CONSULTING SERVICES
AGREEMENT
by and between
HealthCare Imaging Services, Inc.
and
M.R. Radiology Imaging
of Lower Manhattan, P.C.
Dated: November 1, 1997
TABLE OF CONTENTS
Page
1. Retainer; Right of Access and Grant of Limited
Purpose License . . . . . . . . . . . . . . . . . . . 2
2. Preparation of the Premises . . . . . . . . . . . . . 3
3. Permitted Uses of the Equipment . . . . . . . . . . . 4
4. Repairs and Maintenance . . . . . . . . . . . . . . . 4
5. Utilities . . . . . . . . . . . . . . . . . . . . . . 5
6. Insurance . . . . . . . . . . . . . . . . . . . . . . 5
7. Management Services . . . . . . . . . . . . . . . . . 6
8. Personnel . . . . . . . . . . . . . . . . . . . . . . 10
9. Service Fees. . . . . . . . . . . . . . . . . . . . . 12
10. Term and Termination. . . . . . . . . . . . . . . . . 13
11. Surrender of Premises . . . . . . . . . . . . . . . . 17
12. Representations of Group . . . . . . . . . . . . . . . 18
13. Group's Professional Services . . . . . . . . . . . . 19
14. Indemnification . . . . . . . . . . . . . . . . . . . 19
15. Limitation on the Activities of Group and Associates. 21
16. General . . . . . . . . . . . . . . . . . . . . . . . 22
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement made and entered into as of the 1st
day of November 1997 by and between HealthCare Imaging Services, Inc., a
Delaware corporation, ("HIS"), having an office at Tri-Parkway Corporate Park,
000 Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxxxx 00000 and M.R. Radiology Imaging of
Lower Manhattan, P.C., a New York professional service corporation having an
office at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("the Group").
W I T N E S S E T H:
WHEREAS, Group is a New York professional service corporation established
and existing in accordance with all applicable laws and regulations; and
WHEREAS, Group and its physician shareholders and physician employees
wish to obtain management, administrative and personnel services necessary for
the provision of magnetic resonance imaging services provided by Group at its
medical practice (the "Practice") located at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, (the "Premises"), which Practice includes a magnetic resonance
imaging device; and
WHEREAS, HIS is formed to operate and agrees to provide administrative
and personnel services in the management of the Practice and is capable of
providing equipment necessary for the performance of diagnostic medical
services and of administering the business operations of the Group and for the
Practice; and
WHEREAS, Group desires to retain HIS to develop and provide such services
and equipment upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
adequacy of which are forever acknowledged and confessed, the parties hereto
agree as follows:
1. RETAINER; RIGHT OF ACCESS AND GRANT OF LIMITED PURPOSE LICENSE
Group hereby retains from HIS the right to use the equipment set forth on
Exhibit "A" annexed hereto and made a part hereof (the "Equipment"), on an
exclusive basis in accordance with the physician coverage schedule set forth on
Exhibit "B" annexed hereto and made a part hereto (the "Schedule") and further
engages HIS to provide to Group the necessary personnel and administrative
services in the management of the Practice at the Premises (the "Management
Services"). HIS hereby accepts such retainer, subject to the terms and
conditions as hereinafter provided. HIS hereby grants to Group and its
designated members and employees a limited purpose license to use the Equipment
in accordance with the terms and conditions as hereinafter provided. Title to
the Equipment and other personal property located at the Premises, other than
personal property delivered to and stored at the Premises by or on behalf of
Group with the consent of HIS (the "Group Property"), is and shall remain at
all times in HIS, its lessor or its assignee. Group shall have the right to use
the Equipment in the performance of magnetic resonance imaging scans for
physicians and other entities not parties to this Agreement.
2. PREPARATION OF THE PREMISES
2.1 Acquisition and Installation of Equipment. The Group has selected and
installed the Equipment set forth in Exhibit "A". HIS has acquired the
Equipment from the Group and shall cause same to remain installed at the
Premises. Group has prepared and
maintained the installation site for the Equipment which complies in all
material respects with the siting and set-up specifications pursuant to all
applicable laws and regulations and HIS shall cause same to remain in
compliance.
2.2 Disclaimer of Warranty. HIS hereby assigns to Group all of the
benefits of HIS' rights and entitlements to the warranties and representations
of the manufacturer of the Equipment, and disclaims any representations,
expressed, implied or otherwise with respect thereto.
