DME SUPPLY AND RELATED SERVICES AGREEMENTSupply Agreement |
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Paul Weitzel of Boston Sports & Shoulder | OrthoSupply Management, Inc. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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EXHIBIT 10.29
DME SUPPLY AND RELATED SERVICES AGREEMENT
THIS DME SUPPLY AND RELATED SERVICES AGREEMENT (the “Agreement”) is made and entered into effective as of the 1st day of August 2006 by and between Paul Weitzel of Boston Sports & Shoulder (“Provider”) and OrthoSupply Management, Inc., or its designee (“OSMI”).
RECITALS
A. WHEREAS, Provider desires to offer Provider patients requiring durable medical equipment and orthotics (together referenced as “DME”) the option of having such DME fitted and dispensed within its office suite (the “Office”) in order to enhance the continuity, convenience and quality of care provided to Provider patients.
B. WHEREAS, OSMI supplies DME and related services to physician groups and other health care providers.
C. WHEREAS, Provider desires to purchase DME and related services from OSMI to facilitate its provision of DME to Provider patients.
D. WHEREAS, the parties desire to enter into this Agreement in order to provide a full statement of their respective responsibilities hereunder during the term of this Agreement.
FOR AND IN CONSIDERATION of the mutual covenants and agreements hereinafter contained, the parties hereto hereby agree as follows:
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1. |
Obligations of OSMI . |
OSMI shall have only the responsibilities and authority delegated to it under this Agreement or as delegated by Provider and accepted by OSMI from time to time. Subject to the ultimate authority and control of the Provider, OSA/II shall have the authorities and responsibilities set forth in Appendix A.
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Obligations of Provider . |
Provider shall have the responsibilities, obligations and authority set forth in Appendix B.
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Compensation for OSMI Services . |
In consideration for the items and services provided by OSMI pursuant to this Agreement, OSMI shall be compensated as follows:
(a) Billing & Collection Services . As compensation for the Billing and Collection Services provided by OSMI pursuant to Section 1(b), OSMI shall be paid at the rate of 5% of the collected revenues from all payors per month and payable within thirty (30) days of invoicing.
(b) DME . As compensation for the DME supplied to Provider by OSMI, OSMI shall be paid in accordance with the “Clinic Costs” section of the fee schedule attached as Exhibit C.
(c) Invoicing . During the first ninety (90) days that this Agreement is in effect, Provider shall be granted extended terms for cost of goods purchased and services. Example items purchased in January will be due to be paid in April, February will be due to be paid in May and March due in June. Thereafter, OSMI shall invoice Provider for all fees due under Section 3(a & b) hereunder on a monthly basis. If any amount so invoiced or automatically payable is not paid on or within forty-five (45) calendar days after the invoice is received or fees are automatically payable, the outstanding balance shall bear simple interest from the date of said invoice or payment date at a rate of one percent (1%) per month until such amount is paid in full. Any payments made thereafter received by OSMI shall be applied first to interest accrued but unpaid and then to the oldest unpaid payable/invoice. In addition, the parties agree that a failure by Provider to pay any such invoice or amount automatically payable within forty-five (45) calendar days of the date the invoice is received or the payment date (as the case may be) shall be a material breach of this Agreement, subject to cure provisions of Section 6(b). Any such termination of this Agreement by OSMI shall not affect Provider’s obligation to pay amounts due to OSMI under this Agreement, but no such payment after the cure period shall affect the effectiveness of such termination.
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Reasonable Value . |
Payment of the compensation due to OSMI is not intended to be and shall not be interpreted or applied as permitting OSMI to share in Provider’s fees for physician services or any other services, but is acknowledged as the parties’ negotiated agreement as to the reasonable fair market value of the items and services furnished by OSMI pursuant to this Agreement.
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Term . |
The term of this Agreement shall commence on _____________________, 2006 (“Commencement Date”) and shall remain in full force and effect for a period of two (2) years (the “Initial Term”) and SHALL BE AUTOMATICALLY RENEWED FOR AN ADDITIONAL TWO (2) YEAR PERIOD (THE “RENEWAL TERMS”) THEREAFTER UNLESS EITHER PARTY GIVES THE OTHER PARTY NOTICE OF ITS INTENT NOT TO RENEW AT LEAST SIXTY (60) CALENDAR DAYS PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR ANY RENEWAL TERM.
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Termination . |
The provisions of Section 5 of this Agreement notwithstanding, this Agreement may be terminated prior to the expiration of its Initial Term or any Renewal Term as set forth on Appendix C hereto.
