PROGRAM MANAGEMENT AGREEMENT
This Program Management Agreement (the "Agreement") is by and between
MedCare Technologies Corporation, a Nevada corporation ("MedCare"), and
______________ (the "Practice"), and is dated for reference purposes only
_________________, ______.
RECITALS
A. The Practice is a physician or group of physicians duly licensed and
authorized to practice medicine in the State of ________, who are involved on a
regular basis in the diagnosis, evaluation and treatment of urinary and rectal
incontinence as well as other pelvic dysfunction (the "Conditions").
B. MedCare is a management company that provides a comprehensive
package of support and administrative services designed to assist physicians in
operating, as part of their medical practice, an efficient and effective program
(the "Program") for the diagnosis and treatment of the Conditions utilizing,
among other modalities, behavioral and biofeedback techniques.
C. The Practice desires to engage MedCare to provide, and MedCare
desires to provide to the Practice, the management, administrative and support
services required by the Practice's Program.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following definitions shall apply to this
Agreement:
a. "Conditions" are problems of urinary and rectal
incontinence and other pelvic dysfunction, that are amenable to evaluation and
treatment through the Procedures.
b. "Program Equipment" is the equipment identified and
described in Schedule 1 hereto.
c. "Location" is the physical location at which MedCare
provides the Services (as defined below) to the Practice.
d. "Program" is the Practice's special and discrete clinical
program for the diagnosis, evaluation and treatment of the Conditions.
e. "Procedures" are those clinical interventions for which the Technologist is
trained and qualified to assist the Practice, under the supervision of a
physician member of the Practice, as reflected in the Policy and Protocol Manual
attached hereto as Exhibit A, including, but not limited to electromyography
("EMG") biofeedback techniques.
f. "Services" are the items and services provided by MedCare
to the Practice according to the terms and provisions of this Agreement.
g. "Technologist" is the person duly trained and qualified to
assist the Practice, under the supervision of a physician member of the
Practice, in the performance of the Procedures and the operation of the Program
and provided to the Practice by MedCare in accordance with this Agreement.
ARTICLE 2
THE PROGRAM
2.1 The Program. The Program is a discrete system of non-invasive,
non-surgical, non-pharmacologic interventions to diagnose, evaluate and treat
the Conditions, specifically, urinary and rectal incontinence and other problems
of pelvic dysfunction. The Program will include the evaluation of each patient's
clinical, cognitive, functional and residential status and will result in a
comprehensive treatment regimen for each patient suffering from a Condition. The
treatment regime will utilize a combination of EMG biofeedback, bladder
retraining, coping strategies and other treatment modalities.
2.2 Relationship Of The Parties To The Program. The parties hereby
agree and acknowledge that the Practice shall have exclusive authority and
responsibility for professional supervision and judgements required in the
diagnosis of patients with Conditions and in the selection and performance of
Procedures on the Practice's patients. MedCare provides various support and
administrative services and assistance in operating the Program, but is not a
provider or supplier of medical or professional services. The Technologists
shall at all times provide services solely under the supervision of the Practice
and incident to the professional medical services provided by the Practice.
2.3 Program Roster. The Practice agrees that MedCare may use the
Practice's name, address, telephone number, type of practice, and the fact that
the Practice contracts with MedCare and offers an incontinence treatment program
in the Practice's practice. Specifically, but without limitation, MedCare may
include such information about the Practice in written and verbal communications
to other practitioners and on rosters listing physicians who contract with
MedCare and who offer incontinence treatment programs.
ARTICLE 3
OBLIGATIONS OF MEDCARE
3.1 Program Equipment.
a. General. MedCare leases to the Practice, and the Practice
leases from MedCare, the Program Equipment, which shall be available for use by
the Practice at the Location on a full time basis. Subject to the approval of
the Practice, MedCare shall select, install and maintain the Program Equipment
at the Location. The Practice shall at all times direct and control the
operation of the Program Equipment.
b. Ownership Of Program Equipment. The Program Equipment is
and shall at all times be and remain the property of MedCare. The Practice shall
have no right, title or interest in the Program Equipment except as expressly
set forth in this Agreement.
c. Permits And Licenses. MedCare shall assist the Practice in
procuring all permits and licenses necessary for the installation and operation
of the Program Equipment or any items thereof. The Practice shall assure that
only the Technologist shall operate the Program Equipment.
