Koda Health Terms of Service

Last updated: November 29, 2023

Welcome to Koda Health. Koda Health provides a SaaS-based platform for advance care planning (“ACP”) (as modified from time to time, the “Koda Health Platform”) for patients and others (“Patients” or “you”) to learn about their medical care preferences in connection with end-of-life care and to document these preferences (as modified from time to time, the “ACP Services”). The website at www.kodahealthcare.com (the “Site”), and the various other related services, premium and other features, functions, software, applications and websites (together with the Koda Health Platform, and the Site, collectively the “Koda Health Services”) are provided and operated, and are being made available to you and the other Patients, and the other users of any of the Koda Health Services (collectively, “Users”) by Koda Health, Inc. (“Koda Health”, “us” or “we”). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service.

IMPORTANT! THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF THE SITE, THE KODA HEALTH PLATFORM AND THE OTHER KODA HEALTH SERVICES. BY CLICKING “I AGREE”, USING, OR ACCESSING THE SITE, THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THESE TERMS, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THESE TERMS OF SERVICE FOR AND ON BEHALF OF YOURSELF, AND ARE DOING SO, (B) YOU CAN LEGALLY ENTER INTO THESE TERMS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND EACH USER SHALL BE BOUND BY THESE TERMS OF SERVICE AND KODA HEALTH’S PRIVACY POLICY [(HTTPS:// APP.KODAHEALTHCARE.COM/PRIVACY)](THE “PRIVACY POLICY”) AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR THE PRIVACY POLICY, PLEASE DO NOT USE THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES.

These Terms contain an Arbitration provision which will, with limited exception, require you to submit disputes you have against Koda Health to binding and final arbitration. You will only be permitted to pursue claims against Koda Health on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Eligibility.

To access and use the Koda Health Platform, the Site and the other Koda Health Services, you must be at least 18 years of age. BY CLICKING THE “I AGREE” BUTTON, BY ACCESSING OR USING THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES OR COLLABORATING WITH OTHER PATIENTS THROUGH THE KODA HEALTH PLATFORM, YOU REPRESENT THAT:

YOU HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE, THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES;
YOU CONFIRM THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH KODA HEALTH;
YOU WILL COMPLY WITH THESE TERMS AND ALL APPLICABLE LOCAL, STATE AND NATIONAL, RULES AND REGULATIONS; AND
YOU ARE NOT A COMPETITOR OF KODA HEALTH AND DO NOT INTEND TO USE THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES FOR REASONS THAT ARE IN COMPETITION WITH KODA HEALTH OR OTHERWISE TO REPLICATE SOME OR ALL OF THE OTHER KODA HEALTH SERVICES FOR ANY REASON.

Privacy.

Your privacy is important to Koda Health. Our goal is to make the Koda Health Platform and the other Koda Health Services as good, useful and rewarding for you as possible. In order to do that, Koda Health may collect and process information from you when you use the Koda Health Platform or any of the other Koda Health Services. Koda Health will collect certain personally identifiable information from you as set forth in more detail in our Privacy Policy. By accessing or using the ACP Services and the Koda Health Platform or any of the other Koda Health Services, you agree that Koda Health may collect, use and disclose, as set forth in the Privacy Policy, the information you provide when you access and use the ACP Services and the Koda Health Platform or any of the other Koda Health Services, and in some cases, information that is provided by or through any of the Koda Health Services.

Notwithstanding the foregoing, Koda Health shall comply with all applicable state and federal laws and regulations including the privacy and confidentiality of patient records including but not limited to (i) The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); (ii) the Privacy and Security Standards (45 C.F.R. Parts 160 and 164) and the Standards for Electronic Transactions (45 C.F.R Parts 160 and 162) (collectively, the “Standards”) promulgated or as to be promulgated by the Secretary of Health and Human Services on and after the applicable effective dates specified in the Standards; and (iii) The Health Information Technology Economic and Clinical Health Act of 2009 (the “HITECH Act”). Company shall comply with all bylaws, rules, regulations, and policies of Participant regarding the confidentiality and privacy of Protected Health Information, as defined in 45 C.F.R. 164.501, and Individually Identifiable Health Information (as defined in 42 U.S.C.§130d(6)) (collectively, “PHI”). Koda Health shall not disclose to any third party, except where required or permitted by law and the applicable business associate agreement, any medical record or other patient information regarding either party’s patients, and in such case, disclosures shall be made in accordance with the applicable policies of the parties, the applicable business associate agreement and the Standards. All medical information and data concerning specific Patients, including but not limited to the identification of the Patients, derived from the access and use of the ACP Services and the Koda Health Platform shall be treated and maintained in a confidential manner.

