract shall mean any person or entity appointed by NPHM Services as a result of the recommendation by Producer, assigned to Producer or where Producer receives compensation based on Sub-Agent’s production (see Section 4 G - Indebtedness).




Form#: MPA2015

Article 3: Representations and Warranties of Producer

Producer represents and warrants to NPHM Services as follows:

3.1. Organization and Authorization. Producer is duly organized, validly existing and in good standing under the laws of the State of __________________ and is in good standing in each jurisdiction where it conducts business. Producer has full legal right, power, and authority to execute, enter into and deliver this Agreement and perform fully its obligations hereunder and that the execution of the Agreement will constitute such Agreement to be a valid and binding obligation of Producer. Producer further represents and warrants that it has the authority to own, lease and operate its assets and to carry on its business, as it will be conducted pursuant to this Agreement.

3.2. Conflicts with Other Agreements. Neither the delivery nor execution of this Agreement, nor the consummation of the transactions contemplated hereunder, will violate or constitute a default under any agreement or instrument to which Producer is a party or by which its right, title and interest in its Products may be affected. Producer further represents and warrants that the execution, delivery, and performance of the Agreement will not conflict with any note, bond, mortgage or indenture, contract, agreement, lease, license permit, or franchise to which it is a party. Furthermore, Producer represents that any name in which Producer labels and brands NPHM Services Products will not violate any trademark, copyright or intellectual property of another entity or Producer.

Article 4: Representations and Warranties of NPHM Services

NPHM Services represents and warrants to Producer as follows:

4.1. Organization and Authorization. NPHM Services is an incorporated company duly organized, validly existing and in good standing under the laws of the State of Texas, and is in good standing in each jurisdiction where it conducts business. NPHM Services has the full legal right, power, and authority to execute, enter into and deliver this Agreement and perform fully its obligations hereunder and that the execution of the Agreement will constitute such Agreement to be a valid and binding obligation of the NPHM Services. NPHM Services further represents and warrants that it has the authority to own, lease and operate its assets and to carry on its business, as it will be conducted pursuant to this Agreement.

4.2. Conflicts with Other Agreements. Neither the delivery nor execution of this Agreement, nor the consummation of the transactions contemplated hereby, will violate or constitute a default under any agreement or instrument to which NPHM Services is a party or by which its property may be affected. NPHM Services further represents and warrants that the execution, delivery, and performance of the Agreement will not conflict with any note, bond, mortgage or indenture, contract, agreement, lease, license permit, or franchise to which it is a party.




Form#: MPA2015

Article 5: Duties and Powers of Producer

5.1. Primary Duties. Producer shall fairly and properly market, promote, sell and distribute the NPHM Services Products and/or Services and engage in reasonable efforts to develop the market for the NPHM Services Products in said Territory. Unless otherwise set forth in this Agreement or agreed to by the Parties, during and through Producer’s duties, the Producer and NPHM Services shall agree on a mutual price to which such NPHM Services Products are sold to prospects and Employers. Producer shall also use reasonable and diligent efforts to provide NPHM Services with any and all necessary information to allow NPHM Services to provide such Products and Services effectively, including, but not limited to, information regarding Employer employees/dependents necessary for such Products and NPHM Services. In addition to the duties outlined above, Producer shall also have the duty as follows:

i ) The Producer shall cooperate with NPHM Services in the performance of its Services and delivery of the Products hereunder, including, without limitation, providing NPHM Services with reasonable and timely access to data, documents, information and/or personnel of the Producer and/or Employer, as applicable. The Producer shall be responsible for the representations and performance of its personnel and agents and for the accuracy and completeness of all data and information provided to NPHM Services for purposes of the performance by NPHM Services of its Services hereunder.

ii ) Provide to NPHM Services, on a reasonable and timely basis, other such information that is required for NPHM Services to perform the Services under this Agreement and delivery of the Products to Producer and Employers, as applicable. Such information includes, without limitation, any electronic files (i.e., eligibility files, etc.) required for NPHM’s performance of the Services, and information regarding and copies of all applicable information and other related material prior to implementation of the Services and upon renewal of insurance coverage.

iii ) Provide NPHM Services written notice, if applicable within a given client engagement, of any substantive changes with regard to a Employer’s benefit plans, procedures, administration and such other applicable information pertinent to the delivery of the Services, not less than 60 days prior to the date such change becomes effective. If such change is not known by the Producer prior to the 60 days mentioned above, then as soon as administratively possible.

iv ) Producer may work with NPHM Services to develop a “sub-producer” network of contacts that will develop revenue opportunities within the structure of the relationship. NPHM Services will develop “sub-producer contract” agreement that reflects the spirit of the relationship and allow for compensation to the sub producers. Such “agreements” for the sub-producer may be set forth via Exhibit or Schedule to this Agreement. However, such “agreement” shall be executed and agreed to, in writing, by both Parties.

v ) Producer agrees to become familiar and to comply with all of NPHM’ Services rules, regulations and instructions and with all applicable statutes and regulations of any state or jurisdiction in which Producer is authorized to conduct business which may be in force on the Effective Date of this Contract or at any time during the Contract is in effect thereof. NPHM Services relies upon Producer as a field underwriter for a careful and accurate recordation of the facts necessary for the proper classification of risks. In this regard, Producer is required to conduct business according to high standards of honesty and fairness, and to engage in active and fair competition. Producer shall give complete and accurate answers in the application and associated forms. Producer shall promptly return to NPHM Services any and all information that is relevant to proper classification of risks. Producer shall not deliver any policy or take any funds unless the proposed insured is at the time of delivery in good health and insurable condition as originally represented to NPHM Services by the proposed insured to the best of Producer’s knowledge and belief. Producer will comply with: (1) market conduct rules and regulations; and




Form#: MPA2015

(2) performance standards, and (3) other rules and procedures required by NPHM Services. Producer will cooperate with NPHM Services in the attempt to resolve all disputes arising directly or indirectly from this Contract, and will promptly report to NPHM Services any complaints or problems made by persons having an interest in any NPHM’ Services insurance policy or annuity contract. Producer will review and keep reasonably informed about regulatory, statutory or other changes that have a material effect on the sales, servicing and administration of the insurance policies and annuity contracts.

5.2. Premiums. As indicated in this Agreement, Producer shall collect and receive, or cause to be collected and received, the initial gross premium, consideration or contribution, as applicable (“premium(s)”) as hereinafter referred to), on policies secured by Producer or by Producer’s Sub-Agents and shall promptly remit said premium to the Home Office of NPHM Services in the original form and amount received. All such premiums must be payable by check from the policyholder and made payable to the order of NPHM Services and at all times shall remain the property of NPHM Services. Producer will receive in fiduciary capacity money due or to become due to NPHM Services. If premiums are not payable by check, ACH or electronic transfer may pay such premiums. Producer will hold in trust and account for all such money or documents, which Producer receives or collects as Producer for NPHM Services. Producer will not use these for any purpose but will promptly report and transfer them to NPHM Services. Upon demand by NPHM Services, Producer agrees to produce a thorough accounting for all moneys, drafts, policies, receipts, and other valuable papers received in connection with NPHM’ Services business.

5.3. Product and Service Information. Producer shall promptly forward to NPHM Services any complaint or other matter concerning the NPHM Services Products.

5.4. Data Security and Information Security. Producer agrees that it shall maintain all necessary data, audit and security requirements, statements, licenses, policies, practices or such other mandated requirements as required by law. It is not the responsibility of NPHM Services to ensure such requirements or legal mandates are met or obligated with by Producer. Lack of such security measures or mandates may be considered a material breach of this Agreement.