d. Repairs And Maintenance. MedCare shall keep the Program
Equipment in good repair, condition and working order and shall furnish all
parts, mechanisms, devices and service required with respect to the Program
Equipment. With respect to items of the Program Equipment for which it is
customary to enter into maintenance contracts, MedCare may, at its sole cost and
expense, enter into and maintain in force such maintenance contracts.
e. Impossibility Of Repair. If an item of the Program
Equipment is broken and cannot be repaired within thirty (30) days (or such
longer period of time as the parties agree upon) and for a reasonable price,
then MedCare agrees, at MedCare's sole cost and expense, to provide the Practice
with an item of Program Equipment of like character.
f. Warranties. All warranties and service commitments of
manufacturers accompanying the Program Equipment shall accrue solely to the
benefit of MedCare.
g. Surrender. Upon the expiration or earlier termination of
this Agreement, the Program Equipment shall be returned as is to MedCare at
MedCare's own cost and expense.
h. Insurance Of Program Equipment. MedCare, at its own
expense, may provide and maintain, for the term of this Lease, insurance against
the loss, theft, damage or destruction (and such other risks as are customarily
insured against with respect to the type of equipment leased hereunder) of the
Program Equipment in an amount deemed reasonable by MedCare. Said insurance
shall name MedCare as loss payee thereon.
i. Taxes. MedCare shall pay all license fees, gross receipts
taxes and excise taxes and all other taxes, assessments and other charges that
may be levied upon MedCare's ownership of the Program Equipment. Notwithstanding
anything to the contrary herein, should MedCare fail to pay when due all such
other fees and taxes, MedCare's failure to do so shall not constitute a default
under this Lease and the Practice shall continue to pay rent as before. The
Practice shall pay all taxes or other charges that may be levied upon the
Practice's use of the Program Equipment.
j. Obsolete Program Equipment. MedCare has no obligation to
provide the Practice with new or improved Program Equipment. However, in the
event that technological advances result in the obsolescence of the Program
Equipment, MedCare shall so inform the Practice and the parties shall negotiate
in good faith to replace the Program Equipment.
3.2 Technologists.
a. General. MedCare shall lease to the Practice certain
employees (the "Technologists") who are duly licensed, qualified and trained to
operate the Program Equipment under the supervision of a physician and to assist
the Practice in the operation of the Program including, but not limited to the
performance of clinical activities including behavioral, biofeedback and other
diagnostic and treatment modalities (the "Procedures"). Technologists shall
possess the necessary and appropriate skills, education, credentials, knowledge
and experience. In exercising its judgment under this Section, MedCare agrees
not to discriminate against any Technologist on the basis of race, religion,
age, sex or national origin or otherwise violate any applicable state or federal
employment laws.
b. Supervision and Control. The Practice shall have the right
of approval over each Technologist provided by MedCare. The Practice shall
supervise all clinical activities of the Technologist including each Procedure
utilizing the Program Equipment and the services of the Technologist. When
present at the Location, the Technologist shall be an employee of the Practice
and shall at all such times be subject to the exclusive supervision, direction
and control of the Practice. The Technologist shall be subject to the continued
approval of the Practice and the Practice shall have the right to immediately
terminate the Technologist's services and to require M'edCare to identify and
provide a replacement Technologist subject to the approval of the Practice. In
such event, MedCare shall have a reasonable period of time in which to provide
an alternative Technologist as necessary under the terms of this Agreement.
c. Compensation and Fringe Benefits. MedCare shall be
responsible for the payment of compensation to the Technologist and for the
provision of those fringe benefits as MedCare desires to provide to the
Technologist; provided, however, that the Practice shall have the right to
notify MedCare at any time of its opinion and the reasons therefor regarding the
compensation or benefits of the Technologist and MedCare shall seek information
from the Practice as to the abilities and performance of the Technologist for
purposes of determining such compensation and benefits.
d. Taxes and Employment Insurance. MedCare shall be
responsible for withholding and remittance of any applicable federal, state or
local employment taxes, including, but not limited to FICA, FUTA, SDI and income
taxes. Throughout the term of this Agreement, MedCare shall maintain statutory
Worker's Compensation Insurance covering the Technologist.
e. Scheduling. The Practice shall determine the working
schedule for the Technologist in consultation and coordination with MedCare.
Practice shall also control the Technologist's time off provided, however,
that the Practice shall coordinate with MedCare regarding policies for
normally expected absences such as vacation, sick leave, holidays and emergency
situations.
f. Written Employment Agreements. If requested by the
Practice, MedCare shall require the Technologist to execute a written employment
agreement with the Practice in a form acceptable to the Practice.
