CELLARIAN® INC. Software Terms of Service

Service Description:

Cellarian® is an automated clinical documentation, compliance, revenue cycle, and denials management software that processes regulated Customer Data to assist Authorized Users document individualized medical necessity support for drug testing, and other document created needed for regulatory compliance and reimbursement for delivery of healthcare services. Services performed by Cellarian® may include, but are not limited to: Billing, and collection activities, denials management, assessment of medical necessity based on patient information and payer policies, coverage determination, automated prior authorization form completion, justification of charges, and the like; Benefits include potentially preventing waste and abuse, and supporting compliance. Other features may enhance operational efficiency and patient outcomes, while decreasing risk.

Cellarian® is made available either through http://client.cellarian.com (the “Platform”) or via an integrated version within an Electronic Health Record (EHR) or Lab Information System (LIS) or both; requires at a minimum of “read-only” access to Customer billing portal, and pursuant to execution of a Business Associate Agreement (“BAA”) [Schedule A] and the Terms of Service (“Terms”) [Schedule B] as may be amended from time to time, which are incorporated in this Service Order by reference. The current version of the Terms is posted at http://cellarian.com/terms-of-service.

Publicly Posted: http://www.cellarian.com/terms-of-service

The following Terms of Service (“Terms”), together with all attachments and Service Order(s) (defined below), and all other operating rules, policies and procedures that may be published from time to time on http://client.cellarian.com (the “Platform”) (with all of such documents being collectively referred to as the "Agreement") constitute a binding contract between Cellarian, Inc. (“Cellarian,” “us,” “we,” or “our”) and you (“Customer,” “you,” “your”) and govern your use of and access to the Cellarian Technology (defined below). These Terms are effective as of the date you have signed an applicable Service Order (defined below). We may update or modify these Terms from time to time by posting a revised version on the Platform or by notification via your email. Your continued access or use of the Cellarian Technology after we post changes to these Terms will be deemed to be your conclusive acceptance of them.

1)      Definitions.

a)      “Authorized Users” “Authorized Users” means a customer’s customers (i.e., Providers ordering lab services), employees, contractors, and those persons’ agents, who are authorized to access Customer Data, have signed an Authorized User Agreement in the form attached as Schedule A (as may be amended), and who are each identified on an applicable Service Order.

b)      “Cellarian®” means Cellarian’s web-based software-as-a-service applications hosted on the Platform as further described in an applicable Service Order.

c)      “Customer Data” means electronic data and information submitted by or for the Customer, including data and information submitted by the Customer’s customers, including but not limited to lab order requisitions, medication lists, patient demographics, payer demographics, any data or information from customer’s Lab information system (LIS/LIMS), billing software, or Customer’s customer EMR.

d)      “Cellarian Technology” means the Platform, Services, and any and all related or underlying documentation, technology, code, know-how, logos and templates, anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing; but does not include Customer Data or Reports.

e)      “Confidential Information” means all technical, business, and other information of one party (the “Disclosing Party”) disclosed to or obtained by the other party (the “Receiving Party”) in connection with this Agreement (including the pricing, terms and conditions of this Agreement) whether prior to, on or after the date of this Agreement, that derives economic value, actual or potential, from not being generally known to others, including, without limitation, any technical or non-technical data, designs, methods, techniques, drawings, processes, products, inventions, improvements, methods or plans of operation, research and development, business plans and financial information of the Disclosing Party.

f)       “Customer System” means all computers, servers, devices, software, third-party provider systems, and other technology and components used by Customer in its business

g)      “Denials Management” means a Service performed by Cellarian to identify, manage, and work to resolve a range of issues related to healthcare claims that have not been fully processed by a payer for a variety of reasons related to medical necessity. This specific service includes, but is not limited to, the management and resolution of: Denied claims, incomplete claims or claims on hold for lack of documentation or medical records, claims requiring prior authorization; Payer or government-initiated pre-payment reviews; Payer or government-initiated post-payment audit. Please refer to section 1 (z) for a detailed definition of “Services”, and Section 4 (Fees and Payments) for pricing related to Denials Management services.

h)      “Dashboard” means a graphical user interface that provides a visual representation of key performance indicators and metrics related to the software's operations. It may include real-time information including claim status, number of claims processed, the number of medical necessity denials, and other relevant data points.

i)       “Effective Date” is the date of the last signature below.

j)       “Electronic Medical Record” (“EMR”) or “Electronic Health Record” (“EHR”) means a collection of patient health information stored in a digital format, including progress notes, medication lists, lab results, diagnostics, diagnosis codes, Lab requisition forms, patient demographics, payer information. And EHR may also include billing and claim information. For the purpose of this agreement, these terms may be used interchangeably.

k)       “Go-Live” occurs when at least one user from the customer engages in onboarding training or if any of the following activities occur within the Software: generation of a patient medical necessity documentation, receipt of patient requisition form or a patient’s claim denial information.

l)      “Including” is used in its broadest, inclusive sense, and shall be read as “including but not limited to” or “including without limitation.”

m)       “Initial Term” begins upon the Effective Date and ends one-year (12 months) after the Effective Date.  The rates are locked in for two years.

