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Case Number: CACE-21-010364 Division: 03
Filing # 127431022 E-Filed 05/24/2021 06:05:45 PM
EXHIBIT A
#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/24/2021 06:05:41 PM.**#*
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Filing Information
Document Number 2 72888
FEVEIN Number 68875,
Date Filed agit 18
Effective Date or19:2019
State FL
status ACTIVE
Last event CONVERSION
Event Date Filed ogitn201g
Event Effective Date NOI
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RATON FL 23432
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EXHIBIT B
USA Medicare Insurance Solutions LLC Downline Agent
Agreement
This USA Medicare Insurance Solutions LLC Downline Agent Agreement (this
"Agreement"), effective as of the undersigned date (the "Effective Date"), is by and between
USA Medica: Insurance Solutions LLC, a Florida Limited Liability Company ("Company")
and Elite Health Investments, Inc., a Florida corporation ("Downline Agent"). Company and
Downline Agent may be referred to herein collectively as the "Parties" or individually as a
"Party."
WHEREAS, Company desires to provide its web-based Customer Relations Management
Program and accompanying Dialing Platform (the “Platform”) to Downline Agent;
WHEREAS, Company offers the Platform to Downline Agent as a revocable license for
Downline Agent to use in Downline Agent’s medical care environment; and
WHEREAS, Downline Agent desires to obtain access to use the Platform for obtaining
client leads for its medical care business, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
Definitions.
. "Authorized Subagent" means an employee or contractor of Downline Agent who
Downline Agent and Company have both given permission to access and use the Platform and/or
Documentation pursuant to this Agreement.
. “Documentation” means Company's scripts, user manuals, handbooks, and guides
relating to the Services provided by Company to Downline Agent either electronically or in hard
copy form.
"Governmental Authority" means any federal, state, national, supranational, local, or other
government, whether domestic or foreign, including any subdivision, department, agency,
instrumentality, authority (including any regulatory authority), commission, board, or bureau
thereof, or any court, tribunal, or arbitrator.
. “Intellectual Property Rights" means al! intellectual and industrial property rights
recognized in any jurisdiction, including copyrights (including all rights in any original works of
authorship in any medium or expression), moral rights, trade secrets (including any trade secret
protectable under applicable law, and any other information that derives independent economic
value (actual or potential) from not being generally known to and not being readily ascertainable
by proper means by a person able to obtain economic value from its use or disclosure),
confidential and proprietary information, patent rights, rights in inventions (including,
discoveries, improvements, ideas, data, concepts, creative works, formulas, formulations,
patterns, techniques, prototypes, specifications, protocols, and processes), trademarks (including
service marks, fictitious business names, slogans, logos, symbols, collective marks, corporate
names, trade dress, trade names, and all other indicia or identifiers of source, and in each case all
goodwill associated therewith), rights in software (including database rights, source code, object
code, flow charts, firmware, middleware, and semiconductor design topography) in each case
regardless of whether (i) granted under common law or by statute; (ii) registered or unregistered;
(iii) published or unpublished; and (iv) including, without limitation, (A) all registrations,
recordings, applications, rights to obtain renewals, derivations, continuations, reissues,
extensions thereof; (B) all income, fees, royalties, damages, claims, payments and proceeds at
any time due or payable or asserted under or with respect to any of the foregoing, and (C) all
rights to sue for past, present or future infringements thereof.
. “Services” means access and permission to use the Platform, the business model
embodied in the Platform or in Company’s Company Materials (defined herein), and any other
services rendered by Company in relation therewith.
. “Confidential Information” means any and all information about Company’s
business affairs (e.g., customer lists, affiliate lists, downline and subagent lists, pricing
information, inventory information), products, services, Intellectual Property Rights, trade
secrets, third-party confidential information, and other sensitive or proprietary information,
whether orally or in written, electronic, or other form or media/in written or electronic form or
media, and whether or not marked, designated or otherwise identified as “confidential.”
Confidential Information does not include information that, at the time of disclosure is: (a) in the
public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained
by the receiving Party on a non-confidential basis from a third party; or (d) independently
developed by the receiving Party.
. “Company Materials” means any and al] software, systems, templates, technology,
information, databases, data sets, data, documents, materials, works, know-how, business
models, content, devices, methods, processes, platforms, programs, hardware, and inventions,
including any deliverables, technical, or functional descriptions, requirements, plans, or reports
owned and/or used by Company in connection with the Platform or Services or that otherwise
comprise or relate to the Services, including the Platform, and all Intellectual Property Rights
relating to any of the foregoing.
. "Third-Party Products" means any third-party products or services integrated with
or used in conjunction with the Services.
Engagement of Services. Downline Agent hereby engages Company to provide Services to
Downline Agent. By subscribing to the Platform, Downline Agent is entitled to certain
maintenance and support services (collectively, “Maintenance”) offered by Company at the time
of the Effective Date of this Agreement, such as technical support services in the event that
Downline Agent experiences accessibility or usage issues that are solely within the control of
Company, with the Platform.
Grant of Right:
Revocable License. Subject to the terms and conditions of this Agreement, including the
usage restrictions in Section 3(c) below, Downline Agent’s payment of Chargebacks, Company
hereby grants to Downline Agent during the Term of this Agreement a non-exclusive and
terminable license to access and use the Platform and Services, solely in connection with
Downline Agent’s medical care business.
. Delivery. Delivery of the Platform shall consist of delivery to Downline Agent, on
physical media or supplied electronically, in either case at Company’s sole discretion, of login
credentials or other comparable access to the Platform, within seven (7) days of the Effective
Date of this Agreement.
. Usage Restrictions. Downline Agent shall not at any time, and shall not permit any
of its personnel or Authorized Subagents, in each case directly or indirectly, to: (1) use the
Services, Platform, or Company Materials to infringe any party’s Intellectual Property Rights,
whether belonging to Company or a third party, including but not limited to copyright, patent or
trademark rights; (2) disparage Company, its employees, its other agents and representatives, the
Services, or the Platform; (3) combine or link any other software that (i) contains any copyleft
open source software, (ii) contains or distributes any viruses, trojan horses, worms, or any other
computer programming that may interfere with the operation of the Services or Platform, or (iii)
creates or imposes a large burden or load on the Services or Platform, to any of Company’s
systems, including systems involved with the provisioning of the Services; (4) knowingly create
liability for Company; (5) reverse engineer, disassemble, decompile, decode, adapt, or otherwise
attempt to derive or gain access to any source code software component of the Services, Platform
or any Company Materials, in whole or in part; (6) access or use the Services or Platform using
automated means (e.g., third party software, crawlers, robots, bots, scrapers, browser plug-ins,
browser extensions, or add-ons) or for benchmarking or any other competitive purposes other
than as expressly contemplated under this Agreement; (7) upload or insert any programming
language or cude into the Services or Platform other than as expressly contemplated under this
Agreement; (8) remove any proprietary or confidential notices included with the Services,
Platform, or Company Materials; (9) use the Services or Platform in a way that violates any
applicable privacy laws and regulations, export control laws, or other laws; (10) duplicate,
reproduce, recreate, modify, adapt, or create derivative works of the Services, Platform, or
Company Materials for use by anyone including, but not limited to, Downline Agent, Authorized
Subagent(s), or any entity or individual affiliated or doing business with either Downline Agent
or Authorized Subagent(s); or (11) create unlicensed copies of the Platform or Company
Materials, circumvent any programmatic licensing controls associated with the Platform, or aid
any third party to do any of the foregoing. Downline Agent acknowledges and agrees that
Downline Agent shall be liable for all unauthorized disclosure, dissemination, publication, or
transfer of customer or Company data or personally identifiable information resulting from a
violation of this section (and from a breach of any other provision of this Agreement) by
Downline Agvat or its personnel, directors, officers, agents, affiliates, or Authorized Subagents,
including all damages resulting therefrom.
