EXHIBIT 10.8
CALL CENTER SERVICE AGREEMENT
This Call Center Service Agreement (the "Service Agreement") is made
this 2nd day of July, 1998 (the "Effective Date") by and between America's
Doctor, Inc., a Delaware corporation ("AD") and Medical Advisory Systems, Inc.,
a Delaware corporation ("MAS").
RECITALS
WHEREAS, AD is a company formed to implement real-time medical
information and related services via the Internet; and
WHEREAS, AD will provide its services to its users through
Physicians and other health staff located at one or more call center(s) (the
"Call Center"); and
WHEREAS, AD does not and will not engage in the practice of
medicine; and
WHEREAS, MAS is a company headquartered at 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "MAS Office") providing medical
assistance products and services twenty-four hours (24) a day utilizing a
worldwide telecommunications system; and
WHEREAS, MAS will operate the AD Call Center in a manner such that
neither MAS nor AD will engage in the practice of medicine; and
WHEREAS, MAS has agreed to purchase Fifty Thousand (50,000) shares
of common stock of AD (the "MAS Stock") pursuant to the terms of a Stock
Purchase Agreement of even date herewith; and
WHEREAS, in consideration for the MAS Stock, MAS has agreed to pay
AD the sum of One Million Dollars ($1,000,000) (the "Stock Purchase Price"); and
WHEREAS, the Stock Purchase Price shall be paid by MAS to AD by way
of credits
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for services rendered, certain assets purchased by MAS and cash payments by MAS
to AD pursuant to this Service Agreement; and
WHEREAS, AD has agreed to promote MAS's core programs and core lines
of business, including its 800 Series and 900 voice telephone service, on AD's
site on America Online ("AOL").
NOW THEREFORE, in consideration of the foregoing recitals and the
premises and the consideration set forth herein, AD and MAS hereby agree as
follows:
1. Incorporation of Recitals. The foregoing recitals are
incorporated as part of this Service Agreement as if set forth fully herein.
2. Term.
(a) The term of this Service Agreement shall be for two (2) years
(the "Initial Term") commencing on the Effective Date. At the conclusion of the
Initial Term, unless either party hereto gives notice of termination as provided
in Section 2(b) below, the Service Agreement shall automatically renew for a
term of one (1) year (the "Renewal Term"). At the conclusion of the Renewal
Term, unless either party hereto gives notice of termination as provided in
Section 2(b) below, the Service Agreement shall automatically renew for a term
of two (2) years (the "Extended Term").
(b) Either party to this Service Agreement may terminate the Service
Agreement without cause by providing written notice of termination not less than
ninety (90) days prior to the expiration of the Initial Tenn, the Renewal Term
or the Extended Term.
3. Exclusivity. During the Term of this Service Agreement, or unless
otherwise agreed to by MAS, during the term of this Service Agreement, MAS shall
be the exclusive provider of
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Call Center services to AD.
4. Goals and Objectives. AD and MAS agree that the goals and
objectives to be achieved through this Service Agreement are as follows:
(a) Create and operate a twenty-four (24) hour a day three hundred
sixty-five (365) day a year Call Center to service the needs of AD's users;
(b) Establish and maintain high quality services for AD's users;
(c) Commence operations of the Call Center in a timely manner as set
forth in AD's Business Plan;
(d) Provide and maintain AD's Call Center services within the budget
for such services set forth in AD's Business Plan;
(e) Respond to a minimum of thirty thousand (30,000) AD user
transactions in the first month of operation of the Call Center, with monthly
increases pursuant to AD's Business Plan or actual usage, whichever is greater;
(f) Minimize wait time for AD's users;
(g) Respond to each user's questions timely, accurate and
completely; and
(h) Staff the Call Center with qualified Board Eligible/Board
Certified Physicians and other qualified health care professionals;
(i) Training Call Center Physicians and other health care
professionals to respond to a minimum of eight (8) user inquiries per hour.