3.3 Policies And Protocols. MedCare shall provide model clinical and
administrative protocols necessary for the Program, subject to the approval of
the Practice (Policies and Protocols Manual, attached hereto as Exhibit A). The
Policies and Protocols Manual reflects the clinical activities and methods in
which the Technologist is trained and prepared to perform under the supervision,
direction and control of the Practice. The Practice shall retain ultimate
responsibility for approving policies and procedures applicable to the Program
and the provision of Procedures to patients of the Practice. A physician of the
Practice shall determine which specific interventions, if any, are medically
necessary and appropriate for a particular patient.
3.4 Public Relations Services. As part of the Services offered pursuant
to this Agreement, MedCare will provide such public relations services as
MedCare and the Practice determine to be reasonably necessary to promote and
develop the Program. MedCare will provide the Practice with written materials
and activities for such purposes. The Practice agrees that it will make no
further use of any such materials and activities provided to it or on its behalf
by MedCare after the expiration or earlier termination of this Agreement. At the
request of the Practice, MedCare shall propose a budget for public relations
services which shall be attached to and incorporated in this Agreement as
Schedule 3.4.
3.5 Patient And Reimbursement Information. MedCare shall be responsible
for coordinating the Practice's billing, collection and other reimbursement
services relative to the Program. Maintenance of patient data for reference and
development of case histories is an important aspect of the Program and the
Technologist shall be responsible for documenting the Technologist's clinical
activities in a manner consistent with accepted standards and the Practice's
policies and procedures. Title to all patient data, including pictures, data,
disks and cassettes, shall at all times remain with the Practice. The Practice
shall provide permanent storage for all patient data at its expense.
3.6 Technical And Scientific Data. MedCare shall, on an ongoing basis,
provide the Practice with training, education and information relative to
advances in the diagnosis and treatment of the Conditions, including new
equipment, methodologies or other scientific data relevant to the operation of
the Program.
3.7 Billing and Collections. The Practice shall be responsible for
performing or arranging for the performance of all billing and collections
functions related to the Program. All services rendered by the Practice through
the Program shall be billed by the Practice in its own name and under a provider
number held by the Practice. MedCare shall provide the Practice with
consultation and assistance in billing and collecting as described in Exhibit
3.7.
3.8 General. MedCare shall at all times conduct itself in an
appropriate and responsible manner so as not to injure the reputation and good
standing of the Practice.
ARTICLE 4
OBLIGATIONS OF THE PRACTICE
4.1 Exclusive Manager. The Practice agrees to engage MedCare on an
exclusive basis, as manager of the Practice's programs for the diagnosis and
treatment of the Conditions utilizing behavioral and biofeedback techniques. The
Practice agrees further that it shall not enter into an agreement with any other
organization or individual to provide services substantially similar to those
provided by MedCare at any time during the term of this Agreement. Any
exceptions or limitations to such exclusivity are listed on the attached
Schedule 4.1.
4.2 The Location. The Practice, at its expense, shall prepare and
provide the Location including an area of sufficient space for the performance
of the Procedures and for the Program Equipment. The Location shall be in or
adjacent to the offices of the Practice. The Practice shall designate the
Location for the operation of the Program on a full time basis. The Practice, at
its expense, shall provide cleaning, janitorial and laundry services reasonably
necessary for the Location and for the performance of the Procedures. The
Practice, at its expense, shall, with the exception of the Program Equipment,
provide all usual and customary office and clinic supplies, furnishings and
equipment (collectively, "Practice Supplies and Equipment") necessary for the
operation of the Program. A list of such Practice Supplies and Equipment is
attached as Schedule 4.2, however, the list is not intended to be complete or
exclusive.MedCare reserves the right to approve the Practice Supplies
andEquipment utilized in performing Procedures as part of the Program, which
approval shall not be unreasonably withheld.
4.3 Practice Obligations With Regard To Program Eauipment. The
Practice, at its expense, shall provide utilities for the installation and
ongoing operation of the Program and the Equipment. MedCare shall provide
necessary information and specifications regarding required utilities,
including, but not limited to, power, lighting, and heating and air
conditioning. The Practice shall not remove the Equipment from the Location
without the prior written consent of MedCare. Except as created or permitted by
MedCare, the Practice shall keep the Equipment free and clear of all levies,
liens and encumbrances.