n)    “Installation” is the service where the Cellarian® software is being installed on the hardware.

o)      “Intelligent Medical Objects” is a smart search for ICD-10 codes and is recommended for ICD-10.

p)      "Interface Vendor" means a third-party vendor that has software with which the Cellarian® Software interfaces.

q)      “IP Rights” means (i) rights in patents, patent applications and patentable subject matter, whether or not the subject of an application, (ii) rights in trademarks, service marks, trade names, trade dress and other designators of origin, registered or unregistered, (iii) rights in copyrightable subject matter or protectable designs, registered or unregistered, (iv) rights in software, databases and documentation, (v) trade secrets, (vi) rights in Internet domain names, uniform resource locators and e-mail addresses, (vii) rights in semiconductor topographies (mask works), registered or unregistered, (viii) know-how, and (ix) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise

r)      “Laboratory Information System (“LIS”) or Laboratory Information Management System (“LIMS”) means a collection of software, operating systems, and hardware designed to serve the operational processes of the clinical laboratory, including billing insurance and healthcare providers. For the purpose of this agreement, these terms may be used interchangeably.

s)       “Maintenance” includes maintaining and improving the functionality of the Software with periodic upgrades, and maintaining the functionality of the drug, billing-code databases (ICD-10 and CPT4), payer medical policies with periodic upgrades.

t)       “Malicious Code” any code in any part of a software system or script that is intended to cause undesired effects, security breaches or damage to a system, and may include but not limited to includes attack scripts, viruses, worms, Trojan horses, backdoors and malicious active content, time bombs, hardcoded cryptographic constants and credentials, deliberate information and data leakage, rootkits and anti-debugging techniques.

u)       “Named Providers” are all the Full-Time Providers and Part-Time Providers who will be issued a license on the software.

v)      “On-boarding” means the initial setup and training done by a Cellarian® onboarding support specialist

w)      “Providers” mean those authorized and licensed physicians and other appropriately licensed healthcare professionals or licensed behavioral health professionals with the appropriate training, credentials and authority granted by the requisite State and/or Federal regulatory entity to make the professional determination of medical necessity for a given healthcare service within the professional’s scope of practice.  The term Provider shall not include Customer personnel employed by or under contract with Customer as office managers, secretaries, or other unlicensed administrative staff. For any category of Customer staff not identified above, Cellarian® and Customer shall agree in writing as to who is a Provider.

x)    “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.

y)      “Reports” mean the results, in graphical or report form, made available to the Customer as a result of the processing undertaken by the Services utilizing the Customer Data.[MS1] [ML2] 

z)      “Services” means the web-based software-as-a-service (“SaaS”) applications (including Cellarian[MS3] [ML4] ), data analysis, application programming interfaces and related algorithms, processes, and  that are ordered by Customer under a Service Agreement and made available to Customer using Cellarian technologies or through other third-party applications, including but not limited to Electronic Health Records (EHR), Health Information Exchange (HIE), Lab Information Management System (“LIMS” or “LIS”) or other software application used by Customer to access patient information. “Services” also includes digitally generated medical notes, reports, summaries, claim appeal letters, prior authorization requests, or other forms of health information generated through automated processes, algorithms, AI-driven analytics, or user-inputs and data pulled by or facilitated using Cellarian software.  

aa)      “Service Agreement” means this written contractual document outlining the terms of service entered into between Cellarian and Customer and includes expectations and requirements of both parties involved in terms of performance, payment terms, termination clause, confidentiality, ownership of work product, governing law and dispute resolution, and other key terms, including any addenda and supplements thereto, specifying the terms of Services to be provided under this Agreement.

bb)    “Subscription Fee” means a fixed, monthly recurring cost that Customer agrees to pay for access to and use of Cellarian’s Services, including software updates and technical and basic customer support services. The actual fee is listed in the Fees and Payments section and may vary monthly depending on Customer volume.

cc)   “Software” means the Cellarian applications that Customer is contracting for under this Agreement.

cdd)    “Support” includes telephone and online support of the Software.

ee)   “Third Party Services” means technology, software, cloud hosting or consulting services provided by a third-party services provider to Cellarian in connection with the Services.

2)      Services

a)      License Grant. Cellarian hereby grants you a limited, non-exclusive, non-transferable license to access and use the Services during the Term for your internal business purposes only, subject strictly to these Terms. All rights not expressly granted to you are reserved by Cellarian.

b)      Acceptable Use Policy: Acceptable Use Policy. Customer shall use the Cellarian Services only for lawful purposes, in compliance with all applicable laws. Customer shall be responsible for all use of the Cellarian Services by its Customers (i.e. Providers) and Customer Personnel, regardless of whether such use is known to or authorized by Customer. The Cellarian Services are provided for use in conformance with the terms and conditions of this Agreement. Cellarian reserves the right to investigate suspected violations of this Agreement. If Cellarian becomes aware of possible violations, Cellarian may initiate an investigation including gathering information from Customer and examination of material on Cellarian’s servers. During the investigation, Cellarian, in its sole discretion, may suspend access to the Services and/or remove content and other material from Cellarian’s servers. If Cellarian determines, in its sole discretion, that a violation of this Agreement has occurred, it may take responsive action, including, without limitation, issuance of warnings to Customer or the suspension or termination of this Agreement to Customer.