. Reservation of Rights. Company reserves all rights not expressly granted to
Downline Agent in this Agreement. Except for the limited rights and licenses expressly granted
under this Agreement, nothing in this Agreement grants, directly or by implication, waiver,
estoppel, or otherwise, to Downline Agent or any third party any Intellectual Property Rights or
other right, title, or interest in or to the Company Materials, Platform, or Services.
. Suspension. Notwithstanding anything to the contrary in this Agreement, Company
may temporarily or permanently suspend Downline Agent's access to any portion or all of the
Platform or Services if:
Company reasonably determines that:
Downline Agent has used the Platform or Services in violation of this Agreement;
Downline Agent's use of the Platform or Services disrupts or poses a security risk to
the Platform or Services, or to any other customer, vendor, or affiliate of Company;
Downline Agent is using the Platform or Services for fraudulent or illegal activities, or
for a purpose or in a way that violates any laws (including privacy or export control
laws);
subject to applicable law, Downline Agent has ceased to continue its business in the
ordinary course, made an assignment for the benefit of creditors or similar disposition
of its assets, or become the subject of any bankruptcy, reorganization, liquidation,
dissolution, or similar proceeding; or
Company’s provision of the Platform or Services to a Downline Agent is prohibited by
applicable law (including, without limitation, export control law);
in accordance with Section 6 for the non-payment of undisputed Chargebacks after
Downline Agent is given thirty (30) days to cure and has not cured within the thirty (30)
day cure period.
Company will have no liability for any damage, liabilities, losses (including any loss of data
or profits), or any other consequences that Downline Agent or any third party may incur as
a result of a suspension or termination of the Services or the license to the Platform.
Proprietar, and Intellectual Property Right:
Services and Platform. Company owns all right, title, and interest, including all Intellectual
Property Rights, in and to the Services, Platform, and Company Materials, and no license,
whether direct, by implication, estoppel or otherwise is granted to Downline Agent with respect
to such Services or such Platform except as expressly granted under Section 3 above. Downline
Agent's use of the Services or Platform as allowed under this Agreement does not create or vest
any ownership rights whatsoever in Downline Agent to the Services, Platform, or Company
Materials, or any improvements thereof, or any Intellectual Property Rights therein.
Company Materials, Company owns all right, title, and interest, including all Intellectual
Property Rights, in and to the Company Materials, and no license, whether direct, by implication,
estoppel or otherwise is granted to Downline Agent with respect to Company Materials except as
expressly granted under Section 3 above. Downline Agent’s use of the Services or Platform does
not create or vest any rights (including, without limitation, any license whether direct, indirect, or
by estoppel, vaiver, or otherwise) whatsoever with respect to Company Materials, improvements
thereof, and/or any Intellectual Property Rights associated with Company Materials and/or
improvements thereof. To the extent that Downline Agent acquires any right, title, or interest in
or to the Company Materials under operation of law or otherwise, Downline Agent shall and
hereby does irrevocably assign any right, title, or interest in or to any Company Materials,
including Intellectual Property Rights in relation therewith, to Company. Downline Agent
hereby waives and shall cause all of its affiliates, agents, and their respective personnel
(including all Authorized Subagents) to waive and to agree not to assert any moral rights as may
exist under applicable law that Downline Agent or such affiliates, agents, and their respective
personnel may acquire in and to the Company Materials.
Feedback. If Downline Agent sends or transmits any communications or materials to
Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the
Services or Platform, including without limitation, new features or functionality relating thereto,
or any commnts, questions, suggestions, or the like ("Feedback"), Company shall have the
right to use (or not use) such Feedback at its sole discretion. Downline Agent shall and hereby
does assign, and shall cause all of its affiliates, agents, and their respective personnel (including
all Authorized Subagents) to assign, to Company all right, title, and interest in and to the
Feedback without reservation. To the extent that any of the rights, title, and interest in and to
any Feedback cannot be assigned by Downline Agent to Company under applicable law or
otherwise, Downline Agent hereby grants, and shall cause all of its affiliates, agents, and their
respective personnel (including all Authorized Subagents) to grant, to Company an exclusive,
royalty-free, transferable, perpetual irrevocable, worldwide, fully paid-up license (with rights to
sublicense through multiple tiers of subslicensees) to fully use, practice, and exploit such non-
assignable rights, title, and interest, including, but not limited to the right to make, use, sell, offer
for sale, import, have made, have sold, display, create derivative works of, any and all products
or services based on the Feedback, and to the extent that Downline Agent cannot grant an
exclusive license to any of the Feedback, such license shall be deemed to be non-exclusive. To
the extent that Downline Agent cannot grant a license to any portion or all of the Feedback,
Downline Agent hereby covenants not to sue Company for its use of the Feedback in any way in
perpetuity.
Company Trademark and Domain Name Protection. Company’s websites, the Services,
the Platform, the Documentation, and/or other Company Materials may contain trademarks, trade
names, trade dress, service marks, logos, domain names or other indicia of ownership, owned by
or exclusively licensed for use by Company (collectively the “Company Marks”). Downline
Agent’s use of the Services, Platform and/or Company Materials does not give any right, license,
permission, or interest of any kind in or to the Company Marks other than to display them in the
state in which they exist and only as they are found along with, the Services, Platform and/or
Company Materials. Downline Agent shall in no way contest or deny the validity of Company’s
right of title to or license of use of, the Company Marks, or any other Intellectual Property Rights
associated with Services, Platform and/or Company Materials, and Downline Agent shall not
encourage or assist others directly or indirectly to do so. Downline Agent shall not use or attempt
to register any trademark or domain name that is identical to or similar to any of the Company
Marks, or other Company Intellectual Property Rights. Notwithstanding the foregoing, Downline
Agent shall be permitted to use the Company Marks in a reasonable number of announcements,
publications, or press releases indicating that Downline Agent utilizes the Platform and/or the
Services, provided that prior to public dissemination of any such announcement, publication, or
press release, a copy is first provided to Company for review and approval of such copy which
may be reasonably edited by Company to bring such material into conformance with Company’s
reasonable requirements prior to public dissemination, and provided that such announcement,
publication, or press release does not portray Company in a negative or disparaging light.
Downline Agent Responsibilities.
General. Downline Agent is responsible and liable for all uses of the Platform, Services, and
Company Materials resulting from access or use (i) by Downline Agent; (ii) by all affiliates,
contractors, consultants, and vendors of Downline Agent (including all Authorized Subagents) to
which Downline Agent has provided access; or (iii) and by any other person using the Downline
Agent’s or an Authorized Subagent’s login credentials after being provided the same by
Downline Agent or an Authorized Subagent. Without limiting the generality of the foregoing,
Downline Agent is responsible for all acts and omissions of individuals or entities that access or
use the Services, Platform or Company Materials as a result of actions taken by Downline Agent,
and any act or omission by such individual or entities that would constitute a breach of this
Agreement if taken by Downline Agent will be deemed a breach of this Agreement by Downline
Agent. Downline Agent shall ensure that no third Parties other than Authorized Subagents access
the Services, Platform or Company Materials. With respect to access and/or use of the Services,
Platform, and/or Company Materials, Downline Agent agrees to and shall, and shall use
commercially reasonable efforts to ensure that its Authorized Subagents agree to and shall, (1)
choose a strong and secure password; (2) keep the password secure and confidential; (3) not
transfer any part of or access to Downline Agent’s account to any third Parties that are not
Authorized Subagents; (4) comply with all applicable laws (including data privacy laws, rights of
publicity, defamation law, and/or any other laws and regulations associated with personally
identifiable ir.formation, and all applicable export control laws if any) in providing the materials
to Company, and using the Services, Platform, and/or Company Materials; and (5) with respect
to Downline Agent only, honor its payment obligations under this Agreement, including for any
taxes and fees charged by any governmental entity.
