Stellar Application User Terms & Conditions 1.70

Stellar Application User Terms & Conditions 1.70

PLEASE READ THESE STELLAR APPLICATION USER TERMS & CONDITIONS (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 THIS AGREEMENT AND THE USER IS DEEMED TO REPRESENT AND WARRANT TO STELLAR HEALTH THAT THE USER HAS READ AND UNDERSTANDS THIS AGREEMENT.

1. 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 the Application on a computer, smart phone or other web-enabled device capable of accessing the Application in accordance with this Agreement, and solely for the Permitted Purposes.
2. Consideration.  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.
3. Definitions.  For purposes of this Agreement:

“Attributed Member” means a patient who has been attributed to Provider by a Stellar Customer (or a health plan under contract with 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, who are (a) a Provider’s employee, (b) an individual who otherwise performs services for a Provider, or (c) subject to Stellar’s written approval, an entity that performs services for a Provider as independent contractors.

“Permitted Purposes” means the User’s rendering of services to support improved quality of care outcomes for Attributed Members as part of a Provider’s participation in a program implemented by Stellar on behalf of a Stellar Customer. 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 the Authorized Users (or an appropriately licensed clinician working with such Authorized User), in the exercise of, as applicable, such Authorized User’s or appropriately licensed clinician’s clinical judgment, may determine to take during an encounter with an Attributed Member to improve clinical outcomes, and (e) reporting actions taken by an Authorized User (or an appropriately licensed clinician associated with the User) in, or with respect to, 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 that enters into an agreement with Stellar Health that provides for such Person’s personnel to access the Application in connection with Permitted Purposes. Provider includes the Person that employs or contracts with the User and through which the User received the opportunity to become an Authorized User.

“Stellar Customer” means one or more health plans and other health care entities who have a contractual relationship with Stellar Health.

“User” has the meaning set forth above.