2.3 HIS' Warranties. HIS represents and warrants that it has purchased
and/or leased the Equipment and is, therefore, the owner or lessee (or
authorized sublessee) of same and, in its capacities as such, is entitled to
provide the Equipment to the Group hereunder, and has obtained all necessary
consents to this Agreement. In recognition that HIS is not the manufacturer of
the Equipment, THE GROUP UTILIZES THE EQUIPMENT "AS IS" AND HIS HEREBY
DISCLAIMS ANY REPRESENTATION OR WARRANTY, EITHER EXPRESSED OR IMPLIED, AS TO
ANY MATTER WHATSOEVER RELATING TO THE EQUIPMENT, INCLUDING WITHOUT LIMITATION,
THE DESIGN OR CONDITION OF THE EQUIPMENT'S MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL OR
WORKMANSHIP, OR AS TO PATENT INFRINGEMENT OR THE LIKE. The Group agrees to look
to the manufacturer of the Equipment for any and all warranty claims.
3. PERMITTED USES OF THE EQUIPMENT
Group shall, during the term of this Agreement, use the Equipment solely
for the purpose of providing its medical services and shall use the Equipment
in accordance with
all instructions and manuals provided by the manufacturer of the Equipment and
in accordance with all applicable federal, state and local statutes, rules and
regulations.
4. REPAIRS AND MAINTENANCE
4.1 Group shall not make nor cause any other person to make alterations,
modifications, replacements, repairs or adjustments to the Equipment or any
component parts thereof, without the expressed prior written consent of HIS,
which consent will not be unreasonably withheld or delayed.
4.2 In the event Group wants or needs to have alterations, modifications,
replacements, repairs or adjustments in, to or of the Equipment or any
component parts thereof, Group shall give written notice of such want or need
to HIS.
4.3 Upon receipt of the aforementioned notice, HIS, at its own expense,
shall ascertain within a reasonable period of time and within its reasonable
and good faith discretion, whether the Equipment requires alteration,
modification, replacement, repair or adjustment. In the event HIS determines
that such alteration, modification, replacement, repair or adjustment is
required, HIS shall, at its sole expense, alter, modify, replace, repair or
adjust the Equipment.
4.4 HIS' obligation to undertake, at its sole expense, any and all
alterations, modifications, replacements, repairs or adjustments of the
Equipment or any component part thereof, pursuant to Section 4.3, shall not
apply if HIS, in its reasonable and good faith discretion, determines that the
unsafe or improper operation of the Equipment or any component part thereof is
a result of intentional acts on the part of Group, its employees,
agents (other than HIS) or independent contractors unless such acts are
intentional on the part of Group.
5. UTILITIES
5.1 Utilities. During the term of this Agreement, HIS shall at its
expense provide or arrange for the provision of electricity, full HVAC services
and telephone hookup and related services as are required to operate the
Equipment and provide diagnostic services at the Premises.
6. INSURANCE
6.1 Insurance. During the term of the Agreement, HIS shall at its expense
provide and keep in force general liability and casualty insurance covering the
Equipment in total limits of not less than $1,000,000 per occurrence or
$3,000,000 in the aggregate and shall provide Worker's Compensation Insurance
for its employees.
6.2 Professional Liability Insurance. Group, without cost or expense to
HIS, shall obtain, keep and maintain throughout the term of this Agreement,
professional liability insurance coverage on itself and all of its physician
shareholders and physician employees who provide medical services for the
Practice at the Premises in total limits of not less than $1,000,000 per
occurrence or $3,000,000 in the aggregate. The Group shall also have the
Practice named as an additional insured under such policies. Prior to providing
medical services at the Premises, Group shall provide to HIS a Certificate of
Insurance evidencing such coverage. Such policy or policies shall also provide
for at least thirty (30) days' prior written notice from the insurer as to any
alteration of coverage, cancellation or other termination.
7. MANAGEMENT SERVICES
Consistent with the provisions of this Agreement, HIS shall provide
Management Services to Group in connection with the operation of the Practice
at the Premises, including the specific managerial and administrative services
set forth in this Section 7.
7.1 Supplies. HIS shall at its sole expense obtain and provide to Group,
and maintain at the Premises, the medical and office supplies necessary for the
operation of the Practice at the Premises.
