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Population Health Member Services Agreement

This Population Health Member Agreement (the “Agreement”) is between [SQ PopHealth Entity], LLC, a [Delaware] limited liability company (“SQPH”), and the insured patient identified below and a signatory hereto (the “Member”) and shall commence on the date written below (the “Effective Date”). SQPH and Member mutually agree as follows:

1. DEFINITIONS

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes hereof, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Authorized Service Providers” means independent contractors or subcontractors that provide any Services to Member under this Agreement whether such independent contractors or subcontractors are contracted with SQPH or Insurer.

Business Day” means any day other than a Saturday, a Sunday or a day on which banks in Overland Park, Kansas are authorized or obligated by Applicable Law to close.

HIPAA Authorization” means the Authorization for Use and Disclosure of Protected Health Information to be executed by Member and provided to SQPH in the form attached hereto.

Insurer” means the insurance company that has issued the Medicare Health Plan.

Medicare Health Plan” means the Medicare Advantage insurance policy issued to the Member and identified below the Member’s signature hereto and any renewal thereof.

Member Data” means all data, records, files, images, graphics, audio, video, photographs, reports, forms and other content and information, in any format, about or related to Member, including without limitation, all protected health information and medical information about or related to Member, that are submitted, created, provided, stored, posted, displayed, transmitted or otherwise used in connection with the Services from any source, including without limitation, Member, Insurer, Medicare Health Plan, and Authorized Service Providers.

2. SERVICES

SQPH will arrange for Member to receive the following services from Authorized Service Providers for benefits covered under Member’s Medicare Health Plan (the “Services”):1

  1. 2.1. Physician Office and Home Health Medical Appointments Management. [Service offering to be confirmed by SQ, and if applicable described.]
  2. 2.2. Transportation for Medical Appointments. [Service offering to be confirmed by SQ and SQ to confirm provided under the applicable Medicare Health Plan, and if applicable described.]
  3. 2.3. Prescription Drugs Ordering. [Service offering to be confirmed by SQ, and if applicable described.]
  4. 2.4. Review of Co-Pay Expenses. [Service offering to be confirmed by SQ, and if applicable described.]
  5. 2.5. Health Care Provider Directory Usage. [Service offering to be confirmed by SQ, and if applicable described.]
  6. 2.6. Durable Medical Equipment Purchasing and Leasing Orders. [Service offering to be confirmed by SQ, and if applicable described.]
  7. 2.7. Telemedicine Connectivity. [Service offering to be confirmed by SQ, and if applicable described.]
  8. 2.8. Other Services. Such other services that SQPH may arrange for Member to receive for benefits covered under Member’s Medicare Health Plan.
  9. 2.9. SQPH is Not a Health Care Provider. Member acknowledges and agrees that SQPH is not a health care provider and in arranging for or providing the Services, SQPH is not rendering any medical care, treatment or medical or behavioral health advice to Member. Member acknowledges and agrees that SQPH is not entering into a provider-patient relationship with Member.
  10. 2.10. No Warranties. SQPH MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE TO MEMBER, AND SQPH HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT. ALL SERVICES ARE AND ARE PROVIDED “AS IS” BY THE AUTHORIZED SERVICE PROVIDERS WITH NO EXPRESS OR IMPLIED WARRANTY.
  11. 2.11. Fees.
    1. No Fees Payable by Member. Member is not required to pay any fees to SQPH for the Services or otherwise under this Agreement.
    2. Fees Payable to SQPH by Insurer and Authorized Service Providers. Member acknowledges and agrees that SQPH will receive fees from Insurer and Authorized Service Provider for the Services rendered to Member.

3. MEMBER DATA PRIVACY AND OWNERSHIP

  1. 3.1. Compliance with Law. SQPH will comply with all laws applicable privacy and data security applicable to Member Data received by SQPH in connection with the Services.
  2. 3.2. Member Data Ownership. Member agrees that SQPH shall co-own all Member Data received or created by SQPH in connection with the Services and, in accordance with applicable law, may use and disclose all Member Data to any Authorized Service Provider and any insurance company that issues a Medicare Advantage insurance policy issued to the Member. Member agrees to execute any consents or authorizations required by applicable law in order to permit SQPH to use, disclose and maintain Member Data in accordance with this Agreement and applicable law.

4. MEMBER OBLIGATIONS

  1. 4.1. Responsibilities. Member shall (a) access and use the Services in accordance with this Agreement and all applicable laws and (b) pay all deductibles, co-pays and other charges required to be paid by Member under the Member Health Plan.
  2. 4.2. Termination of Member Health Plan. Member shall notify SQPH upon any cancellation or termination of the Member Health Plan. Member shall not access and use the Services after any cancellation or termination of the Member Health Plan.
  3. 4.3 Medicare Care. Member assumes full and sole responsibility to take any and all appropriate actions ‎with regard to Member’s personal and physical ‎condition, and will seek medical advice, care and treatment from a health care provider when medically necessary. ‎ Member acknowledges and agrees that the Services are supplemental to and not intended to replace medical care and services under the supervision of a physician or other medical professional.

5. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

  1. 5.1. Member Representations & Warranties. Customer represents and warrants to SQPH that (a) Member has the legal authority to enter into this Agreement, (b) member will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules and regulations and (c) Member is currently enrolled in the Medicare Health Plan.