5.5. Use of Data. Producer agrees that NPHM Services may use the aggregate or otherwise anonymous data and statistics associated with this Agreement and NPHM’s Products and Services to Producer and Employers for the purpose of marketing, analysis, and refinement of NPHM’s business processes, or such other reasonable and lawful manners. The use of such information shall be in compliance with all applicable laws, including HIPAA. Other than that stated above, any additional transfer of information shall be for the sole purposes of this Agreement and for delivery of NPHM’s Products and Services to Producer and Employer.

5.6. NPHM Services Property & Information. As more fully detailed in the Agreement, Producer acknowledges that all policyholder information, computer files and records, and premium records are the property of NPHM Services. Producer agrees to allow NPHM Services on the premises to inspect all policyholder information. All printed materials, furnishings, equipment and other supplies provided by NPHM are deemed property of NPHM Services, and Producer is responsible for any misuses thereof. Producer agrees to return, on NPHM’s demand, all NPHM’ Services property and information. Producer shall indemnify NPHM Services for any loss resulting from Producer’s receipt of money paid in connection with such insurance or annuity application or policy receipts. Upon termination all NPHM Services’ property shall be returned.




Form#: MPA2015

Article 6: Producer’s Undertakings

6.1. Sale of Products. Producer, for itself, its Producer’s agents, employees, and/or representatives, agrees to conduct any and all sales activities in connection with the NPHM Services Products in a lawful manner consistent with the highest standards of fair trade, fair competition and business ethics.

6.2. Marketing Efforts. Producer agrees to use its best efforts to diligently and faithfully develop demand for the NPHM Services Products and to solicit purchases thereof.

6.3. Approval of Advertising. No advertising or promotion of the NPHM Services Products, whether independently or combined with other services, including any advertising, promotion, distribution or marketing associated with Section 2.3, shall be made without the prior approval of NPHM Services. Use of NPHM’s pre-approved advertising or promotional materials does not need prior approval of NPHM Services for use by Producer. Furthermore, any material already approved for marketing or promotion is considered “pre-approved” unless otherwise noted.

6.4. Expenses. Unless otherwise agreed, Producer shall pay any and all of its costs and expenses under this Agreement and shall be solely responsible for the acts and expenses of its employees, agents, and representatives. This includes the cost of any website, domain, etc. Should NPHM Services and Producer agree upon a name to which NPHM Services Products are labeled and branded via Producer, then the associated cost of such labeling and branding shall be the sole responsibility of Producer, regardless of that fact, should the Agreement terminate, the rights to such labeling and branding shall rest with NPHM Services, not the Producer.

Article 7: Confidential Information

7.1. In the performance of their respective obligations under this Agreement, Producer and NPHM Services, and their respective officers, directors, employees, subcontractors, or agents may receive or have access to certain information, including, but not limited to, pricing, methods, processes, financial data, lists, statistics, software, systems or equipment, programs, policies, research, development, strategic plans, operating data and other confidential business, customer or personnel information or data, whether in written, oral or other form, including data regarding NPHM’s vertical partners (collectively, “Confidential Information”) owned or controlled by the other party, including, without limitation, the terms of this Agreement and all information related to such Products. Such Confidential Information may contain material that is proprietary or confidential, disclosures of patentable inventions with respect to which patents may not have been issued or for which patent applications may not have been filed, or material that is subject to applicable laws regarding secrecy of communications or trade secrets or similar proprietary rights. Confidential Information shall also include any information related to, the know-how of, and the use of business services of any vertical partner or affiliate of NPHM Services whose services relate to the overall Confidential Information and business model of NPHM Services. Therefore, Producer and NPHM Services covenant and agree:




Form#: MPA2015

i ) that all such Confidential Information so acquired by either party or any of their respective employees, officers, directors, subcontractors or agents shall be and shall remain the other party’s exclusive property;

ii ) to inform all of their respective officers, directors, employees, subcontractors and agents engaged in handling such Confidential Information of the confidential character of such Confidential Information and of the existence of applicable laws regarding secrecy of communications;

iii ) to limit access to such Confidential Information to their respective authorized officers, directors, employees, subcontractors and agents on a need-to-know basis;

iv ) to keep, and have their respective officers, directors, employees, subcontractors and agents keep, such Confidential Information confidential, using the same degree of care which it exercises with its own Confidential Information of like importance, but in no event less than commercially reasonable means;

v ) not to copy or publish or disclose such Confidential Information to others or authorize their respective officers, directors, employees, subcontractors or agents or anyone else to copy or publish or disclose such Confidential Information to others without the other party’s prior written approval, except as may be required by law or in connection with any legal proceeding, or to enforce the provisions of this Agreement; provided, that if any disclosure of the other party’s Confidential Information is so required, the disclosing party will provide prior notice of such disclosure to the other party and give the other party a reasonable opportunity to object to the disclosure of such Confidential Information;

vi ) to return any copies of such Confidential Information in written, graphic or other tangible form to the requesting party at such party’s written request;

vii ) to use such Confidential Information only for purposes of this Agreement and for other purposes, only upon such terms as may be agreed upon between the parties in writing; and

viii ) Producer shall neither use nor disclose to any third parties any confidential information concerning the business, affairs or the Products of NPHM Services that Producer may acquire during the course of its activities under the Agreement (or any prior agreements between NPHM Services and Producer). Producer acknowledges that any right, title and interest in and to the aforesaid Confidential Information related to the Products and NPHM Serviecs is vested in NPHM Services and that such information is the sole property of NPHM Services, including any name, product or information related to Section 2.3 above. For purposes of this Agreement, it is understood by the Parties that the term “Confidential Information” shall also include, but not be limited to, non-patentable intellectual property.

ix ) During the term of this Agreement, and for a period of three (3) years following the termination or expiration of this Agreement, each Party hereto shall not, without the prior written consent of the other Party (which consent may be withheld in such Party’s sole discretion): (a) utilize any Confidential Information to directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass or obviate the interest or involvement of the other Party hereto or compete with other Party hereto; (b) utilize information lawfully furnished or disclosed to a Party hereto by the other Party to this Agreement without any obligation of confidentiality and through no wrongful act of the recipient Party, or information independently developed by a Party relative to the Business Interest, to circumvent or compete against the other Party regarding this Agreement and the interest which lie therein; or (c) participate directly or indirectly, or acquiesce with respect to any act or attempted act to modify, reduce or avoid any fees, commission or other revenue otherwise payable or capable of being earned by the other Party hereto relative to the this Agreement or otherwise.




Form#: MPA2015

7.2. It is expressly agreed that the term “Confidential Information” shall not include information which: (a) is now, or hereafter becomes, through no unauthorized act of the recipient party, generally known or available to the public; (b) is rightfully known by a party hereto without an obligation of confidentiality at the time of receiving such information from the other party, or (c) is independently developed by a party hereto without use of the other party’s Confidential Information.