7.2 Billing and Collections. On behalf of and for the account of Group,
HIS shall establish and maintain credit and collection policies and procedures
and HIS shall timely xxxx and collect all professional and other fees for
magnetic resonance imaging services rendered by Group at the Premises. A bank
account shall be opened and maintained at all times while this Agreement is in
effect and shall remain in Group's name. The account shall be designated the
Group Account. Upon collection by HIS of funds pursuant to Sections 7.2-1
through 7.2-4 hereof, HIS shall deposit all amounts so collected, if any, in
the Group Account, which account has been opened and at all times shall remain
in Group's name. HIS shall deposit into the Group Account all sums to be
retained by Group as set forth in Exhibit C and HIS shall remit to the HIS
operating account all amounts due HIS also as set forth in Exhibit C. HIS shall
remit to the Group from the Group Account on the first (1st) and the fifteenth
(15th) day of each month hereunder, amounts due for radiology services
performed during the fifteen (15) day period commencing thirty (30) days prior
to the remittance date. The first remittance amount shall be submitted to the
Group on the first (1st) day of the month following the expiration of one (1)
calendar.
6
month after execution hereof and shall include any additional amounts resulting
from the initial partial fifteen (15) day period from the Commencement Date (as
hereinafter defined). Thereafter, Group shall have all signatory rights over
Group Account. In connection therewith and throughout the term hereof, Group
hereby appoints HIS as Group's true and lawful agent and HIS hereby accepts
such appointment, for the following purposes:
7.2-1 To xxxx, in Group's name and on its behalf, Group's patients who
have received medical services at the Premises.
7.2-2 To collect, in Group's name and on its behalf, and deposit in the
Group Account, accounts receivable generated by the xxxxxxxx described in
Section 7.2-1.
7.2-3 To xxxx and collect, in Group's name and on its behalf, all claims
for reimbursement or indemnification from, all third party payors, including,
but not limited to, Blue Shield, Medicare, Medicaid and commercial insurance
companies, to the extent such reimbursement is available during the term of
this Agreement, and to deposit same in the Group M.R. Radiology Imaging
Account. HIS shall deposit in the Group M.R. Radiology Imaging Account all
amounts received by it from such third party payors. HIS hereby represents and
warrants that throughout the term hereof, HIS shall comply with all applicable
state and federal rules and regulations, including, but not limited to, the
Medicare anti-kickback statute, regarding the billing of patients in addition
to the requirements of all other applicable third-party payors.
7.2-4 To take possession of, and where applicable, endorse in the name of
Group, and deposit in Group Account, any notes, checks, money orders, cash,
insurance
payments, and any other instruments received as fees from Group's Practice at
the Premises and collected by HIS.
7.3 Bank Account. HIS shall have access to the Group Account for the
purposes herein stated. In connection therewith, Group hereby appoints HIS for
the term of this Agreement as Group's true and lawful agent, and attorney in
fact. HIS hereby accepts such appointment, to deposit in the Group Account all
fees collected by HIS pursuant to Section 7.2 hereof, and to make withdrawals
from the Group Account for payments specified in Section 9, subject to the
limitations contained herein, as requested from time to time by HIS. Group
shall execute any and all additional documents reasonably required by the bank
where such Account is held to effectuate the herein granted power of attorney.
7.4 Miscellaneous Administrative Service. HIS, after consulting with
Group as to Group's needs, shall at its sole expense provide to Group (or
arrange for the provision of) such clerical services, laundry, printing, and
personnel services, and medical transcribing service will be provided in
conformity with the Group's requirements.
7.4-1 Financial Records. HIS shall at its expense maintain at either its
principal office or at its Monmouth, New Jersey facility, a comprehensive
system of office records, books and M.R. Radiology Imaging Account which
reflect the income and expenses of Group which may be inspected by Group or its
representative at any reasonable time during regular business hours.
7.4-2 Marketing. HIS, after consultation with Group, shall at its expense
develop, maintain and be solely responsible for all marketing promotions of
Group and all related
advertising efforts consistent with appropriate rules and regulations and which
Group determines will not be detrimental to its good business name and
reputation.
7.4-3 Record Keeping. HIS shall maintain a log of all procedures
performed on the Equipment. Such log shall be available for inspection by duly
authorized representatives of the Group upon reasonable notice to HIS during
regular business hours.
7.5 Consultants. HIS may retain, without any cost or expense to Group,
any consultants and/or subcontractors it desires to assist it in connection
with providing Management Services.
7.6 Accounting and Recordkeeping.
7.6-1 Accounting and Financial Records. HIS shall at its expense
establish and administer accounting procedures and controls, and systems for
the development, preparation and safekeeping of records and books of account
relating to the business and financial affairs of the Practice, and shall
maintain such records and books on a consistent basis. HIS shall, during the
terms of this Agreement, including any renewal term hereof, prepare and deliver
to Group monthly financial statements prepared on the basis of the foregoing
records and books reporting Group's receipts, expenditures and revenue from the
Practice at the Premises.