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Insurance . |
(a) For the term of this Agreement, the following insurance coverage’s shall be procured and maintained by Provider and OSMI, as designated, from financially responsible insurance companies:
(1) Provider shall procure and maintain General Liability Insurance and Professional Liability with limits of coverage of not less than One Million Dollars
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($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the annual aggregate.
(2) Upon the termination of this Agreement for any reason, Provider shall ensure that each of its physician employees obtains and maintains professional liability insurance in minimum amounts specified in Section 7(a)(1): (i) coverage with a retroactive date sufficient to cover any claims arising out of acts occurring from the date of this Agreement through and including the termination date of this Agreement, or (ii) “tail” professional liability coverage, for an extended reporting period equal to the then-applicable statute of limitations, and Provider (or its physician employees) shall be responsible for paying all premiums for such insurance coverage.
(3) OSMI shall maintain General Liability coverage with limits of not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the annual aggregate.
(b) OSMI and Provider shall provide each other with certificates evidencing the foregoing insurance coverage’s upon request; provided, further, that such certificates shall indicate that each party shall be given thirty (30) calendar days’ prior written notice of cancellation or termination of such policies.
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Non-Professional Services Only . |
Nothing in this Agreement is intended or shall be construed to allow OSMI to exercise control or direction over the manner or method by which Provider and its Physicians perform physician services or other professional health care services. The rendition of all physician services shall be the sole responsibility of Provider and its Physicians and OSMI shall not interfere in any manner or to any extent therewith. Nothing contained herein shall be construed to permit OSMI to engage in the Provider of medicine, it being the sole intention of the parties hereto that the services to be rendered to Provider by OSMI are solely for the purpose of providing non-medical services to Provider to enable Provider to fit and dispense DME within its Office. To the extent that any act or service required to be performed by OSMI hereunder should be construed by a court of competent jurisdiction or by any governmental agency to constitute the Provider of medicine, OSMI’s requirement to perform that act or service shall be deemed waived and unenforceable.
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Status of Contractor . |
It is expressly acknowledged that the parties hereto are “independent contractors,” and nothing in this Agreement is intended and nothing shall be construed to allow either party to exercise control or direction over the manner or method by which the other party performs the services that are the subject matter of this Agreement; provided, however, that Provider shall exercise the same degree of control with regard to the provision of DME and related services by the DME Consultant as Provider would over services provided by its direct employees. Each party understands and agrees that (i) neither party will withhold on behalf of the other party any sums for income tax, unemployment insurance, social security or any other withholding pursuant to any law or requirement of any governmental body or make available any of the benefits
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afforded to its employees, (ii) all of such payments, withholdings and benefits, if any, are the sole responsibility of the party incurring the liability, and (iii) each party will indemnify and hold the other harmless from any and all loss or liability arising with respect to such payments, withholdings and benefits, if any.
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10. |
Medical Records . |
The ownership and rights of control of all medical records and other documents prepared by Provider in connection with the operation of the Provider shall vest exclusively in the Provider. OSMI shall have the right to access such medical records and documents only to the extent permitted by law, in accordance with the HIPAA Business Associate Addendum attached as Schedule B and as reasonably necessary to perform OSMI’s duties under this Agreement. OSMI agrees to maintain and safeguard the confidentiality of Provider medical records as required by the HIPAA Business Associate Addendum and applicable law.
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Confidential Information . |
Provider agrees to abide by the Confidential Information Agreement set forth in Appendix D.
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Miscellaneous . |
(a) Inability to Perform . In addition to any other provision contained herein, the parties agree that each party’s obligations under the Agreement shall immediately cease if a party is unable to operate the Provider due to physical disaster, governmental acts, labor difficulties or strikes, or other circumstances beyond the control of such party, but shall resume when such party is no longer unable to perform.
(b) Assignment . Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that OSMI shall have the right to assign this Agreement without Provider’s consent to any person or entity: (i) that acquires all or substantially all of the assets of OSMI, (ii) into which OSMI merges or (iii) to whom a majority equity interest in OSMI is sold.
(c) No Discrimination . The parties hereto shall not discriminate against any person on the grounds of race, color, national origin, religion, age or handicap in discharging their duties and responsibilities under this Agreement.
(d) Waiver of Breach . No assent or waiver, express or implied, of any breach of any one or more of the covenants, conditions, or provision hereof, shall be deemed a waiver of any other covenant, condition, or provision hereof, or a waiver of any subsequent breach of the same covenant, condition, or provision.
