This agreement is between zHealth, Inc., a California corporation (zHealth) and the customer agreeing to these terms (Customer).

1) BILLING SERVICE

1. Billing Service. zHealth will provide its billing services to Customer during the term of the applicable order which will include access to the Online Software Service components of the billing service (collectively, Billing Services).

• Online Software Service means the web-based functionality provided to Customer as part of the billing services under this agreement.

2) USE OF BILLING SERVICE

1. zHealth and Customer Responsibilities. Additional responsibilities of each party pertaining to delivery of the Billing Services are defined at the Responsibilities page and will be periodically updated to comply with regulatory requirements, enhance delivery and use, as well as improvements for operational efficiency and to meet the general business needs of zHealth and its customers. Please review this Responsibilities page as it has important obligations Customer must comply with. zHealth will make reasonable efforts to notify electronically Customer of any significant changes, but Customer ultimately is responsible for complying with their listed responsibilities and checking the website for any changes.

2. Access by Employees and Contractors. Customer may allow its employees and contractors to use the Billing Services in compliance with this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its employees and contractors.

3. Customer Data. All data entered by Customer or supplied to zHealth by the Customer for data entry is the property of Customer, as between zHealth and Customer (Customer Data), subject to the other terms of this agreement. Customer grants zHealth a non-exclusive term license to use, modify and otherwise make available the Customer Data for purposes of zHealth performing under this agreement. Customer may at any time download the Customer Data as allowed by online functionality within the Billing Service.

4. Patient Payments and Appointment of zHealth as Payment Processing Agent. The Billing Service requires the use of the zHealth Patient Payments process to maximize patient collections and minimize payment delays. Any merchant service and similar fees associated with patient payments are owed by Customer directly to the third party payment processor and are separate from any Billing Services fees of zHealth.

• Payment Processing Agent. Customer hereby appoints zHealth as its limited patient payment processing agent in order for zHealth to accept credit card information from patients and input such information into Customer’s third party payment processing service. By providing the third party payment processing account information to zHealth, Customer represents and warrants to zHealth, (i) that zHealth is authorized to use the third party payment processing account on Customer’s behalf as its agent, (ii) Customer is authorized to appoint zHealth as its payment processing agent under Customer’s contract with the third party payment processor and that contract is full force and effect, and (iii) all the information provided to zHealth regarding its third party payment processing account is accurate and true. Customer must immediately notify zHealth of any changes to Customer’s third party payment processing account which could affect zHealth’s processing of any payments.

5. Accuracy of Information. Customer represents and warrants to zHealth that all data, information, documentation and other material provided under Customer’s account or by Customer are true, correct and accurate. If Customer learns that any item provided to zHealth as part of the Billing Service is not true, correct or accurate, Customer must immediately notify zHealth via phone (so as not to delay resolution or to prevent submission of incorrect claim) and in writing, and provide the true, correct and accurate information to zHealth. Customer represents and warrants that all encounter data submitted to zHealth for payer or patient reimbursement has actually been performed on patients, is entirely accurate and truthful, is properly documented and meets all payer requirements including medical necessity. Customer acknowledges that the proper payer required notification has been given to the patient regarding their financial responsibility in cases where the procedure is not covered by their insurance plan or does not meet medical necessity. Customer represents and warrants that any procedures or services not directly rendered by the physician are actually performed by a licensed (as required by state law) professional that is trained and recognized by the payer as authorized to perform the procedure and that the encounter meets supervision requirements as defined by the payer.

6. Timeliness of Data and Cooperation. Customer understands that the performance by zHealth under this agreement is dependent on accurate and complete information from Customer and Customer’s fully and timely cooperation. Any delay on the part of Customer to provide accurate and complete information, or to cooperate with zHealth, could, for example, significantly inhibit zHealth’s ability to submit and recover claims on behalf of Customer. In addition, without limitation, claims may have timely filing windows and if these windows are missed then claims may not be paid and such claims may be transferred to the patient. ZHEALTH IS NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAYS BY CUSTOMER IN PROVIDING CORRECT OR MISSING INFORMATION, IRRESPECTIVE OF ANY ACT OR OMISSION ON THE PART OF ZHEALTH.

7. Coding of Services. Customer acknowledges that the Billing Service provides a conduit between the Customer and payers, that the Billing Service does not include coding of services (CPT-4 and Level II HCPCS Procedure Codes, Procedure Modifiers and ICD-10-CM, that the Billing Service is relying entirely on the claims and billing information supplied by Customer, and that Customer is solely responsible for providing all the appropriate codes to submit the claims.

8. Clean Claim Requirement. Customer represents and warrants to zHealth that the individual encounter data provided to zHealth is complete and contains all data required for submission and reimbursement from insurance plans, patients or account guarantors. If an incomplete encounter (super bill) is submitted to zHealth and is deemed unbillable, a request for the missing data will be provided to Customer and no further action will be taken on the encounter until the missing data is provided. zHealth will maintain a list of all the outstanding items and Customer will have access to the list for audit and resolution.