The ACP Services.

Accessing and Using the ACP Services.

(a) To access and use the ACP Services and the Koda Health Platform, you will be provided a link. You can register to create an account (“Registered User”) and you must agree to these Terms and the Privacy Policy.

Once you have agreed to these Terms and the Privacy Policy, you can create an advance directive through the ACP Services, including any related documentation (e.g., medical power of attorney, etc.) (the “Advance Directive”). To actually be effective, however, the Advance Directive you created will still need to follow your state’s regulations to be legalized. (For example, in Texas it needs to be signed by two witnesses or notarized.)

(b) In registering and creating an account, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted during the registration and account creation process (“Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your account. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Koda Health has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Koda Health has the right to suspend or terminate your account and prohibit you from accessing and using the ACP Services and the Koda Health Platform and/or any of the other Koda Health Services. You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one account. You agree not to create an account or to access and use the ACP Services and the Koda Health Platform or any of the other Koda Health Services if you have been previously removed by Koda Health or if you have been previously banned from accessing and using the ACP Services and the Koda Health Platform or any of the other Koda Health Services.

Not Medical Advice.

Koda Health provides the ACP Services and the Koda Health Platform to help Patients learn about their medical care preferences in connection with end-of-life care and to document these preferences. NOTHING IN THE ACP SERVICES OR THE KODA HEALTH PLATFORM SHOULD BE INTERPRETED AS MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. KODA HEALTH DOES NOT PROVIDE MEDICAL SERVICES OR RENDER MEDICAL ADVICE. NOTHING IN THE ACP SERVICES OR THE KODA HEALTH PLATFORM IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. You should always discuss any questions or concerns that you might have about your health or medical condition with your doctor or other healthcare provider.

Not Legal Advice.

The Koda Health Services are for informational purposes only and are not intended to substitute for professional legal advice. Using, accessing and/or browsing the Koda Health Services and/or providing personal information to Koda Health does not create an attorney-client relationship between you and Koda Health. Each state’s laws may include separate requirements for advance directives, healthcare powers of attorney, and similar documents, and may be subject to interpretation by different courts. The information contained in the Koda Health Services provided by Koda Health are not legal advice and are not guaranteed to be correct, complete or up-to-date. The Koda Health Services are not substitutes for the advice or services of an attorney licensed in the appropriate jurisdiction.

Fees

Fees.

Koda contracts directly with health plans and health care providers who subscribe to the Koda Health Platform and ACP Services (“Subscribers”). Subscribers provide a link to Patients to access the ACP Services. There are no fees billed directly to the Patients to access and use the ACP Services and the Koda Health Platform.

Changes in Fees.

Koda Health reserves the right at any time to begin charging for services that it is currently providing to Patients free of charge upon posting on the Koda Health Platform, the Site, any of the other Koda Health Services or by notifying you by email.

Right to Access and Use; Unauthorized Use.

Right to Access and Use.

Subject to your compliance with all of the terms and conditions set out in these Terms, Koda Health hereby grants to you a limited, non-exclusive, non-transferable, freely revocable right to access and use the ACP Services, the Koda Health Platform, the Site, and the other Koda Health Services, to the extent of, and in accordance with, these Terms during your Subscriber’s subscription.

Prevention of Unauthorized Use.

Koda Health reserves the right to exercise whatever lawful means it deems necessary to prevent the unauthorized access or use of the ACP Services or the Koda Health Platform or the circumvention of the other Koda Health Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.

Continued Access after Subscriber’s subscription terminates.

Any Registered User will continue to have access to the Koda Health Platform and ACP Services to change, modify, or revise their ACP documents for one year after the Subscriber’s subscription that provided that Register User’s access is terminated (“Additional Access”). A Registered User will continue to have read only access to their documents for an additional four years after their Additional Access has expired (“Read Only Access”). If a Registered User wants to revise their ACP documents during their Read Only Term they must subscribe to the Koda Health Platform at the then current rate.

Additional Policies.

When accessing or using the ACP Services, the Koda Health Platform or any of the other Koda Health Services, you may be subject to any additional posted policies, guidelines or rules applicable to the ACP Services, the Koda Health Platform, the Site and the other Koda Health Services which may be posted from time to time (as modified from time to time, the “Policies”). All such Policies are hereby incorporated by reference into these Terms.