7.3. Confidentiality Commitments. Producer and NPHM Services shall not transfer or disclose Confidential Information of the other to any third parties not related to the nature of this Agreement or the NPHM Services, including NPHM Services Products, related to this Agreement. The parties shall limit disclosure of the other’s Confidential Information to their directors, officers, employees, agents, and representatives who need to know and use such information for purposes of the Products under this Agreement. The parties shall use such Confidential Information only for any purposes contemplated by this Agreement or as otherwise approved in writing by the other party. In the event that either party is required by law or by legal process to disclose any Confidential Information of the other party, the party so required will provide the other party with prompt written notice of such requirement so that it may have an opportunity to seek an appropriate protective order. Each party acknowledges that the other will be irreparably harmed if the other party’s obligations under this section are not specifically enforced and that the non-breaching party would not have an adequate remedy at law in the event of a violation by the other party of its obligations. Therefore, each party agrees and consents that the non-breaching party shall be entitled to an injunctive relief or specific performance for any violation or breach thereof.

7.4. Proprietary Rights. The NPHM Services Products, and any system associated with such NPHM Services Products and all derivative works, modifications and enhancements thereof, whether made by Producer, NPHM Services or a third party, including any such products, labels, brands, items or other items related to Section 2.3, contain trade secrets of NPHM Services and are proprietary to NPHM Services. Exclusive title shall remain with NPHM Services. All applicable rights to patents, copyrights, trademarks, trade secrets and intellectual property in the NPHM Services Products or NPHM Services (“Proprietary Rights”) are and shall remain with NPHM Services, as applicable. Producer shall acquire no right, title, or interest in the Products by virtue of the Agreement other than as expressly provided with respect to its use in the Agreement.

7.5. Duration of Confidential Information and Proprietary Rights. All Confidential Information and Proprietary Rights and the associated restrictions on disclosure, dissemination, reproduction or otherwise distributable activity shall be for the duration of this Agreement and five (5) years after the date of termination of the Agreement.

7.6. No Transfer of Ownership of Intellectual Property. Nothing herein grants, creates, transfers, licenses or conveys the right title or interest in or to the data furnished by one party to the other and such data may not be disclosed, transferred, assigned, sold, published or republished by the receiving party without the disclosing party’s advance written permission, which may be granted or withheld at the disclosing party’s sale discretion.

7.7. Names, Logos and Trademarks. Subject to Section 6.3 above, nothing herein shall create a license or right for either party to use, display, or publish the name, logo or trademark of the other in advertising, promotional materials, or other documents or materials without the express written consent of the owner of such name, logo or trademark.




Form#: MPA2015

Article 8: Training Efforts

8.1. Training, Information and Data. If necessary and appropriate, NPHM Services shall provide Producer with access to software, information, training and data as shall be necessary to enable Producer to perform the marketing and distribution of NPHM Services Products in the Producer’s services.

Article 9: Trademarks and Copyrights

9.1. Ownership of Trademarks and Copyrights. Each party to this Agreement acknowledges the other’s exclusive right, title and interest in and to any and all trademarks, and, each party agrees that it shall not do, nor cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the other party’s right, title and interest in and to the trademarks. Each party acknowledges that in connection with any reference to the trademarks, they shall not in any manner represent that it possesses any ownership interest in the trademarks or the registration thereof, nor shall any action taken by a party or on a party’s behalf create in such party any right, title or interest in and to the trademarks.

9.2. Copyright Protection. Each party acknowledges the validity of the Copyrights in any and all written material to which Producer has filed a claim for copyright protection. Additionally, each party recognizes the other’s exclusive right to seek copyright protection for and/or the registration of copyright of any translation of any and all promotional or descriptive material furnished to a party by the other.

9.3. Compliance with Laws. When referring to the trademarks and copyrights, each party shall comply with any and all applicable federal, state and local laws and regulations, but shall have no obligation to register any of the trademarks and copyrights in the Territory, which shall be sole obligation of party owning the trademark. Upon request, a party will execute and deliver any documents or instruments prepared that are necessary to register any of the trademarks and copyrights in the Territory, and will otherwise reasonably cooperate with the requesting party’s efforts to affect such registration, at such requesting party’s cost and expense.

9.4. Notification of Violations. Each party shall promptly notify one another, in writing, of any and all infringements, imitations, illegal use or misuse of the trademarks and/or copyrights, which shall come to a party’s attention. Each party further agrees that it shall not at any time take any other action in connection with the trademarks or copyrights, or otherwise attempt to prevent the infringement, imitation, illegal use or misuse of the trademarks and/or copyrights.




Form#: MPA2015

Article 10: Financial Arrangement

10.1. Payment to Producer. NPHM Services shall pay Producer in accordance with the following provisions, unless otherwise set forth in Section B, attached hereto. Section B shall override the following payment amounts and terms of payment, as such payment may be set forth in such Section B.

A. Determination. The full compensation of Producer under this Contract shall be determined solely in accordance with the provisions of the Schedules attached hereto and made a part hereof or as published on NPHM’s Intranet Website page or other such Company maintained proprietary Internet site, which are in effect on the application date of policies solicited by Producer or Sub-Agent of Producer. NPHM Services shall have the exclusive right and sole discretion at any time to unilaterally terminate any such Schedule or to modify all or any portion of any such Schedule, or the rate, amount or method for determining the commission or compensation, provided such action is uniformly taken with respect to all persons to whom such Schedules apply. Such modifications or terminations shall become effective on the date specified in such notice but shall have no effect on compensation resulting from policies with both an effective date and an application date prior to the effective date of such modification or terminations.

B. Compensation Not Determined by Attached Schedules. Compensation percentages on the following will be determined on the specific request to NPHM Services by Producer:

• On policies or agreements for which compensation percentages are not specified;

• On certain riders or agreements added at policy issue or after the policy is issued;

• On policies issued as a result of conversion of Federal Employees’ Group Life Insurance or Servicemen’s Group Life Insurance;

• On policies or contracts which replace, convert or are issued in exchange for contracts previously issued by NPHM Services;

• On policies which are reinstated;

• On new types or series of policies or contracts which are first marketed by NPHM Services after the effective date of this Contract;

• On policies or contracts that are issued under modified underwriting programs.

C. Compensation on Substandard. Compensation will be paid on substandard extra premiums at the policy compensation percentages except as follows. No first year compensation will be paid on policies for (a) any portion of a mortality table extra premium which is in excess of a table F (250%) extra premium; and (b) any temporary extra premium imposed for a period of 10 years or less.

D. Compensation on Riders Attached at Issue. Riders and agreements attached at issue shall have the compensation percentages as set forth in the attached schedules except; Riders and Agreements relating to the use of dividends shall generate no compensation of any kind.




Form#: MPA2015

E. Payment. Compensation shall become due Producer only upon actual receipt in good funds by NPHM Services of the premiums or other payment due NPHM Services and upon application of such premiums or payment against the policy or contract to which it applies. NPHM Services in their discretion may assign a new servicing Producer to a policyholder based on the written request from the policyholder or upon NPHM Services’ determination that the writing Producer is not adequately servicing the policyholder. Such reassignment would affect only new premium received by NPHM Services and will not affect vested commissions. Compensation shall be paid in accordance with the standard practices and procedures of NPHM Services, said practices and procedures may be changed by NPHM Services at any time. If a policy is reassigned to a new Producer, commission will be paid to the new Producer on new premium received by NPHM Services. New premium, when a policyholder is paying premium pursuant to a scheduled life, health or accident premium, salary reduction, salary deduction, or bank draft amount (Scheduled Premium), is any increased premium received by NPHM Services over the Scheduled Premium amount. In the event of multiple Producer claims on subsequent compensation after a Scheduled Premium increase, NPHM Services, in their sole discretion, will determine payment.