4.4 Procedures. For each Procedure conducted as part of the Program,
the Practice shall determine the appropriate intervention and shall provide the
Technologist with information regarding the patient relevant to the Procedure to
be conducted. The Practice shall be responsible for obtaining informed consent
from the patient prior to the performance of any Procedures. The Practice shall
be professionally responsible for, and shall supervise all such Procedures and
shall insure such responsibility during the term hereof as provided in Section
8.1. The Practice also shall be responsible for the administration of other
tests, treatments and procedures not provided as part of the Program as deemed
necessary or appropriate by the Practice.
4.5 Noninterference. The Practice acknowledges that MedCare has made a
significant investment in training the Technologist and that the experience,
knowledge, and skills of the Technologist obtained through MedCare are unique
and important to MedCarels ongoing business operations. The Practice agrees that
the Technologist is an asset of MedCare, and that during the term of this
Agreement, and for one (1) year thereafter, no proposal of any business
relationship with the Technologist, other than pursuant to this Agreement, shall
be made, offered or accepted by the Practice without the express written consent
of MedCare. The provisions of this Section 4.4, however, shall in no way
diminish the Practice's right to control and direct the Technologist assigned to
the Practice by MedCare as a common-law employee when the Technologist is
present at the Location or the Practice's facility performing Service related
obligations.
4.6 Group Practice. If the Practice consists of two or more physicians,
the Practice represents and warrants that the Practice meets the definition of a
"Group Practice" under 42 USC Section 1395nn and any applicable state laws. For
purposes of 42 USC Section 1395nn, the Practice specifically represents and
warrants that the Practice is a group of two or more legally organized
physicians and during the term of this Agreement (i) each Practice physician
shall furnish substantially the full range of his or her services through the
use of shared office space, (ii) substantially all of the services of Practice
physicians shall be furnished through the Practice and billed in the name of the
Practice, (iii) the Practice shall allocate costs and expenses and distribute
income generated by Practice physicians in accordance with predetermined
methodologies, and (iv) the Practice physicians shall personally conduct no less
than seventy-five percent (75%) of the physician-patient encounters of the
Practice.
4.7 General. The Practice shall at all times conduct itself in an
appropriate and responsible manner so as to not injure (i) the reputation and
good standing of MedCare or the Technologists, or (ii) the Equipment (normal
wear and tear excepted).
ARTICLE 5
FINANCIAL ARRANGEMENTS
5.1 Compensation. As consideration for the Services provided hereunder,
the Practice agrees to pay to MedCare a Management Fee as described in Schedule
5.1, which is attached to, and incorporated in, this Agreement. MedCare shall
provide the Practice with a monthly invoice of the amounts due MedCare. Payment
is due thirty (30) days from the date of the related invoice.
5.2 Late Payment. In addition to any other amount due MedCare under
this Agreement, the Practice shall pay MedCare, with regard to any amounts not
paid when due under this Agreement, a monthly charge equal to the product of one
and one-half percent (1-1/2%) (or the highest amount permitted by law, if
lower), multiplied by all amounts past due under this Agreement.
ARTICLE 6
TERM, EXTENSION OF TERM AND TERMINATION
6.1 Term. This Agreement shall commence on April 1, 1998 (the
"Effective Date") and shall remain in effect for a period of five (5) years
following the Effective Date. The term of this Agreement shall automatically
extend for additional five (5) year periods following the expiration of the
original term, or following the expiration of each extension period thereafter,
unless either the Practice or MedCare, not less than ninety (90) days prior to
the expiration of the applicable period, notifies the other in writing of its
intention to terminate the Agreement as of the last day of the applicable
period.
6.2 Termination. This Agreement may be terminated for cause under the
following circumstances:
a. MedCare may terminate this Agreement if the Practice fails
to make payment when due under this Agreement or any other Agreement with
MedCare, provided that payment is not made within ten (10) days after notice of
such failure has been delivered to the Practice.
b. The non-breaching party may terminate this Agreement if
either party materially breaches any term or condition of this Agreement,
provided, the breach is not cured by the breaching party within sixty (60) days
after receipt of written notice from the terminating party setting forth the
details of the breach and the intent to terminate.
c. Either party may terminate this Agreement effective
immediately upon giving notice, if the other party files a petition in
bankruptcy, is adjudicated as bankrupt, takes advantage of the insolvency laws
of any jurisdiction, makes an assignment for the benefit of its creditors, is
voluntarily or involuntarily dissolved or has a receiver, trustee or other court
officer appointed with respect to its property that is not discharged within a
period of sixty (60) days.