(e) Captions . The captions used herein as headings of the various Sections hereof are for convenience only, and the parties agree that such captions are not to be construed to be part of this Agreement or be used in determining or construing the intent or context of this Agreement.
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(f) Notices . Any and all notices, demands, requests, and any other communication required or permitted to be served on or given by either party to the other shall be in writing and delivered personally, by nationally-recognized overnight courier or by deposit in the United States Mail, first class postage prepaid, certified or registered mail, return receipt requested, addressed to the party to whom it is to be given at the address hereinafter set forth:
If to Provider:
If to OSMI:
OrthoSupply Management, Inc.
237 Cedar Hill Street, Suite 4
Marlboro, MA 01752
Attention: Brian Lesperance, President
or such other address as the parties shall inform each other in writing. Each party will promptly notify the other party in writing within five business days of any changes in its ownership or business address; any legal or governmental action initiated against it which could materially affect this Agreement; and, any other known occurrences that could materially impair the other party’s ability to carry out its duties and obligations under this Agreement.
(g) Patient Referrals . OSMI and Provider agree that the benefits afforded either party hereunder are not payment for, and are not in any way contingent upon the referral, admission or any other arrangement for, the provision of any item or service offered by OSMI or Provider.
(h) Governing Law and Arbitration . This Agreement, all of its terms and conditions, and all of the legal relations between the parties hereto created hereunder, shall be determined in accordance with, and governed by, the laws of the Commonwealth of Massachusetts. Both parties hereby agree to arbitrate any and all disputes arising out of or relating to this Agreement. Arbitration shall be binding on the parties and conducted in Suffolk, Essex or Middlesex County, Massachusetts pursuant to the Commercial Rules of Arbitration under the American Arbitration Association before a single arbitrator.
(i) Severability . If any part or parts of this Agreement are held to be invalid, the remaining parts of the Agreement shall continue to be valid and enforceable as to the parties hereto.
(j) Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of such counterparts shall together constitute one and the same agreement.
(k) Entire Agreement . The Agreement contains the sole and entire agreement between the parties, and shall supersede any and all other agreements between parties, either oral or in writing, between the parties hereto with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year hereinabove first written.
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PROVIDER |
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OrthoSupply Management, Inc. |
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Boston Sports and Shoulder Center LLC [name of clinic] |
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By: |
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/s/ illegible |
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By: |
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/s/ Robert Coffill |
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Title: |
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Managing Partner |
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Title: |
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Senior VP of Field Operations |
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Date: |
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8/1/06 |
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Date: |
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6/20/06 |
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APPENDIX A – OSMI OBLIGATIONS
(a) Personal and Management Services . OSMI shall provide the personal and management services identified below in order to facilitate Provider’s on-site provision of DME and related services to Provider patients.
(1) Policy and Procedure Manual . OSMI shall advise Provider regarding the compilation of a policy and procedure manual (hereinafter referred to as the “Manual”) for Provider’s review and approval, which Manual shall include protocols, operating policies and procedures and similar materials that are reasonably necessary for the proper ordering, storage, fitting and dispensing of DME, as well as proper documentation and patient follow up. OSMI may recommend revisions to the Manual, as necessary, from time to time and shall make such revisions as are necessary to tailor the Manual to Provider needs.
(2) Educational Programs . OSMI shall provide in-service training and educational programs for Provider physicians and staff related to the proper fitting, use and clinical benefits of DME.
(3) Quality Review Activities . OSMI shall assist Provider in establishing a quality oversight program and program evaluation standards to promote the efficacy of DME and related services provided by the Provider.
(4) Service Solutions . OSMI shall provide services as specified in this section (4). OSMI will provide oversight and leadership management of the Provider service solution including:
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OSMI will contact the Provider’s top insurance payers in an effort to credential the Provider with its key payers to dispense DME. It will also obtain relevant DME fee schedules, if possible, and promptly deliver them to the Provider upon request. |
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OSMI will provide the Provider with monthly analytics that examine the reimbursement levels, A/R, billing & collections by payer and by product. |
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OSMI will investigate the feasibility of providing existing and new modalities to the patients of Provider. |
(b) Billing and Collection Services . OSMI and Provider acknowledge that billing and collection shall be the responsibility of OSMI, working with Provider. The following information will be required by Provider to process customer charges:
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Patient’s name |
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Patient’s date of birth |
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Patient’s address |
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Insurance information (copy of face sheet) |
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Front and back of insurance card (copy) |
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