i)       Passwords. Customer is responsible for maintaining the confidentiality of any password(s) and access codes used to access the Cellarian Services and Portal and is fully responsible for all activities that occur under those password(s) and access codes. Customer agrees to notify Cellarian immediately of any unauthorized use of its password(s). Customer shall be solely responsible for the security of its passwords. Continued failure by Customer to maintain password security may result in the suspension or termination of Services.

ii)     System Security. Customer shall be prohibited from using the Services to compromise the security of the Services, the System, the Portal, Cellarian Services, or any other website on the Internet. Customer use or distribution of tools designed for compromising security is strictly prohibited, including, without limitation, password guessing programs, cracking tools, penetration and vulnerability scans or network probing tools. If Customer is involved in violations of security, Cellarian reserves the right to release identification information of Customer to systems administrators at other websites in order to assist them in resolving security incidents. Cellarian shall also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.

c)      System Monitoring. Cellarian reserves the right to monitor the System electronically from time to time and to access and disclose any information as permitted or required by any law or regulation, to operate its System properly, or to protect itself or other Customers, provided that, Cellarian shall provide Customer prior notice of any such disclosure. Cellarian shall fully cooperate with law enforcement authorities in investigating suspected violators. It is not Cellarian’s intention that the Services, System, or Cellarian facilities be used in the contravention of the Communications Decency Act of 1996, 47 U.S.C. Section 223, or any other applicable law. Customer shall indemnify and defend Cellarian for any claims, suits, losses or actions against Cellarian arising from, related to or in connection with any violation by Customer of the Communications Decency Act.

d)     Warranty of Content. In addition to the warranties set forth in the Agreement, the parties to this Agreement warrant that they shall not use on the Portal or Cellarian Services any content or other intellectual property that: (i) infringes on the intellectual property rights or any rights of publicity or privacy of any third party; (ii) violates any law, statute, ordinance or regulation (including, without limitation, laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (iii) is defamatory, libelous, unlawfully threatening or unlawfully harassing; (iv) is obscene, child pornographic or harmful to minors; or (v) contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data or personal information. Violations of this Section not only constitute a material breach of the Agreement and trigger immediate termination by a party not in breach but may also subject such party to criminal and/or civil liability.

e)      Restrictions. You must not (and must not allow any of your Authorized Users or any third party to):

i)       attempt to gain unauthorized access to the Services or its related systems or networks;

ii)     access the Cellarian Technology if you are a direct competitor of Cellarian, except with Cellarian’s prior written consent;

iii)    sell, resell, sublease, assign, license, sublicense, or otherwise commercially exploit the Cellarian Technology or any component thereof;

iv)    modify or make derivative works based upon the Cellarian Technology;

v)      breach or bypass any security measures of the Cellarian Technology, including failing to preserve the confidentiality of your login information or password, or accessing portions of the Services without authority;

vi)    interfere in any manner with the Cellarian Technology, or use the Services in a manner that violates this Agreement;

vii)   reverse engineer, decompile, disassemble, attempt to gain unauthorized access to, or attempt to discover the underlying source code or structure of the Cellarian Technology or the technology and software used to provide it;

viii) infringe or misappropriate Cellarian’s or any third-party intellectual property right (e.g., copyright, patents, trademark, trade secret or know-how);

ix)    use the Cellarian Technology

(1)    in any country that the U.S. Government has made subject to embargo or has designated as “terrorist supporting,”

(2)    for or relating to any person on a U.S. Government list of prohibited or restricted parties, or

(3)    to process personal data of any resident of the European Economic Area; or

x)      use the Cellarian Technology (or allow them to be used) for any other illegal, fraudulent, abusive, or irresponsible behavior.

f)       Delays or Unavailability. The Services will not be available during periods of maintenance, system repair, updates, outages or failures of third-party systems, or force majeure events. Additionally, Cellarian’s Services may be subject to delays or unavailability due to problems inherent in the use of the internet or other problems outside Cellarian’s reasonable control. Cellarian is not responsible for any damages resulting from such delays or unavailability.

i)       Cellarian® is not responsible for issues (including any security issues) related to Customer’s computer or electronic devise or internal and external network or system.

ii)     Customer will receive any available Upgrades, without additional fee as long as this Agreement is in effect.

iii)    Customer is aware that Cellarian® may run and deploy, any and all upgrades and/or patches related to a security fix and/or patient safety issue that are available

g)      Equipment and Software. Unless the applicable Service Order provides otherwise, Cellarian will provide access to and use of the Services in order to allow you to utilize the specific Services indicated in each Service Order. You will be wholly responsible for providing any Customer System necessary for you to utilize the Services.

h)      Third Party Services. Cellarian may utilizes Third Party Services in offering Services to you. You acknowledge, authorize and agree that Cellarian may share Customer Data with the Third-Party Services solely for the purpose of providing the Services.

Additional Services will be detailed, per client, on actual "Service Level Agreement".