End-User License Agreement
IMPORTANT: This End User License Agreement (“Agreement”) is a legal agreement between you (an individual person, who will be referred to in this Agreement as “You” or “End User”) and Trella Health, LLC (“Trella Health” or “Licensor”) and governs the use of the Trella Health web-based business intelligence, customer relationship management and data analytics software, and Trella Health Data (as defined below), all of the foregoing collectively the “Service”, which may include associated printed and/or electronic documentation. READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SERVICE. IT PROVIDES A LICENSE TO USE THE SERVICE AND CONTAINS DISCLAIMERS OF WARRANTIES AND LIABILITY.
By using the Service, You agree to the terms and conditions of this Agreement. By using the Service, You represent and warrant that (i) You have read and understand this Agreement; (ii) this Agreement has the same force and effect as a physically-signed agreement; (iii) You are authorized by End User’s employer (“Employer”), which has purchased a currently-valid subscription from Trella Health, to use the Service pursuant to a definitive agreement between Trella Health and Employer for use of the Service (the “Master Agreement”) subject to confidentiality restrictions set forth in this Agreement and the Master Agreement; (iv) Licensor and its licensors own their respective rights, title and interests in and to all output and provided data other than Customer Data (as defined in the Master Agreement), including third-party content and all related materials and technology from the Service, whether previously or thereafter exported by End User (collectively, “Trella Health Data”); (v) You agree that, except for the limited rights expressly granted to You in this Agreement, Trella Health and its licensors reserve all of their right, title and interest in and to the Trella Health Data; (vi) Trella Health Data will only be used by You for Employer’s sales, marketing, internal metrics, and competitive benchmarking to permit Employer to identify and market to promote care coordination and improved provider performance in support of patient provider choice (the “Purpose”); and (vii) You will not provide, sublicense, or share the Trella Health Data with any Third Party nor allow any Third Party to access or use the Trella Health Data or Service. A “Third Party” is any individual or entity who has not entered into a data agreement with Licensor.
If You cannot make the representations above and do not agree to the terms of this Agreement, You are prohibited from accessing the Service.
YOU WILL BE ASKED TO REVIEW AND EITHER ACCEPT OR NOT ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU AGREE TO BE BOUND BY ALL TERMS OF THIS AGREEMENT, CLICK THE “I AGREE” BUTTON BELOW AND PROCEED TO ACCESS THE SERVICE. IF YOU DO NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, TRELLA HEALTH IS UNWILLING TO GRANT YOU ANY RIGHTS TO USE THE SERVICE, AND YOU MUST IMMEDIATELY STOP USING THE SERVICE AND INDICATE END USER’S REJECTION OF THIS AGREEMENT BY CLICKING THE “I DO NOT AGREE” BUTTON.
Trella Health reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on End User’s continued use of the Service and the information contained therein following the effective date of such modifications. Such modifications and additional terms and conditions will be effective upon notice thereof to End User (including by posting such modifications and additional terms and conditions to Trella Health’s website) and incorporated into this Agreement to be effective thereafter. End User’s continued use of the Service after the effective date of such modifications will be deemed acceptance thereof.
1. LICENSE.
1.1 Grant of License. Subject to End User’s compliance with its obligations hereunder, Trella Health hereby grants to End User a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Trella Health Service via an Employer-provided Internet connection, to the extent that End User remains an Authorized User of Employer under the Master Agreement. You agree to use the Service in compliance with the Master Agreement and all applicable laws, rules, and regulations, and to contact Employer to understand the obligations and restrictions set forth in the Master Agreement that are applicable to your use of the Service.
1.2 Restrictions on Use. End User shall not use the Service except as otherwise explicitly set forth herein. In addition, End User shall not: (a) copy, reproduce, rent, lease, loan, sell, share, make available, transfer, distribute, or otherwise assign the Service in whole or in part to any third party nor allow any third party to access or use the Service; (b) alter, merge, modify, adapt, translate, sublicense, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service or create derivative works of the Service; (c) attempt to gain unauthorized access to other accounts, computer systems or networks connected to any Trella Health server through hacking, password mining or any other means, or obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service; (d) remove any identification, copyright or other notice from the Service; (e) enable any timesharing or service bureau use of the Service for any third party; or (f) use or disclose the Provided Data other than for the Purpose. For the avoidance of doubt, You may not use the Provided Data for sales, marketing, internal metrics, competitive benchmarking, or any other purpose for the benefit of any person or entity other than Employer. The Service may only be used for lawful purposes.
