Exhibit 10.11
SERVICES AND SUPPORT AGREEMENT
This Services and Support Agreement (the "Agreement") is dated and effective as
of October 1, 2002 (the "Effective Date") between MEDAIRE, INC. an Arizona
corporation ("MedAire), and BANNER HEALTH SYSTEM, an Arizona nonprofit
corporation ("Banner").
RECITALS:
A. MedAire provides, or makes arrangements for medical advisory services
and specialist consultations to commercial and private air and
watercraft, to travelers and to persons and medical clinics in remote
locations (including clinics owned or affiliated with MedAire).
B. Banner operates an emergency services department at Good Samaritan
Regional Medical Center ("GSRMC") in Phoenix, Arizona, a regional
hospital providing tertiary and quaternary services.
C. The parties desire to set forth the terms and conditions of the
ongoing relationship between MedAire and GSRMC.
AGREEMENT:
1. Term: The term of this Agreement shall commence on the Effective Date and
shall continue until December 31, 2007.
2. Lease: Simultaneously with execution of this Agreement, Banner and MedAire
shall execute and deliver a lease agreement (the "Lease") for the lease of
approximately 490 square feet of space (the "MedLink Facility") within GSRMC by
Banner to MedAire. The Lease shall he in the firm attached hereto as Exhibit 2.
3. Emergency Physician Support Services.
3.1 Provided that MedAire secures the agreement of the emergency physician
group then providing emergency physician services for- the Emergency
Department at GSRMC. Banner authorizes the provision of certified
emergency physician medical advisory services for MedAire's MEDLINK
program through such physician group. The emergency physicians may be
the physician(s) on duty in the Emergency Department of GSRMC or other
emergency departments in the Banner system, as mutually agreed by the
patties. The physicians shall provide medical advice or consultation,
and recommendation for further professional assistance, medical
transportation or treatment on behalf of MedAire to MedAire clients or
affiliates via telephone, radio, e-mail or video-conferencing. The
parties acknowledge and agree that all medical advisory services are
provided to the clients or affiliates of MedAire, and that such
physicians will not establish a physician-patient relationship in
connection with such medical advisory services.
3.2 Unless otherwise agreed by MedAire and the emergency physicians group
at GSRMC, Banner authorizes such emergency physician medical advisory
services to be available twenty-four (24) hours a day, seven (7) days
per week, as needed by MedAire, and Banner agrees to operate the GSRMC
Emergency Department on such a basis unless prevented from doing so by
force majeure or other circumstances beyond the reasonable control of
Banner. MedAire acknowledges and agrees, however, that the first
priority of the emergency physician group at GSRMC shall be to render
emergency physician services to patients in the GSRMC Emergency
Department, and that medical advisory services shall he provided on
behalf of MedAire to MedAire clients or affiliates only when
consistent with proper patient care in the GSRMC Emergency Department.
3.3 If the arrangement between Banner and an emergency physician group
staffing the Emergency Department of GSRMC is terminated and Banner
enters into a contract with a new emergency physician group, MedAire
will be notified of the anticipated change and may offer input and
recommendations with respect to the selection of a new emergency
physician group.
3.4 MedAire shall enter into a contract directly with the GSRMC emergency
physician group pursuant to which MedAire shall compensate such
physician group directly for all services provided by such group to
or on behalf of MedAire to MedAire's clients and affiliates. In no
event shall Banter be responsible for payment for any services
provided by the GSRMC emergency physician group to, or on behalf of
MedAire.
4. Specialist Telemedicine Support Services
4.1 Banner shall, in connection with the telemedicine program at GSRMC,
arrange for the creation of a panel of physician specialists from the
GSRMC medical staff to be available subject to the execution of
agreements between such physicians and MedAire, to provide global
telephone and video consultations and medical advisory services on
behalf of MedAire to MedAire clients and affiliates. Banner shall also
provide clerical support for the maintenance of such physician panel.