Respecting other People’s Rights.

Koda Health respects the rights of others and so should you. You therefore shall not:

violate or infringe someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
post anything that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by Koda Health in its sole discretion;
post anything that is false, misleading, untruthful or inaccurate or that includes anyone’s personal information; or
impersonate any person or entity, including any of Koda Health’s employees or representatives or any other Patient or User.

Modification of these Terms.

Koda Health reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site or any of the other Koda Health Services. If Koda Health updates these Terms, it will update the “last updated” date at the top of the Terms. Please check these Terms, including any Policies, periodically for changes. Your continued use of the Koda Health Platform or any of the other Koda Health Services after the posting of changes constitutes your binding acceptance of such changes. In the event of a change to these Terms that materially modifies your rights or obligations (including applicable fees), Koda Health will use commercially reasonable efforts to notify you of such change. Koda Health may provide notice through a pop-up or banner within any of the Koda Health Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Koda Health may require you to provide consent by accepting the changed Terms. If Koda Health requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Koda Health, such amended Terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on any of the Koda Health Services. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF ALL KODA HEALTH SERVICES.

To the extent that any modifications to the Terms or Policies are not allowed under applicable laws, the prior most recent version of the Terms or Policies shall continue to apply.

Digital Millennium Copyright Act.

It is Koda Health’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Koda Health’s DMCA Notification Guidelines. If you file a notice with our copyright agent, it must comply with the requirements set forth in 17 U.S.C. § 512(c)(3). Koda Health reserves the right to terminate without notice any Patient’s or other User’s access to the ACP Services, the Koda Health Platform, the Site and the other Koda Health Services if that Patient or other User is determined by Koda Health to be a “repeat infringer.” In addition, Koda Health accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.

Patient Documentation.

Limited License Grant to Koda Health.

The ACP Services and the Koda Health Platform may now or in the future permit Patients to upload documents associated with their Advance Directive (“Patient Documentation”). You will own any Patient Documentation that you upload to the Koda Health Platform. However, by uploading any Patient Documentation to or through the Koda Health Platform, you hereby grant to Koda Health a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable, assignable, fully paid-up, royalty-free, license to access and use the Patient Documentation in connection with providing the ACP Services for the relevant Patient.

Patient Documentation and Confidential Information.

You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your Patient Documentation and the consequences of uploading any Patient Documentation. By uploading your Patient Documentation, you affirm, represent, and warrant that: (a) you are the Patient and owner of or have the necessary licenses, rights, consents, and permissions to post this Patient Documentation; (b) your Patient Documentation does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (iii) your Patient Documentation does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of any of the Koda Health Services. Violators of these third-party rights may be subject to criminal and civil liability. Koda Health reserves all rights and remedies against any Patients who violate these Terms.

Prohibited Conduct.

BY ACCESSING OR USING THE ACP SERVICES, THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES YOU AGREE NOT TO:

Decipher, decompile, disassemble, reverse engineer, modify, translate, or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the Koda Health Platform or any of the other Koda Health Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
Access or use the ACP Services, the Koda Health Platform or any of the other Koda Health Services for the benefit of anyone other than yourself except in accordance with these Terms, including selling, reselling or distributing, in whole or in part, the ACP Services, the Koda Health Platform or using the ACP Services or the Koda Health Platform as part of a service bureau or outsourcing offering;
Provide any services, directly or indirectly, that are similar to, or based on, the ACP Services, the Koda Health Platform or any of the other Koda Health Services;
Copy, disclose, or distribute any data or other information available through the Koda Health Platform or any of the other Koda Health Services and/or information, in any medium, including without limitation on the Site, by any automated or non-automated “scraping;”
Interfere with, circumvent or disable any security or other technological features or measures of any of the Koda Health Services or attempt to gain unauthorized access to any of the Koda Health Services or its related systems or networks;
Use bots or other automated methods to: access the ACP Services, the Koda Health Platform and/or any of the other Koda Health Services or any Advance Directive or Patient Documents, download any information, send or redirect messages or perform any other activities through any of the Koda Health Services;
Take any action that Koda Health determines, in its sole discretion, imposes or may impose, an unreasonable or disproportionately large load on its infrastructure;
Upload invalid data, viruses, worms or other software agents through the Koda Health Platform and/or any of the other Koda Health Services;
Collect or derive any personally identifiable information, including names, email addresses from the Koda Health Platform and/or any of the other Koda Health Services except as may be expressly contemplated by these Terms and the Privacy Policy;
Impersonate any person or entity, use a fictitious name, or misrepresent your affiliation with a person or entity;
Use the ACP Services, the Koda Health Platform or any of the other Koda Health Services for any unlawful or inappropriate activities, such as transmission of deceptive messages, or harassment; or
Use the Koda Health Services for any commercial solicitation purposes.