5. MAS Responsibilities. MAS shall use reasonable business efforts
to provide and maintain the following goods and services in a timely, efficient
and effective manner:
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(a) Installation of fifteen (15) work stations. MAS shall purchase
and maintain all of the furnishings, computer equipment, connections,
communication lines, service, software (other than software being developed by
The Brook Group). MAS shall further purchase the server(s) and other equipment
necessary to operate the Call Center. MAS shall comply with all of the
specifications set forth in the proposal by Management Works attached to this
Service Agreement as Exhibit A (the "Specification"). The Specifications may be
modified by AD provided that such modification(s) does not increase the cost to
MAS of fulfilling the Specifications. AD shall provide MAS with any such
modifications prior to MAS ordering any item in the Specifications. MAS, with
AD's consent, may modify the Specifications provided that any such
modification(s) provide for matching equivalent specifications sufficient to
fulfill AD's needs for the project;
(b) Recruit and hire a sufficient number of Board Eligible/Board
Certified Physicians (the "Physicians") as per the Business Plan, as well as
other qualified professionals, such as dieticians, nurses, etc. (the "Health
Staff") to staff and service the Call Center in a manner allowing AD to
accurately respond to its users' requests in a timely manner;
(c) Develop a training program for and train the Physicians and the
Health Staff;
(d) Provide twenty-four (24) hour supervision of the Physicians and
the Health Staff;
(e) Provide AD with spillover access to physicians employed by MAS
who primarily provide services for MAS core business operations (the "MAS
Physicians") to assist with the AD Call Center;
(f) Provide the AD Call Center Physicians and Health Staff with
access to MAS's
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health care reference data bases and other resource materials;
(g) Enter into a joint venture with AD for the purpose of the
marketing and sales of MAS's premium services to corporations, insurance
companies, HMO's, medical institutions, sophisticated medical consumers and
medically troubled populations;
(h) Provide such other services and resources as are necessary to
operate the Call Center in an efficient and effective manner.
6. Physician and Health Staff Recruitment and Hiring. Immediately
upon the execution of this Service Agreement, MAS shall commence recruiting and
hiring the Physicians and Health Staff necessary to adequately staff the AD Call
Center. Unless otherwise directed by AD in accordance with Section 23(b) herein,
the Physicians and Health Staff shall be hired as independent contractors by MAS
or an MAS subsidiary or affiliate. MAS shall require all Physicians and Health
Staff to sign a contract containing a non-competition clause restricting the
Physicians and Health Staff from working for another online medical information
service in competition with AD. In addition to the non-competition provision,
the contract between MAS and the Physicians and Health Staff shall contain
provisions requiring the Physicians and Health Staff to comply with the
procedures and protocols which shall be developed by AD and implemented by MAS.
MAS may pay Physicians up to $60.00 per hour, exclusive of any benefits and
other payroll costs. If MAS wishes to pay a Physician more than $60.00 per hour,
MAS must first obtain the approval of AD, which approval shall not be
unreasonably withheld. MAS shall obtain approval from AD for the hourly rates to
be paid to the Health Staff. Such approval shall not be unreasonably withheld.
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7. Training. MAS shall design and administer a program to train the
AD Call Center Physicians and Health Staff. This training program shall be
approved by AD. In addition to the initial training, MAS shall provide AD Call
Center Physicians and Health Staff with ongoing continuing education and
training. The content and frequency of the ongoing training shall be agreed upon
by AD and MAS.
8. Online Service/Equipment Issues. MAS agrees that if AD suffers an
interruption in service as a result of any equipment failure or other problem
attributable to the Call Center, MAS shall provide AD with an assessment
evaluation within fifteen ( 15) minutes of the system failure, and a full
evaluation within thirty (30) minutes of- the system failure. MAS shall notify
an AD designee within fifteen (15) minutes of any system failure.
9. Backup/Redundancy Plan. MAS shall implement the backup/redundancy
plan agreed to between AD and MAS.
10. MAS Report Data Delivery. MAS shall provide such reports and
data reasonably requested by AD. Such reports and data shall include, but not be
limited to: Call Center usage; user wait time; response time; and zip code
specific usership reports. MAS shall provide such reports and data to AD upon
request by a designated AD representative.
11. Ownership of Equipment/ Risk of Loss.
(a) All equipment, including connections, furnishings and software
purchased by MAS for the AD Call Center (the "Equipment") pursuant to this
Service Agreement shall be titled in the name of and owned by AD. MAS shall
provide AD with written documentation specifying the Equipment purchased and
containing proof of payment. Any additional furnishings and equipment
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purchased by MAS for the AD Call Center shall be owned by MAS unless by
agreement, AD shall reimburse MAS for such furnishings and equipment in which
event such furnishings and equipment shall become part of the Equipment. The
term Equipment also includes any equipment, including connections, furnishings
and software purchased directly by AD and placed at the AD Call Center. All of
the Equipment shall be clearly labeled as owned by AD and MAS shall maintain a
complete and up-to-date lists of all of the Equipment.
(b) AD shall bear the risk of loss for damage to the Equipment,
except however, if such damage is caused by the gross negligence or willful
neglect of MAS, then, in such event, MAS shall bear the risk of loss.
12. Call Center Start-Up. For purposes of this Service Agreement,
the start-up date for the Call Center shall be two (2) weeks prior to the soft
launch of the AD service, pursuant to AD's contract with AOL. The period from
the Effective Date through the Start-up Date shall be referred to herein as the
"Pre-Start-up Period." The period after the Start-up Date shall be referred to
herein as the "Post-Start-up Period.