Such physician specialists shall contract directly with MedAire, and
the terms, compensation, availability and response times shall be
governed by such agreements. Banner shall not be a party to such
agreements, but MedAire shall notify Banner prior to executing an
agreement with any physician member of the panel and shall provide a
copy of the proposed agreement to Banner. For so long as Banner is
providing insurance pursuant to Section 5.2 for such physicians for
telemedicine services, Banner shall have the right to review and
approve the provisions of such agreements with respect to the
insurance coverage and indemnification rights and obligations
pertaining to such physicians.
4.2 Banner shall provide outreach nurses at GSRMC on a twenty-fours/day,
seven-days week basis. Such nurses shall he available to receive
requests from ;MedAire for consultations, shall triage such calls and
shall refer the calls to the appropriate and available member of the
GSRMC telemedicine specialist panel.
4.3 Banner shall provide medical directorship services for the GSRMC
telemedicine program, which medical directorship services shall
include oversight of medical advisory and consultative telemedicine
provided by members of the GSRMC telemedicine panel on behalf of
MedAire to MedAire's clients or affiliates.
4.4 Banner shall provide videoconferencing equipment for use by MedAire
for video consultations provided by members of the physician specialty
panel under the MedAire global telemedicine program. MedAire shall be
responsible for all long- distance line charges incurred in connection
with all video and telephone consultations, including charged incurred
in connection with the transmission of patient records and other data.
4.5 For the technical, organizational outreach nurse and medical
directorship services provided by BHS pursuant to this Section 4,
MedAire shall pay to BHS a usage fee of $ 100.00 for each consultation
provided by the GSRMC telemedicine panel on behalf of MedAire to
MedAire clients or affiliates. Such a per-consultation fee is being
implemented because of uncertainty as to the ultimate success and
volume of the MedAire global telemedicine program, and the Banner
resources necessary to provide the services contemplated hereunder. On
or about the first anniversary of the Effective Date, the parties
agree to negotiate in good faith regarding the adequacy of the fee and
as to whether the fee should he converted to a periodic stipend or
other compensation methodology.
5. Insurance.
5.1 For the period that commenced on January I, 2002 until June 30, 2003
(or such earlier date as MedAire shall designate by notice to Banner),
Banner will provide, or arrange for, insurance the following insurance
coverages: (a) professional and general liability for MedAire and the
emergency physicians at GSRMC under contract with MedAire for claims
arising out of the emergency medical advisory services described in
Section 3.1. (b) directors and officers liability for the officers and
directors of MedAire, (c) property insurance and (d) such other
insurance as agreed from time to time by MedAire and BHS. The
insurance provided pursuant to this Section is: (i) limited to MedAire
and its subsidiaries, and (ii) included within the overall insurance
program of Banner and, therefore, is subject to change as appropriate,
in the reasonable judgment of Banner, in accordance with changes in
the overall Banner insurance program. MedAire acknowledges and
agrees that a substantial amount of the insurance provided pursuant to
this Section 5.1 is self insurance provided through Banner's wholly
owned subsidiary, Samaritan Insurance Funding Ltd. ("SJFI,"). The
specific terms of the coverages to be provided pursuant to this
Section are set forth in Exhibit 5.1. as the same may be amended from
time to time, and in the event of any inconsistency between this
Section 5.1 and Exhibit 5.1, the provisions of Exhibit 5.1 shall
govern. For the insurance provided pursuant to this Section 5.1,
MedAire shall pay to Banner the premium amount determined by Banner to
be appropriate in its reasonable judgment, taking into account the
fair market value of such insurance, the risks presented by MedAire's
operations, the past loss experience of MedAire, and other factors
appropriate to a prudent underwriting of MedAire's risks. The
insurance provided under this Section 5.1 shall terminate no later
than 11:59 p.m. on June 30, 2003, and MedAire ha the sole
responsibility to arrange for alternative insurance coverage
thereafter.