Third-Party Sites.

The Koda Health Platform and the other Koda Health Services may now or in the future include links or references to other web sites or services (“Third-Party Sites”) solely as a convenience to Patients and other Users. Koda Health does not endorse any such Third-Party Sites or the services, information, materials, products, or services contained on or accessible through Third-Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through any of the Koda Health Services are solely between you and such advertiser. Access and use of Third-Party Sites, including the information, materials, products, and services on or available through Third-Party Sites are solely at your own risk.

Mobile and Data Services.

You are responsible for any mobile and data charges that you may incur for accessing and using the ACP Services, the Koda Health Platform or any of the other Koda Health Services. If you’re unsure what those charges may be, you should ask your service provider before using any of the Koda Health Services.

Termination; Terms of Service Violations.

Koda Health.

You agree that Koda Health in its sole discretion, for any or no reason, and without penalty, may terminate your access and use of the ACP Services, the Koda Health Platform or any of the other Koda Health Services or any account (or any part thereof) that you may have with Koda Health and remove and discard all or any part of your account, user profile, at any time. Koda Health may also in its sole discretion and at any time prohibit you from accessing and using the ACP Services, the Koda Health Platform or discontinue providing access to the ACP Services, the Koda Health Platform or any of the other Koda Health Services, or any part thereof, with or without notice. You agree that any termination of your ability to access or use the ACP Services, the Koda Health Platform or any of the other Koda Health Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Koda Health will not be liable to you or any third party for any such termination. Koda Health reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Koda Health to disclose the identity of anyone that is believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies that Koda Health may have at law or in equity. As provided herein, Koda Health does not permit copyright infringing activities on the Koda Health Platform, the Site or any of the other Koda Health Services, and Koda Health shall be permitted to terminate access to the ACP Services, the Koda Health Platform or any of the other Koda Health Services. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD KODA HEALTH HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY KODA HEALTH DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER KODA HEALTH OR LAW ENFORCEMENT AUTHORITIES.

You.

Your only remedy with respect to any dissatisfaction with (i) the ACP Services, the Koda Health Platform or any of the other Koda Health Services, (ii) any term of these Terms or (iii) any policy or practice of Koda Health in providing the ACP Service or operating the Koda Health Platform or the other Koda Health Services is to terminate your use of the ACP Services, the Koda Health Platform, any of the other Koda Health Services and your account (if any). You may terminate your use of the ACP Services, the Koda Health Services and your account (if any) at any time.

Ownership; Feedback.

All right, title and interest in the ACP Services, the Koda Health Platform, the Site and the other Koda Health Services are owned by Koda Health. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Koda Health Services provided by Koda Health (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Koda Health Platform or any of the other Koda Health Services are the property of Koda Health or its subsidiaries or affiliated companies, and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Koda Health or its affiliates and/or third-party licensors. Except as expressly authorized by Koda Health, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Koda Health reserves all rights not expressly granted in these Terms.

You grant to Koda Health a royalty-free, worldwide, irrevocable, perpetual license to use, publish, edit, translate, distribute, display and incorporate any ratings, comments, suggestions, feedback, improvement requests or other recommendations you provide relating to the ACP Services, the Koda Health Platform or any of the other Koda Health Services without restriction (“Feedback”). You should not submit any Feedback to us that you do not wish to license to us as stated above. We have no obligation (a) to maintain any Feedback in confidence; (b) to pay any compensation for any Feedback; or (c) to respond to any Feedback. You grant us the right to use the name that you submit in connection with any Feedback.

Indemnification.

You agree to indemnify, save, and hold Koda Health, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any third-party claims, losses, damages, or liabilities, including legal fees and expenses, arising out of your use or misuse of the ACP Services, the Koda Health Platform, the Site or any of the other Koda Health Services, any Patient Documentation, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. Koda Health reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Koda Health and you agree to cooperate with Koda Health’s defense of these claims. Koda Health will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

No Warranties; Disclaimers.

