Please Accept Terms & Conditions 1.60

IMPORTANT: PLEASE READ THE FOLLOWING APPLICATION USER AGREEMENT (THIS “AGREEMENT”) CAREFULLY.  THIS DOCUMENT IS AN AGREEMENT BETWEEN YOU (THE “USER”) AND THE STELLAR HEALTH GROUP, INC., A DELAWARE CORPORATION (INCLUDING ITS SUBSIDIARIES AND AFFILIATES, “STELLAR HEALTH” OR “STELLAR”).  THIS AGREEMENT GOVERNS THE USE OF AND ACCESS TO THE STELLAR APP (THE “APPLICATION”). 

BY CLICKING THE I ACCEPT ICON BELOW, THE USER IS DEEMED TO HAVE AGREED TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE USER IS DEEMED TO REPRESENT AND WARRANT TO STELLAR HEALTH THAT THE USER HAS READ AND UNDERSTANDS THIS AGREEMENT.

1. Incorporation of Related Terms.  This Agreement incorporates by reference the Stellar Health Privacy Policy (as the same may be updated from time to time) (the “Privacy Policy”), as well as agreements between Stellar and the entity that employs or contracts with User (the “Underlying Agreement” and, together with the Privacy Policy, the “Related Terms”).  Care Management Service Agreements, Provider Network Collaboration Agreements and Business Associate Agreements are examples of potential Underlying Agreements that may be part of the Related Terms. 
    
2. Grant.  Subject to this Agreement, Stellar Health hereby grants to User, and User hereby accepts, a personal, limited, non-exclusive, non-transferable, non-sublicensable right (the “Grant”) to use (a) the Application on a computer, smart phone or other web-enabled device capable of accessing the Application as permitted by the Related Terms and in accordance with this Agreement, and (b) the Documentation (as defined below), solely for the Permitted Purposes (as defined below).  Each party agrees that the consideration received by the parties under this Agreement includes, without limitation, (1) in the case of Stellar Health, the User’s agreement to use the Application and the Stellar Materials (as defined below) solely in accordance with this Agreement, and (2) in the case of the User, the Grant.

As used in this Agreement:

“Attributed Member” means a patient who has been attributed to Provider by a Stellar Customer (for so long as such attribution remains in effect).

“Authorized User” means a Person who has been granted access to the Application by Stellar Health.

“Permitted Purposes” means Authorized Users’ rendering of services to Attributed Members in a manner designed to improve clinical and financial outcomes for such Attributed Members and Stellar Customers.  More specifically, the Permitted Purposes consist of: (a) viewing Attributed Member health and utilization information, (b) inputting information regarding an Attributed Member’s health, (c) sharing Attributed Member health information with other Authorized Users, (d) accessing prompts regarding actions Provider or Authorized Users may wish to consider taking during an encounter with an Attributed Member to improve clinical and financial outcomes, and (e) reporting actions taken by a Provider or Authorized User in an encounter with an Attributed Member. 

“Person” means any individual, trustee, corporation, general or limited partnership, joint venture, joint stock company, bank, firm, governmental authority, trust, association, organization or unincorporated entity of any kind.

“Provider” means a Person who provides health and medical care to Attributed Members, who may view information from the Application directly as an Authorized User or via printed materials that an Authorized User has printed from the Application.

“Stellar Customer” means a Person that engages Stellar Health to provide care management services or care coordination services for one or more group or individual health benefit products, plans, or programs that such Person issues, manages or administers, for one or more medical practices that such Person manages, administers, operates or otherwise services.

3. Prohibited Uses.

             (a)  The User shall not, and shall not permit any other Person to, remove any patent, trademark, copyright, restricted rights, limited rights, proprietary rights or confidentiality notice included in or affixed to any of the Stellar Materials (as defined below). 

             (b)  The User shall not, and shall not permit any other Person to alter, modify, enhance, adapt, reverse engineer, reengineer, disassemble, copy, decompile, or make works derived from any version of the Application or attempt to generate or access the source code for the Application, whether by converting, translating, decompiling, disassembling or merging any part of the Application with any other software.