13. Credit Against Stock Purchase Price.
(a) In consideration for the services enumerated below, which shall
be performed during the Pre-Start-Up Period, MAS shall receive as a credit
against the Stock Purchase Price the total sum of $360,000.
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------------------------------------------------------------
Service Credit
------- ------
------------------------------------------------------------
(i) May and June Rent ($5,000 per month) $10,000
------------------------------------------------------------
(ii) Installation of fifteen (15) Work Stations,
including but not limited to, workstations,
furniture, server(s), communication connectors and
software per Management Works specifications $200,000
------------------------------------------------------------
(iii) Hiring and Start-up training of Physicians,
Health Staff and Supervisors (not including the
actual cost of salaries, which shall be treated in
accordance with Sections 15 and 16 herein) $60,000
------------------------------------------------------------
(iv) MAS Management Salaries $60,000
------------------------------------------------------------
(v) Benefits on Management Salaries $15,000
------------------------------------------------------------
(iv) Systems Coordination, Hardware and $15,000
Generator
------------------------------------------------------------
Total: $360,000
------------------------------------------------------------
(b) If the cost of providing the fifteen (15) Work Stations and
related Equipment exceeds the projected cost as set forth in the Management Work
Specifications, MAS shall receive additional credit against the Stock Purchase
Price for each dollar the actual cost exceeds the total Management Works
projected cost.
14. Payment Against The Stock Purchase Price And Issuance of the MAS
Stock.
(a) MAS shall make total cash payments of Six Hundred Forty Thousand
Dollars ($640,000) against the Stock Purchase as follows: (i) commencing seven
(7) days from the date on
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which AD shall first pay a MAS monthly invoice in accordance with Section 16
below (the "Initial MAS Payment Date"), and on the 7th day following the date on
which AD pays each MAS monthly invoice for each of ten (10) successive months
following the Initial MAS Payment Date, MAS shall pay AD the sum of Fifty Three
Thousand Three Hundred Twenty Dollars ($53,320.00); and (ii) on the 7th day
following the date on which AD pays the monthly invoice for the eleventh (1lth)
month following the Initial MAS Payment Date, MAS shall pay AD the sum of Fifty
Three Thousand Four Hundred Eighty Dollars ($53,480.00).
(b) Provided MAS has fully performed in accordance withSection 13(a)
herein, upon the Start-up Date, AD shall issue MAS the total of Eighteen
Thousand (18,000) shares of the MAS Stock.
(c) AD shall issue to MAS Two Thousand Six Hundred Sixty Six (2,666)
shares of the MAS Stock upon receipt by AD of each payment of Fifty Three
Thousand Three Hundred Twenty Dollars ($53,320.00) in accordance with Section
14(a) herein.
(d)AD shall issue to MAS Two Thousand Six Hundred Seventy Four
(2,674) shares of the MAS Stock upon receipt by AD of the final payment of Fifty
Three Thousand Four Hundred Eighty Dollars ($53,480.00) in accordance with
Section 14(a) herein.
00.Xxxx Start-up Period Management. During the Post Start-up Period
MAS shall provide Call Center management oversight such that AD shall be able to
fill the following positions at a cost less than projected in the AD Business
Plan (as defined in the MAS Stock Purchase Agreement):
(a) Vice President of Information Technology;
(b) Vice President of Health Services;
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(c) Director of Provider Education; and
(d) Administrator/Coordinator
16. MAS Billing.
(a) MAS shall xxxx AD monthly for services provided AD under the
terms of this Service Agreement, including the services provided pursuant to
Section 6 herein. Subject to Section l6(f) below, payment shall be due ten (10)
days after receipt of MAS's invoice by AD. When MAS's total monthly bills to AD
exceed Two Hundred Thousand Dollars ($200,000), MAS may, at its option, xxxx AD
every two (2) weeks. Subject to Section 16(f) below, payment shall be due within
ten (10) days of AD's receipt of each biweekly billing statement.
(b) MAS shall charge AD, MAS's actual cost plus ten percent (10%),
but in no event less than Twenty Six Thousand Dollars ($26,000) per month, for
Physicians, other Health Staff and Supervisory Personnel. Upon the earlier to
occur of: (i) AD being profitable on a cash basis for three (3) consecutive
months; or (ii) the tenth (10th) month after the Effective Date, MAS may
increase the charge to AD for Physicians and Health Staff to its actual cost
plus twenty percent (20%), but in no event less than Twenty Six Thousand Dollars
($26,000) per month. Provided, however, that pursuant to Section 25 herein, if
MAS is permitted by AD, pursuant to Section 25 herein, to contribute an
additional Five Hundred Thousand Dollars ($500,000) of ongoing operation and
management services in exchange for additional common stock in AD at a valuation
to be determined by AD, MAS shall continue to charge its actual cost plus ten
percent (10%), but in no event less than Twenty Six Thousand Dollars ($26,000)
per month, until such additional investment is fully paid by MAS, during the
Term of this Service Agreement, including any extensions thereof.