NO WARRANTIES.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KODA HEALTH AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “KODA HEALTH PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE ACP SERVICES, THE KODA HEALTH PLATFORM, THE SITE AND THE OTHER KODA HEALTH SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, KODA HEALTH PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE ACP SERVICES, THE KODA HEALTH PLATFORM, THE SITE OR THE OTHER KODA HEALTH SERVICES, INCLUDING, WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE KODA HEALTH PARTIES OR THROUGH THE ACP SERVICES, THE KODA HEALTH PLATFORM, THE SITE OR THE OTHER KODA HEALTH SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

“As Is” and “As AVAILABLE” AND “WITH ALL FAULTS”.

YOU EXPRESSLY AGREE THAT THE ACP SERVICES, THE KODA HEALTH PLATFORM, THE SITE OR ANY OF THE OTHER KODA HEALTH SERVICES, ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD-PARTY SITE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ACP SERVICES, THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

Koda Health Platform Operations and Content.

THE KODA HEALTH PARTIES DO NOT WARRANT THAT THE DATA, RESULTS, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE ACP SERVICES, THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES, OR ANY THIRD-PARTY SITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

Accuracy.

EXCEPT AS SPECIFICALLY PROVIDED IN WRITING BY KODA HEALTH, THE KODA HEALTH PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE ACP SERVICES, THE KODA HEALTH PLATFORM AND THE OTHER KODA HEALTH SERVICES OR ANY THIRD-PARTY SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

Harm to Your Computer.

YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN CONTENT, INFORMATION, MATERIALS, ASSESSMENTS, RESULTS OR DATA THROUGH THE ACP SERVICES, THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES OR ANY THIRD-PARTY SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

LIMITATION OF LIABILITY AND DAMAGES.

Limitation of Liability.

UNDER NO CIRCUMSTANCES, INCLUDING, NEGLIGENCE, WILL THE KODA HEALTH PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE ACP SERVICES, THE KODA HEALTH PLATFORM, THE SITE OR ANY OF THE OTHER KODA HEALTH SERVICES OR ANY THIRD-PARTY SITE, EVEN IF KODA HEALTH OR A KODA HEALTH AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, KODA HEALTH’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

Limitation of Damages.

IN NO EVENT WILL THE KODA HEALTH PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO YOUR ACCESS AND USE OF THE ACP SERVICES, THE KODA HEALTH PLATFORM, THE SITE OR ANY OF THE OTHER KODA HEALTH SERVICES OR THESE TERMS, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE GREATER OF (A) $25 AND (B) AN AMOUNT EQUAL TO THE FEES PAID BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

Release for Disputes between Users.

If you have a dispute with any other Users (including any other Patient) or other third parties, you hereby release Koda Health and the other Koda Health Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Third-party Sites.

THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN KODA HEALTH AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE KODA HEALTH SERVICES OR RECEIVED THROUGH ANY THIRD-PARTY SITES.

Basis of the Bargain.

YOU ACKNOWLEDGE AND AGREE THAT KODA HEALTH HAS OFFERED THE ACP SERVICES, THE KODA HEALTH PLATFORM, THE SITE AND THE OTHER KODA HEALTH SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND KODA HEALTH, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND KODA HEALTH. KODA HEALTH WOULD NOT BE ABLE TO PROVIDE THE ACP SERVICES, THE KODA HEALTH PLATFORM OR ANY OF THE OTHER KODA HEALTH SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

Limitations by Applicable Law.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.

Export Controls.

You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the Koda Health Platform or other Koda Health Services or any underlying intellectual property, information or technology except in full compliance with all United States, foreign and other applicable export control laws and regulations.

Miscellaneous.

Notice.

Koda Health may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on any of the Koda Health Services. Notice will be deemed given twenty-four hours after the email is sent, unless Koda Health is notified that the email address is invalid. Alternatively, Koda Health may give you legal notice by mail to a postal address, if provided by you through any of the Koda Health Services. In such case, notice will be deemed given three (3) days after the date of mailing. Notices posted on any of the Koda Health Services are deemed given thirty (30) days following the initial posting.

Waiver.

The failure of Koda Health to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Koda Health.

Dispute Resolution.