5.2 Subject to the right of cancellation set forth herein, Banner shall,
during the term of this Agreement. provide, or arrange for,
professional liability insurance for members of the GSRMC physician
specialty panel who contract to provide services on behalf of MedAire
pursuant to Section 4.1 for professional liability claims arising
against such physicians arising out of services rendered on behalf of
MedAire under MedAire's global telemedicine program. Banner may
terminate such coverage at any time, with or without cause, upon 90
clays' prior notice to MedAire. MedAire acknowledges that a
substantial amount of the coverage to be provide pursuant to this
Section 5.2 will be self-insurance provided through SIFL. The specific
terms of the coverage provided pursuant to this Section 5.2 may be
amended by Banner from time to time as deemed appropriate in the
reasonable judgment of Banner.
6. MedAire Obligations.
6.1 MedAire shall provide to the MedLink Facility and the GSRMC Emergency
Department one or more Communication Specialists to support Banner's
responses to emergency telecommunications from various Arizona-based
advanced life support service providers. Emergency telecommunications
support shall include, but is not limited to, notification of inbound
patients, responses to requests for medical orders, and determination
and communication of trauma bed availability. MedAire Communication
Specialists shall answer incoming calls and will notify the GSRMC
Emergency Department charge nurse or emergency physician on duty, as
appropriate. MedAire Communication Specialists shall assist the
Phoenix Fire Department on test calls to verify telemetry equipment
functionality. MedAire shall make such Communication Specialists
available twenty-four (24) hours per day, seven (7) days per week, to
provide the services required in this Section 6.1.
6.2 Except as expressly provided herein, MedAire will be responsible. at
its own expense for acquiring, installing, operating and maintaining
all equipment required for the MedLink Facility including all
telecommunications equipment, computers recording equipment, telemetry
and other equipment.
7. Future Expansion. The parties agree that additional locations may be required
in the future to ensure continued high quality and performance as the number of
MedAire clients and affiliates grows. The parties agree that the creation and
implementation of such additional sites will he determined by mutual agreement
and agree to diligently work together in good faith to effect such change in an
expeditious manner.
8. Invoicing and Payment.
8.1 Banner shall submit monthly invoices for all fees due from MedAire to
the attention of
MEDAIRE, INC.
Accounts Payable Department
80 E. Rio Salado Parkway No. 610
Tempe, Arizona 85281
8.2 Payment for invoices are due thirty (30) days from receipt of invoice.
If invoiced amounts arc not paid within thirty (30) days from receipt
of invoice, MedAire agrees to pay all sums due, plus a late charge
equal to one and half percent (1'/%) per month of such sums due until
fully paid.
9. Relationship of the Parties. The parties intend that an independent
contractor relationship be established by this Agreement. The conduct of the
services to he rendered hereunder shall be solely within the control of the
party providing such service. Neither party is entitled to any of the benefits
that each company provides to its employees. Nothing in this Agreement shall be
interpreted as granting either party the right or authority to make commitments
of any kind for the other, implied or
otherwise, without prior review and written agreement.
10. Confidentiality
10.1 Each party shall treat as confidential the other party's information,
including financial planning and marketing and patient records, and
will comply with applicable criteria relative to the release of such
information. Each party shall treat as confidential any information in
reference to Physicians' fee schedules, financial information, and the
provisions of this contract in reference to the other party's fees,
charges, or financial obligations.
10.2 MedAire hereby expressly agrees to comply with any Banner rules,
regulations and policies implementing Health Insurance Portability and
Accountability Act requirements whether now or hereafter existing.
11. Termination. This Agreement may be terminated by either party if the other
party breaches this Agreement in any material respect, and such breach is not
cured by the breaching party within 15 days after notice of the breach is given
by the non-breaching party. In addition, this Agreement shall terminate upon
expiration or earlier termination of the Lease, or if an Event of Default occurs
under the Lease.
12. Indemnification.
12.1 MedAire shall indemnify and save harmless Banner from and against all
actions, claims and demands whatsoever, including costs, expenses and
attorney's fees resulting from or claimed to have resulted from any
willful misconduct or negligent acts or omissions of MedAire or its
employees or agents. MedAire agrees to defend against all actions,
claims and demands whatsoever, including costs, expenses and
attorney's fees, asserted against Banner, arising out of this
indemnity.
