COOPERATIVE SERVICES AGREEMENT
THIS AGREEMENT is made the _______________day of ___________________, 2001
between ULTRAMED INTERNATIONAL, INC. ("ULTRAMED"), with offices located at 0000
Xxxxxxx Xxxxxx, Xxxxx 0, Xxxx Xxx, XX 00000 and RESOURCE ANESTHESIOLOGY
ASSOCIATES, P.C. ("RAA"), with offices at 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxx, Xxx
Xxxx 00000 and at St. Clare's Hospital and Health Center, New York City ("St.
Clare's"). Hereinafter, ULTRAMED and RAA may from time to time be referred to
individually as a "Party" or collectively as "Parties".
WHEREAS, ULTRAMED is in the business of marketing, managing and
coordinating delivery of Anesthesia Accelerated Opiate Detoxification (AAOD)
and;
WHEREAS, ULTRAMED desires to engage RAA to perform the AAOD procedures
at a hospital facility in New York City at which RAA is a provider of Anesthesia
Services; and;
WHEREAS, RAA is in the business of providing AAOD procedures to
referred patients as well as to its own patients,
NOW THEREFORE, in consideration of the premises and mutual promises
hereinafter described the Parties hereto agree as follows:
I. ULTRAMED'S RIGHTS AND DUTIES:
(a) ULTRAMED shall exercise its best efforts to market the AAOD
procedures to the general public by all available means including
the use of a web site;
(b) ULTRAMED shall train RAA personnel in all necessary or
recommended procedures for the performance of the AAOD procedure;
(c) ULTRAMED shall contract with patients who desire to avail
themselves of the AAOD procedure;
(d) ULTRAMED shall pre-screen all said patients with regard to their
suitability for the AAOD procedure. Said screening shall include
a full psychological clearance and financial responsibility in
place;
(e) ULTRAMED shall xxxx all said patients and shall collect all of
its fees from them or from third party payors;
(f) ULTRAMED shall contact RAA at St. Clare's and arrange for the
scheduling of the AAOD procedure for each patient;
(g) ULTRAMED, shall be responsible for all follow-up procedures for
those patients who are paying for ULTRAMED'S aftercare, who have
been referred by ULTRAMED to RAA and who have undergone the AAOD
procedure. Said follow up procedures shall be appropriate and
effective and designed to enhance the patient's likelihood of the
successful overcoming of his or her addiction;
(h) ULTRAMED shall, in its sole discretion, accept or reject any
patient for referral to RAA and for the AAOD procedure;
(i) ULTRAMED makes no warranties with regard to the number of
patients it shall refer to RAA;
II. RAA'S RIGHTS AND DUTIES
(a) RAA shall perform all necessary pre-admission tests, such as CBC,
ECG, chest X-Ray, opiate and pregnancy screening, differential
count, platelet count, PT & PTT, Liver, Enzymes and Bilirubin,
evaluations and medical clearance for each patient referred to
RAA by ULTRAMED;
(b) RAA shall provide fully qualified anesthesiologists who shall
perform the AAOD procedure only at St. Clares Hospital,
otherwise, it must be mutually agreed to by both parties;
(c) RAA shall provide all facilities, equipment and supplies
necessary to perform the AAOD procedure in compliance with all
applicable statutes and regulations and patient therapeutic and
safety needs;
(d) RAA shall provide all follow-up procedures except for those
patients who receive follow up care from ULTRAMED pursuant to
1(g), above, Said follow up procedures shall be appropriate and
effective and designed to enhance the patient's likelihood of the
successful relapse prevention, as per ULTRAMED'S protocol and
follow-up. ULTRAMED will have the right to supervise, oversee and
collect data from all cases in which RAA provides the aftercare;
(e) RAA, in its sole discretion, and based on the best medical
judgment of the anesthesiologist providing the AAOD procedure,
may accept or reject any patient for the AAOD procedure. Final
responsibility for the clinical determination of the eligibility
or appropriateness of treatment of all patients for the AAOD
procedure shall be the responsibility of the anesthesiologist
called upon to provide the AAOD service;
(f) All medical records necessary for review will be provided by RAA
to medical personnel on behalf of continuing patient care;
(g) RAA agrees to ensure that all ULTRAMED referrals receive no less
than 24 hours of inpatient care in the hospital.
III. COMPENSATION
(a) For each patient referred by ULTRAMED to RAA and for whom RAA
provided AAOD services and follow-up services pursuant to 2(d),
above, ULTRAMED shall pay RAA the sum of $5,600.00;
(b) For each patient referred by ULTRAMED to RAA and for whom RAA
provided THE AAOD services but for whom ULTRAMED provided follow
up care services pursuant to 1(g), above, ULTRAMED shall pay RAA
the sum of $4,500.00;
(c) Payments pursuant to 3 (a) and (b), above, shall be made within
thirty (30) days of the performance of the AAOD procedure,
invoice to be submitted by RAA;
(d) ULTRAMED and RAA agree to develop a mutually agreeable method of
accepting payment when referrals are received from third parties.