Authorized Subagents. Downline Agent may select its Authorized Subagents provided,
however, that Company consents to such Authorized Subagent and that any Authorized Subagent
executes a written non-disclosure and proprietary rights assignment agreement consistent with
Downline Agent’s obligations under this Agreement prior to such Authorized Subagent being
provided with access to the Platform or Services, and any related Company Materials.
Third-Party Products. The Platform and Services may include, relate to, link to, be
integrated with, or otherwise utilize one or more third party products, technology, software,
hardware, and/or other materials (including, without limitation, open source software) that are
governed by their own terms and conditions. Downline Agent hereby agrees to be bound by, and
shall abide by, and shall use commercially reasonable efforts to ensure its Authorized Subagents
abide by, all of the terms and conditions relating to such Third-Party Products to the extent
necessary to use the Services, Platform and/or Company Materials.
Payment.
Cash Purchase Price. For each Medicare Supplement Policy Downline Agent sells,
Company shall pay Downline Agent a one-time payment (hereinafter, the “Cash Purchase
Price”), subject to chargebacks, volume requirements, and subsequent adjustment in connection
with Quarterly Reviews as set forth in subsection (c) below, pursuant to the following
commission schedule, wherein the applicable commission percentage may be subject to change
by FMO, Company, State regulatory agencies or departments, or by the Carriers.
Commission Percentage Dollar Amount
0% to 9.99% $50.00
10%-12.99% $300.00
13%-18.99% $450.00
19% or greater $875.00
If Downline Agent and its downline agents begin submitting an average, to be calculated
in four-week periods, of one hundred and fifty (150) Medicare Supplement Policies per week,
Downline Agent will be eligible, to obtain an increase in purchase price of twenty-five-dollars
($25) on each such Medicare Supplement Policy. If Downline Agent and its downline agents
begin submitting an average, to be calculated in four-week periods, of one hundred and seventy-
five (175) Medicare Supplement Policies per week, Downline Agent will be eligible, to obtain
another increase in purchase price of twenty-five-dollars ($25) on each such Medicare
Supplement Policy, totaling a fifty dollar ($50) increase. Any controversy or claim arising out of
or relating to the weekly average shall be settled by arbitration administered by the American
Arbitration Association in accordance with its Commercial (or other) Arbitration Rules, and
resolution of the issue by the arbitrator(s) may be enforced in any court having jurisdiction
thereof. Notwithstanding the foregoing, in the event that Downline Agent fails to submit a
weekly average, to be calculated in four-week periods, of one hundred and fifty (150) Medicare
Supplement Policies per week during the Annual Enrollment Period (“AEP”), which shall be
defined as the period of time from October 1° to December 31%, then the Parties shall
renegotiate, in good faith, the weekly average number of Medicare Supplement Policies and the
corresponding increase in purchase price on each such Medicare Supplement Policy. Downline
Agent hereby releases and forever waives and relinquishes, shall have no rights to, or title or
interest in, any further compensation, in relation to the sale and/or renewal of such Medicare
Supplement Policy.
. Company shall (i) provide Downline Agent with a statement for
Medicare Supplement Policies sold by Downline Agent on a weekly basis and (ii)
on a weekly basis, account for and remit any unpaid Cash Purchase Price to
Downline Agent, provided that, the Cash Purchase Price owed is not less than five
thousand dollars ($5,000.00), in which case the relevant unpaid Cash Purchase
Price amount shall be rolled forward to the following week.
. The Cash Purchase Price shall be paid by FMO directly to
Downline Agent in one installment within fourteen (14) days of notice of
approval of the application by the carrier.
Chargebacks. The Cash Purchase Price shall be subject to repayment from Downline Agent
to Company as a Chargeback. As used in this Agreement, “Chargeback” is defined as the right of
the Company to full repayment of the Cash Purchase Price upon termination of a policy due to
(i) fraud, misrepresentation, or violation of applicable law on the part of the insured or the
Downline Agent at any time, or (ii) the failure of the insured to make greater than six (6)
premium payments for any reason whatsoever. Upon the insured’s sixth failure to make a
premium payment, the Downline Agent shall be responsible for the chargeback of a prorated
decreasing amount of seventeen percent (17%) per payment, up to the twelfth payment. After the
policy holder’s twelfth payment, all chargebacks will be ceased.
Quarterly Review Adjustments. The Cash Purchase Price shall, each calendar quarter, be
subject to review and potential adjustment (the “Quarterly Review Adjustment”) at the
Company’s reasonable discretion based on variance of Average Persistency, Average Annual
Commissionable Premium, and Volume Criteria from the targets set forth below.
Average Persistency 78.0%
Average Annual Commissionable $1,560.00
Premium
Volume Criteria $3,000,000.00
Taxes. All Chargebacks and other amounts payable by Downline Agent under this
Agreement are exclusive of taxes and similar assessments. Downline Agent is responsible for all
sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed
by any federal, state, or local governmental or regulatory authority (collectively “Sales Tax”) on
any amounts payable by Downline Agent hereunder, other than any taxes imposed on
Company’s income. Company shall invoice the Downline Agent for such Sales Tax. If any
Sales Tax is imposed by any state or local authority relating to any amounts paid to Company by
Downline Agent, Company may invoice Downline Agent for reimbursement for any such Sales
Tax, including for any interest or penalty associated with such Sales Tax assessment. Downline
Agent shall pay any invoice for Sales Tax reimbursement from Company promptly upon receipt.
If any Governmental Authority levies a withholding tax on any amounts payable to Company,
Downline Agent may withhold such amounts from payment but shall provide Company with a
detailed accounting of all such amounts and shall cooperate fully with Company in any actions
taken by Company to contest such withholding taxes.
Confidentiality.
From time to time during the Term, either Party may disclose or make available to the other
Party Confidential Information. The receiving Party shall not disclose the disclosing Party's
Confidential Information to any person or entity, except to the receiving Party's employees who
have a need to know the Confidential Information for the receiving Party to exercise its rights or
perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose
Confidential Information to the limited extent required (i) in order to comply with the order of a
court or other governmental body, or as otherwise necessary to comply with applicable law,
provided that the Party making the disclosure pursuant to the order shall first have given written
notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to
establish a Party's rights under this Agreement, including to make required court filings. On the
expiration or termination of the Agreement, the receiving Party shall promptly return to the
disclosing Party all copies, whether in written, electronic, or other form or media, of the
disclosing Party's Confidential Information, or destroy all such copies and certify in writing to
the disclosing Party that such Confidential Information has been destroyed. Each Party's
obligations of non-disclosure with regard to Confidential Information are effective as of the
Effective Date and will expire five years from the date first disclosed to the receiving Party;
provided, however, with respect to any Confidential Information that constitutes a trade secret
(as determined under applicable law), such obligations of non-disclosure will survive the
termination or expiration of this Agreement for as long as such Confidential Information remains
subject to trade secret protection under applicable law.