F. Adjustments. NPHM Services shall have the exclusive right and sale discretion to withdraw, rescind, cancel, terminate or reduce all or any portion of coverage or any policy or contract issued by NPHM Services. If NPHM Services exercises such right and tenders a return of all or any portion of the premium or payment therefor, or if NPHM Services is required by law to tender a return of all or any portion of premium or payment, any compensation received by Producer with respect to the amount of premium or payment so tendered shall constitute an indebtedness of Producer to NPHM Services and Producer shall remit the amount of such compensation to NPHM Services in full within ten (10) days after the receipt of notice of demand therefor. If any policy issued pursuant to this Contract is deemed by NPHM Services in their sole discretion to replace any other NPHM Services’ policy on the same life, whether life, accident or health, then the compensation, if any, payable with respect to the replacement policy shall be determined by NPHM Services and their determination shall be conclusive. The termination of a policy previously issued on the same life, whether life, accident or health, within six (6) months prior or subsequent to the date of application for a new policy shall be conclusive that it is a replacement policy.

G. Indebtedness. Any indebtedness by Producer or Producer’s Sub-Agent(s) to NPHM Services will be a first lien on any commissions due or to become due under this or any previous Agreement with NPHM Services. Such commissions will continue to be forfeited to NPHM Services until Producer’s or any Sub-Agent’s debt is liquidated. Upon written notice, Producer must pay to NPHM Services any indebtedness owed even though there may be future commissions payable under this Agreement. If the debt has been satisfied, all commissions due Producer thereafter will be paid. At the written request of an MGA, NPHM Services may set off against compensation on business submitted by Producer or Producer’s Sub-Agent(s) through that MGA when Producer was assigned to MGA any debts or other obligations of any nature which may be owed by Producer or any Sub-Agent to MGA, from any compensation payable under this contract or any other contract that Producer may have with NPHM Services or any affiliate or subsidiary of NPHM Services. In addition, MGA may offset debts and obligations approved by NPHM Services, documented under written supplemental agreements between Producer and MGA.

H. Vesting. Commissions shall only be vested in accordance with the Schedule or Schedules attached hereto. In the event of termination of this contract pursuant to this Agreement, commissions shall be fully vested unless the Producer is paid less than three hundred dollars ($300.00) in any calendar year following termination. In that event, no further renewal commissions will be paid.




Form#: MPA2015

I. Employer Evidence. Unless otherwise agreed to pursuant to Section 1.1 of this Agreement, in order for Producer to be entitled to receive compensation on a client contract, Producer and NPHM Services will evidence in writing, at the time of sale, each client contract for which Producer is to be compensated by NPHM Services under this Agreement. Such writing will be signed by two officers of NPHM Services and the Producer and shall include the relevant Salary Revenue and/or PEPM revenue and estimated fees to be paid on the contract, as well as the associated equity grant available to

10.2. Timing of Payment to Producer. If applicable, payment shall be remitted to Producer within thirty (30) days following NPHM’s receipt of payment from its clients (or their designee). No payment will be made to Producer prior to NPHM Services receiving payment of its fees for client contracts subject to this Agreement.

10.3. Timing of Payment to NPHM Services. If applicable, any and all payments shall be remitted to NPHM Services within thirty (30) days following Producer’s receipt of payment from its Employers (or their designee). If payment is directly from Producer (i.e., not Employer), then any per employee or per member per month (PEPM or PMPM, respectively) payment, or such other payment amount, is due within thirty (30) days from the beginning of the month in which payment is due and received by Producer.

Article 11: Solicitation

During the term of this Agreement and for a period of twelve (12) months following termination of this Agreement, neither party shall offer, request, or solicit the hiring of any person employed by the other party, without such party’s express written consent. The parties further agree that as liquidated damages for violation of this provision, a sum equal to one year’s compensation payable to said person shall be paid upon violation of this provision.

Article 12: No Warranties

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PRODUCER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY OR AS TO THE FITNESS OF THE MERCHANDISE FOR ANY PARTICULAR USE OR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, DIRECTLY OR INDIRECTLY, ARISING FROM THE USE OF SUCH MERCHANDISE OR FOR CONSEQUENTIAL DAMAGES.




Form#: MPA2015

Article 13: Indemnification

Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party (the “Indemnified Party”) and its officers, directors, principals, employees, shareholders, legal representatives, successors and assigns, and each of them, from any and all claims, actions and suits, whether groundless or otherwise, and from and against any and all liabilities, judgments, losses, damages, costs charges, attorneys’ fees, and other expenses of every nature and character arising out of the Indemnifying Party’s material breach of any term or provision of this Agreement, or the gross negligence or willful misconduct of the Indemnifying Party in the performance of its obligations under this Agreement. The Indemnifying Party further agrees that the provisions contained in this Section shall survive the termination or expiration of the Agreement.

Article 14: Independent Contractor Relationship

Each party agrees that, with respect to all matters relating to this Agreement, each party shall be deemed to be an independent contractor and shall bear all of its own expenses in connection with this Agreement. Both parties shall have no authority, whether express or implied, to assume or create any obligation on behalf of the other party nor shall they issue or cause to be issued any quotations or draft any letters or documents over the name of the other party, but rather shall use its own name for such purposes. Nothing contained in this Agreement, including any actions associated with Section 2.3, is intended or is to be construed so as to constitute Producer and NPHM Services as partners or joint venturers, nor is either party the employee or agent of the other, nor are the employees or agents of either Party employees or agents of the other Party. Neither Party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any other contract, agreement or undertaking with any third party.

Article 15: Term and Termination

15.1. Term. The term of this Agreement shall commence as of the Effective Date and shall continue in full force and effect for an initial term of one year(s), and shall be renewed for successive one year periods, unless either Party delivers written notice of non-renewal to the other Party not later than ninety (90) days prior to the end of the then current period.

15.2. Termination. Either Party may terminate this Agreement during a renewal term at any time and for any reason, or for no reason at all, by giving the other party at least one hundred eighty (180) days’ prior written notice of termination.

15.3. Termination for Other Reasons. This Agreement shall be terminable or shall terminate, as the case may be, if and when any of the following events occur:

(a) Breach of Agreement. Either party may terminate the Agreement immediately upon written notice to the other party if the other party fails to cure a material breach of its obligations hereunder within thirty (30) days of the delivery of written notice.




Form#: MPA2015

(b) Bankruptcy or Cessation of Business. This Agreement shall be terminated automatically upon either Party’s cessation of business, election to dissolve, dissolution, insolvency, failure in business, commission of an act of bankruptcy, general assignment for the benefit of creditors, or filing of any petition in bankruptcy or for relief under the provisions of the bankruptcy laws.

15.4. Termination Date. The date upon which the Agreement is cancelled or terminated as provided for in the Agreement shall be hereinafter referred to as the “Termination Date.”

15.5. Termination without Cause. If NPHM Services terminates this Agreement without “cause”, which is defined below, Producer shall be entitled to receive any unpaid commissions in accordance with Article 10 above, for the duration of each employer/other client contract term (including any contract extensions) for contracts initiated by NPHM Services while this Agreement is in effect as a direct result of an introduction by Producer, for all NPHM Services Products, as long as NPHM Services receives payment from such client.

15.6. Termination with Cause. If NPHM Services terminates this Agreement for “cause”, as defined below, Producer shall forfeit any unpaid commissions.

