These Terms of Service (“Terms”) govern the use of the Stellar Health software-as-a-service application (“Stellar Application”) by entities accessing the Stellar Application (a “Provider”) pursuant to an agreement (the “Agreement”) between a Provider or its representative and The Stellar Health Group, Inc. (“Stellar”).

The Stellar Application is the property of Stellar.  

Access by a Provider includes access by its employees and contractors who become Authorized Users (as defined below).

These Terms have been incorporated into the Agreement and references to the Agreement include these Terms.

I. Scope of Services

a. From and after the date mutually agreed upon by Stellar and Provider in writing (which may be by email) (“Launch Date”), Stellar will make the Stellar Application available to Provider’s employees, individuals who perform services for Provider as independent contractors, and, subject to Stellar’s prior written approval, entities that perform services for Provider as independent contractors, provided that; (i) (A) each such employee or individual independent contractor has complied with Stellar’s user registration requirements and has accepted the Stellar Application Terms & Conditions (each an “Authorized User”) and (B) if the Authorized User is to directly receive Stellar Value Units (SVUTM)payments pursuant to the Agreement (see Section I.e below), such Authorized User (1) is party to an agreement with Stellar under which the Authorized User agrees to submit data regarding Actions (as defined below) through the Stellar Application and to receive SVUTM payments, and (2) has provided a completed IRS Form W-9 to Stellar, and (ii) entities that perform services for Provider as independent contractors have complied with Stellar’s requirements for entity independent contractors to access the Stellar Application as then in effect.

Authorized Users’ and entity independent contractors’ access to the Stellar Application is subject to continued compliance with the Stellar Application Terms & Conditions and the requirements referenced in clause (ii) of the preceding sentence.

b. Stellar shall cause the Stellar Application to identify potential value-based care initiatives that Provider and its Authorized Users can take that are intended to improve the quality and coordination of care received by patients (“Actions”), and the payments associated with such Actions (referred to herein as SVUsTM) to Authorized Users.  Stellar may adjust the SVUTM amounts and Actions at any time, and SVUTM payments are subject to Stellar’s audits of Actions completed.  If Stellar determines that an SVUTM payment was made in error, including through an audit, Stellar shall have the right to recoup such SVUTM payment, including through offset against future SVUTM payments.

c. Stellar shall calculate the amount of SVUTM earned by Authorized Users, and report such information to relevant third parties, such as health insurance companies or other relevant healthcare entities.      

d. Subject to Section I.e, Stellar shall pay SVUTM to Provider on a monthly basis (or such more frequent basis as Stellar determines in its discretion).

e. Stellar and Provider may from time to time agree in writing, which may be in the form of the Participating Provider Enrollment Form, or other form of communication between the Parties that Stellar shall pay some or all of the SVUTM payments earned by Provider directly to Authorized Users, rather than to Provider under Section I.d.  Any such agreement shall be conditioned upon, and Stellar shall only be required to make mutually agreed payments to an Authorized User if, (i) the Authorized User has entered into an agreement with Stellar under which the Authorized User agrees to submit data regarding Actions through the Stellar Application  and to receive SVU TM payments and (ii) the Authorized User has provided an IRS Form W-9 to Stellar.  Stellar and Provider may modify an agreement for Stellar to pay some or all SVUTM payments to Authorized Users by written agreement (which writing, including any adjustments to the percentage of SVUTM payments to be paid to Provider rather than Authorized Users from time to time, may be in the form of an email communication between the Parties).  Provider shall be responsible for notifying Authorized Users of any change pursuant to the immediately preceding sentence. 

f. Even if Stellar and Provider have agreed pursuant to Section I.e that Stellar will pay some or all SVUTM payments to Authorized Users, Stellar may unilaterally cease making payments to Authorized Users if a health care insurance company or other healthcare entity directs Stellar to pay some or all SVUTM payments to Provider (or to a clinically integrated network, independent physicians association, or physician organization) rather than to Authorized Users.  If Stellar is so directed, Stellar shall give prior written notice of the change to Provider and the Authorized Users, which notice shall specify the effective date of the change.

g. Provider acknowledges that Stellar shall be responsible for filing IRS Forms 1099 with the IRS and any other similar tax reporting forms with respect to the SVUsTM paid by Stellar to Authorized Users or Provider, as applicable, based on who receives the SVUTM payment from Stellar.

