EXHIBIT 10.17 AGREEMENT BETWEEN XXXXXXXX DIGICOM AND OLYMPIC CAPITAL, LLC
AGREEMENT, made, dated and effective this 27th day of July, 1999, by and
between Xxxxxxxx Digicom, Inc., a Nevada corporation, with offices at 000
Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 (hereinafter, "HD") and Olympic Capital, LLC,
a Delaware limited liability company, with offices at 0000 XX 00xx Xxxxx,
Xxxxxxxx, XX 00000 (hereinafter, "OC"); jointly, the "Parties"; their assigns
and successors in interest.
WITNESSETH:
THAT, WHEREAS OC is a firm which contracts with healthcare providers
(hereinafter, "Clients") to provide financial consulting products or services,
including financing through the purchase of the "edited face value", as
hereinafter described, of Clients' medical accounts receivable (hereinafter,
"MARS"), for which it receives a fee; or lending against the edited face value
of Clients MARS as collateral for loans for which it is paid a fee or a
percentage of the loan amount (hereinafter together, "Fee from Clients") by or
on behalf of Clients by institutional, insurance or governmental entities
(hereinafter, the "Payors"); and
WHEREAS, OC requires digital data capture devices and interfacing software
which is able to receive input from health care professionals, practitioners
and others in the form of diagnoses, treatments, instructions and test results
to be transmitted in a wireless manner to and from a central processor as
described in the body of this agreement, (hereinafter, the "Present
Agreement"); and
WHEREAS, HD desires, upon the terms and conditions as herein set forth to
supply and coordinate the installation and operation of a wireless
communication solution that will collect, process and transmit information, as
required by OC;
NOW, THEREFORE, for and in consideration of the premises, the mutual
promises herein contained and the benefits or detriments to the Parties or
either of them, as hereinafter set forth; the Parties do hereby contract,
covenant and agree as follows:
1) The recitals set forth above are deemed a part of this Present Agreement.
2) HD and OC agree that with respect to all Clients of OC, now or hereafter
obtained, HD will (among such other goods and services as OC may later supply
to its Clients), for the benefit of OC:
a) coordinate the installation and operation of a fully integrated wireless
data network (hereinafter, the "hardware") at each Client's location(s) which
will collect, organize and download essential data into a centralized
depository and to then transmit the data, as directed by OC; b) supply
technical expertise, software and necessary computer and other hardware
relating to the management of each Client's MARS and such other accounts
receivable of the Clients which are serviced by OC; c) maintain all hardware
and replace and/or upgrade the same continually to maintain a state-of-the-art
level, with each Client being contractually bound to be financially
responsible for replacement of lost, stolen or damaged hardware;
provide all necessary Client hardware to OC's Clients in order that OC is able
to fulfill its contracts with its Clients. Ownership will remain in HD with
possession in OC's Clients for a period of time which will correspond in
length to the term of each Client's written agreement with OC and shall not
extend past the term of each Client's agreement with OC, on each item of
hardware, with possession thereof returned to HD by OC's Clients at the end of
the Clients' term of agreement with OC. OC shall not be responsible for the
return of any hardware to HD, nor shall OC bear any risk of loss for such
hardware. HD will deliver all hardware to OC's Clients and, upon such delivery,
will supply a copy of each drop ship invoice to OC; and
3) develop and maintain hardware and software which, together with OC's
software will accept diagnoses, treatments, instructions, test results and any
other information required to be entered by healthcare professionals and
practitioners.
4) To enable HD to perform its obligations under this Present Agreement, OC
agrees that with respect to all Clients of OC, now or hereafter obtained, OC
will (among such other goods and services as HD and OC may later supply): a)
supply to HD all required current and later (when received) coding and pricing
for treatment elements by region and by insurance payor, other institutional
payor, and governmental payor, however designated or denominated (hereinafter
the "Payors");
b) supply to HD all current and later (when received) treatment pathways for
each patient of each Client (hereinafter, the "Patients") specific diagnoses,
protocols and Payors; and
c) supply to HD all required information respecting necessary pre-approvals
for treatments, by institutional primary, secondary, tertiary and other Payors
or representatives of Payors;
5) All data of each Patient, Client and Payor is deemed the property of OC and
is subject to the legal requirements of privacy of patients' records. HD shall
not breach such confidentiality absent applicable court or administrative
agency order or the equivalent. HD shall have the right, at reasonable times
and places and by reasonable methods, no less than once every six months, to
audit the data for accuracy and completeness.
6) OC will, by itself or through its agents, contract with Clients, which
agree to accept HD's hardware, regardless of by whom or how introduced to it.
Such contracts, which shall be by separate agreement between those parties,
will define OC's obligations and the financing method including the Fees
thereunder payable to OC by the Clients.
7) HD and OC will work together on an exclusive basis respecting the subject
matter and aims of their relationship and each will market the other and the
other's goods and services, on a best efforts basis; and each will freely
consult with the other for their mutual business advantage. 8) HD will be paid
a fee on the edited face value of each Client's MARS, purchased or financed by
OC; defined as the net dollar amount, paid by institutional, insurance and
governmental Payors after all deductions and co- payments by Parties that any
Payor requires. The fee paid to HD shall be one- half of one (0.50%) percent of
the edited face value of the MARS and other financings.