7.6-2 Access. Group shall, upon reasonable notice, have the right to
audit and examine the books of account maintained by HIS in connection with the
operation of Group at the Premises during regular business hours.
7.7 Medical Records. Group shall establish procedures and policies for
the creation, completion and filing of all medical records generated by Group
at the Premises.
All such medical records shall be treated in accordance with all applicable
state and federal laws relating to the confidentiality of same.
8. PERSONNEL
8.1 Administrative Personnel. HIS, after consultation with Group as to
such issues, shall employ such clerical, secretarial, bookkeeping, management,
consulting and billing and collection personnel it deems reasonably necessary
in conjunction with the Practice, to perform the Management Services set forth
in Section 7 hereof. HIS with the advice of Group, shall establish the salaries
and fringe benefits of the administrative personnel described in the
immediately preceding sentence and the method for paying such salaries and
providing such fringe benefits. HIS shall also have the sole and exclusive
right to discipline and/or to terminate from employment such administrative
personnel.
8.2 Non-Physician Personnel. HIS shall, with the advice of the Group,
employ all of the radiologic technologists, or personnel with equivalent
training, as are reasonably necessary to support the Practice. HIS shall
determine the salaries and fringe benefits of such non-physician personnel and
the method for paying such salaries and providing such fringe benefits. HIS
shall, with the advice of Group, have the sole and exclusive right to terminate
from employment such non-physician personnel. For the purposes of this
Subsection, non-physician personnel shall include nurses and radiologic
technologists and all individuals employed on the Premises (other than
physicians) who are involved with the direct delivery of medical services to
patients of the Group.
8.3 Labor Reports. HIS shall prepare, maintain and file all requisite
reports with respect to withholding taxes, social security taxes, employment
taxes, Workers'
Compensation, the Fair Labor Standards Act, and all other statements and
reports pertaining to employees and independent contractors of HIS.
8.4 Compensation. HIS shall pay the compensation (including fringe
benefits) of all HIS' employees and independent contractors and shall pay for
all local, state, and federal taxes and assessments (including without
limitation, social security taxes, unemployment insurance, and Workers'
Compensation insurance) which are incident to the employment of such personnel.
The number of such radiologic technologists or other such personnel shall be
mutually agreed to by the parties. It is understood and acknowledged that the
radiologic technologists or personnel with equivalent training shall be under
the direct supervision of the Group when performing medical procedures or
providing medical services.
9. SERVICE FEES
9.1 Fee. Group and HIS hereby mutually recognize and acknowledge that HIS
will incur substantial costs and expenses in performing the services described
herein. Accordingly, Group shall pay to HIS, through a billing and collection
service agreement and/or an operations management agreement by and between said
two (2) parties a Fee for its services.
9.1-1 The Fee for the Management Services rendered by HIS and the billing
and collection services rendered by HIS shall be an amount pursuant to Exhibit
"C" annexed hereto and made a part hereof.
9.2 Payment of Fees. Each day during the term or renewal term of this
Agreement, the Fees due with respect to the immediately preceding day shall be
due and
payable to HIS. To facilitate the payment of the Fees to HIS, Group hereby
expressly authorizes HIS to make withdrawals from the Group Account during the
term of this Agreement, and any renewal term hereof, to pay itself the Fees due
with respect to the preceding day.
10. TERM AND TERMINATION
10.1 Initial Term. The initial term of this Agreement shall commence upon
the date first above written (the "Commencement Date"), and shall continue for
a period of three (3) years, unless sooner terminated as herein provided.
10.2 Renewal Term. Following the expiration of the initial term hereof,
this Agreement shall automatically be renewed for successive additional one (1)
year periods unless either party gives the other notice of intent not to renew
at least one hundred and twenty (120) days prior to the expiration of the then
existing term. For each successive renewal term, all the provisions of this
Agreement shall continue in full force and effect.
10.3 Termination. This Agreement may be terminated as follows:
10.3-1 Damage/Condemnation of Premises. If the Premises are totally or
partially destroyed by fire, windstorm, hail, earthquake or other casualty or
Act of God and HIS decides not to rebuild or if all or a substantial portion of
the Premises is taken or is to be taken by condemnation or eminent domain
proceeding, then either HIS or Group may immediately terminate this Agreement.
Upon such a termination, all Fees, shall be due and payable and HIS shall
continue to collect all outstanding Accounts receivable under the provisions
hereof. Subject to the collection of outstanding M.R. Radiology Imaging Account
receivable, if any, the Group shall continue to withdraw such fees from Account
I on the first and the fifteenth of each month.