12.2 Banner shall indemnify and save harmless the MedAire against all
actions, claims and demands whatsoever, including costs, expenses and
attorney's fees resulting from or claimed to have resulted from any
willful misconduct or negligent acts or omissions of Banner or its
employees or agents. Banner agrees to defend against all actions,
claims and demands whatsoever, including costs, expenses and
attorney's fees, asserted against MedAire arising out of this
indemnity.
13. Notices. Any notice required to be given under this Agreement shall he in
writing, and s shall be deemed delivered when personally delivered, or three (3)
days after the same is sent by certified mail, postage paid, as follows:
Intended to MedAire: MEDAIRE, inc.
00 X. Xxx Xxxxxx
Xxxxxxx Xx. 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Intended to Banner: Banner Health System
1441N. 12i1' Street
Xxxxxxx. Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx. President,
Arizona Region
With a Copy to: Xxxxx Xxxxx
Xx. Vice President/General Counsel
Banner Health System - Legal Department
1441N. 1 2'x' Street
Xxxxxxx, Xxxxxxx 00000
14. General Provisions
14.1 The Agreement constitutes the entire Agreement between the parties
hereto on the subject discussed herein and no party hereto shall he
bound by a communications between them on the subject matter hereof
unless such communications are in writing and bear a date
contemporaneous with or subsequent to the date hereof and are executed
by the parties.
14.2 No waiver or modification of this Agreement or any covenant condition
or limitation herein contained shall he valid unless in writing and
duly executed by the parties hereto.
14.3 This Agreement shall he construed in accordance with and governed by
the internal laws of the State of Arizona, without regard to conflict
of laws principals.
14.4 If prior to the expiration of the term of this Agreement, any federal,
state or local regulatory body, including but not limited to Centers
for Medicare and Medicaid Services, U.S. Department of Health and
Human Services or the Internal Revenue Service (IRS) determines that
this Agreement is illegal or jeopardizes either party's tax status or
otherwise materially affects either party's business, Banner may, by
action of its Board of Directors acting in its sole discretion,
terminate this Agreement.
14.5 Banner is hereby expressly authorized and permitted to assign all of
its right, title and interest under the Agreement to a related or
affiliated entity, or to any entity that results from joint venture,
merger, consolidation or acquisition or sale of all or substantially
all of the assets or business operations of Banner or GSRMC. MedAire
is hereby expressly authorized and permitted to assign all of its
right, title and interest in and to this Agreement to a successor
Nevada corporation by merger with MedAire. Except as otherwise
provided herein, neither party may assign any of its tight, title or
interest in and to this Agreement.
14.6 MedAire hereby expressly represents and warrants to Banner that
neither MedAire nor any officer, director, owner of 5% or more of the
outstanding stock of MedAire, nor any immediate family or household
member (as that term is defined by Public Law 105-33, Section 4303) of
any such officer, director or owner has been placed on the sanctions
list issued by the Office of the Inspector General of the Department
of Health and Human Services pursuant to provisions of 42 U.S.C.
Section 1320a.7 or been excluded from government contracts by the
General Services Administration (GSA). If, during the term of this
Agreement, MedAire or any employee or owner of MedAire, or any
immediate family or household member or any employee or owner of
MedAire, is placed on the sanctions list, MedAire shall immediately
notify Banner in writing of the event and such notice shall contain
the reasonably sufficient information to allow Banner to determine the
nature of the sanction. Banner shall have the right to terminate this
Agreement immediately by written notice to MedAire if MedAire or any
officer, director or owner of 5% or more of the outstanding stock of
MedAire, or any immediate family or household member or any officer,
director or such owner of MedAire is placed on the sanctions list or
banned from government contracts by the GSA, and such person's
connection with MedAire is not completely and irrevocably severed
within 10 days after demand for such severance by Banner.
BANNER HEALTH SYSTEM, an MEDAIRE, Inc.,
Arizona nonprofit corporation an Arizona corporation
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
--------------------------------- ------------------------------------
Its: President, Arizona Region Its: President
EXHIBIT 2
FORM OF LEASE:
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