15.7. Cause. For purposes of this Agreement, “Cause” shall mean: (i) termination due to Section 15.3(a) or (b); (ii) Producer’s conviction of a crime constituting a felony; (iii) Producer’s negligence, recklessness, or malfeasance in the performance of duties hereunder; or (iv) Producer’s willfully engaging in any conduct relating to NPHM’s business that could reasonably be expected to have a materially detrimental effect on NPHM’s business or financial condition in the commercial marketplace.

15.8. Continuing Services. Upon termination of the Agreement, shall an Employer/Client of Producer be engaged with NPHM Services, such relationship will extend beyond the termination of this Agreement. For the avoidance of doubt, Employer will remain with NPHM Services and there Services provided therewith. Any and all future payments of Employer to NPHM Services for Services shall be made directly to NPHM Services by Employer and be subject to the agreement between Employer and NPHM Services, as applicable.

Article 16: Rights and Obligations upon Termination

Upon termination or cancellation of the Agreement, and subject to Article 15 above, the Parties agree as follows:

16.1. Non-Liability of NPHM Services. NPHM Services shall not be liable for the consequential damages of any kind, whether as a result of a loss by Producer of present or prospective profits, anticipated sales, expenditures, investments, commitments made in connection with the Agreement, or on account of any other reason or cause whatsoever.

16.2. Obligations and Rights of Producer. Producer agrees to return to NPHM Services any unused marketing and promotion materials supplied to it by NPHM Services as well as any and all other supporting documents made available to Producer. This also includes any marketing, promotional or other type of material (including websites) associated with Section 2.3. Producer also agrees and undertakes to discontinue any and all use references to the trademarks upon the termination or expiration for any reason of this Agreement.




Form#: MPA2015

16.3. Continuing Obligations. Notwithstanding any contrary provision contained in this Agreement, the Parties agree that each shall abide by and uphold any and all rights or obligations accrued or existing as of the Termination Date. Both Parties agree that they will be bound by the Confidential Information provisions above for a period of three years after such Agreement is terminated.

Article 17: Compliance with Governmental Regulations

In the event any legislation, rule, judgment or order is enacted, adopted or issued which commercially frustrates Producer’s purpose in entering into this Agreement or its ability to perform, Producer has the right, in its sole discretion, notwithstanding any other provisions of the Agreement, to immediately terminate this Agreement or to cease performing or to unilaterally modify that portion of this Agreement which has been so affected.

Article 18: Miscellaneous

18.1. Assignment. Neither party shall assign any of its rights or delegate any of its duties under this Agreement to any third party without the prior written consent of Producer. Any attempted assignment or delegation without Producer’s prior written consent shall be void.

18.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas to the extent they are not preempted by Federal Law. All Services performed by Producer are deemed to be performed in the state of Texas. 18.3. Force Majeure. Except for payment of sums due hereunder, neither party shall be liable for delay due to causes beyond its reasonable control.

18.4. Severability: Any provision in this Agreement that is prohibited or unenforceable in an appropriate jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions or affecting the validity or enforceability of such provision in any other jurisdiction.

18.5. Waiver. No delay or omission by either party in exercising any of its rights hereunder shall impair such right or power or be construed to be a waiver thereof. A waiver by either party of any covenant, condition or agreement to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof. No waiver of any of the provisions of this Agreement or any other service agreement between the parties shall constitute a waiver of any other provision, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided and agreed to by the parties.

18.6. Producer and NPHM Services will comply with all applicable government regulations, including HIPAA, that relate to the services provided to Employers by Producer and NPHM Services, as well as any other rules or requirements. It is up to each Party to ensure their own compliance with such laws, rules, regulations and mandates.




Form#: MPA2015

18.7. Notices. All notices, requests, consents, and other communications hereunder shall be in writing and shall be deemed sufficient if personally delivered, sent by nationally-recognized overnight courier, sent by facsimile, scanned and emailed or sent by registered or certified mail, return receipt requested and postage prepaid, addressed as follows, or to such other address as the party to whom notice is to be given may have designated to the other party in writing:

If to NPHM Services to: If to Producer, to:National Prosperity Health Matching Services, Inc. __________________________________ 5120 Woodway Drive, Ste 10025 __________________________________ Houston, Texas 77056 __________________________________ Tel.: 713.850.8534 Tel.: ______________________________ Attn: Regina Gorog

Any such notice or communication shall be deemed to have been received (a) in the case of personal delivery, on the date of delivery, (b) in the case of nationally-recognized overnight courier, on the next business day, (c) in the case of facsimile, on the next business day after the day sent and (d) in the case of mailing, on the third business day following the date when posted.

18.8. Benefits of Agreement; No Third Party Beneficiaries. This Agreement shall bind and inure to the benefit of any successors to or permitted assigns of the parties as agreed upon. None of the agreements, representations, or other provisions contained herein is intended for the benefit of any person or entity that is not a party to this Agreement.

18.9. Survival. Notwithstanding anything contained herein to the contrary, certain sections shall survive any termination or expiration of Agreement. Any other provision of this Agreement or any other service agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement or any other service agreement shall survive expiration or termination of this Agreement or any other service agreement.

18.10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.

18.11. Amendment: No supplement, modification, amendment or waiver of this Agreement or any other service agreement between the parties shall be binding unless executed in writing by both parties.

18.12. Entire Contract: This Agreement, including the schedules, any amendments, appendices or supplements hereto, shall constitute the entire contract between the parties with respect to the services contemplated herein, and supersedes all other agreements and understandings between the parties.

18.13. Independent Contracting Parties. This Agreement does not create any agency, joint venture, or partnership between Producer and NPHM Services. Neither party shall impose or make any promises, representations, or warranties on behalf of the other, other than as expressly provided herein.

18.14. Currency and Place of Payments: All sums payable to Producer pursuant to this Agreement shall be payable in lawful currency of the United States at Producer’s office.




Form#: MPA2015

18.15. HIPAA: The parties acknowledge that some of the information exchanged between the parties may constitute protected health information (including electronic protected health information), as such term is defined by the Standards for Privacy of Individually Identifiable Health Information (“Privacy Standard”) promulgated under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The parties have entered or will enter into a business associate agreement governing the treatment and protection of such Information, to the extent and in the manner such agreement is required. The business associate agreement shall be consistent with the requirements of the Privacy Standard. By their signatures below, NPHM Services and Producer jointly agree that they will comply with their respective obligations under the Privacy Standard.

18.16. Professional Liability Insurance. Producer will be required to purchase professional liability insurance (errors & omissions) coverage in amounts and kinds satisfactory to NPHM Services, and proof of such insurance coverage must be disclosed to NPHM Services at the time of appointment and annually thereafter.

18.17. Resolution of Disputes. All disputes and controversies between Agent and NPHM Services or NPHM Services’ General Agent, whether relating to this Contract or any amendment thereof, or the breach thereof, and including any claim regarding misrepresentation, shall be resolved by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”), and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. An arbitrator(s) shall conduct any such arbitration proceeding. Arbitrator(s) shall be persons familiar with the life, health and annuity insurance business and not under the control of either party to this Agreement. The judgment of the arbitration shall be final and binding on the parties. Each party shall bear its own costs, including the expenses of witnesses if any, related to such arbitration and shall jointly and equally share the costs of the arbitration. All arbitration proceedings hereunder, and records thereof, shall be held in strictest confidence by the arbitrator(s) and the parties.