4. Prohibited Uses. 
   1. 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). 
   2. 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.
5. 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.
6. User Responsibilities.
   1. Some functionality of the Application may require the transmission of information provided by the User, with respect to the User and/or the Provider that employs or contracts with the User, including, without limitation, usernames and passwords, addresses, and e-mail addresses (the “User/Provider Information”). User consents to the transmission of User/Provider 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 as necessary for the Application functionality and for purposes described in the Stellar Health Privacy Policy (as the same may be updated from time to time) (the “Privacy Policy”). 
   2.  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.
   3. The User is solely responsible for use of the Application as used on their respective computers and other device(s). 
   4. The User acknowledges that 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.
   5. The User acknowledges that 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) not share their usernames and passwords with any Person other than Stellar Health.
   6. The User acknowledges and agrees that (i) the information provided by Stellar Health to the User 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) the User (or appropriately licensed clinicians affiliated with the User, as applicable) 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 the Provider that employs or contracts with the User and appropriately licensed clinicians affiliated with the User, as applicable (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 (or licensed clinician associated with such Authorized User) concerning the appropriateness of care and treatment provided to Attributed Members or any other Persons and (v) as the information displayed in the Application is created by and originates from third party sources, including, without limitation, Stellar Customers, and in light of the obligation of the User and the Provider that employs or contracts with the User to exercise independent professional medical judgment, Stellar Health assumes no responsibility for any inaccurate information provided to the User or the Provider that employs or contracts with the User through the Application, including, without limitation, if such inaccurate information may contribute in any manner to the submission of any false, inaccurate or otherwise improper claims.
   7. 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 associated licensed clinician) during or related to an encounter with an Attributed Member, must be truthful and accurate, (ii) some actions, including, without limitation, for purposes of compliance with applicable law or Stellar Customer requirements, will require that Stellar Health receive appropriate documentation to validate that such actions were taken, and (iii) Stellar Health and/or Stellar Customers will actively monitor activities of Authorized Users to detect erroneous or fraudulent activity. To the extent that Stellar Health pays Stellar Value Units™ directly to the User, rather than to the Provider that employs or contracts with the User and pursuant to an agreement with such Provider, Stellar Health may recoup, including, without limitation, through setoffs or offsets, any amounts paid directly to the User to the extent that Stellar Health determines in its discretion that such payment relates to erroneous or fraudulent activity or conduct that otherwise violates this Agreement, Stellar Customer expectations, or applicable law.
7. Default; Termination; Suspension.
   1. This Agreement shall commence upon its acceptance by the User and continue through December 31 of the calendar year during which the User enters into this Agreement with Stellar. Thereafter this Agreement shall be automatically renewed for one (1) year terms unless either party terminates the Agreement as provided herein. 
   2. 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 thirty (30) days prior written notice.
   3. Upon termination of this Agreement: (i) Stellar Health’s obligation to provide the User with the Application will cease and the User’s 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 shall immediately cease using the Application on all devices owned by the User or under the User’s control.  Sections 4, 5, 6(f), 6(g), this Section 7, and Sections 8-20 shall survive the termination of this Agreement.
   4. Upon Stellar Health’s reasonable belief that tortious or criminal or otherwise improper activity may be associated with the User’s use of the Application, Stellar Health may, without incurring any liability, immediately suspend or discontinue the Application access in whole or in part pending investigation and resolution of the issue or issues to Stellar Health’s satisfaction.
   5. Upon Stellar Health’s detection of extended erroneous or fraudulent activity by the User in the Application (per Section 6(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 it is the User’s or Provider’s responsibility, at its cost, to arrange for telecommunications carrier and/or wireless network services necessary to access the Application and that the Application will not function absent such access.
9. No Liability.  TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL STELLAR HEALTH (A) BE LIABLE TO THE USER WITH RESPECT TO USE OF THE APPLICATION; (B) BE LIABLE TO THE 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 THE USER IF ANY PROVIDER FAILS TO PAY ANY AMOUNTS (INCLUDING, WITHOUT LIMITATION, ANY SVU™) TO SUCH USER OR OTHERWISE BREACHES ITS CONTRACTUAL OBLIGATIONS TO THE USER; (D) IF THE AGREEMENT BETWEEN STELLAR HEALTH AND THE PROVIDER THAT EMPLOYS OR CONTRACTS WITH THE USER PROVIDES FOR STELLAR HEALTH TO MAKE DIRECT PAYMENTS TO THE USER, BE LIABLE TO THE USER IF A STELLAR CUSTOMER THAT IS THE ANTICIPATED FUNDING SOURCE FOR SUCH PAYMENT FAILS TO PERFORM ITS OBLIGATIONS TO STELLAR HEALTH AND, IN SUCH SITUATIONS, THE USER SHOULD FIRST CONTACT STELLAR WITH QUESTIONS OR REQUESTS REGARDING PAYMENT PRIOR TO CONTACTING SUCH STELLAR CUSTOMER; (E) BE LIABLE TO THE USER  FOR ANY SVU™ OR OTHER AMOUNTS THAT THE APPLICATION MAY INDICATE WILL BE PAYABLE TO THE USER IF THE PROVIDER THAT EMPLOYS OR CONTRACTS WITH THE USER DOES NOT ENTER INTO AN AGREEMENT WITH STELLAR OR ANY SUCH AGREEMENT TERMINATES OR EXPIRES; OR (F) BE LIABLE TO THE USER FOR ANY ADVERSE CONSEQUENCE OF INACCURATE INFORMATION PROVIDED TO THE USER THROUGH THE APPLICATION.  THE USER ACKNOWLEDGES THAT STELLAR HEALTH IS AN INDEPENDENT CONTRACTOR OF PROVIDER AND STELLAR CUSTOMERS AND IS NOT AN AGENT, PARTNER, OR JOINT VENTURER WITH PROVIDER OR STELLAR CUSTOMERS.  THE USER’S SOLE REMEDY IS TO CEASE USE OF THE APPLICATION.  STELLAR HEALTH SHALL NOT BE LIABLE FOR DAMAGES 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 Provider that employs or contracts with the 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 Provider that employs or contracts with the 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 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. Amendments.  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.
20. Headings.  The headings of Sections are provided for convenience only and are not intended to affect the construction or interpretation of this Agreement. 

 

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