6.3 Jeopardy. In the event of any legislative or regulatory change or
determination, whether federal or state, which has or would have a significant
adverse impact on either party hereto in connection with the performance of this
Agreement, or in the event that performance by either party of any term,
covenant, condition or provision of this Agreement should for any reason be in
violation of any statute, regulation, or otherwise be deemed illegal, the
affected party shall have the right to require that the other party renegotiate
the terms of this Agreement, such renegotiated terms to become effective not
later than thirty (30) days after receipt of written notice of such request for
renegotiation. If the parties fail to reach an agreement satisfactory to both
parties within thirty (30) days of the request for renegotiation, the party
requesting such renegotiation may terminate this Agreement upon thirty (30) days
prior written notice to the other party.
ARTICLE 7
BOOKS, RECORDS AND CONFIDENTIAL INFORMATION
7.1 Service Books and Records. The ownership and the right of control
of all reports, records, and supporting documents prepared in connection with
the Program shal1 vest in the Practice. MedCare shall have such right of access
to reports, records and supporting documentation
as shall be provided and allowed by state law or as may be otherwise agreed upon
between the parties.
7.2 Audits. MedCare shall have the right to audit, at MedCare's sole
expense, the books and records of the Practice as such records relate to the
Program.
7.3 Confidentiality. In connection with the Program and the provision
of the Services to the Practice, MedCare will provide the Practice with certain
oral and written information ("Information"). As a condition of receiving
Information, the Practice and each of the Practice's directors, officers,
employees, agents, advisors and affiliates (collectively, "Representatives")
agree to treat Information in accordance with the following:
a. The Practice will inform the Practice's Representatives of
the confidential nature of Information and the Representatives will agree to be
bound by this Section 7.3 in the same manner as the Practice is bound. The
Practice is responsible for any breach of this Section 7.3 by the Practice's
Representatives.
b. The term "Information" does not include material generally
available to the public or revealed to the Practice by a source other than
MedCare, provided that such source is not also under an obligation of
confidentiality. The term "person" as used in this Section 7.3 shall be
interpreted broadly to include, without limitation, any corporation, company,
partnership or individual. The term "document" as used in this Section 7.3 shall
be interpreted broadly to include any means of recording information, including,
but not limited to any print or electronic media.
c. For a period of one (1) year after disclosure of
Information to the Practice, the Practice will not disclose or discuss
Information with any person except the Practice's Representatives. The Practice
will use Information solely in connection with the Program and the provision of
Procedures to its patients, and will not use Information in any way detrimental
to MedCare. The Practice shall use the same degree of care as the Practice uses
to protect the Practice's own proprietary information of a like nature, but no
less than a reasonable degree of care, to prevent the unauthorized dissemination
of Information.
d. The Practice shall have the right to disclose Information
in response to a court order or as otherwise required by law, provided, in the
event that the Practice receives such an order, the Practice will promptly
notify MedCare of such request(s), and make a reasonable effort to obtain a
protective order to protect the confidentiality of Information or otherwise
cooperate with MedCare in taking legal steps to resist or narrow the scope of
such order.
e. Upon the request of MedCare, the Practice will promptly
return to MedCare all original documents and all reproductions of Information in
the possession of the Practice. The Practice will also destroy all derivative
documents in the possession of the Practice containing or reflecting any
Information. An authorized officer of the Practice shall supervise and upon
request, provide MedCare with a written certification of the destruction of such
derivative documents.
f. Without the prior written consent of MedCare, the
Practice shall not disclose to any person any of the terms, conditions or
other facts with respect to the Program, the Services or this Agreement except
in response to a court order or as otherwise required by law.
g. MedCare does not grant to the Practice any license or
convey to the Practice any intellectual property rights by this Section 7.3,
except the limited right to use Information for the specific purpose of
providing the Program to its patients.
h. In the event of a breach of any provision of this Section
7.3 by the Practice, MedCare could not be fully or adequately compensated in
damages and that, in addition to any other relief to which MedCare may become
entitled, MedCare shall be entitled to temporary and permanent injunctive and
other equitable relief. Without limiting the generality of the foregoing, a
showing by MedCare of any breach of any provision of this Section 7.3 shall
constitute, for the purposes of all judicial determinations of the issues,
conclusive proof of all elements necessary to entitle MedCare to interim and
permanent injunctive relief against the Practice. In the event of an action for
enforcement of this Section 7.3, the prevailing party shall have the right to
collect from the other party all costs of such enforcement including reasonable
attorneys, fees.
7.4 Non-Solicitation. During the term of this Agreement and for a
period of two (2) years following the expiration or earlier termination of this
Agreement, neither Practice nor any of its members, employees, agents,
representatives or affiliates will, without the prior written approval of
MedCare, employ or enter into any joint venture, independent contractor or other
business relationship with any employees of MedCare.