Sub-Agent Recruitment.
. Company anticipates and encourages Downline Agent to recruit other duly licensed
Authorized Subagents under the following restrictions:
. Notice. Before Downline Agent initiates initial contact with prospective Subagents,
the Downline Agent shall provide Company with the name and contact information of the
prospective Subagents. If a prospective Subagent initiates initial contact with Downline Agent, the
Downline Agent, before discussing compensation with the prospective Subagent, will provide the
name and contact information for the prospective Subagent and following any remaining instructions
of Company with regard to such Subagent. In no event shall any Subagent be appointed without the
consent of the Company.
. Restriction on Recruitment. If the Company has previously initiated contact, in
writing, with the identified prospective Subagent, or if the Subagent has previously initiated contact
with the Company, the Downline Agent is prohibited from contacting the prospective Subagent.
. Subagent Appointment. Each Subagent recruited by the Downline Agent shall be
appointed as a licensed agent with the Company and not with the Downline Agent.
. Credit and Compensation for Subagent Sales. The Cash Purchase Price, Timing of
Payment (section 6), Chargebacks and Quarterly Review Adjustments of the Subagent shall be
adjusted on the Downline Agent records as if the Subagents’ sales were made by the Downline
Agent.
. Exclusivity. Downline Agent hereby acknowledges and agrees that it shall
exclusively solicit, negotiate, and sell Medicare supplement insurance on behalf of Company and on
behalf of no other person or entity, except as authorized by a prior written release executed by an
authorized representative of the Company.
. Independent Contractor. The relationship between the Parties is that of independent
contractors. Downline Agent shall be solely responsible for the direction, control, and management
of its agents, employees, Authorized Subagents, and other agents acting on Downline Agent’s behalf
or with Downline Agent’s knowledge, permission, or authority. This Agreement shall not be deemed
to create a partnership, joint venture, employment, agency, or other similar relationship between the
Parties. In no event will any employee of any Party be deemed to be an employee of any other Party.
. Non-Poaching. Neither Downline Agent nor its affiliates, employees, officers,
directors, or members, shall, during the Term of this Agreement (as defined in section 12) and for six
months thereafter, without the prior written consent of the Company, solicit, entice, recruit, hire, or
attempt to solicit, entice, recruit, or hire any Company employees, nor shall Downline Agent or its
affiliates, employees, officers, directors, and members assist any other entity or individual to do so.
Neither Company nor its affiliates, employees, officers, directors, or members, shall, during the
Term of this Agreement (as defined in section 12) and for six months thereafter, without the prior
written consent of the Downline Agent, solicit, entice, recruit, hire, or attempt to solicit, entice,
recruit, or hire any Company employees, nor shall Company or its affiliates, employees, officers,
directors, and members assist any other entity or individual to do so.
Warranty; Disclaimer.
Disclaimer. Downline Agent acknowledges and agrees that the Platform and Services are
provided on an “AS IS” and “AS AVAILABLE?” basis without any warranties or representations
of any kind whatsoever except for the limited warranty under Section 8(a) above. Accordingly,
to the extent permitted by applicable law, Company disclaims all warranties, whether
express, implied, statutory, or otherwise. Company specifically disclaims all implied
warranties of merchantability, fitness for a particular purpose, title, non-infringement, and
quiet enjoynient, and all warranties arising from course of dealing, usage, or trade
practice. Company makes no warranty of any kind that the Company Materials, Platform,
and Services, or any products or results of the use thereof, will meet Downline Agent’s or
any other person's requirements, operate without interruption, achieve any intended
result, be compatible or work with any software, system or other services, or be secure,
accurate, complete, free of harmful code, or error free.
Transmission of Data. Downline Agent acknowledges and agrees that usage of and access
to the Hosted Services are fundamentally dependent upon transmission of data over networks
including the Internet not owned or operated by Company. Downline Agent further
acknowledges and understands that such electronic transmissions may be accessed by or
intercepted by unauthorized Parties when communicated across the Internet, network
communications facilities, telephone, or other electronic means. Downline Agent agrees that
Company is not responsible for any electronic communications that are lost, altered, intercepted
or stored without authorization during the transmission of any data whatsoever across networks
not owned and/or operated by Company.
Limitation of Liability.
In no event shall Company be liable under or in connection with this agreement under any
legal or equitable theory, including breach of contract, tort (including negligence), strict
liability, and otherwise, for any: (a) consequential, incidental, indirect, exemplary, special,
enhanced, or punitive damages; (b) increased costs, diminution in value or lost business,
production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use,
loss, interruption, delay or recovery of any data, or breach of data or system security; or
(e) cost of replacement goods or services, in each case regardless of whether Company was
advised of the possibility of such losses or damages or such losses or damages were
otherwise foreseeable. In no event will Company’s aggregated liability arising out of or
related to this agreement under any legal or equitable theory, including breach of contract,
tort (including negligence), strict liability, and otherwise exceed the total amounts actually
received by Company from Downline Agent under this agreement in the twelve (12) month
period preceding the event giving rise to the claim.
Indemnification.
Downline Agent Indemnification. Downline Agent shall indemnify, hold harmless, and, at
Company’s option, defend Company from and against any Losses resulting from any Third-Party
or Authorized Subagent Claims: (i) that any Downline Agent materials, in conjunction with any
Services, Platform or Company Materials, infringes, misuses, misappropriates, or otherwise
violates such third Party's rights including Intellectual Property Rights, (ii) based on Downline
Agent’s, its affiliates, and their respective personnel’s negligence or willful misconduct, use of
the Platform, Services, and/or Company Materials in a manner not authorized by this Agreement,
or use of the Services, Platform and/or Company Materials in combination with data, software,
hardware, equipment or technology not provided by Company, and (iii) arising from the
unauthorized disclosure, dissemination, publication, or transfer of customer or Company data or
personally identifiable information by Downline Agent, its personnel, or its Authorized
Subagents; provided that Downline Agent may not settle any Third-Party Claim against
Company unless Company consents to such settlement, and further provided that Company will
have the right, at its option, to control the defense of and defend itself against any such Third-
Party Claim or to participate in the defense thereof by counsel of its own choice, and to be
reimbursed by Downline Agent for the reasonable costs and expenses of such defense. Downline
Agent acknowledges and agrees that it shall be liable for the full extent of damages arising from
the actual or attempted violation of any provision of this Agreement by Downline Agent or any
of its personnel, directors, officers, agents, affiliates, or Authorized Subagents.
Termination.
Term. The term (“Term”) of this Agreement begins on the Effective Date and shall continue
until terminated or modified by the Parties pursuant to this Agreements express provisions.
Termination. In addition to any other express termination right set forth in this Agreement:
Company may terminate this Agreement, effective on written notice to Downline Agent.
Downline Agent may terminate this Agreement, effective on ninety days’ (90) written
notice to Company, provided, however, that Downline Agent shall, contemporaneously
with its written notice to Company, grant Company the option of matching any offer(s)
made to Downline Agent from any other upline agent(s). Downline Agent shall give
Compuaay all information reasonably necessary for Company to evaluate the terms of the
offer(s) and match, or refrain from matching, said offer(s).
Either Party may terminate this Agreement, effective on written notice to the other Party,
if the other Party materially breaches this Agreement, and such breach: (A) is incapable
of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-
breaching Party provides the breaching Party with written notice of such breach.
Either Party may terminate this Agreement, effective immediately upon written notice to
the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or
fails to pay, its debts as they become due; (B) files or has filed against it, a petition for
voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or
involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency
law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or
(D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed
by orcer of any court of competent jurisdiction to take charge of or sell any material
portion of its property or business.