IV. REPRESENTATIONS
(a) As to ULTRAMED
(i) ULTRAMED represents that all patients referred to RAA shall
have been pre-screened for psychological and medical fitness
for the AAOD procedure;
(ii) ULTRAMED represents that it shall bear the complete risk of
non-payment by any patient or third-party payor
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(iii) ULTRAMED represents that:
(a) It is a corporation licensed to do business in the
State New York;
(b) It is under no contractual or other restriction or
obligation which is inconsistent with the execution of
this Agreement, the performance of ULTRAMED's duties
hereunder, or the rights granted to RAA hereunder;
(c). Neither ULTRAMED nor any of its Shareholders have been
a party in or the subject of any proceedings,
investigations or lawsuits instituted in any
jurisdiction by any plaintiff, governmental agency or
third-party payor relating to fees for professional
services, billing or collection practices;
(iii) ULTRAMED shall notify RAA immediately if any
representations or warranties set forth in Sections
4(a)(i) (ii) shall become in any manner untrue.
(B) AS TO RAA
(i) RAA represents that all Anesthesiologists providing the AAOD
services shall be:
(a) Duly licensed and registered to practice medicine in
the State of New York, with a specialty in
anesthesiology;
(b) Board certified or board eligible in anesthesiology;
(c) Was never expelled from the Medicare or Medicaid
programs;
(d) Under no contractual or other restriction or obligation
which is inconsistent with the execution of this
Agreement, the performance of RAA's duties hereunder,
or the rights granted to ULTRAMED hereunder;
(e) Under no physical or mental disability that would
hinder his or her performance of the professional
duties to be rendered under this Agreement;
(f) Not a defendant in any civil, criminal or
administrative suit or proceeding involving the
practice of medicine that would materially interfere
with his or her performance of the professional duties
to be rendered under the terms of this Agreement;
(g) Covered, at no expense to ULTRAMED, by professional
malpractice insurance in the amounts of $1,000,000.00
per occurrence and $3,000, 000.00 per year,
(h) The holder of a current controlled substance
registration issued by the United Sates Drug
Enforcement Administration, which registration has not
been surrendered, suspended, revoked or restricted in
any manner, nor, to the knowledge of RAA or the
Anesthesiologists, are there any proceedings pending
which could restrict such registration in any manner.
(ii) RAA represents
(a) That it is a professional corporation licensed to do
business in the States of Connecticut and New York.
(b) It is under no contractual or other restriction or
obligation that is inconsistent with the execution of
this Agreement, the performance of RAA's duties
hereunder, or the rights granted to ULTRAMED hereunder;
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(c) Neither RAA nor any of its Shareholders have been a
party in or the subject of any proceedings,
investigations or lawsuits instituted in any
jurisdiction by any plaintiff, governmental agency or
third-party payor relating to fees for professional
services, billing or collection practices;
(iii) RAA shall notify ULTRAMED immediately if any
representations or warranties set forth in Sections
4(b)(i)(ii) shall become in any manner untrue.
(c) All representations and warranties made by any party in this
Agreement shall be considered to have been relied upon by the
other party, regardless of any investigation made by, or on
behalf of, such other party, and shall survive the termination of
this Agreement.
V. RELATIONSHIP OF THE PARTIES
(a) In all matters relating to this Agreement, RAA shall be acting as
an independent contractor of ULTRAMED, and the Anesthesiologists
shall be acting as employees or independent contractors of RAA.
Neither RAA nor its personnel are employees of ULTRAMED under the
meaning or application of any federal or state unemployment or
insurance or workers' compensation laws or otherwise. RAA assumes
all liabilities or obligations imposed by one or more of such
laws with respect to the performance of this Agreement. RAA shall
not have any authority to assume or create any obligation,
express or implied, on behalf of ULTRAMED and RAA shall have no
authority to represent itself as an agent, employee, or in any
other capacity of ULTRAMED;
(b) Other than that which is specifically set forth herein, ULTRAMED
is not responsible for providing any benefits to RAA or its
Anesthesiologists, including, but not limited to, health
insurance, disability benefits, payments of professional dues or
other expenses.