For the avoidance of doubt, You may not disclose any of the Provided Data to any other employee or contractor of Employer unless such person has also entered into an end user license agreement with Trella Health. Further, End User will ensure that any agent, including a subcontractor, to whom You provide the Provided Data, agrees to the same restrictions and conditions that apply through this Agreement to You with respect to the Provided Data. You will report to Trella Health any use or disclosure of the Provided Data not provided for by this Agreement of which You become aware within 15 days of becoming aware of such use or disclosure. You agree to use appropriate administrative, physical and technical safeguards to prevent use or disclosure of the Provided Data restricted by this Agreement.
1.3 Privacy. You agree that any data, programs, procedures, and other information that You input in connection with your access to and use of the Service shall be governed by Trella Health’s Privacy Notice, located at https://www.trellahealth.com/privacy-notice/, which is incorporated into this Agreement by this reference.
2. OWNERSHIP OF SERVICE. The Service, together with all intellectual property rights, title, and interests embodied therein, is owned by Trella Health and/or its third-party licensors or suppliers. Trella Health and/or its third-party licensors or suppliers retain exclusive ownership of the Service, including but not limited to the Provided Data, and all copies and derivatives thereof, and all worldwide intellectual property rights therein. The Service is protected by United States federal and state copyright and other intellectual property laws and international treaties. The license granted hereunder confers no title or ownership in the Service to End User. Trella Health reserves all rights not expressly granted to End User in this Agreement.
3. END USER RESPONSIBILITIES.
3.1 Equipment and Internet Access. End User acknowledges and agrees that it and Employer are solely responsible for providing all equipment necessary to access and use the Service, and for End User’s access to the Internet, including payment of any and all fees charged by third parties in connection with such access.
3.2 Protection of User Name and Password. End User is solely responsible for maintaining the confidentiality of its user name and password. End User agrees to notify Employer and Trella Health immediately of any unauthorized use of a user name and/or password and any other breach of security relating to the Service. End User shall be solely responsible for any and all actions taken under End User’s account, whether or not authorized by End User.
3.3 End User Data. End User is solely responsible for the adequacy and accuracy of all data and other information that End User inputs into the Service and the results obtained therefrom.
4. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
4.1 Disclaimer of Warranties. TRELLA HEALTH IS PROVIDING THE SERVICE TO YOU “AS IS.” TRELLA HEALTH MAKES NO WARRANTIES TO YOU, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO THE SERVICE OR ANY OTHER MATERIALS OR SOFTWARE FURNISHED OR PROVIDED TO END USER IN CONNECTION WITH THIS AGREEMENT. TRELLA HEALTH EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, ACCURACY, WORKMANLIKE EFFORT, COURSE OF DEALING, TITLE, AND NONINFRINGEMENT, WITH RESPECT TO THE SERVICE AND SUCH OTHER MATERIALS AND SOFTWARE AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. TRELLA HEALTH DOES NOT WARRANT THAT THE SERVICE WILL MEET END USER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR THAT THE SERVICE WILL BE ERROR-FREE.
4.2 Limitation of Liability. IN NO EVENT SHALL TRELLA HEALTH BE LIABLE TO END USER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, SALES, BUSINESS, DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATING TO THE USE OF THE SERVICE OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
END USER ACKNOWLEDGES AND AGREES THAT THE COMMERCIAL AND ECONOMIC TERMS UPON WHICH TRELLA HEALTH AGREES TO LICENSE THE SERVICE HAVE BEEN CONDITIONED TO A SUBSTANTIAL EXTENT BY THE ABILITY OF TRELLA HEALTH TO MAKE AND ENJOY THE FULL PROTECTION OF THE DISCLAIMER AND LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT, AND END USER AGREES, REPRESENTS, AND CONFIRMS THAT THE CONTENTS OF SUCH SECTIONS ARE FAIR AND REASONABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO END USER. IF ANY EXCLUSION, DISCLAIMER, OR OTHER PROVISION CONTAINED IN THIS AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND TRELLA HEALTH BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED, SUCH LIABILITY (WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE) WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY EMPLOYER UNDER THE MASTER AGREEMENT IN CONNECTION WITH END USER’S USE OF THE SERVICE GIVING RISE TO THE CAUSE OF ACTION, OR FIVE HUNDRED DOLLARS ($500.00 USD), WHICHEVER IS LESS.
4.3 No Other Warranty. No employee, agent, representative, or affiliate of Trella Health has authority to bind Trella Health to any oral representations or warranties concerning the Service provided hereunder. Any representation or warranty not expressly contained in this Agreement will not be enforceable.
4.4 Limitation of Claims. Any claim or cause of action arising out of End User’s use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by Trella Health to enforce or exercise any provision of this Agreement or related right shall not constitute a waiver of that right or provision.