18.18. Sublicensees. The following shall apply to sublicensees of Producer, but only as applicable.

a. If Producer is so authorized, Producer may recruit Sublicensees satisfactory to NPHM Services to carry out the purposes of this Contract. Recruited Sublicensees shall be competent and customer-focused and of good repute and character. All such recruited Sublicensees shall be approved in writing by NPHM Services and be appropriately appointed with NPHM Services before entering into any contractual relationship with Producer, and before performing any Producer activities on behalf of NPHM Services.

b. NPHM Services shall retain the authority to terminate any appointment of a Sublicensee recruited by Producer. Any Sublicensee whose license has been terminated or canceled by NPHM Services shall not perform any duties for Producer that involve NPHM Services’ products or policyholders.

c. Producer shall be responsible to NPHM Services for all business performed by or entrusted to Sublicensees or others appointed or employed by Producer, and no such appointee, Sublicensee or employee shall have any claim against NPHM Services for commissions or otherwise.

d. Producer shall indemnify and save NPHM Services harmless from all losses, expenses, costs, damages and liability resulting from negligent acts by Producer or Producer’s employees or Sublicensees, and from acts or transactions by any of them not authorized by NPHM Services.

e. Subject only to paragraphs 1-4 herein, Producer shall have the sale discretion in determining who among such Sublicensees and employees shall perform the functions required of Producer.

f. Any claim of Sublicensee against Producer shall not be a valid claim against NPHM Services.g. NPHM Services, at any time, may pay directly to any Sublicensee associated with Producer such commissions due them

from NPHM Services.




Form#: MPA2015

Signature Page

IN WITNESS WHEREOF, NPHM Services and Producer have caused this Agreement to be executed by their duly authorized representatives on this ____________ day of _______________________, 2015.

NATIONAL PROSPERITY HEALTH MATCHING SERVICES, INC.

By

Print Name

Title

Date

PRODUCER

By

Print Name

Title

Date




Form#: MPA2015

SECTION B – COMPENSATION & FEE ARRANGEMENT

The following compensation and fee arrangement shall govern the Agreement between NPHM Services and Producer, unless otherwise noted or agreed to:




Form#: MPA2015

SECTION C – CERTIFICATION & ACKNOWLEDGEMENT

I, the undersigned Producer declare that the information provided herein is true and that NPHM Services may rely on such information. I understand that if any information provided by me is found to be incorrect or incomplete, it will be grounds for immediate termination, for cause, at the sole discretion of NPHM Services.

If applicable, I apply to ________________________________ Bonding Company for a bond on my behalf as required by NPHM Services. I also bind myself, my heirs, executors and administrators to indemnify and/ or reimburse the Bonding Company for any and all loss incurred by it or for which, by reason of any act of mine, it may become liable. I agree that the Bonding Company may decline to become surety for me or cancel any bond which it may have issued, and that, except as specifically provided by law, it need not disclose to me the reasons therefore.

It is my responsibility to immediately notify in writing NPHM Services if I am convicted of or plead guilty or no contest to any felony at any time. If appointed as a Registered Representative, I acknowledge that it will be my responsibility to send NPHM Services timely written notification of any disciplinary action brought against me or my Broker Dealer.

Authorization to Conduct Background Investigation by NPHM Services.

I understand that investigation background inquiries may be made on me including, but not limited to, a review of consumer credit, court records, employment and insurance department files. I authorize NPHM Services and its Bonding Company, now or anytime in the future, to request Information from various federal, state, and other agencies, including the NASD and PDB, current or former employers or companies I have been appointed with, financial institutions or other persons or entities having knowledge about me and/or which maintain records concerning my past activities relating to my credit, criminal, civil and other experiences and those of any business entity owned by me and release said individuals or companies from all liabilities for any damage whatsoever for providing this information. I also release any person and companies contacted regarding me from any liability with respect to the content of verbal or written information. I authorize NPHM Services and its Bonding Company to obtain a Vector One report and to release information about any debit balance I may incur to Vector One, it’s successors, or any organization designated to replace Vector One. I authorize any such information obtained to be disclosed to my Marketing General Agent and Managers).

A photocopy of this authorization may be accepted with the same authority as the original, and I specifically waive any written authorization request regardless of the date it is signed. I have been given a standalone consumer notification that a report will be requested and used for the purpose of evaluating me for retention as a life, accident, health or annuity insurance agent or for a license or license renewal required by law, I authorize any party or agency appointed by NPHM or its Bonding Company to obtain the above information.

Under penalties of perjury, I certify that (1) the Social Security/Tax Identification Number provided on this form is my correct taxpayer identification number, (2) I have not been notified by the IRS that I am subject to backup withholding, or that the IRS has notified me that I am no longer subject to such withholding or I am exempt from such withholding; and (3) I am a U.S. person (including a U.S. resident alien), You must cross out item 2 (if using paper form) or check here (if using electronic form) if you have been notified by the IRS that you are currently subject to backup withholding because of underreporting interest or dividends on your tax return.




Form#: MPA2015

Entering my name below constitutes my electronic signature, and is intended by me to have legally binding effect.

PRODUCER: _________________________________________________

Producer’s Name: __________________________________________________

Producer’s Address: ________________________________________________

Producer’s Signature: _______________________________________________




Form#: MPA2015

BUSINESS ASSOCIATE SUBCONTRACTOR AGREEMENT

This HIPAA Business Associate SubContractor Agreement (“Agreement”) is hereby made and entered into this _______ day of _______________, 2015 (“Effective Date”), by and between National Prosperity Health Matching Services (“Business Associate SubContractor”) and ____________________________________________ (“Business Associate” or “BA”) (each a “Party” and collectively, the “Parties”).

WHEREAS, Business Associate and Business Associate SubContractor have entered into one or more Services Agreement(s) (the “Services Agreements”) pursuant to which Business Associate SubContractor performs services for BA or BA’s Covered Entity Client (hereinafter, reference to BA shall include, if applicable, BA’s Covered Entity Client or, if applicable, be referenced as BA-CE;

WHEREAS, Business Associate SubContractor acknowledges and agrees that it may be a Business Associate, and BA-CE acknowledges that it may be a BA or, if applicable, a BA-CE, as those terms are defined herein or under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), and its implementing regulations, specifically 45 C.F.R. § 160.103;

WHEREAS, BA-CE and Business Associate SubContractor mutually desire to outline their individual responsibilities with respect to the use and/or disclosure, safeguarding, and transmission of Protected Health Information (“PHI”) and electronic Protected Health Information (“ePHI”), as mandated by the Privacy Rule and Security Rule under HIPAA and its implementing regulations at 45 C.F.R. Parts 160 -164;

WHEREAS, BA-CE and Business Associate SubContractor understand and agree that the Security Rule and Privacy Rule require that a BA-CE and Business Associate SubContractor enter into this Agreement, as required by 45 C.F.R. § 164.314(a) and 45 C.F.R. § 164.504(e), respectively, and that this Agreement is intended to satisfy these obligations and will govern the terms and conditions under which such PHI and/or ePHI may be used and/or disclosed and safeguarded by Business Associate SubContractor; NOW, THEREFORE, BA-CE and Business Associate SubContractor hereto agree to the foregoing and as follows:

1. Definitions

Capitalized terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in 45 C.F.R. Parts 160 -164 and ARRA (defined below in Section 1.a.), as applicable.

a. ARRA shall mean the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, Pub. Law No. 111-5 and its implementing regulations. References in this Agreement to a section or subsection of title 42 of the United States Code are references to provisions of ARRA, and any reference to provisions of ARRA in this Agreement shall be deemed a reference to that provision and its existing and future implementing regulations, when and as each is effective.

b. Compliance Date shall mean, in each case, the date by which compliance is required under the referenced provision of ARRA.