(c) ULTRAMED shall not have any authority to assume or create any
obligation, express or implied, on behalf of RAA and ULTRAMED
shall have no authority to represent itself as an agent,
employee, or in any other capacity of RAA, with the exception of
advertising;
(d) Neither party shall arbitrarily refuse to participate or be named
in advertising that promotes either ULTRAMED or RAA with regard
to promoting detoxification in the RAA geographic area;
(e) If RAA performs the AAOD procedure using the UTLRAMED protocol on
patients independent of ULTRAMED referrals, RAA will pay a
royalty fee of five hundred (500) dollars per patient treated.
VI. CONFIDENTIAL INFORMATION - For the term of this Agreement, the term
Confidential Information shall include the following:
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(i) All documents and other materials, including but not limited to,
all memoranda, clinical manuals, handbooks, educational material
and audio or visual recordings, which contain information
relating to the performance of the UltraMed Anesthesia
Accelerated Opiate Detoxification protocol (excluding materials
distributed to patients or as promoting UltraMed to the general
public); all methods, techniques and procedures utilized in
providing the UltraMed Anesthesia Accelerated Opiate
Detoxification services to patients not readily available through
sources in the public domain; any and all documents, materials
and other information regarding UltraMed, or any of its patients
or personnel, that is not readily available in the public domain;
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(ii) Each party hereto agrees and acknowledges that Confidential
Information constitutes valuable business information developed
by UltraMed at great expenditure of time, effort and money;
confidential information may not be used for any purpose other
than the performance of this Agreement without the express
written consent of UltraMed. Each party hereto further agrees to
keep strictly confidential and hold in trust all Confidential
Information to any third party without the express written
consent of UltraMed. This paragraph shall survive termination of
this Agreement for any reason;
(iii) The Group hereto acknowledges that the disclosure of Confidential
Information to them is made in reliance of the Group's
representations and covenants in this Agreement. Upon termination
of this Agreement by either party for any reason, the Group shall
return to UltraMed all material constituting or containing
Confidential Information belonging to UltraMed or relating to the
UltraMed Anesthesia Accelerated Opiate Detoxification procedure
and shall not thereafter use, appropriate, or reproduce such
Confidential Information or disclose such Confidential
Information to any third party. This paragraph shall survive
termination of this Agreement for any reason;
(iv) In the event of a breach by either party of the provisions of
this section, the non-breaching party shall be entitled to an
equitable remedy prohibiting the breaching party from disclosing
in whole or in part any Confidential Information. Nothing herein
shall be construed as prohibiting the breached party from
pursuing other remedies available to it, including recovery of
damages. This paragraph shall survive termination of this
Agreement for any reason;
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VII. Indemnification
a) INDEMNIFICATION BY RAA. RAA shall indemnify ULTRAMED from and
against any and all liability, loss, damage, un-reimbursed
expenses (including reasonable counsel fees) resulting from any
misrepresentation or non-fulfillment of any agreement on the part
of RAA under this Agreement, or from any act of negligence or
misfeasance of RAA or its employees, contractors or agents.
Notwithstanding anything contained herein to the contrary, in no
event shall RAA be liable for the acts or omissions of ULTRAMED
or any employee, contractor or agent of ULTRAMED, including,
without limitation, any liability arising out of or in connection
of claims of professional malpractice.
(b) INDEMNIFICATION BY ULTRAMED. ULTRAMED shall indemnify RAA from
and against any and all liability, loss, damage, un-reimbursed
expenses (including reasonable counsel fees) resulting from any
misrepresentation or non-fulfillment of any agreement on the part
of ULTRAMED under this Agreement, or from any act of negligence
or misfeasance of ULTRAMED or its employees, contractors or
agents. Notwithstanding anything contained herein to the
contrary, in no event shall ULTRAMED be liable for the acts or
omissions of RAA or any employee, contractor or agent of RAA,
including, without limitation, any liability arising out of or in
connection of claims of professional malpractice.
VIII. TERM AND TERMINATION
(a). This Agreement shall have a term of one (1) year, commencing on
___________________ unless sooner terminated pursuant to 8(b),
below. This Agreement shall renew for subsequent one (1) year
terms until written notice is given by either Party to the other
at least ninety (90) days prior to the end of any term.
(b) This Agreement may be terminated upon the occurrence of any of
the following events:
(i) At the sole discretion of the non-breaching party, upon the
failure of the other Party to comply with or cure any breach
or default of any material term, condition or covenant of
this Agreement within thirty (30) days after written notice
specifying the specific material term, condition or covenant
which has not been performed or has been breached by the
other Party.
(ii) Either Party may terminate this Agreement upon written
notice, effective immediately, if the other Party (A) files
a petition in bankruptcy or is adjudicated bankrupt; (B)
institutes or suffers to be instituted any procedure in
bankruptcy court for reorganization or rearrangement of its
financial affairs; (C) has a receiver of its assets or
property appointed because of insolvency; or (D) makes a
general assignment for the benefit of creditors.
