Call Center Service Agreement [Addendum No. 4] - AmericasDoctor Internet Operations Inc. and Medical Advisory Systems Inc.
ADDENDUM NO. 4
TO THE CALL CENTER SERVICE AGREEMENT
Dated as of September 21, 2000 by and between
AmericasDoctor Internet Opertions, Inc.
And Medical Advisory Systems, Inc.
ADDENDUM NO. 4, dated as of September 21, 2000 (the "Effective Date"), by
and between AmericasDoctor Internet Operations, Inc., a Delaware corporation
("AD"), and Medical Advisory Systems, Inc., a Delaware corporation ("MAS").
The parties hereto entered into the Call Center Service Agreement dated
July 2, 1998, as amended by Addendum Nos. 1, 2, and 3 thereto (the "Agreement"),
a wish to amend the Agreement as provided herein. Accordingly, the parties
hereto agree as follows:
1. During the Term of the Agreement, MAS may enter into agreements or
arrangements with web sites or vendors other than AD to provide
real-time Internet one-on-one medical chat services. AD shall obtain
real-time Internet one-on-one medical chat services from licensed
health care providers exclusively from MAS during the Term of this
Agreement; provided, however, that nothing herein will require AD to
use MAS in the provisions of its "Expert Chat" service. In the event
that MAS provides real-time Internet one-on-one medical chat services
to U.S. residents that are not derived from AD pursuant to this
Agreement ("Non-AD U.S. Chats"), MAS shall pay AD a royalty of $0.75
per Non-AD U.S. Chat for each chat in excess of 30,000 per month. The
royalty will be payable to AD 30 days after receipt of payment by MAS.
2. MAS shall purchase the Equipment listed on Schedule A, attached hereto
and made a part hereof, from AD for $77,000. Payment will be made to AD
within thirty days of the Effective Date (the "Closing Date"). As of
the Closing Date, Section II of the Agreement will be deleted in its
entirety and replaced with the following: "All equipment, including
connections, furnishings and software purchased by MAS for the AD Call
Center (the "Equipment"), shall be titled in the name of and owned by
MAS."
3. MAS hereby has the option, in its sole discretion and subject to
receipt of the requisite approvals from third parties and completion of
due diligence satisfactory to MAS within sixty (60) days of the date
hereof, to obtain from AD a nontransferable sublicense to use the
software created Jaspin Interactive, Inc. and currently utilized by AD
in the provision of real time Internet one-on-one medical chat services
(the "Chat Tool") in exchange for an aggregate Fifty Thousand Dollars
($50,000). The sublicense shall expire on December 31, 2001. Such
sublicense will be evidenced by a sublicense agreement to be entered
into between the parties upon exercise of MAS' option and acceptable to
both parties. AD agrees to authorize Jaspin to release to MAS
information about the number of chats being performed by MAS on behalf
of AD. AD represents and warrants to MAS that it is not required to use
the software licensed to it by Jaspin for its real-time Internet
one-on-one medial chat services to U.S. residents. If MAS decides not
to purchase the above-referenced sublicense, it may select another
software provider to provide real-time Internet one-on-one medical chat
services, which software provides a substantially similar level of
quality and functionality as presently provided by the Chat Tool.
4. Section 15 of the Agreement is deleted in its entirety.
5. Section 16(a) of the Agreement is deleted in its entirely and replaced
with the following: "MAS shall bill AD monthly for services provided to
AD under the terms of this Agreement. Payment shall be due ten (10)
days after receipt of MAS' invoice by AD. If and when MAS' total
monthly bills to AD exceed Two Hundred Thousand Dollars ($200,000), MAS
may, at its option, bill AD every two (2) weeks." Section 16(b) of the
Agreement is deleted in its entirely and replaced with the following:
"AD shall pay MAS a monthly access fee of $50,000, which shall include
payment for 1,000 Call Center chats ("Call Center Chat") to be
performed during that month by MAS or $10,000 of value of other
medical-related, mutually agreed upon services provided by MAS to AD
(collectively, the
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"Services"). Call Center Chats shall consist of one-on-one chats
regarding general medical information, averaging approximately seven
minutes in duration. The $50,000 fee referred to above shall be the
sole administrative or overhead fee payable to AD to MAS during the
Term. In the event that AD does not use the Services in any calendar
month. AD shall not receive a credit for any Services not provided,
including, but not limited to, chats not used by AD. In addition to the
monthly access fee, for all Call Center Chats performed for AD from
1,001 up to and including 35,000 per month, AD shall pay MAS a per-chat
fee of $10. For each Call Center Chat performed for AD in excess of
35,000, AD shall pay MAS a per chat fee of $9. AD shall not be required
to order any minimum number of chats from MAS. MAS shall not, during
the Term, sell real-time Internet one-on-one medical chat services to
any third party on a per chat basis for a price that is less than the
per chat price charged to AD unless MAS lowers the price per chat
charged to AD to the same level as that charged by MAS to the third
party being charged the lowest per chat price on a per chat basis."