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c. Electronic Protected Health Information or ePHI. “Electronic Protected Health Information” or “ePHI” shall have the same meaning as the term “electronic protected health information” in 45 C.F.R. §160.103 and includes Protected Health Information transmitted by, or maintained in, electronic media.

d. GINA. “GINA” means the Genetic Information Nondiscrimination Act of 2008.

e. Individual. ‘‘Individual’’ shall have the same meaning as the term ‘‘individual’’ in 45 C.F.R. § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. § 164.502(g).

f. Privacy Rule. ‘‘Privacy Rule’’ shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. Part 160 and Part 164, subparts A and E.

g. Protected Health Information or PHI. ‘‘Protected Health Information’’ or “PHI” shall have the same meaning as the term ‘‘protected health information’’ in 45 CFR § 160.103, limited to the information created or received by Business Associate from or on behalf of BA-CE.

h. Required By Law. ‘‘Required By Law’’ shall have the same meaning as the term ‘‘required by law’’ in 45 C.F.R. § 164.103.

i. Secretary. ‘‘Secretary’’ shall mean the Secretary of the Department of Health and Human Services or his designee.

j. Security Rule. “Security Rule” shall mean the Security Standards for the Protection of Electronic Protected Health Information at 45 C.F.R. Part 160 and Part 164, subpart C.

2. Obligations and Activities of Business Associate

a. Business Associate SubContractor agrees to use or disclose Protected Health Information only as permitted or required by this Agreement or as Required By Law and in compliance with each applicable requirement of 45 C.F.R. § 164.504(e).

b. Business Associate SubContractor agrees to (i) implement and use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement; (ii) reasonably and appropriately protect the confidentiality, integrity, and availability of the ePHI that it creates, maintains, or transmits on behalf of the BA-CE; and (iii) as of the Compliance Date of 42 U.S.C. § 17931, comply with the Security Rule requirements set forth in 45 C.F.R. §§ 164.308, 164.310, 164.312, and 164.316.

c. Business Associate SubContractor agrees to use reasonable efforts to mitigate, to the greatest extent practicable, any harmful effect that is known to Business Associate SubContractor of a use or disclosure of Protected Health Information by Business Associate SubContractor in violation of the requirements of this Agreement.

d. Business Associate SubContractor agrees to promptly report to BA-CE (i) any use or disclosure of the Protected Health Information not provided for by this Agreement of which it becomes aware; (ii) any Security Incident affecting Protected Health Information of which it becomes aware, and (iii) without unreasonable delay and in no case later than thirty (30) calendar days after discovery, any Breach of any Unsecured PHI in accordance with the security breach notification requirements set forth in 42 U.S.C. § 17932 as of its Compliance Date.




Form#: MPA2015

1. Notwithstanding Section 2.d. above, Business Associate SubContractor shall provide the following information to BA-CE within twenty (20) business days of discovery of a Breach except when despite all reasonable efforts by Business Associate SubContractor to obtain the information required, circumstances beyond the control of the Business Associate SubContractor necessitate additional time. Under such circumstances, Business Associate SubContractor shall provide to BA-CE the following information as soon as possible and without unreasonable delay, but in no event later than thirty (30) calendar days from the date of discovery of a Breach:

a. the date of the Breach;

b. the date of the discovery of the Breach;

c. a description of the types of Unsecured PHI that were involved;

d. identification of each Individual whose Unsecured PHI has been, or is reasonably believed to have been, accessed, acquired, or disclosed; and

e. any other details necessary to complete an assessment of the risk of harm to the Individual.

2. BA-CE will be responsible to provide notification to Individuals whose Unsecured PHI has been disclosed, as well as the Secretary and the media, as required by ARRA and referenced in this Agreement;

3. Business Associate agrees to pay actual costs for notification and of any associated mitigation incurred by BA-CE, such as credit monitoring, if BA-CE determines that the Breach is significant enough to warrant such measures and the Breach is the direct or indirect result of Business Associate SubContractor’s, or its agent or subcontractor’s, actions.

4. Business Associate SubContractor agrees to establish procedures, where applicable, to investigate the Breach, mitigate losses, and protect against any future Breaches, and to provide a description of these procedures, if applicable and not already provided pursuant to this Agreement, and the specific findings of the investigation to BA-CE in the time and manner reasonably requested by BA-CE.

e. Business Associate SubContractor agrees (i) to ensure that any subcontractor, to whom it provides Protected Health Information received from, or created or received by Business Associate SubContractor on behalf of BA-CE, agrees to the same restrictions, conditions, and requirements that apply through this Agreement to Business Associate SubContractor with respect to that information, (ii) to the extent that Business Associate SubContractor provides ePHI to a subcontractor, ensure that the subcontractor, agrees to implement reasonable and appropriate safeguards to protect that information, and (iii) to ensure that any subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of the Business Associate SubContractor agree to the same restrictions, conditions, and requirements that apply to the Business Associate SubContractor with respect to that information.

f. To the extent that Business Associate SubContractor maintains a Designated Record Set on behalf of BA-CE, Business Associate SubContractor agrees to provide access, at the request of BA-CE, and in the time and manner mutually agreed, to Protected Health Information in that Designated Record Set, to BA-CE or, as directed by BA-CE, to an Individual in order to meet the requirements under 45 C.F.R. § 164.524.




Form#: MPA2015

g. To the extent that Business Associate SubContractor maintains a Designated Record Set on behalf of BA-CE, Business Associate SubContractor agrees to make any amendment(s) to Protected Health Information in that Designated Record Set that the BA-CE directs or agrees to pursuant to 45 C.F.R. § 164.526 at the request of BA-CE or an Individual, and in the time and manner mutually agreed.

h. Business Associate SubContractor agrees to make its internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate SubContractor on behalf of, BA-CE available to the Secretary, in a time and manner mutually agreed or designated by the Secretary, for purposes of the Secretary determining BA-CE’s compliance with the Privacy Rule and Security Rule.

i. Business Associate SubContractor agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for BA-CE to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. § 164.528 and, as of its Compliance Date, in accordance with the requirements for accounting for disclosures made through an Electronic Health Record in 42 U.S.C. 17935(c).

j. Business Associate SubContractor agrees to provide to BA-CE or, when directed in writing by BA-CE, directly to an Individual, in time and manner mutually agreed, information collected in accordance with Section 2.i. of this Agreement, to permit BA-CE to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. § 164.528 and, as of its Compliance Date, in accordance with the requirements for accounting for disclosures made through an Electronic Health Record in 42 U.S.C. 17935(c).

k. In the event that Business Associate SubContractor, in connection with the Services Agreements, uses or maintains an Electronic Health Record of information of or about an Individual, then the Business Associate SubContractor shall provide an electronic copy (at the request of BA-CE, and in the time and manner designated by BA-CE) of the PHI, to BA-CE or, as directed by BA-CE, to an Individual or a third party designated by the Individual, all in accordance with 42 U.S.C. § 17935(e) as of its Compliance Date.

l. Business Associate SubContractor shall request, use and/or disclose only the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure; provided, that Business Associate SubContractor shall comply with 42 U.S.C. § 17935(b) as of its Compliance Date.

m. Business Associate SubContractor shall not directly or indirectly receive remuneration in exchange for any PHI in compliance with 42 U.S.C. § 17935(d) as of its Compliance Date.

n. Business Associate SubContractor shall not make or cause to be made any communication about a product or service that is prohibited by 42 U.S.C. § 17936(a) as of its Compliance Date.

o. Business Associate SubContractor shall not make or cause to be made any written fundraising communication that is prohibited by 42 U.S.C. § 17936(b) as of its Compliance Date.

p. To the extent Business Associate SubContractor is to carry out one of more of BA-CE’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate SubContractor agrees to comply with the requirements of Subpart E that apply to the BA-CE in the performance of such obligations.

q. Business Associate SubContractor agrees to make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the requirements of HIPAA, ARRA, and GINA.