(iii) ULTRAMED may terminate this Agreement, upon written notice,
effective immediately, if RAA (i) loses its license or
accreditation; (ii) improperly uses the AAOD process, or
(iii) is unable to treat patients in a timely and efficient
manner.
(iv) RAA may terminate this Agreement, upon written notice,
effective immediately, when, in the medical judgment of
RAA's officers, and based upon a repeated pattern of poor
outcomes, performance of the AAOD procedure is not in the
best interests of the patients.
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(v) Either party may terminate this Agreement by written notice
to the other Party and the termination shall take effect
sixty (60) days after said notice is received by the other
party.
(c) In the event of termination of this Agreement pursuant to the
provisions set forth in 8(b), above, by either Party, such
termination shall not affect or render void any obligations of
either Party arising prior to the date of termination. Further,
any termination of this Agreement shall be without prejudice to
any right or remedy to which the terminating Party may be
entitled either at law or in equity or under any surviving terms
of this Agreement;
(d) If this contract is terminated for arbitrary reasons within the
first twelve months by RAA for non-cause, RAA (or any group or
associates affiliated with RAA or its groups) will either
compensate ULTRAMED at the rate of two thousand dollars ($2,000)
per procedure completed for a period of 24 months following
termination, or will be restricted from implementing any
variation of AAOD for a period of not less then 12 months
following termination.
IX. MISCELLANEOUS
(a) This Agreement may not be changed, modified or amended except by
a subsequent writing signed by the Parties. This Agreement may
not be discharged except by performance in accordance with its
terms or by a writing signed by the Party to be charged.
(b) This Agreement sets forth the entire agreement and understanding
between the Parties as to the matters contained herein, and
merges and supersedes all prior discussions, agreements, and
understandings of every kind and nature among them. No Party
shall be bound by any condition, definition, warranty, or
representation other than as expressly provided for in this
Agreement.
(c) This Agreement shall be binding upon, and inure to the benefit
of, the Parties hereto and their respective heirs, executors,
legal representatives, successors and permitted assigns. This
Agreement and a Party's rights and obligations herein may not be
assigned or delegated by any Party.
(d) All notices, requests, demands and other communications provided
for in this Agreement shall be in writing and shall be deemed to
have been given at the time when personally delivered, or when
sent by overnight courier service which provides receipt of
delivery, addressed to the address of the other Party stated at
the beginning of this Agreement or to such other address as such
Party may have fixed by notice; provided, however, that any
notice of change of address shall be effective only upon receipt.
All notices may be given by the attorneys for the Parties with
the same force and effect as if given by the parties themselves.
(e) This Agreement shall be governed by and construed under the laws
of the State of New York without giving effect to principles of
choice or conflicts of law.
(f) The headings of the paragraphs hereof are inserted only for the
convenience of the Parties and in no way define, limit or
prescribe the intent of this Agreement.
(g) Whenever used herein and required by the context, the singular
number shall include the plural, the plural shall include the
singular number, and the use of either gender shall include both
genders and neuter, and the words "hereof", "herein",
"hereinafter" and "hereto" shall refer to this entire Agreement
and not to any provision, paragraph, subparagraph or section.
(h) If either party is delayed or prevented from fulfilling any of
its obligations under this Agreement by force majeure, such Party
shall not be liable under this Agreement for the delay or
failure, provided due diligence is used by that Party in resuming
performance. "Force majeure" means any cause beyond the
reasonable control of the Party, including, but not limited to,
an act of god, act or omission of civil or military authorities
of a state or nation, fire, strike, flood, riot, was, delay of
transportation, or inability due to any of these causes to obtain
necessary labor, materials or facilities.
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(i) No delay or failure by a party to exercise any right under this
Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right.
(j) This Agreement may be executed in more than one counterpart, each
of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
(k) The Schedules to this Agreement are part of this Agreement as if
set forth at length verbatim where reference is made to them in
this Agreement.
(l) Each party agrees that it shall comply with all pertinent
provisions of federal, state and local statutes, rules and
regulations in carrying out its responsibilities hereunder.
(m) The provisions of Articles 1(g), 2(e), 3, 4(a)(ii), 4(c), 6, 7,
8(c), and 9 shall survive any termination of this Agreement.
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IN WITNESS WHEREOF, the parties have set their respective
hands and seals as of the day and year first written
ULTRAMED INTERNATIONAL, INC..
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by:
RESOURCE ANESTHESIOLOGY ASSOCIATES, P.C.
-------------------------------------------
By: Marc. X. Xxxx, M.D., President
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