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(c) If MAS purchases additional equipment for the Call Center with
AD's consent, MAS may xxxx AD for the actual cost of such equipment.
(d) MAS may xxxx AD for the actual cost of expenses such as
overnight deliveries, postage, long distance telephone charges, facsimiles and
miscellaneous office supplies, such as pencils, pens, paper, etc.
(e) Except for Post Start-up Period rent charges ($5,000 per month),
MAS shall not xxxx AD for any general overhead expenses including, but not
limited to, electric charges, building maintenance and local telephone charges.
(f) AD shall prepay MAS's payroll for Physicians, Health Staff and
Supervisory Personnel pursuant to the following procedure: not less than seventy
two (72) hours prior to the date payroll checks are to be distributed, MAS shall
provide AD, in writing, the amount of the payroll; (ii) not less than twenty
four (24) hours prior to the date payroll checks are to be distributed, AD shall
transfer to MAS an amount sufficient to pay the payroll. AD's failure to prepay
the payroll in accordance with this Section 16(f) shall constitute a breach of
this Service Agreement by AD.
17. Additional Locations.
(a) In the event MAS is unable to adequately staff all of AD's Call
Center needs at the MAS Office location, AD shall open additional call centers
at other locations.
(b) MAS shall have the responsibility for recruiting, training and
supervising Physicians and Health Staff at any such additional location.
(c) AD and MAS shall mutually agree upon any additional costs
(including costs of additional supervisory personnel) MAS may incur in its
operation of additional Call Center locations.
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MAS shall charge AD in accordance with Section 16 above for any such additional
costs.
18. Noncompetition.
(a) During the term of this Service Agreement and provided that MAS
is not in default hereunder, MAS has the exclusive right to provide Call Center
services to AD, and AD shall not operate any competing Call Center.
(b) During the term of this Service Agreement and for a period of
one (1) year after the termination of this Service Agreement, AD shall not
compete with MAS in any of MAS's core business activities, including
specifically, MAS's "800 Series" and "900" voice telephone services.
(c) During the term of this Service Agreement, and for a period of
one (1) year after the termination of this Service Agreement, MAS shall not
compete with AD by providing real time medical information and related services
via the Internet.
(d) In the event this Service Agreement is terminated for any
reason, AD may contract with or employ the Physicians and Health Staff dedicated
primarily to the AD Call Center. In no event shall AD recruit, contract with or
employ any member of MAS's staff, including MAS Physicians, not dedicated
primarily to the AD Call Center.
19. MAS Standard of Care. MAS shall use reasonable business efforts
to operate the Call Center efficiently and effectively and to comply with all of
the protocols and procedures agreed to between AD and MAS. MAS shall take care
to ensure that the Physicians and Health Staff comply with AD's protocols and
procedures such that AD does not engage in the practice of medicine or any other
health related field. MAS has not violated its standard of care pursuant to this
Section 19 if it complies with all of the protocols and procedures agreed to
between AD and MAS but nevertheless, a
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Physician(s) or member(s) of the Health Staff is/are found to have engaged in
the practice of medicine or some other health related field.
20. Indemnification. AD hereby agrees to indemnify, hold harmless
and defend MAS, the Physicians and/or the Health Staff from and against any and
all claims of any nature whatsoever arising directly from the operation of the
Call Center brought against MAS, any Physician or member of the Health Staff
provided that there is no finding that MAS, the Physicians and/or the Health
Staff have not complied with all of the protocols and procedures for operating
the Call Center agreed to between MAS and AD. AD shall maintain general
liability business insurance with coverage limits of $1,000,000 per occurrence
and $3,000,000 in the aggregate.
21. Operations Committee; Operational Criteria. During the term of
this Service Agreement, the Board of Directors of AD shall appoint a Call Center
Operations Committee (the "Operations Committee") consisting of three (3)
members. The Operations Committee shall be composed of Xxxxx Xxxxxx, the PRWW
Board Representative and the MAS Board Representative. The Operations Committee
shall establish reasonable performance criteria that MAS must comply with under
this Service Agreement (the "Performance Criteria"). The Performance Criteria
shall change from time to time. The Operations Committee shall present proposed
Performance Criteria to MAS in writing, and MAS shall have five (5) business
days to comment upon the proposed Performance Criteria. Within five (5) business
days of MAS's response to the proposed Performance Criteria, the Operations
Committee shall present MAS with the written Performance Criteria with which MAS
shall comply until such time as the Operations Committee amends or modifies the
performance criteria.