9) The term of this Present Agreement (hereinafter, the "Term") shall be from
the date of its execution for a period of three (3) years and shall
automatically renew and continue for additional three (3) year periods unless
either Party gives written notice to the other Party at least sixty (60) days
prior to the end of the Term, of an intent not to renew this Present Agreement.
In such event, all pending Client contracts will be completed by the Parties.
All receipts from Clients, Payors, Lenders and others, due to OC on account of
this Present Agreement and the business done by OC and HD; shall be paid by
contract between OC and OC's Clients and shall be paid by the Clients, Payors,
Lenders or others to a bank Trustee in the United States of America, to be
designated by OC, prior to the payment of any fees to OC and HD. On the first
Monday after receipt of any such funds by the Trustee bank (or on the next
business day if that Monday is a bank holiday in the state wherein the Trustee
bank has its primary office), the Trustee bank shall pay over to HD the fees
required by this Present Agreement. The fees of the Trustee bank, if any, will
be paid by OC.
11) Payments to OC by Clients, Payors, Lenders or others shall be made only to
the Trustee bank. HD shall have the right to review all books and records of
any kind annually to confirm the accuracy of payments.
12) Each Party shall defend indemnify and hold harmless the other Party and
its affiliates, principals, officers, directors, representatives, employees and
agents (each individually as an "indemnitee" and collectively as the
"indemnities") from any and all loss, liability, claim, damage, cost and
expense, including reasonable attorney's fees, suffered or incurred by any
indemnitee arising from any claim by a third party (i.e., other than one of the
Parties hereto) relating to the indemnitee's performance of this Present
Agreement, arising as a result of this Present Agreement and/or services
provided to or for that Party except to the extent such loss, liability, damage
cost or expense is the direct result of the indemnitee's negligence or
deliberate and willful misconduct. The provisions of this paragraph shall
survive the termination or expiration of this Present Agreement. 13) Each of
the Parties agrees for itself and any assignee or successor in interest that it
will not directly or indirectly make any contact with, deal with or otherwise
be involved in any transactions with, and will keep confidential any and all
public or private lending, banking and insurance institutions, trusts, funds,
estates, investors, corporations, companies, firms or individuals, lenders or
borrowers, buyers or sellers and any other entities introduced by either of the
other Parties for a period of five (5) years from the date of this Present
Agreement, or five (5) years from the date of the final payment of any fees due
any Party hereby, whichever is later, and such entities and the information
pertaining to them is deemed to be the valuable property of the introducing
party. Each Party acts in a fiduciary capacity with respect to the other Party
described in this Present Agreement, and the introduced Party shall, at all
times, make full disclosure to the other party of business dealings between it
and any introduced entity. Each of the Parties hereby represent that all
documents which they have produced to advise the public as to their structure,
assets and liabilities, are true and correct and may be relied upon by the
other Party. The provisions of this paragraph shall be made a part of any
later agreement(s) between the Parties and shall survive the termination or
expiration of this Present Agreement.
14) Any controversy or claim arising out of or relating to this Present
Agreement, or any breach thereof, including any applications for counsel fees
or for injunctive relief, or any controversy or claim against the individual
signatories or officers, directors or partners of the Parties, shall be
submitted for and settled by arbitration before the American Arbitration
Association, New York, New York (hereinafter, the "AAA"), under the Commercial
Arbitration Rules of the AAA, and judgment upon the award rendered in
arbitration may be entered in any court having jurisdiction thereof, and no
jurisdiction shall exist in any other court, tribunal, forum or agency except
to confirm any award as a judgment.
15) Each of the Parties represents to the other that it is a corporation, a
limited liability company or other legal entity in good standing, has the power
to enter into this Present Agreement by the signatory and is not in conflict
with any other agreement or decree of any court, tribunal or arbitrator. This
Agreement supersedes any prior written or oral agreement between the Parties as
to its subject matter, and may be modified only in writing signed by the
Parties.
16) This Present Agreement shall be deemed valid and binding when each page
has been signed or initialed by the Parties and faxed or e-mailed signed copies
of this Present Agreement have been received by all Parties. One original of
this Present Agreement, signed by HD, shall be forwarded to OC by a national
overnight delivery service and one original of this Present Agreement, signed
by OC, shall be forwarded to HD by a national overnight delivery service. This
Present Agreement may be signed in counterparts.
17) Each of the signatories of the Parties to this Present Agreement is an
independent entity and neither is an employee, agent or servant of the other.
Each shall pay its own taxes, maintains its own facilities and pay its own
staff.
18) If competent authority finds any provision of this Present Agreement to be
illegal or unenforceable, such provision shall be severed from this Present
Agreement and this Present Agreement shall continue in full force and effect.
19) Any breach of this Present Agreement may be cured within thirty (30) days
of the date of the breach, without liability on the part of the Party which has
breached this Present Agreement.
20) This Present Agreement is the entire agreement between the Parties
respecting its subject matter. Any change or amendment of any kind, to be
effective, shall be in writing and executed by each of the Parties hereto.
IN WITNESS WHEREOF, the Parties have executed this Present Agreement, the
date first above set forth.
OLYMPIC CAPITAL, LLC. XXXXXXXX DIGICOM, INC.
/s/J. Xxxxxx Xxxxxx, PhD. /s/Xxxx X. Xxxx
J. XXXXXX XXXXXX, PhD. XXXX X. XXXX
Chairman & CEO President & CEO