ARTICLE 8
INSURANCE
8.1 Insurance of the Practice. The Practice is responsible for all
professional liability risks associated with the performance of Procedures on
its patients, including the performance of Procedures by the Technologist under
the supervision of a physician member of the Practice. The Practice agrees to
maintain during the term of this Agreement, professional liability insurance,
with a limit of liability of no less than $1,000,000 aggregate per policy year,
which insures the Practice against the professional risks of performing
Procedures on its patients. The Practice shall upon request provide MedCare ith
a certificate of insurance confirming such coverage, and further agrees to
promptly advise MedCare of the termination of such coverage, or any material
modification of the coverage.
8.2 Insurance by MedCare. MedCare at its sole expense agrees to
maintain during the term of this Agreement the following insurance coverages:
a. Comprehensive general liability insurance written by an
insurance company licensed to transact business at the Location covering
MedCare's responsibilities hereunder with a limit of liability not less than
$1,000,000 aggregate per policy year;
b. Worker's compensation insurance covering Technologist; and
c. Products liability insurance with a limit of liability not
less than $1,000,000 aggregate per policy year.
MedCare, upon the Practice's request, shall provide the Practice with a
certificate of insurance confirming such coverages. MedCare promptly shall
advise the Practice of the termination of such coverage or any material
modification of such coverage.
ARTICLE 9
DISPUTE RESOLUTION
Any claim, controversy or dispute that arises between the Practice and
MedCare regarding the rights, duties, or liabilities hereunder of either party
shall be settled by arbitration under the rules of the National Health Lawyers
Association Alternative Dispute Resolution Service. In the event of the failure
or refusal of a party to enter into arbitration as required by this Agreement,
the other party, after demand for arbitration and the failure or refusal of the
other to comply, may file a civil action based upon any applicable cause of
action arising out of this Agreement.
ARTICLE 10
GENERAL TERMS AND CONDITIONS
10.1 Assignment. This Agreement shall be binding upon and inure to the
benefit of the respective legal successors and assigns of the parties hereto;
provided, however, that neither party may assign this Agreement without the
prior written consent of the other party.
10.2 Force Majeure. If either MedCare or the Practice is delayed in or
prevented from the performance of either party's respective obligations
hereunder by any act or neglect of the other party, or by labor disputes, fire,
unusual delay in transportation, adverse weather conditions not reasonably
anticipated, unavoidable casualties, or causes beyond either party's control,
then the time for performance of an obligation hereunder shall be extended for a
reasonable time.
10.3 Headings. The article and section headings used in this Agreement
are for purposes of convenience only. They shall not be construed to limit or to
extend the meaning of any part of this Agreement.
10.4 Notices. Any notice, demand, approval, consent, or other
communication required or desired to be given under this Agreement in writing
shall be personally served or given by over-night express carrier or by mail,
and if mailed, shall be deemed to have been given when two (2) business days
have elapsed from the date of deposit in the United States mails, certified and
postage prepaid, addressed to the party to be served at the following address or
such other address as may be given in writing to the parties.
PRACTICE:
MEDCARE: MedCare Technologies Corporation
c/o MedCare Technologies, Inc.
Xxxxx 000
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, X.X.
Xxxxxx X0X 0X0
Attn: Xxxxxxx Xxxxxx, President
10.5 Attorneys' Fees. If any legal action or arbitration or other
proceeding is commenced concerning this Agreement, whether by MedCare or the
Practice, the prevailing party shall recover from the losing party reasonable
attorneys' fees and costs and expenses, including those of appeal and not
limited to taxable costs, incurred by the prevailing party, in addition to all
other remedies to which the prevailing party may be entitled. If a claim or
claims asserted by a third party against MedCare or the Practice or both of them
arise from an action or omission by the other, the party responsible for the
action or omission shall be the losing party, and the other party shall be the
prevailing party, for purposes of the foregoing sentence.
10.6 Entire Agreement: Waiver. This Agreement and all other documents
incorporated or referred to herein, supersede all prior understandings or
contract and constitute the entire agreement existing between the parties
respecting the subject matter of this Agreement, and neither party shall be
entitled to any benefits other than as specified. No waiver or discharge of any
breach of this Agreement shall be effective unless it is in writing signed by
both MedCare and the Practice. Any waiver of any breach of any provision of this
Agreement shall not be a waiver of any subsequent breach of the same or of any
other provision of this Agreement.