22. Default by MAS.
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(a) The failure of MAS to comply with any of the terms of this
Service Agreement including, but not limited to, the failure to comply with the
Performance Criteria, described in Section 21 above, shall constitute a breach
of the Service Agreement by MAS. MAS shall be deemed to have failed to comply
with the Performance Criteria if two (2) of the three (3) members of the
Operations Committee determine that there is noncompliance. In such event, the
Operations Committee shall give MAS written notice of such noncompliance, which
written notice shall specify the nature of such noncompliance (the "Notice of
Noncompliance"). MAS shall have fifteen (15) days after receipt of the Notice of
Noncompliance to cure such noncompliance. If two (2) of the three (3) members of
the Operations Committee determine that MAS has failed to cure in accordance
with the Notice of Noncompliance, the Operations Committee shall so notify MAS
in writing and MAS shall be in breach of this Service Agreement.
(b) Upon MAS's breach of this Service Agreement, this Service
Agreement shall automatically terminate. Upon termination, AD may, at its sole
option, take any or all of the following actions:
(i) Subject to Section 29 herein, pursue any and all remedies
available by law including damages;
(ii) Take possession of all Call Center Equipment owned by AD
pursuant to Section 22(d) below;
(iii) In accordance with and subject to the provisions of
Section 18(d), contract with or employ the Physicians and/or Health
Staff; and
(iv) Take any and all other actions AD deems in its best
interest to facilitate
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the continued operation of the AD Call Center.
(c) Upon termination, AD shall promptly deliver to MAS the balance
of any shares paid for and due MAS pursuant to Section 14 herein.
(d) Upon the termination of this Service Agreement, MAS shall have
the right to purchase the balance of the MAS Stock then unpaid for by paying the
remaining balance of the Stock Purchase Price to AD in cash within thirty (30)
days of the termination of the Service Agreement. Upon payment by MAS of the
balance of the Stock Purchase Price, AD shall promptly deliver the balance of
the MAS Stock to MAS.
(e) Upon termination of this Service Agreement, MAS shall cooperate
with AD in order to effect an orderly transition of the Call Center from MAS to
AD or AD's designee. MAS shall continue to operate the Call Center for a period
of thirty (30) days after termination. MAS shall surrender and turnover the AD
Call Center Equipment within such thirty (30) day period. If MAS fails to
turnover the Equipment in a timely manner, then AD or its designee may enter the
MAS Office and remove the AD Call Center Equipment. AD shall take care to remove
the Equipment in a manner which will cause the least disruption to MAS's core
business services.
(f) In the event AD wrongfully terminates or otherwise breaches this
Service Agreement, subject to Section 29 herein, MAS may pursue any and all
remedies available by law including seeking damages.
23. Independent Contractors.
(a) In the event that any State or Federal taxing authority asserts
that the Physicians
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and/or Health Staff are employees of MAS (or an MAS subsidiary or affiliate),
MAS shall immediately so notify AD in writing. AD may, in its discretion,
participate in any negotiation or litigation with such taxing authority. If AD
wishes to challenge the taxing authority, AD shall be responsible for the costs
of such challenge, including any costs incurred by MAS. If it is determined that
the Physicians and/or Health Staff are employees and not independent
contractors, AD shall be responsible to reimburse MAS and pay for any payroll
withholding or other taxes associated with the employment of the Physicians
and/or Health Staff.
(b) AD, in its sole discretion, may require MAS to treat the
Physician and/or Health Staff as employees rather than independent contractors.
In such event, AD shall pre-pay, pursuant to Section 16(f) herein, all sums
required to comply with state and federal withholding obligations.
24. AD Responsibilities to MAS.
(a) In addition to all of AD's obligations set forth above, AD shall
do the following:
(i) Jointly develop a program with MAS to promote and market
at no cost to MAS, MAS's core programs and lines of business on AD's
site on AOL;
(ii) Participate in the marketing of MAS's 800 Series
telephone product so long as such participation results in no
financial costs to AD, is limited to the referral of AD users to the
MAS 800 Series telephone service, and is determined by AD's Board as
not being detrimental to AD;
(iii) Provide direct links from the AD site on AOL to MAS's
website(s);
(iv) Include the MAS sponsored Doc-Talk, LLC. 800 Series
telephone
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service in its banner advertisement cycle on the AD main page at no
cost to MAS;
(v) Enter into a joint venture with MAS for the purpose of the
marketing and sales of MAS's premium services to corporations,
insurance companies, HMO's, medical institutions, sophisticated
medical consumers and medically troubled populations; and
(vi) Analyze with MAS and, if feasible, pursue the marketing
and sales of MAS's premium services in international markets.