6. LIMITATIONS OF LIABILITY AND ARBITRATION

  1. 6.1. Limitation of Liability. In no event shall SQPH have any liability to Member under or in connection with this Agreement except for SQPH’s gross negligence and the maximum amount of such liability shall not exceed the total aggregate amount of fees that SQPH has received from Insurer and Authorized Service Providers solely related to the Services received by Member pursuant to this Agreement.
  2. 6.2. Excluded Damages. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, ADDITIONAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
  3. 6.3. Arbitration. Any dispute, claim or controversy, including tort claims, arising out of or relating to this Agreement, the Services or to the breach, termination, enforcement, interpretation or validity hereof, including the determination of the scope or applicability of this arbitration provision, shall be determined by arbitration in accordance with the American Arbitration Association’s Commercial Arbitration Rules (the “Rules”). In the event of a conflict between such Rules and this Agreement, the provisions of this Agreement will control. The tribunal shall consist of three (3) arbitrators, each of whom has not less than ten (10) years of experience in the health insurance industry. The place of arbitration shall be Overland Park, Kansas. One arbitrator shall be nominated by the party initiating arbitration at the time of the filing of its demand for arbitration, the second arbitrator shall be nominated by the opposing party at the time of the filing of its answering statement, and the third arbitrator (who shall act as chairperson) shall be jointly nominated by the party-nominated arbitrators if they are able to agree. If the first two party-nominated arbitrators are unable to agree upon a third arbitrator within fifteen (15) days after the nomination of the second, or if either party fails to nominate an arbitrator as set forth herein, an arbitrator shall be appointed pursuant to the Rules. The arbitrators shall, in the award, allocate all the costs of the arbitration, including the fees of the arbitrators and the reasonable attorneys’ fees of the prevailing party or parties. The arbitrators may not award punitive, exemplary, incidental or consequential damages, and the parties hereby irrevocably waive any claims to such damages in disputes that are subject to this arbitration provision. The result of the arbitration will be final and binding on the parties, and judgment upon any award rendered by the arbitrators may be entered by any court having jurisdiction. The parties agree not to appeal the result of the arbitration. Each party agrees not to disclose, whether orally or in written form, the existence of, or claims or defenses alleged in, any dispute or any arbitration, pending or completed, involving the parties with respect to this Agreement.2

7. TERM AND TERMINATION

  1. 7.1. Term of Agreement.This Agreement commences on the Effective Date and continues until otherwise terminated in accordance with Section 7.2.
  2. 7.2. Termination. A party may terminate this Agreement without cause or for any or no reason by delivering written notice of termination to the other party. This Agreement shall automatically terminate, without any notice by or to either party, upon the termination of Member’s Medicare Health Plan or SQPH’s agreement with Insurer regarding the Services.
  3. 7.3. Survival. Section 3 (Member Data Privacy and Ownership), Section 6 (Limitations of Liability and Arbitration), this Section 7.3 and Section 8 (General Provisions) and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this Agreement.

8. GENERAL PROVISIONS

  1. 8.1. Relationship of Parties. SQPH is solely an independent contractor of Member. This Agreement does not create a partnership, joint venture, agency, fiduciary, employment or physician or other health care provider relationship between the parties.
  2. 8.2. No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
  3. 8.3. Waiver. No failure or delay by either party in exercising any right or remedy under this Agreement shall constitute a waiver of that right.
  4. 8.4. Force Majeure. Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophes, pandemics government legislation, acts, orders, or regulation, strikes or labor difficulties. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement upon written notice of such termination to the other party.
  5. 8.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
  6. 8.6. Assignment. Neither party may assign its rights and obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, SQPH may assign this Agreement in its entirety, without consent of Member, to an Affiliate of SQPH or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
  7. 8.7. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning or relating to the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.
  8. 8.8. WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, TERMINATION OR VALIDITY THEREOF OR ANY TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NONE OF THE OTHER PARTIES NOR ITS REPRESENTATIVES, AGENTS OR ATTORNEYS HAVE REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.

9. NOTICES, GOVERNING LAW AND JURISDICTION

  1. 9.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all legal notices of default, breach or termination (“Legal Notices”) hereunder shall be in writing and shall be deemed to have been given upon (a) personal delivery, (b) the fifth Business Day after being sent by certified mail return receipt requested or (c) the first Business Bay after sending by a generally recognized international guaranteed overnight delivery service. Each party shall send all Legal Notices to the other party at the address set forth below its signature hereto, as such party may update such information from time to time.
  2. 9.2. Governing Law and Jurisdiction. This Agreement and its enforcement will be governed by, and interpreted in accordance with, solely the laws of the State of Kansas applicable to agreements made and to be performed entirely within such state without regard to the conflicts of law provisions thereof or the application of any law of any other jurisdiction. Any civil claim, action or legal proceeding arising out of or relating to this Agreement or the Services shall be brought solely in the courts of Overland Park, Kansas or the United States District Court, Western District of Missouri. Each party irrevocably consents to the jurisdiction of such courts in any such civil claim, action or legal proceeding and irrevocably waives any objection to the laying of venue of any such civil claim, action or legal proceeding in such court.
  3. 9.3. Waiver of Jury Trial. Each party hereby irrevocably waives any and all rights to jury trial in connection with any claim, action, lawsuit or litigation in any way arising out of or related to this Agreement or the Services.

1 NTD: Services to be discussed and would need to be tailored to the Member’s health plan offerings.

2 NTD: The arbitration clause may need to be tailored to applicable state laws. A number of states have specific provisions applicable to health care arbitration clauses or limit their use.