10.3-2 Bankruptcy. Either party may immediately terminate this Agreement
upon the filing by the other of a petition in voluntary bankruptcy or an
assignment for the benefit of creditors by either party, or upon other action
taken or suffered, voluntarily or involuntarily, under any Federal or State law
for the benefit of insolvents by either party, except for the filing of a
petition in involuntary bankruptcy against either party which is dismissed
within one hundred twenty (120) days thereafter.
10.3-3 Disqualification of Group. This Agreement shall terminate at such
time as Group does not qualify for any reason as a professional service
corporation under the laws of the State of New York as determined by the
appropriate governmental or regulatory body, and such failure to so qualify is
not fully remedied within ninety (90) days following notice of such failure.
10.3-4 License to Practice Medicine. If the license to practice medicine
in the State of New York of any physician who is a member or employee of Group
is suspended or revoked on any grounds, including, without limitation, improper
medical practice or improper or unethical conduct by such physician and such
physician member or physician employee practices medicine at the Premises
following such suspension or revocation, then HIS, at its option, may terminate
this Agreement immediately.
10.3-5 Licensure of Personnel. If Group shall cause, permit, or suffer to
be rendered at the Premises any professional medical services by a person not
qualified and/or
licensed or adequately trained to perform such services under all applicable
laws, rules and regulations, HIS may terminate this Agreement immediately.
10.3-6 Loss on Operations. HIS may terminate this Agreement in the event
it reasonably determines that continuation of the Practice is not financially
feasible to HIS by giving Group ninety (90) days prior written notice. Such a
determination may be established in the event the operation of the facility
shall be unprofitable for any consecutive three (3) month period and a decision
is made to close the facility.
10.3-7 With Cause. Except as may be otherwise provided in this Agreement,
if Group shall fail to substantially or materially perform any of the duties,
obligations or responsibilities to be performed by it pursuant to this
Agreement and such default shall continue for a period of fifteen (15) days
after written notice thereof has been given to Group by HIS, HIS may terminate
this Agreement on five (5) days' prior written notice. Included in this
Provision is the failure of Group to provide Magnetic Resonance Imaging reports
that meet American College of Radiology standards on a timely basis (i.e.
verbal reports within 24 hours); provided, however, said reports shall be
timely delivered when they are submitted during the next business day,
excluding weekends and HIS Holidays, for radiology services performed on the
immediately preceding business day or Group's failure to provide physician
services at the facility at which the Practice is located in accordance with
Exhibit B attached hereto. If HIS shall fail to perform any of the duties,
obligations or responsibilities to be performed by it pursuant to this
Agreement and such default shall continue for a period of ninety (90) days
after prior written notice thereof has
been given to HIS by Group, Group may terminate this Agreement on five (5)
days' prior written notice.
10.3-8 Regulation. This Agreement may be terminated immediately by either
party if a court of competent jurisdiction or administrative agency having
authority to regulate either of the parties holds this Agreement or the
obligations to be performed hereunder to be illegal in whole or in part, with
respect to any portion hereof or adopts regulations which would hold this
Agreement or the obligations to be performed hereunder to be illegal, in whole
or in part, with respect to any portion hereof. However, immediately upon the
happening of such event, the parties agree, for a period of ninety (90) days,
to restructure the practical conduct of this contractual arrangement in a
manner which will eliminate the illegal or unenforceable aspects hereof, while
remaining consistent with the intent and financial result of this Agreement in
its original form, during which ninety (90) day period the parties shall
negotiate in good faith a revised Agreement to evidence their restructured
relationship.
10.3-9 Insurance. The Group fails to maintain professional liability
insurance as required by Section 6.2 hereof.
10.3-10 Punishable Offense. In the event any Group physician shareholder
and/or physician employee is convicted of any offense punishable as a felony or
involving moral turpitude, HIS may terminate this Agreement immediately.
10.3-11 Surrender of Group Name. In the event of a termination of this
Agreement for any reason whatsoever, Group agrees that it shall cease the use
of the term "M.R. Radiology Imaging of Lower Manhattan, P.C.", in its name and
that the Group and its
physician members and physician employees shall not establish a new practice or
promote their services using the term "M.R. Radiology Imaging of Lower
Manhattan, P.C.", apart from the Practice at the Premises.
11. SURRENDER OF PREMISES
Group agrees that upon the expiration or termination of this Agreement,
it shall, without notice from HIS other than as may be specifically required
herein, quietly and peaceably surrender to HIS possession of the Equipment and
any additional equipment purchased by HIS during the term of this Agreement.