h. Provider also agrees that the Authorized Users who receive SVUTM payments from Stellar are independent contractors of Stellar and that nothing in the Agreement or otherwise shall make, or be deemed to make, Stellar an employer of any Authorized User. 

i. Stellar shall have no obligation or liability to Provider for any failure by a health care insurance company, other healthcare entity, clinically integrated network, independent physician association or physician organization to pay SVUTM amounts to Stellar.  Such SVUTM amounts received by Stellar shall be the sole source of payments by Stellar of SVUTM amounts hereunder.  To the extent such SVUTM amounts received by Stellar are insufficient, Stellar shall have no liability to make payments hereunder. Provider agrees to first seek payment for SVUTM payments from Stellar and may only seek to recover payments from the health insurance company, other healthcare entity, clinically integrated network, independent physician association or physician organization in the event that Stellar has received an insufficient amount of funding for SVUTM payments from such the appropriate health insurance company, other healthcare entity, clinically integrated network, independent physician association or physician organization.

II. Obligations

a. Provider is responsible for each Authorized User’s compliance with the Agreement and assumes responsibility and liability with respect to the use of the Stellar Application by Authorized Users employed by, or under contract with, Provider, as well as any entity independent contractors’ who receive access to the Stellar Application under Section I.a.ii.

b. Provider agrees to use commercially reasonable efforts to ensure employed or contracted Authorized Users and entity independent contractors who receive access to the Stellar Application      under Section 1.a.ii. comply with the Stellar Application Terms & Conditions.

c. Provider shall institute procedures and processes as necessary to monitor use of passwords, to protect and require Authorized Users to protect their passwords, to ensure that passwords are not shared by anyone, including between Authorized Users, to support proper use of the Stellar Application      as defined by Stellar.

d. Provider shall institute procedures and processes as necessary to ensure that every Authorized User logs in with their own unique username and password (i.e., no sharing of log-ins shall be permitted).

e. Provider shall notify Stellar promptly, as the situation requires, of any change in employment or consulting status of any Authorized User that would warrant revoking or limiting such Authorized User’s access to the Stellar Application.  Provider shall be responsible for any access by an Authorized User following a change in such Authorized User’s employment or consulting status.

f. If Provider or Authorized Users are accessing the Stellar Application through an EHR (including, without limitation, Epic or VIM), (i) Provider consents to the Stellar Application’s reading or writing data to or from Provider’s EHR software including any secondary use or access to the data and (ii) to the extent that such access results in Provider’s employees and independent contractors accessing the Stellar Application without accepting the Stellar Application Terms and Conditions, Provider hereby accepts the Stellar Application Terms and Conditions on behalf of such employees and independent contractors.  Those employees and independent contractors shall be Authorized Users hereunder.  Provider agrees to be fully responsible for any noncompliance by such Authorized Users with the Stellar Application Terms and Conditions.

III. Data

a. Stellar shall retain rights to use Provider data for compliance with applicable laws, and for required operations of the Stellar Application and related systems as it pertains to the implementation of the Agreement and Stellar’s performance of its obligations to health plans and other health care entities who have a relationship with Stellar and Provider. 

IV. Compliance

a. Each Party agrees to protect individually identifiable health information in accordance with (a) 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); and (b) any applicable state privacy or data protection laws.

b. Each Party, to the best of its knowledge after reasonable inquiry, represents and warrants that such Party (i) has not engaged and will not engage in any activities which are prohibited under the federal Medicare statutes, including 42 U.S.C. § 1320a-7 or §1320a-7a, the regulations promulgated pursuant to such statutes, or under corresponding provisions of any other applicable law (including similar state laws); and (ii) have not knowingly and willfully engaged and shall not knowingly and willfully engage in any activities which are prohibited under the federal Medicare statutes, including 42 U.S.C. § 1320a-7b, the regulations promulgated pursuant to such statutes, or under corresponding provisions of any other applicable law (including similar state laws).  Each Party certifies that it shall not violate or cause to be violated the federal anti-kickback statutes, set forth at 42 U.S.C. § 1320a-7b(b) and 41 U.S.C. § 51 et seq., the federal “Stark Law,” set forth at 42 U.S.C. § 1395nn, or the False Claims Act, set forth at 31 U.S.C. § § 3729-3733 (the “False Claims Act”); 18 U.S.C. § 287, or any similar state laws, in each case, with respect to the performance of its obligations under the Agreement. 