4. Intellectual Property Ownership.  The User acknowledges and agrees that the Application, all user and technical manuals and other documentation provided to the User describing the Application’s features, functionalities, requirements and specifications (“Documentation”), and all of Stellar Health’s Confidential Information (as defined below) (collectively, the Application, Documentation, the Policies and such Confidential Information, together with any supplements, amendments, updates, enhancements or derivative works based on any thereof, the “Stellar Materials”), are owned by Stellar Health and embody valuable trade secret assets of Stellar Health.  Except as expressly provided by the Grant, the User agrees that all right, title, and interest in and to the Stellar Materials, including without limitation, all copyrights, trade secrets and other intellectual property rights pertaining thereto, will remain vested in Stellar Health; and as between Stellar Health and the User, Stellar Health shall own and hold all intellectual property rights in and to the Stellar Materials.  The User further acknowledges and agrees that each of Stellar Value Units™ and SVU™ is a trademark of Stellar Health and may not be copied, imitated or used in any manner without the prior written permission of Stellar Health.  Stellar Health or its third party licensors, as may exist from time to time, retains all rights not expressly granted herein.  No implied licenses shall flow from this Agreement.
    
5. Authorized User Responsibilities.

             (a)  Some functionality of the Application may require the transmission of information provided by the User, with respect to the User and/or the Provider, including user names and passwords, addresses, and e-mail addresses (the “User/Provider Information”), and about the health status of Attributed Members and clinical actions taken by Users and Providers for Attributed Members (the “Member Information”).  User consents to the transmission of User/Provider Information and Member Information to Stellar Health, its agents and/or service providers and authorizes Stellar Health, its agents and/or service providers to record, process and store such User/Provider Information and Member Information as necessary for the Application functionality and for purposes described in the Privacy Policy.  To the extent Stellar Health is a business associate (within the meaning set forth in 45 C.F.R. § 160.103) of the Stellar Customer, the User and the Provider acknowledge that provision of information to Stellar Health regarding Attributed Members and services provided to Attributed Members is provided to Stellar Health in such capacity and, therefore, Stellar Health may share such information with the applicable Stellar Customer. The Parties agree that any analysis made by Stellar using information from User shall be owned by Stellar.

             (b)  The User acknowledges that the entity that employs or contracts with the User has entered into one or more Underlying Agreements, and agrees to be bound by those agreements. In particular, the User agrees to protect individually identifiable health information in accordance with (i) the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act, Public Law 111-005, and regulations promulgated thereunder (45 C.F.R. Parts 160 and 164); (ii) any applicable state privacy or data protection laws.

             (c)  The User is solely responsible for use of the Application as used on their respective computers and other device(s). 

             (d)  The Application may only be accessed by Authorized Users who (i) have been issued a valid password that is personal to such Authorized User and (ii) have agreed to the terms and conditions of this Agreement.

             (e)  Authorized Users shall be required to (i) choose strong passwords, which resist easy access by guesswork, (ii) to use unique passwords that are not shared between other personal nor professional accounts, and (iii) to maintain their ID and passwords in strict confidence.

(f) The User acknowledges that the User is fully responsible for any use of data, information or services obtained through the Application using passwords assigned to Authorized Users.

             (g)  The User acknowledges and agrees that (i) the information provided by Stellar Health to the User and the Provider through the Application and in the Stellar Materials is not provided for purposes of rendering medical care, medical advice, or medical services, but instead is provided as clinical decision support, (ii) Authorized Users and Providers will have exclusive authority and control over their rendering of medical services and their medical practices, including, without limitation, supervision and control of all medical and professional affairs, and all diagnosis, treatment, prescription and ethical determinations with respect to Attributed Members whether or not required by law to be decided by a licensed professional, (iii) all professional medical and health care services provided to Attributed Members shall be the ultimate responsibility of Provider and the other Authorized Users (and not of Stellar Health), (iv) nothing in this Agreement is intended to interfere in any way with the exercise of the independent professional medical judgment of any Authorized User concerning the appropriateness of care and treatment provided to Attributed Members or any other Persons and (v) in light of the User’s and the Provider’s obligation to exercise independent professional medical judgment, Stellar Health assumes no responsibility for any inaccurate information provided to the User and the Provider through the Application, including if such inaccurate information may contribute in any manner to the submission of any false, inaccurate or otherwise improper claims.