Effect of Expiration or Termination. Upon expiration or earlier termination of this
Agreement, Downline Agent’s right of access to all Services and the Platform shall cease and
Downline Agent shall immediately discontinue use of the Services and the Platform. No
expiration or termination will affect Downline Agent’s obligation to pay all Chargebacks that
may have become due before such expiration or termination or entitle Downline Agent to any
refund.
Survival. Sections 3(c), 4(a)(i), 6, 7, 8, 9, 10 and 11 shall survive the termination or earlier
expiration of this Agreement.
General Terms.
Entire Agreement. This Agreement, together with any other documents incorporated herein
by reference and all related Schedules and Exhibits, including the Statements of Work,
constitutes the sole and entire agreement of the Parties with respect to the subject matter of this
Agreement and supersedes all prior and contemporaneous understandings, agreements, and
representations and warranties, both written and oral, with respect to such subject matter. In the
event of any inconsistency between the statements made in the body of this Agreement, the
related Exhibits, and any other documents incorporated herein by reference, the following order
of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits
to this Agreement; and (iii) third, any other documents incorporated herein by reference.
Notices. All notices, requests, consents, claims, demands, waivers, and other
communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at
the addresses set forth on the first page of this Agreement (or to such other address that may be
designated by the Party giving Notice from time to time in accordance with this Section). All
Notices must be delivered by personal delivery, nationally recognized overnight courier (with all
fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered
mail (in each vase, return receipt requested, postage pre-paid). Except as otherwise provided in
this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the
Party giving the Notice has complied with the requirements of this Section 12(c).
Force Majeure. In no event shall Company be liable to Downline Agent or any Authorized
Subagent, or be deemed to have breached this Agreement, for any failure or delay in performing
its obligations under this Agreement, if and to the extent such failure or delay is caused by any
circumstances beyond Company's reasonable control, including but not limited to acts of God,
flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor
stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken
by a governmental or public authority, including imposing an embargo (each a “Force Majeure
Event”).
Amendment and Modification; Waiver. No amendment to or modification of this
Agreement is effective unless it is in writing and signed by an authorized representative of each
Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly
set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this
Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or
privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no
single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any
other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any
jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or
provision of this Agreement or invalidate or render unenforceable such term or provision in any
other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or
unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect
their original intent as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to the greate
Preview
Case Number: CACE-21-010364 Division: 03 Filing # 127431022 E-Filed 05/24/2021 06:05:45 PM EXHIBIT A #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/24/2021 06:05:41 PM.**#* 5/8/2021 nimbus screenshot app print screenshot-search.sunbiz.o19-2021.05.08-09_13_58 search. sunbiz.org/inguiry/CorporationSearch/SearchResultDetail? inquirytype=EntityName &direction Type=initial&searchName Order=ELITEHEAL THINVES TMENTS%20P 1900007 268608aggregateld=domp-p19000072686- 554fa012-01¢1-4255-bf51-aa2b30d7F1b8&search Term=elite %20health% 20investments &listNameOrder=ELITEHEAL THINVES TMENTS%20L 190001779460 08.05 2021 SC PP yeotaTe)s a hat 1 whe Le eau a un List Search ‘No Name History Detail by Entity Name Fonda Prot Ci ation €. E HEALTH INVESTIIENTS INC Filing Information Document Number 2 72888 FEVEIN Number 68875, Date Filed agit 18 Effective Date or19:2019 State FL status ACTIVE Last event CONVERSION Event Date Filed ogitn201g Event Effective Date NOI Principal Address 00.N Fegeral ny 30we Ral Fo 90432 changed 8.2020 Mailing Address N Fegeral ney 20 BOCARATON F. 33.432 Changes 0428.2020 Registered Agent Name & Address FALUINBO ZACHARY N Federal hey 22 RATON FL 23432 Address Changed 0428 2020 Officer/Director Detail Name & Address “ie Bresizent (ueas by 33 € CAMINO RE: aeot 20 e ARATON F. 33432 “he Presicent FAL taBO ZACHARY 2 NE astn street Ligntnouse Pawnt FL 23064 Annual Reports Report Year Filed Date 2620 oo. 2ozt zt Document images at REE RT BMF naenat ua ‘ ui a 9 Lb reer chrome-extension://bpconcjcammlapcogennelfmaeghhagj/edit. html 12 5/8/2021 nimbus screenshot app print te 2b es age 1 POF at List cura leita heath nvestmenss No Name History chrome-extension://bpconcjcammlapcogennelfmaeghhagj/edit. html 2/2 EXHIBIT B USA Medicare Insurance Solutions LLC Downline Agent Agreement This USA Medicare Insurance Solutions LLC Downline Agent Agreement (this "Agreement"), effective as of the undersigned date (the "Effective Date"), is by and between USA Medica: Insurance Solutions LLC, a Florida Limited Liability Company ("Company") and Elite Health Investments, Inc., a Florida corporation ("Downline Agent"). Company and Downline Agent may be referred to herein collectively as the "Parties" or individually as a "Party." WHEREAS, Company desires to provide its web-based Customer Relations Management Program and accompanying Dialing Platform (the “Platform”) to Downline Agent; WHEREAS, Company offers the Platform to Downline Agent as a revocable license for Downline Agent to use in Downline Agent’s medical care environment; and WHEREAS, Downline Agent desires to obtain access to use the Platform for obtaining client leads for its medical care business, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Definitions. . "Authorized Subagent" means an employee or contractor of Downline Agent who Downline Agent and Company have both given permission to access and use the Platform and/or Documentation pursuant to this Agreement. . “Documentation” means Company's scripts, user manuals, handbooks, and guides relating to the Services provided by Company to Downline Agent either electronically or in hard copy form. "Governmental Authority" means any federal, state, national, supranational, local, or other government, whether domestic or foreign, including any subdivision, department, agency, instrumentality, authority (including any regulatory authority), commission, board, or bureau thereof, or any court, tribunal, or arbitrator. . “Intellectual Property Rights" means al! intellectual and industrial property rights recognized in any jurisdiction, including copyrights (including all rights in any original works of authorship in any medium or expression), moral rights, trade secrets (including any trade secret protectable under applicable law, and any other information that derives independent economic value (actual or potential) from not being generally known to and not being readily ascertainable by proper means by a person able to obtain economic value from its use or disclosure), confidential and proprietary information, patent rights, rights in inventions (including, discoveries, improvements, ideas, data, concepts, creative works, formulas, formulations, patterns, techniques, prototypes, specifications, protocols, and processes), trademarks (including service marks, fictitious business names, slogans, logos, symbols, collective marks, corporate names, trade dress, trade names, and all other indicia or identifiers of source, and in each case all goodwill associated therewith), rights in software (including database rights, source code, object code, flow charts, firmware, middleware, and semiconductor design topography) in each case regardless of whether (i) granted under common law or by statute; (ii) registered or unregistered; (iii) published or unpublished; and (iv) including, without limitation, (A) all registrations, recordings, applications, rights to obtain renewals, derivations, continuations, reissues, extensions thereof; (B) all income, fees, royalties, damages, claims, payments and proceeds at any time due or payable or asserted under or with respect to any of the foregoing, and (C) all rights to sue for past, present or future infringements thereof. . “Services” means access and permission to use the Platform, the business model embodied in the Platform or in Company’s Company Materials (defined herein), and any other services rendered by Company in relation therewith. . “Confidential Information” means any and all information about Company’s business affairs (e.g., customer lists, affiliate lists, downline and subagent lists, pricing information, inventory information), products, services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential.” Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. . “Company Materials” means any and al] software, systems, templates, technology, information, databases, data sets, data, documents, materials, works, know-how, business models, content, devices, methods, processes, platforms, programs, hardware, and inventions, including any deliverables, technical, or functional descriptions, requirements, plans, or reports owned and/or used by Company in connection with the Platform or Services or that otherwise comprise or relate to the Services, including the Platform, and all Intellectual Property Rights relating to any of the foregoing. . "Third-Party Products" means any third-party products or services integrated with or used in conjunction with the Services. Engagement of Services. Downline Agent hereby engages Company to provide Services to Downline Agent. By subscribing to the Platform, Downline Agent is entitled to certain maintenance and support services (collectively, “Maintenance”) offered by Company at the time of the Effective Date of this Agreement, such as technical support services in the event that Downline Agent experiences accessibility or usage issues that are solely within the control of Company, with the Platform. Grant of Right: Revocable License. Subject to the terms and conditions of this Agreement, including the usage restrictions in Section 3(c) below, Downline Agent’s payment of Chargebacks, Company hereby grants to Downline Agent during the Term of this Agreement a non-exclusive and terminable license to access and use the Platform and Services, solely in connection with Downline Agent’s medical care business. . Delivery. Delivery of the Platform shall consist of delivery to Downline Agent, on physical media or supplied electronically, in either case at Company’s sole discretion, of login credentials or other comparable access to the Platform, within seven (7) days of the Effective Date of this Agreement. . Usage Restrictions. Downline Agent shall not at any time, and shall not permit any of its personnel or Authorized Subagents, in each case directly or indirectly, to: (1) use the Services, Platform, or Company Materials to infringe any party’s Intellectual Property Rights, whether belonging to Company or a third party, including but not limited to copyright, patent or trademark rights; (2) disparage Company, its employees, its other agents and representatives, the Services, or the Platform; (3) combine or link any other software that (i) contains any copyleft open source software, (ii) contains or distributes any viruses, trojan horses, worms, or any other computer programming that may interfere with the operation of the Services or Platform, or (iii) creates or imposes a large burden or load on the Services or Platform, to any of Company’s systems, including systems involved with the provisioning of the Services; (4) knowingly create liability for Company; (5) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code software component of the Services, Platform or any Company Materials, in whole or in part; (6) access or use the Services or Platform using automated means (e.g., third party software, crawlers, robots, bots, scrapers, browser plug-ins, browser extensions, or add-ons) or for benchmarking or any other competitive purposes other than as expressly contemplated under this Agreement; (7) upload or insert any programming language or cude into the Services or Platform other than as expressly contemplated under this Agreement; (8) remove any proprietary or confidential notices included with the Services, Platform, or Company Materials; (9) use the Services or Platform in a way that violates any applicable privacy laws and regulations, export control laws, or other laws; (10) duplicate, reproduce, recreate, modify, adapt, or create derivative works of the Services, Platform, or Company Materials for use by anyone including, but not limited to, Downline Agent, Authorized Subagent(s), or any entity or individual affiliated or doing business with either Downline Agent or Authorized Subagent(s); or (11) create unlicensed copies of the Platform or Company Materials, circumvent any programmatic licensing controls associated with the Platform, or aid any third party to do any of the foregoing. Downline Agent acknowledges and agrees that Downline Agent shall be liable for all unauthorized disclosure, dissemination, publication, or transfer of customer or Company data or personally identifiable information resulting from a violation of this section (and from a breach of any other provision of this Agreement) by Downline Agvat or its personnel, directors, officers, agents, affiliates, or Authorized Subagents, including all damages resulting therefrom. . Reservation of Rights. Company reserves all rights not expressly granted to Downline Agent in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, directly or by implication, waiver, estoppel, or otherwise, to Downline Agent or any third party any Intellectual Property Rights or other right, title, or interest in or to the Company Materials, Platform, or Services. . Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily or permanently suspend Downline Agent's access to any portion or all of the Platform or Services if: Company reasonably determines that: Downline Agent has used the Platform or Services in violation of this Agreement; Downline Agent's use of the Platform or Services disrupts or poses a security risk to the Platform or Services, or to any other customer, vendor, or affiliate of Company; Downline Agent is using the Platform or Services for fraudulent or illegal activities, or for a purpose or in a way that violates any laws (including privacy or export control laws); subject to applicable law, Downline Agent has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or Company’s provision of the Platform or Services to a Downline Agent is prohibited by applicable law (including, without limitation, export control law); in accordance with Section 6 for the non-payment of undisputed Chargebacks after Downline Agent is given thirty (30) days to cure and has not cured within the thirty (30) day cure period. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Downline Agent or any third party may incur as a result of a suspension or termination of the Services or the license to the Platform. Proprietar, and Intellectual Property Right: Services and Platform. Company owns all right, title, and interest, including all Intellectual Property Rights, in and to the Services, Platform, and Company Materials, and no license, whether direct, by implication, estoppel or otherwise is granted to Downline Agent with respect to such Services or such Platform except as expressly granted under Section 3 above. Downline Agent's use of the Services or Platform as allowed under this Agreement does not create or vest any ownership rights whatsoever in Downline Agent to the Services, Platform, or Company Materials, or any improvements thereof, or any Intellectual Property Rights therein. Company Materials, Company owns all right, title, and interest, including all Intellectual Property Rights, in and to the Company Materials, and no license, whether direct, by implication, estoppel or otherwise is granted to Downline Agent with respect to Company Materials except as expressly granted under Section 3 above. Downline Agent’s use of the Services or Platform does not create or vest any rights (including, without limitation, any license whether direct, indirect, or by estoppel, vaiver, or otherwise) whatsoever with respect to Company Materials, improvements thereof, and/or any Intellectual Property Rights associated with Company Materials and/or improvements thereof. To the extent that Downline Agent acquires any right, title, or interest in or to the Company Materials under operation of law or otherwise, Downline Agent shall and hereby does irrevocably assign any right, title, or interest in or to any Company Materials, including Intellectual Property Rights in relation therewith, to Company. Downline Agent hereby waives and shall cause all of its affiliates, agents, and their respective personnel (including all Authorized Subagents) to waive and to agree not to assert any moral rights as may exist under applicable law that Downline Agent or such affiliates, agents, and their respective personnel may acquire in and to the Company Materials. Feedback. If Downline Agent sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or Platform, including without limitation, new features or functionality relating thereto, or any commnts, questions, suggestions, or the like ("Feedback"), Company shall have the right to use (or not use) such Feedback at its sole discretion. Downline Agent shall and hereby does assign, and shall cause all of its affiliates, agents, and their respective personnel (including all Authorized Subagents) to assign, to Company all right, title, and interest in and to the Feedback without reservation. To the extent that any of the rights, title, and interest in and to any Feedback cannot be assigned by Downline Agent to Company under applicable law or otherwise, Downline Agent hereby grants, and shall cause all of its affiliates, agents, and their respective personnel (including all Authorized Subagents) to grant, to Company an exclusive, royalty-free, transferable, perpetual irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of subslicensees) to fully use, practice, and exploit such non- assignable rights, title, and interest, including, but not limited to the right to make, use, sell, offer for sale, import, have made, have sold, display, create derivative works of, any and all products or services based on the Feedback, and to the extent that Downline Agent cannot grant an exclusive license to any of the Feedback, such license shall be deemed to be non-exclusive. To the extent that Downline Agent cannot grant a license to any portion or all of the Feedback, Downline Agent hereby covenants not to sue Company for its use of the Feedback in any way in perpetuity. Company Trademark and Domain Name Protection. Company’s websites, the Services, the