Sections 16(c), 16(e), 16(d) and 16(f) of the Agreement are deleted in
their entireties.
6. AD will use its reasonable best effort to give a good faith estimate of
its Call Center Chat volume to MAS at least thirty (30) days in advance
of the month on which such Call Center Chats are to be performed, and
MAS shall use its reasonable best efforts to accommodate AD's estimated
volume. If, within six (6) business days following receipt of notice
from AD pursuant to the foregoing sentence, MAS notified AD that it
will be unable, despite using its reasonable best efforts, to
accommodate a portion of AD's estimated volume (the "Unfulfilled Call
Volume"), MAS shall not be liable to AD for its failure to provide such
Unfulfilled Call Volume; provided, however, that notwithstanding
anything to the contrary in this Agreement (including without
limitation, in Section 1 of this Addendum or Section 18(a) of the
Agreement), AD shall be permitted to enter into agreements or
arrangements with web sites or vendors other than MAS to provide such
Unfulfilled Call Volume. MAS shall not be liable for its failure to
perform any Call Center Chats in excess of 110% of the number of Call
Center Chats ordered by AD for any month during the Term and AD shall
pay MAS for 90% of the number of Call Center Chats ordered in writing
by AD for any month during the Term regardless of whether such Call
Center Chats are actually used during such month.
7. AD agrees to promote MAS' DocTalk services through its website,
www.americasdoctor.com. In the event that DocTalk receives calls
derived from AD's promotion of the DocTalk services (as determined by
MAS through the user's use of a dedicated telephone number and/or a PIN
code), MAS shall pay AD a commission equal to 20% of the revenue
received by MAS for each call. The commission will be payable to AD 30
days after receipt of notice of payment by MAS.
8. During the Term of the Agreement, AD may resell MAS's real-time
Internet one-on-one medical chat services to third parties on such
terms as it may elect and may retain all revenues received from MAS's
provision of such services, subject to compliance by AD with the
payment and notice requirements of this Agreement as set forth in
Sections 5 and 6 of this Addendum.
9. Section 18(a) of the Agreement is hereby amended to delete the words
"Call Center services" and replace them with the words "real-time
Internet one-on-one medical chat services from licensed health care
providers."
10. Sections 20(a) of the Agreement (as set forth in Addendum No. 2) is
hereby amended and restated in its entirety to read as follows: "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 (collectively, the
"Indemnified Persons") from and against any and all claims of any
nature arising directly from MAS' provision of services to AD under
this Agreement brought against the Indemnified Persons provided that
there is no finding that any Indemnified Person did not comply with all
of the protocols and procedures for operating the Call Center agreed to
between MAS and AD."
11. Section 20(c) of the Agreement (as set forth in Addendum No. 2) is
hereby deleted in its entirety.
12. Section 21 of the Agreement is hereby amended and restated to read in
its entirety as follows: "RESERVED."
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13. Section 2 of the Agreement (as set forth in Addendum No. 1) is hereby
deleted in its entirety and Section 22(a) of the Agreement is hereby
amended and restated to read in its entirety as follows: "The failure
of either party to comply with any material term of this Service
Agreement shall constitute a material breach of this Service Agreement
as follows: (i) if AD or MAS believes that the other party hereto has
materially breached the terms of this Service Agreement, it shall
promptly so notify the other party in writing and such notice shall
specify the nature of such noncompliance (the "Noncompliance Notice"),
(ii) the party so notified shall have fifteen (15) days following
receipt of the Noncompliance Notice to cure or contest such
noncompliance, and (iii) if such party fails to cure such noncompliance
within such 15-day period, it shall be deemed to have materially
breached the terms of the Service Agreement."
