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:
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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2.
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Obligations of Provider
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Provider shall have the
responsibilities, obligations and authority set forth in Appendix
B.
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3.
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Compensation for OSMI Services
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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.
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.
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.
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.
(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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8.
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Non-Professional Services Only
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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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9.
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Status of
Contractor .
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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.
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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11.
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Confidential Information
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Provider agrees to abide by the
Confidential Information Agreement set forth in Appendix
D.
(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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6
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.
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(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 date of
birth
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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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