If a dispute arises between you and Koda Health, the goal is to provide you with a neutral and cost-effective method of resolving the dispute quickly. Accordingly, you and Koda Health agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the ACP Services, the Koda Health Platform, the Site or any of the other Koda Health Services (a “Dispute”) will be resolved in accordance with this Section 20.3 or as Koda Health and you otherwise agree in writing. Before resorting to these dispute methods, Koda Health strongly encourages you to first contact Koda Health directly to seek a resolution.

(a) Choice of Law. These Terms shall be governed in all respects by the laws of the State of Texas, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS OR ANY OF THE KODA HEALTH SERVICES.

(b) Arbitration and Class Action Waiver.
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS

(i) ARBITRATION. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND KODA HEALTH (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS OR ANY OF THE KODA HEALTH SERVICES, INCLUDING WITHOUT LIMITATION YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION AND YOU AND KODA HEALTH HEREBY EXPRESSLY WAIVE TRIAL BY JURY. ANY ARBITRATION SHALL BE IN ENGLISH AND THE PLACE OF ARBITRATION SHALL BE HOUSTON, TEXAS. YOUR ARBITRATION FEES AND YOUR SHARE OF ARBITRATOR COMPENSATION SHALL BE GOVERNED BY SUCH RULES. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND KODA HEALTH WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU MAY BRING DISPUTES ONLY ON YOUR OWN BEHALF.

Neither you nor Koda Health will participate in a class action or class-wide arbitration for any disputes covered by these Terms to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST KODA HEALTH INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Koda Health is a party to the proceeding.

This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.

(ii) Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 20.3(b) is found not to apply to you or your claim, you and Koda Health agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts covering Houston, TX. Both you and Koda Health irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Koda Health may bring a claim for equitable relief in any court with proper jurisdiction.

(iii) Survival. This arbitration agreement will survive the termination of your use of the Koda Health Platform or any of the other Koda Health Services or your relationship with Koda Health.

(c) 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section 20.3 above by sending written notice of your decision to opt-out to care@kodahealthcare.com. The notice must be sent to Koda Health within thirty (30) days of your use of any of the Koda Health Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.

(d) Improperly Filed Claims. All claims you bring against Koda Health must be resolved in accordance with this Section 20.3. All claims filed or brought contrary to this Section 20.3 shall be considered improperly filed. Should you file a claim contrary to this Section 20.3, Koda Health may recover attorneys’ fees and costs up to $15,000, provided that Koda Health has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

(e) Prevailing Party. In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to these Terms, the Privacy Policy, or any of the other Koda Health Services, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.

(f) Limitation on Time to File Claims. ANY CAUSE OF ACTION OR DISPUTE YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE PRIVACY POLICY, ANY OF THE KODA HEALTH SERVICES OR YOUR RELATIONSHIP WITH KODA HEALTH MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR DISPUTE IS PERMANENTLY BARRED.

Severability.

If any provision of these Terms (including any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

Relationship of the Parties.

The parties agree that nothing in these Terms shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the parties, or as authorizing either party to act as the agent of the other. Nothing in these Terms shall create any obligation between either party and a third party.

Assignment.

These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Koda Health without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

Survival.

Upon termination of these Terms, your use of the Site, any of the other Koda Health Services or your relationship with Koda Health any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 2 and 9 – 20.

Headings.

The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

Entire Agreement.

These Terms, together with the Privacy Policy and the Policies, are the entire agreement between you and Koda Health relating to the subject matter herein and will not be modified except by a change to these Terms or Policies made by Koda Health as set forth in Section 8 above.

No Agency.

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.

Geographic Restrictions.

Koda Health is based in the state of Texas in the United States. Koda Health makes no claims that accessing or using any of the Koda Health Services or any of the content is accessible or appropriate outside of the United States. Accessing or using the Koda Health Platform, the Site or any of the other Koda Health Services may not be legal by certain persons or in certain countries. If you access any of these Koda Health Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Koda Health with respect thereto.

Electronic Communications.

The communications between you and Koda Health use electronic means, whether you visit the Site or the other Koda Health Services or send Koda Health e-mails, or whether Koda Health posts notices on the Site or the other Koda Health Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Koda Health in an electronic form; and (b) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Koda Health provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your statutory rights.

Disclosures.

The Koda Health Platform, the Site and the other Koda Health Services are offered by Koda Health, Inc., PO Box 66218, Houston, TX, 77266 and email: care@kodahealthcare.com.

If you are a California resident, you may have this same information emailed to you by sending a request for this information to care@kodahealthcare.com.

California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.