Group shall surrender possession of the Equipment and additional equipment in
as good order, repair and condition as same were as of the Commencement Date of
this Agreement, reasonable wear and tear excepted.
12. REPRESENTATIONS OF GROUP
12.1 Licensure of Shareholders, Employees and Consultants of Group. Group
represents and warrants that each of its physician shareholders, employees,
and/or consultants who shall be providing magnetic resonance imaging services
for the Practice are now, and at all times during the term of this Agreement,
shall be duly licensed to practice medicine in the State of New York and shall
have the requisite knowledge, skill and training to provide magnetic resonance
imaging or other professional medical services, including, without limitation,
the supervision of the operation of the Equipment and the reading and
interpretation of all data derived therefrom.
12.2 Performance Throughout the Term of the Agreement. Group hereby
represents and warrants that it has not agreed to or executed, and shall not
agree to or
execute during the period commencing with the execution of this Agreement and
continuing throughout the term of this Agreement and any renewal terms hereof,
any agreement, whether expressed or implied, with any hospital or any other
corporation, partnership or any other person, or take or consent to any action,
which may, in any manner whatsoever, prohibit, or materially or substantially
limit, impair or otherwise interfere with Group's performance of its duties,
obligations and responsibilities hereunder throughout the term of this
Agreement and any renewal terms hereof.
12.3 Provider Numbers. Group shall make application within fifteen (15)
days of execution of this Agreement for any and all provider numbers as may be
necessary or desirable in order to obtain payment from Medicare or any other
third party payor for professional services rendered at the Premises.
13. GROUP'S PROFESSIONAL SERVICES
13.1 Exclusive Control. The Parties acknowledge and agree that Group, its
physician shareholders and physician employees shall be in complete and
exclusive control of its medical practice, shall be solely responsible for all
acts and decisions with respect thereto, and shall conduct such practice in
accordance with applicable statutes, regulations and ordinances, applicable
professional standards and their respective best judgment and discretion. Group
shall have complete and exclusive authority and control regarding medical
appropriations of all examinations and protocols to be utilized. The Standard
of Appropriations shall conform to the American College of Radiology
appropriations criteria promulgated in 1995. The Group shall promptly inform
HIS of any deficiency in personnel, supplies, facilities, equipment or working
environment which directly, or indirectly, could
adversely affect the rendition of magnetic resonance imaging services of the
highest quality on a consistent basis.
13.2 Supervision of Non-Physician Personnel. Group represents and
warrants that each of its physician shareholders and/or physician employees
shall properly supervise and direct the professional medical services provided
by the non-physician personnel referred to in Section 8.2 hereof at the
Premises.
14. INDEMNIFICATION
14.1 Indemnity by HIS. HIS shall indemnify and hold Group harmless from
and against any and all liability (whether accrued, absolute, contingent or
otherwise), loss, damage, expense (including reasonable counsel fees) or
deficiency resulting from any misrepresentation, breach of warranty or
nonfulfillment of any agreement on the part of HIS under this Agreement and
from any act or negligence of HIS and its employees in or about the Premises
during the term of this Agreement. To be entitled to such indemnification,
Group shall give HIS prompt written notice of the assertion by a third party of
any claim with respect to which Group might bring a claim for indemnification
hereunder, and in all events must have provided such notice to HIS within the
applicable period for defense of such claim by Group. HIS shall have the right,
at HIS' own expense, to defend and litigate any such third party claim, using
the attorney selected by HIS. In no event shall HIS be liable for the acts or
omissions of Group, its members, employees or agents (other than HIS),
including, without limitation, any liability arising out of or in connection
with claims of malpractice.
14.2 Indemnity by Group. Group shall indemnify and hold HIS harmless from
and against any and all liability (whether accrued, absolute, contingent or
otherwise), loss, damage, expense (including reasonable counsel fees) or
deficiency resulting from any misrepresentation, breach of warranty or
nonfulfillment of any agreement on the part of Group under this Agreement, and
from any act or omission of Group, its shareholders employees or agents. To be
entitled to such indemnification, HIS shall give Group prompt written notice of
the assertion by a third party of any claim with respect to which HIS might
bring a claim for indemnification hereunder, and in all events must have
supplied such notice to Group within the applicable period for defense of such
claim by HIS. Group shall have the right, at Group's own expense, to defend and
litigate any such third party claim, using the attorney selected by Group. In
no event shall Group be liable for the acts or omissions of HIS, its members,
employees or agents.