Form#: MPA2015

3. Permitted Uses and Disclosures by Business Associate SubContractor

a. General Use and Disclosure Provisions

Except as otherwise limited in this Agreement, Business Associate SubContractor may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, BA-CE as specified in the Services Agreements or Required By Law, provided that, except as set forth in Section 3.b., such use or disclosure would not violate the Privacy Rule and Security Rule if done by BA-CE.

b. Specific Use and Disclosure Provisions

1. Except as otherwise limited in this Agreement, Business Associate SubContractor may use Protected Health Information for the proper management and administration of the Business Associate SubContractor or to carry out the legal responsibilities of the Business Associate SubContractor.

2. Except as otherwise limited in this Agreement, Business Associate SubContractor may disclose Protected Health Information for the proper management and administration of the Business Associate SubContractor, provided that disclosures are Required By Law, or Business Associate SubContractor obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate SubContractor of any instances of which it is aware in which the confidentiality of the information has been breached.

3. On behalf of BA-CE, Business Associate SubContractor may de-identify any and all PHI obtained by Business Associate SubContractor under this Agreement, and use such de-identified data on Business Associate SubContractor’s own behalf for purposes of this Agreement or the Services Agreement only, all in accordance with the de-identification requirements of the Privacy Rule.

4. Except as otherwise limited in this Agreement, Business Associate SubContractor may use Protected Health Information to provide Data Aggregation services to BA-CE as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).

5. Business Associate SubContractor may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with 45 C.F.R. § 164.502(j)(1).

4. Obligations of BA-CE

Provisions for BA-CE to Inform Business Associate SubContractor of Privacy Practices and Restrictions; Compliance Obligations:

a. BA-CE shall notify Business Associate SubContractor of any limitation(s) in its notice of privacy practices of BA-CE in accordance with 45 C.F.R. § 164.520, to the extent that such limitation may affect Business Associate SubContractor’s use or disclosure of Protected Health Information under this Agreement.

b. BA-CE shall notify Business Associate SubContractor of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate SubContractor’s use or disclosure of Protected Health Information under this Agreement.




Form#: MPA2015

c. BA-CE shall notify Business Associate SubContractor of any restriction on the use or disclosure of Protected Health Information to which BA-CE has agreed in accordance with 45 C.F.R. § 164.522 or 42 U.S.C. § 17935(a) as of its Compliance Date, to the extent that such restriction may affect Business Associate SubContractor’s use or disclosure of Protected Health Information under this Agreement.

d. BA-CE, in performing its obligations and exercising its rights under this Agreement, shall use and disclose Protected Health Information in compliance with the Privacy Rule, Security Rule and ARRA.

5. Permissible Requests by BA-CE

BA-CE shall not request or require Business Associate SubContractor to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule and Security Rule if done by BA-CE, provided that Business Associate SubContractor may use or disclose PHI as set forth in Section 3.b. of this Agreement. BA-CE shall disclose or provide access to Business Associate SubContractor only to the minimum PHI necessary for Business Associate SubContractor to perform its obligations under the Services Agreements as required by the Privacy Rule and 42 U.S.C. § 17935(b) as of its Compliance Date.

6. Term and Termination

a. Term. The Term of this Agreement shall be effective as of the Effective Date and shall terminate upon the final expiration or termination of the last remaining Services Agreement subject to this Agreement, unless earlier terminated in accordance with this Section 6.

b. Termination for Cause. In accordance with 42 U.S.C. § 17934(b), if either Party knows of a pattern of activity or practice of the other Party that constitutes a material breach or violation of this Agreement then the non-breaching Party shall provide written notice of the breach or violation to the other Party that specifies the nature of the breach or violation. The breaching Party must cure the breach or end the violation on or before thirty (30) days after receipt of the written notice. In the absence of a timely cure reasonably satisfactory to BA-CE or Business Associate SubContractor, as applicable, or in the event that cure is not possible, then BA-CE or Business Associate SubContractor, as applicable, shall immediately terminate this Agreement unless neither termination nor cure is feasible, in which case BA-CE or Business Associate SubContractor, as applicable, shall report the violation to the Secretary.

c. Effect of Termination.

1. Except as provided in paragraph (2) of this Section 6.d., upon termination of this Agreement, for any reason, Business Associate SubContractor shall return or destroy all Protected Health Information received from BA-CE, or created or received by Business Associate SubContractor on behalf of BA-CE, including Protected Health Information that is in the possession of subcontractors or agents of Business Associate SubContractor. Business Associate SubContractor shall retain no copies of the Protected Health Information.




Form#: MPA2015

2. In the event that Business Associate SubContractor determines that returning or destroying the Protected Health Information is infeasible, Business Associate SubContractor shall provide to BA-CE notification of the conditions that make return or destruction infeasible and Business Associate SubContractor shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate SubContractor maintains such Protected Health Information.

3. BA-CE agrees that it is infeasible for Business Associate SubContractor to return or destroy the Protected Health Information reasonably needed to be retained by Business Associate SubContractor for its own legal and risk management purposes.

7. Miscellaneous

a. Amendment of Services Agreement. The Parties agree that this Agreement hereby amends and is incorporated into the Services Agreements as of the Effective Date of this Agreement, and any reference to the Services Agreements on or after that date shall mean the Services Agreements as amended by this Agreement. This Agreement supersedes all prior Business Associate SubContractor Agreements between the parties with respect to the Services Agreements.

b. Regulatory References. A reference in this Agreement to a section in the Privacy Rule, Security Rule and/or ARRA means the section as in effect or as amended.

c. Future Amendment. BA-CE and Business Associate SubContractor agree to take such action as is necessary to amend this Agreement from time to time as is necessary for the Parties to comply with the requirements of the Privacy Rule, Security Rule, the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104–191, and ARRA.

d. Survival. The respective rights and obligations of Business Associate SubContractor under Section 6.d. of this Agreement shall survive the termination of this Agreement.

e. Interpretation. Any ambiguity in this Agreement shall be resolved to permit both Parties to comply with the Privacy Rule, Security Rule, and/or ARRA.

f. No Third Party Rights. This Agreement is entered into solely between and may be enforced only by BA-CE and Business Associate SubContractor. This Agreement shall not be deemed to create any rights in third parties or to create any obligations of BA-CE or Business Associate SubContractor to any third party, unless required by law.

g. No Agency Relationship. This Agreement does not create, and there is no, agency relationship between the Parties pursuant to federal or state law, or other applicable law or ordinance.




Form#: MPA2015

IN WITNESS WHEREOF, BA-CE and Business Associate SubContractor have executed the Business Associate SubContractor Agreement on the date written below.

BUSINESS ASSOCIATE

By

Name

Title

Date

BUSINESS ASSOCIATE SUBCONTRACTOR (NATIONAL PROSPERITY HEALTH MATCHING SERVICES, INC.)

By

Name

Title

Date


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