KODE

Terms & Conditions

Last Modified: March 21, 2022

This Koder Agreement (“Agreement”), entered into by and between KODE Health, Inc. (“KODE”) and the individual agreeing to this Agreement (“Koder”), governs the relationship between KODE and Koder, including Koder’s performance of coding services (“Coding Services”) via the KODE platform (“Platform”).

I. Coding Services
1. Engagement as an Independent Contractor.

KODE owns and operates a platform through which medical coding services can be provided by qualified medical coders to businesses that engage KODE (“Clients”). KODE hereby engages Koder as an independent contractor to provide Coding Services via the Platform. As an independent business enterprise, Koder retains the right to perform services (whether coding services or other services) for others and to hold themselves out to the general public as a separately established business. The parties may be engaged in similar arrangements with others and nothing in this Agreement shall prevent Koder or KODE from doing business with others. KODE does not have the right to restrict Koder from performing services for other businesses, customers, or consumers at any time.

2. As-Needed Basis

KODE has no obligation to make any minimum commitment of work, time, or compensation to Koder. Koder will provide services only on an as-needed basis as determined by the availability of projects assigned by KODE (“Projects”). Koder shall have no obligation to accept or perform any particular volume of Coding Services, provided that, once Koder accepts a Project, Koder is contractually bound to complete the Coding Services for the Project in accordance with all Client specifications and the terms laid out in this Agreement.

3. Parameters set by Client.

The parameters of each Project are established by the applicable Client, not KODE, and represent the end result desired by the Client, not the means by which Koder is to accomplish the result. KODE is not authorized to control the manner or means by which Koder performs Coding Services or any other services contemplated under this Agreement. KODE does not require that the Koder use any specific equipment, does not have an individual to whom Koder reports, and Koder does not receive performance evaluations from KODE.

4. Service Failure.

In the event Koder fails to fully perform any Coding Services in accordance with this Agreement (a “Service Failure”) due to Koder’s action or omission, Koder shall forfeit all or part of the agreed upon fee for that service.

II. Koder’s Agreements, Representations, and Warranties
1. Independent Enterprise.

Koder represents and warrants that Koder operates an independently established enterprise that provides coding services, and that Koder satisfies all legal requirements and has all necessary certifications, licenses, and permits necessary to perform the Coding Services.

2. Qualifications.

Koder represents and warrants that Koder possesses the required qualifications, certifications, and experience to perform the Coding Services. Koder shall provide evidence of such qualifications, certifications, and experience to KODE upon request. Koder represents that at all times Koder has provided correct and accurate representation of Koder’s skills, degrees, qualifications, background, and other information, whether this information is provided to KODE, the Client, or any form submitted to or presented on the Platform.

3. Performance of Services.

Koder agrees to fully perform the Coding Services in a professional, timely, and efficient manner, and in full accordance with the applicable code guidelines and all other industry standards applicable to the Coding Services. Koder must maintain satisfactory audit results, star ratings, and turnaround times. Koder will cooperate with KODE with respect to audits, star ratings, and turnaround times. Koder shall exercise all the skill, care, and diligence in performing the Coding Services. Without limiting the generality of the foregoing, Koder covenants and agrees that Koder will be the person actually performing the Coding Services. Koder shall not be permitted to substitute personal performance of the Coding Services with another individual without the express prior written consent of KODE. Koder will ensure that Koder renders performance of the Coding Services under this Agreement to the best of Koder’s ability and in a prompt, diligent, competent, and professional manner. Koder warrants that Koder will remain free of any obligations and restrictions that would interfere, conflict or be inconsistent with the performance of this Agreement.

4. Confidential Information.

Koder acknowledges and agrees that during the performance of Coding Services, Koder may gain knowledge of KODE’s and third parties’ confidential, proprietary, health, or other sensitive information (“Confidential Information”). Koder shall maintain the confidentiality of such Confidential Information and shall not disclose Confidential Information to any other person. Koder shall protect all Confidential Information to which Koder has access via multi-factor authentication and secure Koder’s access credentials. Any unauthorized disclosure of Confidential Information will constitute a material breach of this Agreement. Koder may not use Confidential Information to solicit Clients to provide coding services outside of the Platform.

5. Geographic Restriction.

Koder represents that Koder is located in the United States and warrants that Koder will provide all Coding Services from within the United States.

6. Exclusions.

Koder shall immediately notify KODE upon Koder’s listing on any database of excluded individuals from any health-related industry or payor, including the OIG LEIE database of excluded individuals, any Medicaid exclusion list, or the GSA SAM list of excluded individuals.

7. Compliance with Laws.

In the performance of the Coding Services, Koder shall ensure that Koder complies with all applicable laws.

III. Payment for Coding Services
1. Payment Amount.

KODE shall pay Koder for Coding Services satisfactorily rendered at the rates agreed to between the parties (“Koder Fee”)

2. Payment Timing.

KODE shall make the Koder Fee payment within 45 days of the provision of the Coding Services.