15. LIMITATION ON THE ACTIVITIES OF GROUP
Group acknowledges that it and its shareholders are affiliated with
Xxxxxx Xxxxx, M.D., a radiology group with offices located at various locations
in the State of New York.
Upon the execution hereof, the Group shall and shall cause its
shareholders and employees not to, engage, either directly or indirectly, in
any activities which compete with the current or future, as of the date hereof,
business interests or activities of HIS, any affiliate of HIS or any entity of
which HIS owns a substantial part. The term "compete" as used herein shall
include within its meaning, without limitation, the operation of any magnetic
resonance imaging facility within (2) miles of any facility operated by HIS or
any of its affiliates.
However, this Section shall not apply if this Agreement is terminated by
operation of law or regulations or if it is terminated in accordance with the
provisions of Sections 10.3-1, 10.3-2 and 10.3-6. Notwithstanding the
foregoing, Xxxxxx Xxxxx, M.D. shall have the right to participate in a
hospital-based magnetic resonance imaging practice at any hospital at which he
regularly practices radiology at present or in the future. Group and HIS agree
that if any restriction contained in this Section 15 is held by any Court to be
unenforceable or unreasonable, a lesser restriction shall be severable
therefrom and be enforced in its place, and the remaining restrictions
contained herein shall be and remain enforceable in accordance with its terms.
16. GENERAL
16.1 Additional Assurances. The provisions of this Agreement shall be
self-operative and shall not require further agreement by the parties except as
may be herein specifically provided to the contrary; provided, however, at the
reasonable request of either party, the other party shall execute such
additional instruments and take such additional acts as the requesting party
may deem necessary to effectuate this Agreement.
16.2 Consents, Approvals and Discretion. Except as herein expressly
provided to the contrary, whenever this Agreement requires any consent or
approval to be given by either party or either party must or may exercise
discretion, the parties agree that such consent or approval shall not be
unreasonably delayed and such discretion shall be reasonably exercised.
16.3 Choice of Law. The parties agree that this Agreement shall be
governed by and construed in accordance with the laws of the State of New York
and that the courts
of such State shall be the exclusive courts of jurisdiction for any litigation,
special proceedings or other proceeding as between the parties that may be
brought, or arise out of, in connection with, or by reason of, this Agreement.
16.4 Legal Fees and Costs. In the event either party elects to incur
legal expenses to enforce or interpret any provision of this Agreement, the
prevailing party will be entitled to recover such legal expenses, including
without limitation, attorneys' fees, cost and necessary disbursements, in
addition to any other relief to which such party shall be entitled.
16.5 Benefit/Assignment. Subject to provisions herein to the contrary,
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective legal representatives, successors and assigns;
provided, however, that neither party may assign this Agreement without the
prior written consent of the other party, which consent shall not be
unreasonably withheld; provided further, that HIS may assign its rights and
delegate its duties hereunder to an entity which is, or will be, following such
assignment, in control of, controlled by or under common control affiliated
with HIS.
Further, the Group shall not:
(a) Assign, mortgage or encumber this Agreement or the Equipment or any
part of it, or permit its use by others;
(b) Pledge, loan, create a security interest in, or abandon
possession of the Equipment;
(c) In any other manner attempt to dispose of the Equipment or any
part of it; or
(d) Permit any liens or legal process arising by, through or under
the Group to be incurred or levied on the Equipment or any part thereof.
16.6 Waiver of Breach. The waiver by either party of any breach or
violation of any provision of this Agreement shall not operate as, or be
construed to constitute, a waiver of any subsequent breach of the same or other
provision hereof.
16.7 Notice. Any notice, demand or communication required, permitted or
desired to be given hereunder shall be deemed effectively given when personally
delivered or mailed by pre-paid certified mail, return receipt requested,
addressed as follows:
HIS: HealthCare Imaging Services, Inc.
c/o Xxxx X. Xxxxxx
Vice President, Director of Operations
Tri-Parkway Corporate Park
000 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Group: Xxxxxx Xxxxx, M.D., P.A.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address and to the attention of such other person or officer
as any party may designate, with copies thereof to the respective counsel
thereof as notified by such party.
16.8 Severability. If any term or provision of this Agreement is held to
be invalid, illegal or unenforceable for any reason and in any respect, such
invalidity, illegality or unenforceability shall in no event affect, prejudice
or disturb the validity of the remainder
of this Agreement, which shall be and remain in full force and effect,
enforceable in accordance with its terms.