10.7 Amendment of Agreement. This Agreement may not be modified except
in a writing signed by both parties.
10.8 Severability. If any provision in this Agreement is held by a
court of competent jurisdiction or in a legal arbitration to be invalid, void,
or unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way, but shall be enforceable
to the fullest extent permitted by law, but only if and to the extent such
enforcement would not materially or adversely frustrate the parties essential
objectives as expressed herein. The parties further acknowledge and agree that
it is their intention that the provisions hereof be binding only to the extent
that they may be lawful under existing applicable laws, and in the event that
any provision hereof is determined by a court of law or arbitrator to be overly
broad or unenforceable, the parties hereto agree to the modification of such
provisions to the minimum extent required to make them valid and enforceable.
10.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of _______ governing contracts entered
into in, and to be wholly performed within, said state.
10.10 Authority. Any entity signing this Agreement on behalf of any
other entity hereby represents and warrants in its individual capacity that it
has full authority to do so on behalf of the other entity. Any individual
signing this Agreement on behalf of an entity hereby represents and warrants in
his individual capacity that he has full authority to do so on behalf of such
entity.
10.11 Exhibits and Schedules. Each and every exhibit and schedule to
which reference is made in this Agreement is incorporated into this Agreement as
if set forth in full herein.
10.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Practice and MedCare have executed this
Agreement on the dates set opposite their signatures below.
"MedCare" "Practice"
------------------------ ------------------------------
Xxxxxxx Xxxxxx By:
Its: President, COO Its:
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Date: Date:
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EXHIBIT A
POLICY AND PROTOCOL MANUAL
SCHEDULE 1
PROGRAM EQUIPMENT
Laptop computer, printer and monitors.
Biofeedback equipment, electrodes, cables and probes.
Telephone.
SCHEDULE 3.7
BILLING AND COLLECTION ASSISTANCE
The Practice is responsible for all billing and collections for
services provided by the Practice through the Program. All such services
shall be billed in the name of the Practice and under a provider number held
by the Practice.
MedCare will collect and provide to the Practice's billing personnel,
information and data necessary for billing the services provided by the Practice
through the Program. MedCare will also provide the Practice with billing and
collections advice, consultation and assistance as necessary and appropriate.
In the event that the Practice's collections for the services provided
through the Program are unsatisfactory, MedCare shall assist the Practice in
negotiations with, and appeals to, third party payors.
SCHEDULE 4.1
EXCLUSIVITY
SCHEDULE 4.2
PRACTICE SUPPLIES AND EQUIPMENT
Copy Machine
Fax Machine
Patient Examination Table or Reclining Table
Administrative Work Space (Desk or Countertop)
Basic Exam Room Supplies:
Exam Gloves
Tissues
Lubricant
Table Paper
Patient Gowns
Patient Drapes
Towels
Soaps, Cleaners, Disinfecting Solutions
SCHEDULE 5.1
MANAGEMENT FEE
MedCare shall invoice the Practice for the Management Fee on a monthly
basis. The Practice shall pay the Management Fee to MedCare within thirty (30)
days of receipt of the invoice.
For the routine services provided by the Practice through the Program,
the Practice shall pay to MedCare a Management Fee of $[PROPRIETARY] for each
patient encounter, allocated to MedCare's services as follows:
General Administration $[PROPRIETARY]
Technician $[PROPRIETARY]
Billing & Collections Assistance $[PROPRIETARY]
Intellectual Property $[PROPRIETARY]
Equipment/Supplies $[PROPRIETARY]
For new or additional services provided by the Practice through the
Program, MedCare and the Practice shall negotiate the Management Fee for each
patient encounter taking into account any additional equipment or additional
technician training necessary for the performance of such new or additional
services.
After 100 patients have been evaluated and treated through the Program,
either party shall have the right to request a renegotiation of the Management
Fee, provided that in no event shall the Management Fee be renegotiated more
often than annually.
FIRST AMENDMENT TO
PROGRAM MANAGEMENT AGREEMENT
This First Amendment To Program Management Agreement ("First
Amendment") is dated, for reference purposes only, the 15th day of May, 1998, by
and between MedCare Technologies Corporation, a Nevada corporation
.("MedCarell), and _______________ (the "Practice"), (individually, a "Party"
and collectively, the "Parties"), and is effective as of the Effective Date, as
defined in that certain Program Management Agreement dated the _____ day of
______________, 199_, by and between the Practice and MedCare (the "Agreement").
WITNESSETH:
A. The Practice is a physician or group of physicians, who are involved
on a regular basis in the diagnosis, evaluation and treatment of urinary and
rectal incontinence as well as other pelvic dysfunction (the "Conditions"),
B. MedCare is a management company engaged by the Practice under the
terms of the Agreement to provide a comprehensive package of support and
administrative services designed to assist the Practice in operating an
efficient and effective program (the "Program") for the diagnosis and treatment
of the Conditions utilizing, among other modalities, behavioral and biofeedback
techniques.