25. Additional Stock Purchase by MAS. AD, in its sole and absolute
discretion, may request MAS to contribute up to an additional Five Hundred
Thousand Dollars ($500,000) of ongoing services in accordance with the terms of
this Service Agreement (the "Additional Services") in exchange for additional
common stock in AD (the "Additional MAS Stock"). The valuation of the Additional
MAS Stock shall be set by the AD Board of Directors. MAS, in its sole and
absolute discretion, may agree to perform the Additional Services, or may
decline to do so.
26. Eligibility for AD Stock Options. To the extent permitted by law
and the corporate Bylaws of AD, the MAS Supervisory Personnel, the Physicians
and the Health Staff shall be eligible for the AD employer stock option plan, at
the sole and absolute discretion of the AD Board and Compensation Committee.
27. Representations. Warranties and Disclaimers.
(a) AD is a corporation duly incorporated under the laws of the
State of Delaware and is authorized to enter into this Service Agreement.
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(b) MAS is a corporation duly incorporated under the laws of the
State of Delaware and is authorized to enter into this Service Agreement.
(c) The parties hereto understand and agree that Doc-Talk, LLC is an
affiliate of MAS which has been formed for the purpose of marketing premium
medical services telephonically and via the Internet.
(d) Except as specifically provided herein, this Service Agreement
does not constitute a joint venture between MAS and AD.
28. Force Majeure. Neither party hereunder shall be liable to the
other for any failure or delay in performance of its obligations under this
Service Agreement due to causes beyond the reasonable control of the party in
question such as governmental action or rioting, civil commotion, fire, flood,
epidemic or other act of God. Performance of the contractual obligation which
has been delayed by the force majeure shall be deemed suspended only for a
period equal to the delay caused by such event.
29. Arbitration and Governing Law.
(a) This Service Agreement shall be governed and construed in
accordance with the laws of the State of Maryland.
(b) In the event the parties have any material dispute under this
Service Agreement, the parties hereby agree to submit any such dispute to
binding arbitration in the State of Maryland.
30. Assignment.
(a) MAS may not assign this Service Agreement or any of its
obligations and rights under this Service Agreement to any party without the
express written consent of AD.
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(b) AD may assign its rights and obligations under this Service
Agreement to a third party provided such third party agrees to comply with all
of the terms of this Service Agreement.
31. Notices. All notices and demands required or permitted to be
given by either party to the other under this Service Agreement shall be in
writing, sent certified mail, return receipt requested, postage prepaid, or by
Federal Express or other reputable overnight courier service, or by hand
delivery and shall be deemed to have been received upon hand delivery, or one
(1) business day following deposit with Federal Express or other reputable
overnight courier service, or three (3) days following deposit in the U.S. Mail
if sent by certified mail to the address shown below or to such other address as
either party may designate by notice to the other.
Medical Advisory Systems, Inc.
0000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
America s Doctor, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
32. Amendment of the Service Agreement. No amendment of this Service
Agreement shall be valid and binding unless set forth in writing and duly
executed by all of the parties hereto.
33. Severability. Any provision of this Service Agreement which
shall prove to be invalid, void or illegal shall inno way affect, impair or
invalidate any other provision hereof and such other provision shall remain in
full force and effect.
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AMERICA'S DOCTOR, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx, M.D.
Its: Chairman
MEDICAL ADVISORY SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
Its: President
READ and AGREED:
Premier Research Worldwide
By: /s/ Xxxx Xxxxxx
-------------------------------
Xxxx Xxxxxx
Its: Chief Financial Officer
ADDENDUM NUMBER ONE TO
THE CALL CENTER SERVICE AGREEMENT,
DATED JULY 2, 1998, BY AND BETWEEN AMERICA'S DOCTOR, INC.
AND MEDICAL ADVISORY SYSTEMS, INC.
THIS ADDENDUM NUMBER ONE TO THE CALL CENTER SERVICE AGREEMENT, dated
July 2, 1998, between America's Doctor, Inc. and Medical Advisory Systems, Inc.
(the "Addendum No. 1") is effective this 30th day of October 1998 (the
"Effective Date"), by and between America's Doctor, Inc., a Delaware Corporation
("AD" or the "Company") and Medical Advisory Systems, Inc., a Delaware
Corporation ("MAS").