5. INDEMNIFICATION. End User shall defend, indemnify, and hold Trella Health, its affiliates, shareholders, directors, officers, employees, and agents harmless from and against any and all claims, demands, actions, suits, amounts paid in settlement, injuries, proceedings, costs, losses, damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or related to (a) any actual or alleged breach by End User of this Agreement, or (b) End User’s use of the Service.
6. CONFIDENTIALITY.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information of Trella Health disclosed to End User, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation the terms and conditions of this Agreement and the Master Agreement (including pricing and other terms reflected in all Order Forms thereunder), the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Trella Health; (ii) was known to End User prior to its disclosure by Trella Health without breach of any obligation owed to Trella Health; (iii) was independently developed by End User without breach of any obligation owed to Trella Health; or (iv) is received from a third party without breach of any obligation owed to Trella Health.
6.2 Confidentiality Obligations. End User shall avoid the unauthorized disclosure or unauthorized use of any Confidential Information of Trella Health. End User agrees to protect the confidentiality of the Confidential Information of Trella Health with the same degree of care with which it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care).
7. TERM AND TERMINATION.
7.1 Term. The term of this Agreement shall commence on the date it is accepted by End User (the “Effective Date”) and continue until the expiration of the Authorized User Subscription Term set forth in the Master Agreement, unless earlier terminated in accordance with this Agreement or the Master Agreement or until all Trella Health Data is destroyed or returned to Trella Health pursuant to Section 7.3
7.2 Termination. Trella Health may terminate this Agreement immediately upon written notice to the End User of End User’s failure to comply with any of the material terms of this Agreement. Notwithstanding the preceding sentence, End User’s rights to use and access the Service will terminate automatically if: (i) the Master Agreement expires or is terminated for any reason; or (ii) You fail to comply with any of the terms or conditions contained in this Agreement.
7.3 Effect of Termination or Expiration. Upon the expiration or earlier termination of this Agreement for any reason, the rights and licenses granted hereunder shall automatically terminate. Upon request by Trella Health, End User will return the Trella Health Data including all copies thereof, and all abstracts, summaries, or documents produced using the Trella Health Data, or, if so directed by Trella Health in writing, End User will destroy all copies of the Trella Health Data (including abstracts, summaries, or documents produced using the Trella Health Data) and will certify to Trella Health in writing that all copies, abstracts, summaries, and documents have been destroyed. The provisions of Sections 2, 4, 5, 6, 7.3, and 8 shall survive expiration or termination of this Agreement.
8. MISCELLANEOUS TERMS.
8.1 Assignment; Waiver. End User shall not assign or sublicense any of its rights or delegate any of its obligations under this Agreement without the prior express written consent of Trella Health. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any attempted assignment in violation of this Agreement shall be null and void. The waiver of a breach or default hereunder shall not constitute a waiver of a subsequent breach or default, or establish a course of dealing, or modify this Agreement or its obligations.
8.2 Governing Law and Venue. This Agreement and any dispute arising from or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without reference to its conflicts of laws principles. Any suit, dispute, or other proceeding relating to this Agreement shall be brought solely in the state and federal courts located in Fulton County, Georgia. Each of the Parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Fulton County, Georgia, for such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts. Trella Health may seek equitable relief in any venue of its choosing. END USER HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE. The prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees, and all costs and fees incurred on appeal or in a bankruptcy or similar action.
8.3 Relationship of Parties. The relationship of Trella Health and End User established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
8.4 Severability. If any term or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, such invalid term or provision will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
8.5 No Waiver. The waiver by either party of a breach of any provision of this Agreement or the delay or failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of that right or any subsequent breach of that right or as a waiver of any other right.
8.6 Equitable Relief. End User agrees that in the event of actual or threatened breach of the terms of this Agreement by End User, Trella Health will have no adequate remedy at law and will be entitled to immediate and injunctive and other equitable relief, including but not limited to temporary restraining order, without bond and without the necessity of showing actual money damages. Notwithstanding the foregoing, nothing herein shall be interpreted to limit Trella Health’s ability to pursue all of its available legal remedies in the event of a breach or threatened breach of this Agreement, including without limitation, monetary damages.
8.7 Entire Agreement. This Agreement and the Master Agreement constitute the entire agreement between End User and Trella Health with respect to the Service provided hereunder, and supersede all previous communications, representations, understandings, and agreements, either oral or written. This Agreement may not be modified or amended by End User except in writing agreed to between the parties. Trella Health reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service and/or the information contained therein. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. End User’s continued use of the Service be deemed acceptance thereof.
8.8 Contact Information. Trella Health may send notices hereunder to You via your contact information then on file with Trella Health. If You have any questions about this Agreement, or to send any notices hereunder to Trella Health, please contact us at the address below:
Trella Health
C/O Trella Health
Tower Place 100
3340 Peachtree Rd NE
Suite 2450
Atlanta, GA 30326