Platform, the Documentation, and/or other Company Materials may contain trademarks, trade names, trade dress, service marks, logos, domain names or other indicia of ownership, owned by or exclusively licensed for use by Company (collectively the “Company Marks”). Downline Agent’s use of the Services, Platform and/or Company Materials does not give any right, license, permission, or interest of any kind in or to the Company Marks other than to display them in the state in which they exist and only as they are found along with, the Services, Platform and/or Company Materials. Downline Agent shall in no way contest or deny the validity of Company’s right of title to or license of use of, the Company Marks, or any other Intellectual Property Rights associated with Services, Platform and/or Company Materials, and Downline Agent shall not encourage or assist others directly or indirectly to do so. Downline Agent shall not use or attempt to register any trademark or domain name that is identical to or similar to any of the Company Marks, or other Company Intellectual Property Rights. Notwithstanding the foregoing, Downline Agent shall be permitted to use the Company Marks in a reasonable number of announcements, publications, or press releases indicating that Downline Agent utilizes the Platform and/or the Services, provided that prior to public dissemination of any such announcement, publication, or press release, a copy is first provided to Company for review and approval of such copy which may be reasonably edited by Company to bring such material into conformance with Company’s reasonable requirements prior to public dissemination, and provided that such announcement, publication, or press release does not portray Company in a negative or disparaging light. Downline Agent Responsibilities. General. Downline Agent is responsible and liable for all uses of the Platform, Services, and Company Materials resulting from access or use (i) by Downline Agent; (ii) by all affiliates, contractors, consultants, and vendors of Downline Agent (including all Authorized Subagents) to which Downline Agent has provided access; or (iii) and by any other person using the Downline Agent’s or an Authorized Subagent’s login credentials after being provided the same by Downline Agent or an Authorized Subagent. Without limiting the generality of the foregoing, Downline Agent is responsible for all acts and omissions of individuals or entities that access or use the Services, Platform or Company Materials as a result of actions taken by Downline Agent, and any act or omission by such individual or entities that would constitute a breach of this Agreement if taken by Downline Agent will be deemed a breach of this Agreement by Downline Agent. Downline Agent shall ensure that no third Parties other than Authorized Subagents access the Services, Platform or Company Materials. With respect to access and/or use of the Services, Platform, and/or Company Materials, Downline Agent agrees to and shall, and shall use commercially reasonable efforts to ensure that its Authorized Subagents agree to and shall, (1) choose a strong and secure password; (2) keep the password secure and confidential; (3) not transfer any part of or access to Downline Agent’s account to any third Parties that are not Authorized Subagents; (4) comply with all applicable laws (including data privacy laws, rights of publicity, defamation law, and/or any other laws and regulations associated with personally identifiable ir.formation, and all applicable export control laws if any) in providing the materials to Company, and using the Services, Platform, and/or Company Materials; and (5) with respect to Downline Agent only, honor its payment obligations under this Agreement, including for any taxes and fees charged by any governmental entity. Authorized Subagents. Downline Agent may select its Authorized Subagents provided, however, that Company consents to such Authorized Subagent and that any Authorized Subagent executes a written non-disclosure and proprietary rights assignment agreement consistent with Downline Agent’s obligations under this Agreement prior to such Authorized Subagent being provided with access to the Platform or Services, and any related Company Materials. Third-Party Products. The Platform and Services may include, relate to, link to, be integrated with, or otherwise utilize one or more third party products, technology, software, hardware, and/or other materials (including, without limitation, open source software) that are governed by their own terms and conditions. Downline Agent hereby agrees to be bound by, and shall abide by, and shall use commercially reasonable efforts to ensure its Authorized Subagents abide by, all of the terms and conditions relating to such Third-Party Products to the extent necessary to use the Services, Platform and/or Company Materials. Payment. Cash Purchase Price. For each Medicare Supplement Policy Downline Agent sells, Company shall pay Downline Agent a one-time payment (hereinafter, the “Cash Purchase Price”), subject to chargebacks, volume requirements, and subsequent adjustment in connection with Quarterly Reviews as set forth in subsection (c) below, pursuant to the following commission schedule, wherein the applicable commission percentage may be subject to change by FMO, Company, State regulatory agencies or departments, or by the Carriers. Commission Percentage Dollar Amount 0% to 9.99% $50.00 10%-12.99% $300.00 13%-18.99% $450.00 19% or greater $875.00 If Downline Agent and its downline agents begin submitting an average, to be calculated in four-week periods, of one hundred and fifty (150) Medicare Supplement Policies per week, Downline Agent will be eligible, to obtain an increase in purchase price of twenty-five-dollars ($25) on each such Medicare Supplement Policy. If Downline Agent and its downline agents begin submitting an average, to be calculated in four-week periods, of one hundred and seventy- five (175) Medicare Supplement Policies per week, Downline Agent will be eligible, to obtain another increase in purchase price of twenty-five-dollars ($25) on each such Medicare Supplement Policy, totaling a fifty dollar ($50) increase. Any controversy or claim arising out of or relating to the weekly average shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial (or other) Arbitration Rules, and resolution of the issue by the arbitrator(s) may be enforced in any court having jurisdiction thereof. Notwithstanding the foregoing, in the event that Downline Agent fails to submit a weekly average, to be calculated in four-week periods, of one hundred and fifty (150) Medicare Supplement Policies per week during the Annual Enrollment Period (“AEP”), which shall be defined as the period of time from October 1° to December 31%, then the Parties shall renegotiate, in good faith, the weekly average number of Medicare Supplement Policies and the corresponding increase in purchase price on each such Medicare Supplement Policy. Downline Agent hereby releases and forever waives and relinquishes, shall have no rights to, or title or interest in, any further compensation, in relation to the sale and/or renewal of such Medicare Supplement Policy. . Company shall (i) provide Downline Agent with a statement for Medicare Supplement Policies sold by Downline Agent on a weekly basis and (ii) on a weekly basis, account for and remit any unpaid Cash Purchase Price to Downline Agent, provided that, the Cash Purchase Price owed is not less than five thousand dollars ($5,000.00), in which case the relevant unpaid Cash Purchase Price amount shall be rolled forward to the following week. . The Cash Purchase Price shall be paid by FMO directly to Downline Agent in one installment within fourteen (14) days of notice of approval of the application by the carrier. Chargebacks. The Cash Purchase Price shall be subject to repayment from Downline Agent to Company as a Chargeback. As used in this Agreement, “Chargeback” is defined as the right of the Company to full repayment of the Cash Purchase Price upon termination of a policy due to (i) fraud, misrepresentation, or violation of applicable law on the part of the insured or the Downline Agent at any time, or (ii) the failure of the insured to make greater than six (6) premium payments for any reason whatsoever. Upon the insured’s sixth failure to make a premium payment, the Downline Agent shall be responsible for the chargeback of a prorated decreasing amount of seventeen percent (17%) per payment, up to the twelfth payment. After the policy holder’s twelfth payment, all chargebacks will be ceased. Quarterly Review Adjustments. The Cash Purchase Price shall, each calendar quarter, be subject to review and potential adjustment (the “Quarterly Review Adjustment”) at the Company’s reasonable discretion based on variance of Average Persistency, Average Annual Commissionable Premium, and Volume Criteria from the targets set forth below. Average Persistency 78.0% Average Annual Commissionable $1,560.00 Premium Volume Criteria $3,000,000.00 Taxes. All Chargebacks and other amounts payable by Downline Agent under this Agreement are exclusive of taxes and similar assessments. Downline Agent is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority (collectively “Sales Tax”) on any amounts payable by Downline Agent hereunder, other than any taxes imposed on Company’s income. Company shall invoice the Downline Agent for such Sales Tax. If any Sales Tax is imposed by any state or local authority relating to any amounts paid to Company by Downline Agent, Company may invoice Downline Agent for reimbursement for any such Sales Tax, including for any interest or penalty associated with such Sales Tax assessment. Downline Agent shall pay any invoice for Sales Tax reimbursement from Company promptly upon receipt. If any Governmental Authority levies a withholding tax on any amounts payable to Company, Downline Agent may withhold such amounts from payment but shall provide Company with a detailed accounting of all such amounts and shall cooperate fully with Company in any actions taken by Company to contest such withholding taxes. Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party Confidential Information. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. Sub-Agent Recruitment. . Company anticipates and encourages Downline Agent to recruit other duly licensed Authorized Subagents under the following restrictions: . Notice. Before Downline Agent initiates initial contact with prospective Subagents, the Downline Agent shall provide Company with the name and contact information of the prospective Subagents. If a prospective Subagent initiates initial contact with Downline Agent, the Downline Agent, before discussing compensation with the prospective Subagent, will provide the name and contact information for the prospective Subagent and following any remaining instructions of Company with regard to such Subagent. In no event shall any Subagent be appointed without the consent of the Company. . Restriction on Recruitment. If the Company has previously initiated contact, in writing, with the identified prospective Subagent, or if the Subagent has previously initiated contact with the Company, the Downline Agent is prohibited from contacting the prospective Subagent. . Subagent Appointment. Each Subagent recruited by the Downline Agent shall be appointed as a licensed agent with the Company and not with the Downline Agent. . Credit and Compensation for Subagent Sales. The Cash Purchase Price, Timing of Payment (section 6), Chargebacks and Quarterly Review Adjustments of the Subagent shall be adjusted on the Downline Agent records as if the Subagents’ sales were made by the Downline Agent. . Exclusivity. Downline Agent hereby acknowledges and agrees that it shall exclusively solicit, negotiate, and sell Medicare supplement insurance on behalf of Company and on behalf of no other person or entity, except as authorized by a prior written release executed by an authorized representative of the Company. . Independent Contractor. The relationship between the Parties is that of independent contractors. Downline Agent shall be solely responsible for the direction, control, and management of its agents, employees, Authorized Subagents, and other agents acting on Downline Agent’s behalf or with Downline Agent’s knowledge, permission, or authority. This Agreement shall not be deemed to create a partnership, joint venture, employment, agency, or other similar relationship between the Parties. In no event will any employee of any Party be deemed to be an employee of any other Party. . Non-Poaching. Neither Downline Agent nor its affiliates, employees, officers, directors, or members, shall, during the Term of this Agreement (as defined in section 12) and for six months thereafter, without the prior written consent of the Company, solicit, entice, recruit, hire, or attempt to solicit, entice, recruit, or hire any Company employees, nor shall Downline Agent or its affiliates, employees, officers, directors, and members assist any other entity or individual to do so. Neither Company nor its affiliates, employees, officers, directors, or members, shall, during the Term of this Agreement (as defined in section 12) and for six months thereafter, without the prior written consent of the Downline Agent, solicit, entice, recruit, hire, or attempt to solicit, entice, recruit, or hire any Company employees, nor shall Company or its affiliates, employees, officers, directors, and members assist any other entity or individual to do so. Warranty; Disclaimer. Disclaimer. Downline Agent acknowledges and agrees that the Platform and Services are provided on an “AS IS” and “AS AVAILABLE?” basis without any warranties or representations of any kind whatsoever except for the limited warranty under Section 8(a) above. Accordingly, to the extent permitted by applicable law, Company disclaims all warranties, whether express, implied, statutory, or otherwise. Company specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and quiet enjoynient, and all warranties arising from course of dealing, usage, or trade practice. Company makes no warranty of any kind that the Company Materials, Platform, and Services, or any products or results of the use thereof, will meet Downline Agent’s or any other person's requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free. Transmission of Data. Downline Agent acknowledges and agrees that usage of and access to the Hosted Services are fundamentally dependent upon transmission of data over networks including the Internet not owned or operated by Company. Downline Agent further acknowledges and understands that such electronic transmissions may be accessed by or intercepted by unauthorized Parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Downline Agent agrees that Company is not responsible for any electronic communications that are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Company. Limitation of Liability. In no event shall Company be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) increased costs, diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or (e) cost of replacement goods or services, in each case regardless of whether Company was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will Company’s aggregated liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amounts actually received by Company from Downline Agent under this agreement in the twelve (12) month period preceding the event giving rise to the claim. Indemnification. Downline Agent Indemnification. Downline Agent shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any Losses resulting from any Third-Party or Authorized Subagent Claims: (i) that any Downline Agent materials, in conjunction with any Services, Platform or Company Materials, infringes, misuses, misappropriates, or otherwise violates such third Party's rights including Intellectual Property Rights, (ii) based on Downline Agent’s, its affiliates, and their respective personnel’s negligence or willful misconduct, use of the Platform, Services, and/or Company Materials in a manner not authorized by this Agreement, or use of the Services, Platform and/or Company Materials in combination with data, software, hardware, equipment or technology not provided by Company, and (iii) arising from the unauthorized disclosure, dissemination, publication, or transfer of customer or Company data or personally identifiable information by Downline Agent, its personnel, or its Authorized Subagents; provided that Downline Agent may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to control the defense of and defend itself against any such Third- Party Claim or to participate in the defense thereof by counsel of its own choice, and to be reimbursed by Downline Agent for the reasonable costs and expenses of such defense. Downline Agent acknowledges and agrees that it shall be liable for the full extent of damages arising from the actual or attempted violation of any provision of this Agreement by Downline Agent or any of its personnel, directors, officers, agents, affiliates, or Authorized Subagents. Termination. Term. The term (“Term”) of this Agreement begins on the Effective Date and shall continue until terminated or modified by the Parties pursuant to this Agreements express provisions. Termination. In addition to any other express termination right set forth in this Agreement: Company may terminate this Agreement, effective on written notice to Downline Agent. Downline Agent may terminate this Agreement, effective on ninety days’ (90) written notice to Company, provided, however, that Downline Agent shall, contemporaneously with its written notice to Company, grant Company the option of matching any offer(s) made to Downline Agent from any other upline agent(s). Downline Agent shall give Compuaay all information reasonably necessary for Company to evaluate the terms of the offer(s) and match, or refrain from matching, said offer(s). Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non- breaching Party provides the breaching Party with written notice of such breach. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by orcer of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Downline Agent’s right of access to all Services and the Platform shall cease and Downline Agent shall immediately discontinue use of the Services and the Platform. No expiration or termination will affect Downline Agent’s obligation to pay all Chargebacks that may have become due before such expiration or termination or entitle Downline Agent to any refund. Survival. Sections 3(c), 4(a)(i), 6, 7, 8, 9, 10 and 11 shall survive the termination or earlier expiration of this Agreement. General Terms. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Schedules and Exhibits, including the Statements of Work, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement; and (iii) third, any other documents incorporated herein by reference. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each vase, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section 12(c). Force Majeure. In no event shall Company be liable to Downline Agent or any Authorized Subagent, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Company's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each a “Force Majeure Event”). Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greate