V. Intellectual Property

a. Each Party shall retain all rights, title, ownership and interest in and to its intellectual property and no license or other rights is granted therein as a result of the Agreement except as otherwise expressly provided in the Agreement. Neither Party, at any time, shall do, authorize or cause to be done anything that would assert any right, title, or interest in or to any other Party’s intellectual property. Nothing in the Agreement grants to Provider any right, title or interest, in or to the Stellar Application .

VI. Indemnification

a. Each Party shall indemnify, defend and hold the other Party and its respective directors, officers, agents, employees and representatives harmless from any and all claims, lawsuits, losses, costs, damages, expenses (including attorneys’ fees at trial and on any appeal) and liability, in each case, arising out of a third-party claim arising out of, resulting from or caused by the other Party’s failure to perform any of its duties and obligations hereunder or the other Party’s wrongful or negligent acts, errors, or omissions with respect to performance of its duties or obligations hereunder.   In addition, Provider shall indemnify, defend and hold Stellar and its directors, officers, agents, employees and representatives harmless from any and all claims, lawsuits, losses, costs, damages, expenses (including attorneys’ fees at trial and on any appeal) and liability related to, any malpractice or alleged malpractice by Provider or its officers, employees, agents or representatives, and shall maintain adequate malpractice coverage and other insurance coverages.  This Section VI shall survive expiration or termination of the Agreement.

VII. Termination

a. The Agreement may be terminated at any time by written mutual consent of the Parties.

b. The Agreement may be terminated at any time by either Party with 30 days prior written notice to the other Party.

c. Stellar may terminate the Agreement immediately with respect to any health insurance company or other relevant healthcare entity that fails to fund SVUsTM.

VIII. Miscellaneous

a. The Agreement shall be construed and enforced in accordance with the internal laws of the state where Provider’s main office location 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.

b. 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’s main office is located. Each party hereby irrevocably waives any objections to the laying of venue in such courts.

c. Any notice under the Agreement may be given to the other Party at the address set forth in the Agreement (or at such other address as a Party may designate by notice given under this Section) by (i) facsimile, email, registered or certified mail or by private delivery service that provides receipts to the sender and recipient; or (ii) personal delivery. Each Party reserves the right to designate an additional or replacement address or a separate address for notices to be sent. Notices are deemed given (i) on the date of the facsimile or email transmittal; (ii) the date shown on the registered mail, certified mail or private delivery service receipt; or (iii) the date personally delivered.

d. Each Party agrees to promptly perform any further acts and execute, acknowledge, and deliver any documents which may be reasonably necessary to carry out the provisions of the Agreement or affect its purpose.

e. In the event that any of the provisions or portions of the Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions or portions will not be affected.

f. The waiver by a Party of any breach of any term, covenant, or condition in the Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition of the Agreement. A party’s subsequent acceptance of performance by the other party shall not be deemed to be a waiver of any preceding breach of any term, covenant or condition of the Agreement other than the failure to perform the particular duties so accepted, regardless of knowledge of such preceding breach at the time of acceptance of the performance.

g. The Agreement constitutes the entire agreement among the parties with respect to the subject matter of the Agreement and supersedes any prior agreements, whether written or oral, pertaining to that subject matter.

h. The Parties represent and agree that they are independent contractors as regards and for the purposes of the Agreement, and neither is an agent of or on behalf of the other.

i. The Parties agree that the Agreement is for the benefit of the Parties only, and that there are no intended third-party beneficiaries of the Agreement, including Authorized Users.

j. Agreement may be signed in one or more counterparts including via facsimile or email, or by electronic signature in accordance with the governing law of the Agreement, all of which shall be considered one and the same agreement, binding on all parties hereto, notwithstanding that both parties are not signatories to the same counterpart. Each party agrees that electronic signatures, whether digital or encrypted, to the Agreement authenticate the Agreement and have the same force and effect as manual signatures.

k. Stellar may amend these Terms by updating the version of these Terms posted on Stellar’s website from time to time. Provider acknowledges that such amendments shall be binding on Provider from and after the date on which Stellar posts them to Stellar’s website and that Stellar is not required to notify Provider of such amendments.