14. Section 22(b) of the Agreement is hereby amended to delete subsection
(ii) thereof in its entirety.
15. Section 22(c) of the Agreement is hereby deleted in its entirety.
16. Section 23(a) of the Agreement is hereby amended to add the following
sentence: "This section is applicable in its entirety for the time
period prior to the effective date of Addendum No. 4."
17. Section 23(b) of the Agreement is hereby deleted in its entirety.
18. Section 26 of the Agreement is hereby amended and restated in its
entirety to read as follows: "RESERVED."
19. MAS agrees to keep accurate books and records with regard to the number
of chats if performs for AD, the number of Non-AD U.S. Chats it
performs and the amount of revenue received by MAS for DocTalk services
derived from AD's promotion thereof on its website. The aforementioned
books and records of MAS shall be available for inspection at the
reasonable request of AD on reasonable notice during normal business
hours during the Term and for six months thereafter.
20. AD agrees to pay MAS no later than one business day after the date on
which MAS executes this Addendum and delivers an executed copy to AD
$199,951.65 for monthly charges through August 31, 2000 and chat fee
charges through September 10, 2000 at midnight.
21. Section 31 of the Agreement is hereby amended to replace the address of
AD set forth therein with the following: "AmericasDoctor Internet
Operations, Inc., 1325 Tri-State Parkway, Suite 300, Gurnee, Illinois
60031, Attn: Chief Financial Officer and Chief Information Officer."
22. All other terms of the Agreement shall remain in full force and effect.
23. This Addendum may be executed in counterparts, each of which shall
constitute an original and all of which, when taken together, shall
constitute one and the same instrument. This Addendum shall become
effective when signed by each party hereto and delivered to the other
party. This Addendum, once executed by a party, may be delivered to the
other party hereto by facsimile transmission of a copy of this Addendum
bearing the signature of the party so delivering this Addendum. In the
event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed page(s)
to be physically delivered to the other party within five (5) days of
the execution thereof.
24. Terms used with initial capitals but not defined in this Addendum are
used as defined in the Agreement.
25. The parties confirm that the Agreement will be in effect until July 1,
2003 and will thereafter automatically terminate unless extended by the
mutual agreement of the parties.
26. This Addendum shall be governed by and construed in accordance with the
laws of the State of Maryland without application to principles or
conflicts of law. This Addendum shall be binding upon each of the
parties, their respective successors and assigns.
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IN WITNESS WHEREOF, the parties have executed this Addendum No. 4 to be
effective as of the 21st day of September, 2000.
ATTEST: AMERICASDOCTOR INTERNET
OPERATIONS, INC.
_____________________________ By: /s/ Steven M. Rauscher
Name: Steven M. Rauscher
Title: President
ATTEST: MEDICAL ADVISORY SYSTEMS, INC.
_____________________________ By: /s/ Ronald W Pickett
Name: Ronald W. Pickett
Title: President
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SCHEDULE A
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QTY DESCRIPTION MANUFACTURER
--------------------------------------------- -----------------------------
28 PC. With Windows 98 Lic. McClair, Dell & Compaq
--------------------------------------------- -----------------------------
20 21" Monitors NEC, KDS & Mitsubishi
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21 Backups 500 UPS APC
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2 Laserjet 5000 printer Hewlett Packard
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8 17" Monitors Dell & Compaq
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2 File Server McClair Multimedia
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2 15" server monitors Viewsonic
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1 Laserjet 3150 Hewlett Packard
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3 Intel 51CT Switch Intel
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3 Intel 24 port 10/100 hub Intel
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3 Fiber Module
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2 Smart UPS 2200 APC
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1 APC Backups 700 APC
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1 DEC 15/30 Backup Unit
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1 4.3 GB Hard Drive WD
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1 7 Bay CD Tower McClair Multimedia
--------------------------------------------- -----------------------------
2 Firewall PCS McClair Multimedia
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1 APC Smart UPS 700 APC
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1 Firewall Plus Software Network-1
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1 Cisco 2514 Router Cisco
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2 Intel 12 Port 10/100 hubs Intel
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1 NT Server with 25 licenses Microsoft
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15 56K Modem BocaResearch
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8 Used 72" Cubicles
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3 Used 6' Tables
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18 Various Used Cubicle Chairs
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1 Remainder of the STATREF Lic
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1 Remainder of the PDR Lic
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1 Windows NT Workstation Software
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