C. The Parties desire to amend the Agreement with regard to the
Management Fee, MedCare's responsibility to perform billing and collection
services, MedCare's record retention obligation, and the Parties, dispute
resolution procedure.
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
on the terms and subject to the conditions herein set forth, the Parties have
agreed and do hereby agree as follows:
1. Amendments.
a. Compensation. The Parties desire to amend Schedule 3.7 of
the Agreement to provide that the Practice shall be responsible for all billing
and collections activities and MedCare shall provide the Practice with
information and advice on billing issues and shall assist the Practice on
collection matters. Therefore, Schedule 3.7 is hereby amended to read in its
entirety as follows:
SCHEDULE 3.7
BILLING AND COLLECTION ASSISTANCE
The Practice is responsible for all billing and collections for services
provided by the Practice through the Program. All such services shall be billed
in the name of the Practice and under a provider number held by the Practice.
MedCare will collect and provide to the Practice's billing personnel,
information and data necessary for billing the services provided by the Practice
through the Program. MedCare will also provide the Practice with billing and
collections advice, consultation and assistance as necessary and appropriate.
In the event that the Practice's collections for the services provided
through the Program are unsatisfactory, MedCare shall assist the Practice in
negotiations with, and appeals to, third party payors.
b. Compensation. The Parties desire to amend Schedule 5.1 of
the Agreement to provide that the Management Fee shall be calculated as a fixed
amount rather than as a percentage. Therefore, Schedule 5.1 is hereby amended to
read in its entirety as follows:
SCHEDULE 5.1
MANAGEMENT FEE
MedCare shall invoice the Practice for the Management Fee on a
monthly basis. The Practice shall pay the Management Fee to MedCare
within thirty (30) days of receipt of the invoice.
For the routine services provided by the Practice through the
Program, the Practice shall pay to MedCare a Management Fee of
$[PROPIETARY] for each patient encounter, allocated to MedCare's
services as follows:
General Administration $[PROPRIETARY]
Technician $[PROPRIETARY]
Billing & Collections Assistance $[PROPRIETARY]
Intellectual Property $[PROPRIETARY]
Equipment/Supplies $[PROPRIETARY]
For new or additional services provided by the Practice
through the Program, MedCare and the Practice shall negotiate the
Management Fee for each patient encounter taking into account any
additional equipment or additional technician training necessary for
the performance of such new or additional services.
After 100 patients have been evaluated and treated through the
Program, either party shall have the right to request a renegotiation
of the Management Fee, provided that in no event shall the Management
Fee be renegotiated more often than annually.
c. Records. The Parties determined that the provisions of
Section 952 of the Omnibus Budget and Reconciliation Act of 1980 ("Act") are not
applicable to the activities performed under the Agreement. Therefore, Section
7.2 MedCare's Books and Records, which required MedCare to maintain the records
required by Section 952 of the Act is hereby deleted from the Agreement in its
entirety.
d. Arbitration. The Parties desire to amen Article 9 to
provide for the use of the National Health Lawyers Association Alternative
Dispute Resolution Service. Therefore, Article 9 is hereby amended to read in
its entirety as follows:
ARTICLE 9
DISPUTE RESOLUTION
Any claim, controversy or dispute that arises between the
Practice and MedCare regarding the rights, duties, or liabilities
hereunder of either party shall be settled by arbitration under the
rules of the National Health Lawyers Association Alternative Dispute
Resolution Service. In the event of the failure or refusal of a party
to enter into arbitration as required by this Agreement, the other
party, after demand for arbitration and the failure or refusal of the
other to comply, may file a civil action based upon any applicable
cause of action arising out of this Agreement.
2. Definitions. All words and phrases that are defined in any of the
referenced agreements or instruments shall have the same meanings when used in
this First Amendment, except as any such words and phrases are modified by this
First Amendment.
3. Effect. The parties hereby confirm and agree that except as
specifically provided for herein, the Agreement remains in full force and
effect.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
dates set opposite their signatures below.
MedCare: MedCare Technologies Corporation
Date:
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By:
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Its:
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The Practice:
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Date:
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By:
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Its:
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