WHEREAS, AD is a company headquartered at 00000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, formed to implement real-time medical
information and related services via the Internet; and
WHEREAS, MAS is a company headquartered at 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000 (the "MAS Office"), providing medical
assistance products and services twenty-four hours (24) a day, utilizing a
worldwide telecommunications system; and
WHEREAS, MAS purchased Fifty Thousand (50,000) shares of Common
Stock of AD pursuant to the terms of a Common Stock Purchasing Agreement among
America's Doctor, Inc., Medical Advisory Systems, Inc., and Premier Research
Worldwide, Ltd., dated July 2, 1998 (the "Stock Purchase Agreement"); and
WHEREAS, as part of and appended to the Stock Purchase Agreement, AD
and MAS entered into a Call Center Service Agreement, dated July 2, 1998 (the
"Call Center Agreement") which outlined the terms of MAS' operation of AD's Call
Center (as that term is defined in the Call Center Agreement) from the MAS
Office; and
WHEREAS, MAS is currently operating the AD Call Center from the MAS
Office and is in compliance with the terms of the Call Center Agreement; and
WHEREAS, MAS purchased an additional Forty Thousand (40,000) shares
of Common Stock of AD pursuant to the terms of a Subscription Agreement dated
October 30, 1998 (the "Subscription Agreement"); and
WHEREAS, the parties wish to clarify and modify certain terms of the
Call Center Agreement;
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
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1. The foregoing recitals are incorporated as part of this Addendum
No. 1 as if fully set forth herein. 1.
2. This Addendum No. 1 hereby amends and replaces Section 2(b) of
the Call Center Agreement in its entirety and inserts the following language:
"MAS may terminate this Service Agreement 'for cause' by providing
AD with at least ninety (90) days written notice of termination. For purposes of
this Section, 'for cause' shall mean AD's failure to:
(i) pay any and all sums due MAS pursuant to Section 16 herein
within thirty (30) days of such sums being due and payable; or
(ii) timely pay sums due MAS pursuant to Section 16 herein for
three (3) consecutive months.
In the event that MAS terminates this Service Agreement 'for
cause,' MAS shall cooperate with AD in order to effect an orderly transition of
the Call Center from MAS to AD or AD's designee (the "Transition Period"). MAS
shall surrender and turnover the AD Call Center Equipment during the Transition
Period. If MAS fails to turnover the AD Call Center Equipment in a timely
manner, then AD or its designee may enter the MAS Office and remove the AD Call
Center Equipment. AD shall take care to remove the AD Call Center Equipment in a
manner which will cause the least disruption to MAS' core business services."
3. This Addendum No. 1 hereby modifies Section 20 of the Call Center
Agreement to reflect that AD shall maintain general liability business insurance
with coverage limits of $2,000,000 per occurrence and $6,000,000 in the
aggregate. In addition, AD will make reasonable business efforts to have MAS
named as an additional assured.
4. This Addendum No. 1 hereby amends and replaces Section 22(d) of
the Call Center Agreement in its entirety and inserts the following language:
"(d) Upon the termination of this Service Agreement, MAS shall
have the right to purchase the balance of the MAS Stock then unpaid for by
paying the remaining balance of the Stock Purchase Price to AD in cash within
one hundred and twenty (120) days of the termination of the Service Agreement.
Upon payment by MAS of the balance of the Stock Purchase Price, Ad shall
promptly deliver the balance of the MAS Stock to MAS."
5. This Addendum No. 1 hereby amends and modifies Section 20 of the
Call Center Agreement to insert the following language:
"(c) In the event MAS reasonably incurs an increase in its
malpractice insurance coverage, over and above MAS' current premium payment of
over $22,000 per annum for the employment of the Physicians and Health Staff
(the "Insurance Premium"), AD will reimburse MAS for any such overage of the
Insurance Premium."
6. This Addendum No. 1 hereby modifies Section 25 of the Call Center
Agreement to reflect that MAS' purchase of Common Stock of AD Pursuant to the
Subscription
3
Agreement dated October 30, 1998, shall not affect AD's ability to request that
MAS contribute Additional Services (as that term is defined in the Call Center
Agreement) in exchange for Additional MAS Stock (as that term is defined in the
Call Center Agreement).
7. All other terms and conditions of the Call Center Agreement shall
remain in full force and effect.
8. This Addendum No. 1 shall be governed by and construed in
accordance with the laws of the State of Maryland without regard to its conflict
of laws principles.
9. This Addendum No. 1 shall be binding upon the parties hereto and
their respective successors and assigns, but this shall not be deemed to permit
any assignment not permitted pursuant to the Call Center Agreement.
10. In the event the parties have any material dispute under this
Addendum No. 1, the parties hereby agree to submit any such dispute to binding
arbitration in the State of Maryland.
11. Any provision of this Addendum No. 1 which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and such other provision shall remain in full force and effect.
(CONTINUED NEXT PAGE)
4
IN WITNESS WHEREOF, the parties have executed this Addendum No. 1 as
of the day and year first written above.
ATTEST AMERICA'S DOCTOR, INC.
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxx, M.D.
------------------------------ ---------------------------
Name: Xxxxx Xxxxxx, M.D.
Its: President
ATTEST MEDICAL ADVISORY SYSTEMS, INC.
By:
------------------------------ ---------------------------
Name: Xxxxxx Xxxxxxx
Its: President
------------------------------
READ AND AGREED TO:
PREMIER RESEARCH WORLDWIDE, LTD.