6. The User acknowledges and agrees that (i) all information input to the Application, such as that regarding an Attributed Member’s health or regarding actions taken by an Authorized User or Provider during an encounter with an Attributed Member, must be truthful and accurate, (ii) some actions will require appropriate documentation by Providers in their Electronic Medical Record to be considered accurate, and (iii) Stellar Health and/or Stellar Customer Plans will actively monitor activities of Users to detect erroneous or fraudulent activity.  Stellar Health may recoup, including through setoffs or offsets, any amounts paid directly or indirectly to the User under the Underlying Agreement to the extent that Stellar Health determines in its discretion that such payment relates to erroneous or fraudulent activity or conduct that otherwise violates applicable law.
    
7. Default; Termination; Suspension.

             (a)  This Agreement shall commence upon its acceptance by the User and continue unless and until terminated in accordance with this Section 7.

             (b)  Stellar Health may terminate this Agreement and the Grant immediately, with subsequent notice to the User, if the User fails to comply with any material term or condition of this Agreement. Either party may terminate this Agreement for any or no reason with sixty (60) days prior written notice.

             (c)  Upon termination of this Agreement: (i) Stellar Health’s obligation to provide the User with the Application will cease and Authorized Users’ access to the Application shall terminate; (ii) all issued accounts will be deactivated; (iii) the User shall return all of the Stellar Materials in the User’s possession to Stellar Health; and (iv) the User and the Provider shall immediately cease, and shall cause Authorized Users to cease, using the Application and shall uninstall the Application from all devices owned by the User and the Provider or under the Provider’s control (including any Authorized User’s devices).  Sections 4, 5(e), 5(f), 5(g), this Section 7, and Sections 8-19 shall survive the termination of this Agreement.

             (d)  Upon Stellar Health’s reasonable belief that tortious or criminal or otherwise improper activity may be associated with an Authorized User’s use of the Application, Stellar Health may, without incurring any liability, immediately suspend or discontinue the Application support in whole or in part pending investigation and resolution of the issue or issues to Stellar Health’s satisfaction.

             (e)  Upon Stellar Health’s detection of extended erroneous or fraudulent activity by an Authorized User in the Application (per Section 5(g)), Stellar may terminate this Agreement and the Grant immediately.

8. Disclaimer of Warranties.  THE APPLICATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. STELLAR HEALTH MAKES NO WARRANTY OR REPRESENTATION THAT THE USER’S USE OF THE APPLICATION WILL MEET THE USER’S REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.   The User acknowledges that if an Authorized User is not connected to the Application through a carrier account or wireless network, not all of the features of the Application will work.
    
9. No Liability.  TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL STELLAR HEALTH (A) BE LIABLE TO ANY AUTHORIZED USER WITH RESPECT TO USE OF THE APPLICATION; (B) BE LIABLE TO ANY AUTHORIZED USER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APPLICATION, OR DEVICE FAILURE OR MALFUNCTION; (C) BE LIABLE TO ANY AUTHORIZED USER FOR ANY STELLAR CUSTOMER’S FAILURE TO PAY ANY SVU™ OR OTHER AMOUNTS TO SUCH AUTHORIZED USER OR ANY OTHER BREACH BY A STELLAR CUSTOMER OF ITS CONTRACTUAL OBLIGATIONS TO SUCH AUTHORIZED USER (WHERE THE UNDERLYING AGREEMENT PROVIDES THAT STELLAR IS OBLIGATED TO ADMINISTER PAYMENT WITH FUNDS MADE AVAILABLE FROM THE STELLAR CUSTOMER, THE USER SHOULD FIRST CONTACT STELLAR WITH QUESTIONS OR REQUESTS REGARDING PAYMENT); (D) BE LIABLE TO ANY AUTHORIZED USER FOR ANY SVU™ OR OTHER AMOUNTS THAT THE APPLICATION MAY INDICATE WILL BE PAYABLE TO SUCH AUTHORIZED USER IF THE ENTITY THAT EMPLOYS OR CONTRACTS WITH SUCH AUTHORIZED USER DOES NOT ENTER INTO AN UNDERLYING AGREEMENT OR SUCH UNDERLYING AGREEMENT TERMINATES OR EXPIRES; OR (E) BE LIABLE TO ANY AUTHORIZED USER FOR ANY ADVERSE CONSEQUENCE OF INACCURATE INFORMATION PROVIDED TO THE AUTHORIZED USER THROUGH THE APPLICATION.  THE USER AND THE PROVIDER ACKNOWLEDGE THAT STELLAR HEALTH IS AN INDEPENDENT CONTRACTOR OF STELLAR CUSTOMERS AND IS NOT AN AGENT, PARTNER, OR JOINT VENTURER WITH ANY STELLAR CUSTOMER.  AUTHORIZED USERS’ SOLE REMEDY IS TO CEASE USE OF THE APPLICATION.  STELLAR HEALTH SHALL NOT BE LIABLE EVEN IF IT OR ANY OF ITS AUTHORIZED REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARM.   In the event that applicable law does not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential or other damages, in no event shall Stellar Health be liable for damages, losses, and/or causes of action exceeding the amount, if any, paid by the User or any other Person for use of the Application or $100, whichever is less.
    