3. Effect of Disputes.

In the event of a Service Failure, Koder shall not be entitled to the applicable Koder Fee until KODE investigates and resolves the underlying Service Failure. KODE’s investigation will be based on all evidence submitted by Koder and the Client. Upon KODE’s determination as to whether the Service Failure was the result of Koder’s action or omission, Koder will have the right to challenge such determination through legal means contemplated by this Agreement, provided that Koder notifies KODE in writing of Koder’s intent to challenge the determination and provide KODE the opportunity to resolve the dispute.

IV. Indemnity and Limitation of Liability
1. Indemnity by KODE.

KODE agrees to indemnify, protect and hold harmless Koder from any and all third-party liabilities, losses, damages, fines, civil penalties, settlements, judgments, costs and expenses (including without limitation reasonable attorney‘s fees and costs) (“Losses”) incurred in connection with any judicial or non-judicial claim, action, demand, suit, or proceeding asserted by a third party (including governmental entities) (collectively, “Claims”) against Koder and arising solely and directly from KODE’s willful misconduct under this Agreement.

2. Indemnity by Koder.

Koder agrees to indemnify, protect and hold harmless KODE, and all parent, subsidiary and affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees (“KODE Indemnitees”), from any and all Losses incurred in connection with Claims asserted by a third party against a KODE Indemnitee arising directly or indirectly from, or as a result of or in connection with, Koder’s: (i) breach of this Agreement, (ii) violation of any law or the rights of any third party, including, without limitation, Clients; (iii) interactions with a third party breaching provisions of this Agreement, including using the personal information of a party in any manner outside providing Coding Services hereunder, (iv) failure to have proper qualifications or certifications to provide Coding Services, (v) tax liabilities and responsibilities for payment of all federal, state and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers compensation premiums, and any contributions imposed or required under federal, state and local laws, with respect to Koder, and (vi) from all costs of Koder’s business, in each case except to the extent such Claim was caused by the gross negligence or willful misconduct of a KODE Indemnitee.

3. LIMITATION OF LIABILITY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL KODE BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY THEORY OF CONTRACT, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNT GREATER THAN THE AMOUNT KODER WAS PAID FOR PERFORMING SERVICES HEREUNDER IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE DATE THE CLAIM AROSE; OR (II) ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF A PARTY OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CAUSE OF ACTION OR CLAIM KODER MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT IS BARRED UNLESS COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES.

V. Intellectual Property and Trademarks.
1. Intellectual Property.

As between KODE and Koder, each shall retain ownership in all intellectual property that such party owned as of the effective date of this Agreement and all improvements to such intellectual property developed after the effective date of this Agreement. For clarity, all intellectual property pertaining to the Platform and all improvements thereto shall remain KODE’s.

2. Trademarks.

Neither party to this Agreement may use the other party’s trademarks except with a written consent of the owner party.

VI. Use of the Platform
1. Permitted Use.

Koder may use the Platform only for the provision of Coding Services.

2. Prohibited Uses.

Koder may not use the Platform (i) in any way that violates any law, (ii) for the purpose of obtaining and using or disclosing any information about KODE or Clients except to use the information necessary for the provision of the Coding Services to providing Coding Services, (iii) to engage in any conduct that can expose KODE or a Client to liability, or (iv) in any manner that could damage or impair the Platform.

3. Unauthorized Access.

Koder shall notify KODE immediate of any unauthorized use of Koder’s account or any other concern for breach of Koder’s account’s security.

VII. Miscellaneous
1. Waiver

The failure of KODE or Koder in any instance to insist upon strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect.

2. Severability.

In any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.

3. Amendments.

This Agreement may be amended either (i) in writing signed by both parties, or (ii) upon KODE’s notification to Koder of an amendment, provided that Koder shall have 15 days from the date of the notification to terminate the Agreement instead.

4. Use of Platform.

In using the KODE platform, Koder shall comply with the applicable terms of use, and warrants that Koder will not use the KODE platform other than for purposes of providing the Coding Services.

5. Privacy Policy.

KODE’s collection, use, and disclosure practices pertaining to Koder are set forth in KODE’s privacy policy, posted on KODE’s website. By agreeing to this Agreement, Koder represents that Koder has reviewed and agreed to KODE’s privacy policy.

6. Subcontractors and Vendors.

Any performance of Coding Services by Koder’s subcontractors and vendors must comply with the terms of this Agreement. Koder remains responsible for all acts or omissions of its subcontractors and vendors in connection with this Agreement.

7. Governing Law and Jurisdiction.

All matters relating to this Agreement and any dispute or claim arising therefrom or related thereto (including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of, or related to, this Agreement will be instituted exclusively in the federal courts of the United States or the courts of Michigan, in each case located in the City of Grand Rapids.

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