By:
---------------------------
Name: Xxxx Xxxxxxxxxx, M.D.
Its: President
ADDENDUM NO. 2 TO
THE CALL CENTER SERVICE AGREEMENT,
DATED JANUARY 29, 1999, BY AND BETWEEN AMERICA'S DOCTOR, INC.
AND MEDICAL ADVISORY SYSTEMS, INC.
THIS ADDENDUM NO. 2 to The Call Center Service Agreement, dated July
2, 1998, between America's Doctor, Inc. and Medical Advisory Systems, Inc. (the
"Addendum No. 2") is effective __ day of January, 1999 (the "Effective Date"),
by and between America's Doctor, Inc., a Delaware Corporation ("AD") or the
"Company") and Medical Advisory Systems, Inc., a Delaware Corporation ("MAS").
WHEREAS, AD is a company headquartered at 00000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxx 00000, formed to implement real time medical
information and related services via the Internet; and
WHEREAS, MAS is a company headquartered at 0000 Xxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000 (the "MAS Office"), providing medical
assistance products and services twenty-four hours (24) a day, utilizing a
worldwide telecommunications system; and
WHEREAS, AD and MAS entered into a Call Center Service Agreement,
dated July 2, 1998 (the "Original Call Center Agreement") which outlined the
terms of MAS' operation of AD's Call Center (as that term is defined in the
Original Call Center Agreement) from the MAS Office, which Original Call Center
Agreement was amended and clarified, pursuant to the provisions of Addendum
Number One to the Call Center Agreement, effective October 30, 1998, by and
between AD and MAS (AAddendum No. 1"); and
WHEREAS, MAS is currently operating the AD Call Center from the MAS
Office and is in compliance with the terms of the Original Call Center
Agreement, as amended by Addendum No. 1 (collectively the "Call Center
Agreement"); and
WHEREAS, the parties wish to clarify and modify certain terms of the
Call Center Agreement:
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. The foregoing recitals are incorporated as part of this Addendum
No. 2 as if fully set forth herein.
2. Pursuant to the provisions of this Addendum No. 2, Section 20 of
the Call Center Agreement will be amended and restated in its entirety as
follows:
INDEMNIFICATION AND INSURANCE
2
(a) AD hereby agrees to indemnify, hold harmless and defend
MAS, any affiliate or subsidiary of MAS which engages the Physicians and/or the
Health Staff, the Physicians and the Health Staff from and against any and all
claims of any nature whatsoever arising directly from the operation of the Call
Center brought against MAS, any affiliate or subsidiary of MAS which engages the
Physicians and/or the Health Staff, the Physicians and/or the Health Staff
provided that there is no finding that MAS, any affiliate or subsidiary of MAS
which engages the Physicians and/or the Health Staff, the Physicians and/or the
Health Staff has not complied with all of the protocols and procedures for
operating the Call Center agreed to between MAS and AD.
(b) AD shall at all times during the term of this Service
Agreement maintain general liability business insurance with coverage limits of
Two Million Dollars ($2,000,000) per occurrence and Six Million Dollars
($6,000,000) in the aggregate. In addition, AD will make reasonable business
efforts to have MAS named as an additional insured under said general liability
insurance policy.
(c) In the event that MAS or the affiliate or subsidiary of
MAS which engages the Physicians and/or the Health Staff reasonably incurs an
increase in its malpractice insurance coverage over and above the current annual
premium payment of MAS in the amount of $22,000 for the employment of the
Physicians and Health Staff, then AD will reimburse MAS or the affiliate or
subsidiary of MAS which engages the Physicians and/or the Health Staff for any
annual premium expense in excess of the aforesaid current annual premium
payment.
3. All other terms and conditions of the Call Center Agreement shall
remain in full force and effect.
4. This Addendum No. 2 shall be governed by and construed in
accordance with the laws of the State of Maryland without regard to its conflict
of laws principles.
5. This Addendum No. 2 shall be binding upon the parties hereto and
their respective successors and assigns, but this shall not be deemed to permit
any assignment not permitted pursuant to the Call Center Agreement.
6. Any provision of this Addendum No. 2 which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and such other provision shall remain in full force and effect.
3
IN WITNESS WHEREOF, the parties have executed this Addendum No. 2 to
be effective as of this ___ day of January, 1999.
ATTEST AMERICA'S DOCTOR, INC.
By: /s/ Xxxxx Xxxxxx, M.D.
------------------------------ ----------------------------------
Xxxxx Xxxxxx, M.D., President
ATTEST MEDICAL ADVISORY SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------ ----------------------------------
Xxxxxx Xxxxxxx, President
-------------------------------------
READ AND AGREED TO:
PREMIER RESEARCH WORLDWIDE, LTD.
By:
----------------------------------
Xxxx Xxxxxxxxxx, M.D., President