16.Gender and Number. Whenever the context of this Agreement requires, the
gender of all words herein shall include the masculine, feminine and neuter,
and the number of all words herein shall include the singular and plural.
16.10 Division and Headings. The division of this Agreement into sections
and subsections and the use of captions and headings in connection therewith
are solely for the convenience and shall have no legal effect in construing the
provisions of this Agreement.
16.Independent Relationship. It is mutually understood and agreed that the
Group and the HIS in performing their respective duties and obligations
hereunder are at all times acting and performing as independent contractors
with respect to each other. HIS shall neither have nor exercise any control or
discretion over the method by which Group, its partners or employees practice
medicine. The sole function of HIS hereunder is to provide Group with the
Equipment, additional equipment and Management Services as described herein.
16.Entire Agreement/Amendment. This Agreement supersedes all previous
contracts and constitutes the entire agreement of whatsoever kind or nature
existing between the parties respecting the within subject matter, and neither
party shall be entitled to benefits other than those specified herein. As
between the parties, no oral statements or prior written material not
specifically incorporated herein shall be of any force and effect; the parties
specifically acknowledge that in entering into and executing this
Agreement, the parties rely solely upon the representations and agreements
contained in this Agreement and no others. All prior representations or
agreements, whether written or verbal, not expressly incorporated herein are
superseded and no changes in or additions to this Agreement shall be recognized
unless and until made in writing and signed by the parties hereto.
00.Xxxxx Actions. HIS shall advise Group when instituting or defending, in
the name of the Group, any and all legal actions or proceedings by or against
third parties arising out of Group's medical practice at the Premises,
including, without limitation, those necessary for the protection and continued
operation of Group at the Premises.
16.Confidentiality. The Parties agree that, upon the execution of this
Agreement and continuing throughout the term hereof, and after the termination
of this Agreement, Group and its agents, employees, consultants, and/or
subcontractors shall not disclose any of the terms or provisions hereunder to
third parties, without the prior written consent of the other, unless such
disclosure is required by law or by any governmental body or agency, it being
understood that HIS is a public company and is thereby subject to certain
disclosure requirements.
IN WITNESS WHEREOF, the Parties hereto have hereunto set their hands and
seals or cause to be executed by its duly authorized officers, all as of the
date and year first above written.
ATTEST: HEALTHCARE IMAGING SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------ -----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
ATTEST: M.R. RADIOLOGY IMAGING OF LOWER
MANHATTAN, P.C.
_ By: /s/ Xxxxxx Xxxxx
------------------------ -----------------------------------
Name: Xxxxxx Xxxxx, M.D.
Title: President
EXHIBIT "A"
One (1) G.E. MR MAX .5 Tesla MRI Unit with Coils: Knee, Head, Lumbar Spine,
Cervical Spine, Shoulder and Body.
One (1) G.E. Laser Printer
One (1) Fuji FPM 2100 Processor
One (1) Hitachi Ultrasound Unit EUB 405 Plus with Two Probes
Assorted Leased Office Equipment
Digital Dictation System Model #9906
Postage Machine Model #E500
Panther II Telephone System with Eight (8) Phones
Zerox 5328 Copy Machine
Assorted Office Furniture
EXHIBIT "B"
SCHEDULE
Group agrees to provide a radiologist on site at the Practice, located at
the Premises, on the weekly schedule set forth below. Group agrees to provide,
to the best of its ability, verbal and written radiology interpretation reports
within twenty-four (24) hours; provided, however, said reports shall be timely
delivered when they are submitted during the next business day, excluding
weekends and HIS Holidays, for radiology services performed on an immediately
preceding business day. Such coverage shall include all business days that the
Practice is in operation.
Group further agrees to be available on an "on-call" basis at all times
for emergencies and/or scans that require contrast material to be used.
Xx. Xxxxx shall be at the Premises for at least one (1) hour each day for
at least five (5) hours each week hereunder including, but not limited to, the
time periods set forth below and Xx. Xxxxx shall be available on a flexible as
needed basis to provide gadolinium injections in order to accommodate the
requirements of the referring physicians at the Premises.
Monday
Tuesday
Wednesday
Thursday
Friday
EXHIBIT "C"
FEE SCHEDULE
Group shall pay HIS all of Group's gross cash receipts for the
interpretation of procedures performed hereunder, less then (10%) percent of
said gross cash receipts received. In the event this Agreement is terminated by
either party hereto, Group shall continue to receive ten (10%) percent of the
accounts receivable as collected for procedures performed at Premises prior to
the date of termination.