10. Severability.  If any provision of this Agreement shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of Stellar Health to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.
     
11. Remedies.  Except as provided herein, no remedy in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referenced herein or otherwise available at law, in equity or otherwise.
     
12. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the state where the entity that employs or contracts with the Authorized User is located without regard to any choice-of-law principles that otherwise would require the application of the law of a different jurisdiction, except where preempted by federal law. 
     
13. Jurisdiction.  In the event of a controversy, claim, or dispute between the parties arising out of or relating to this Agreement, such controversy, claim, or dispute shall be tried exclusively in the state and federal courts in the state where the entity that employs or contracts with the Authorized User is located.  Each party hereby irrevocably waives any objections to the laying of venue in such courts.
     
14. Assignment.   This Agreement and the Grant are not assignable or otherwise transferable by the User.  Any purported assignment or transfer shall be void and shall constitute a material breach of this Agreement.  This Agreement shall inure to the benefit of and be binding upon the parties and their permitted successors and assigns.
     
15. Compliance with Laws.  The User and the Provider shall comply with all applicable laws governing the use of the Application and the Stellar Materials.  This Agreement is not intended to, and does not, induce the referral of patients or to induce purchase of any items or services reimbursed by any federal or state health care program.
     
16. Stellar Health reserves the right to change or modify this Agreement at any time and at its sole discretion by posting a revised version of this Agreement on Stellar Health’s website and/or within the Application.  The User’s ability to continue to use the Application following the posting of the revised terms may be subjected to the User’s acceptance of this Agreement as so revised in the manner determined by Stellar Health and will be subject to such changes and modifications. In the event the User does not agree to the proposed revisions, the User may terminate this Agreement by providing written notice to Stellar and Stellar reserves the right to terminate this Agreement and the Grant.
     
17. Force Majeure.  Stellar Health’s obligations under this Agreement shall be abated for so long as, and to the extent that, their performance is rendered commercially impracticable by causes and events beyond Stellar Health’s reasonable control, including without limitation fires, floods, acts of God, strikes, pandemic, unavailability or delays of materials or transportation, war, revolution, insurrection, acts of the public enemy, governmental regulation or prohibition.  Stellar Health shall reasonably notify the User of the cause or event giving rise to such claim and shall take all reasonable steps to limit the effect and duration of such cause or event. 
     
18. Waiver.  No failure or delay on the part of either party to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall a single or partial exercise by either party of any right or remedy preclude any further exercise thereof or the exercise of any other right or remedy.  No express waiver or assent by either party to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or assent to any other breach of or default in the same or any other term or condition hereof.
     
19. Entire Agreement.  This Agreement sets forth the entire agreement between Stellar Health and the User with respect to the subject matter hereof and supersedes any prior agreement, oral or written, between the parties with respect hereto.

THE USER AGREES THAT THE USER HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES THAT THE USER IS HEREBY BOUND BY ITS TERMS.