9. Error Correction. zHealth does not have the authority to alter or perform any coding changes to the codes supplied by Customer prior to billing third party payers, patients or other responsible parties, other than at the express direction of Customer. In the event of an error, clearinghouse rejection or payer denial, Customer must work with zHealth to determine the proper corrections and revisions as appropriate to correct the error so long as the correction complies with billing guidelines. Customer represents and warrants that all corrected data submitted is accurate and supported by appropriate documentation in the patient’s health record.

10. Compliance. Customer must conduct auditing and monitoring as part of its compliance program and to refund any identified overpayments to payers or patients within 60 days of discovery. If any investigation is initiated or any action is brought by any individual, state or federal agency, insurance payer or third party whatsoever regarding any of the claims filed as part of the Billing Service on behalf of Customer, then Customer must cooperate fully in any such investigation or action and must provide all relevant supporting documentation to support the claims filed upon request.

11. Service Exclusivity. Customer agrees that zHealth will have exclusive rights to perform all components of billing and collections for services rendered by Customer to its patients after the start date designated in the order. Customer may not outsource any component of its billing and collections for all services rendered by Customer after the start date to any other third party or perform any portion of the billing and collections in-house during the term of the order.

12. No Assignment of Claims. No payment to or receivable of Customer is assigned to zHealth, and zHealth is not the beneficiary of any such payment or receivable. All such payments and receivables (including, but not limited to, checks and electronic fund transfers) will be payable to Customer and will remain the property of Customer. zHealth will not endorse or sign any such check or instrument. Any lockbox or other account into which Customer payments or receivables are deposited will remain in the name of, and under the sole ownership and control of, Customer and subject only to the instructions of Customer. zHealth will not be a signatory on or have any power to transfer or withdraw from any account into which Customer payments or receivables from any federally funded program are deposited.

13. Aggregate Data. zHealth may use during and after this agreement all aggregate non-identifiable information and data for purposes of enhancing the Billing Service, technical support and other internal and external business purposes, all in compliance with the HIPAA Privacy Standards, including without limitation the limited data set and de-identification of information regulations.

14. Specific Restrictions and Responsibilities. Customer may not (i) sell, resell, rent or lease the Billing Service, (ii) use the Online Software Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights), (iii) interfere with or disrupt the integrity or performance of any Online Software Service, (iv) attempt to gain unauthorized access to the Online Software Service or its related systems or networks, (v) reverse engineer the Online Software Service or remove or modify any proprietary marking or restrictive legends in Online Software Service, or (v) access the Online Software Service to build a competitive product or service, or copy any feature, function or graphic of the Online Software Service for competitive purposes. Customer is solely responsible for Customer Data, must use commercially reasonable efforts to prevent unauthorized access to the Online Software Service, must notify zHealth promptly of any such unauthorized access, and may use the Online Software Service only in accordance with its user guide and applicable law.

15. Beta. If Customer is invited to access any beta features of the Billing Service or a Customer accesses any beta features of the Billing Service, then the following additional terms apply: Customer understands that these features may change and may not become generally available. These features are provided AS IS, with all faults.

3) PAYMENT TERMS

1. Payment. The Billing Service rate and fees are outlined in the order. Customer is also responsible for sales, use and other similar taxes.

2. Payment Due. Customer is required to pay all fees (US$) with a credit card or via ACH. zHealth will charge Customer’s credit card or process ACH payment on the later of (i) 10th day of the month or (ii) within 5 business days from the date of the invoice. If the Customer’s payment method is declined or the payment is not otherwise made, Customer is required to provide another form of payment within 5 business days. Customer is responsible for any processing fees or penalties assessed as a result of the payment rejection. Customer must provide a valid and authorized credit card or ACH information prior to any Billing Services being rendered (for example without limitation, before any onboarding or ongoing Billing Services work).

3. Explanation of Benefits. Customer must provide zHealth with all Explanation of Benefit (EOB) forms related to the Billing Service upon receipt from the payer. This obligation is a material term of this agreement, and any breach of this obligation may lead to a termination of this agreement.

4. Non-Payment Fee. zHealth may suspend or terminate, or both, the Billing Services, without liability, if any fees owing to zHealth are past due by at least 10 days. In order to reinstate Customer’s account, Customer is required to pay all outstanding balances as well as the reinstatement fee defined in the order.

5. Minimum Fees. Minimum monthly Billing Services fee (not including additional service fees (see this link for information on additional service fees) is the minimum fee required to perform Billing Services for the Customer and is defined in the order.

6. Fee Changes on 60 Days’ Notice. All fees may be changed with advance email notice to Customer, which notice will be provided at least 60 days prior to the order renewal date. If Customer disagrees with the fee change then Customer can choose not to renew the Billing Service by providing notice of cancellation to zHealth at least 30 days prior to the order renewal date. See FAQs for information regarding cancellation of service. Customer is responsible for keeping its updated email address on file with zHealth.

• Changes in Rate Quote Commitments. The rates that zHealth charges for its Billing Services are based on Customer’s commitments to specific issues that impact the rate (for example, signing up for Electronic Fund Transfer (EFTs) and using some form of electronic charge capture). If customer does not meet it’s commitments or they were incorrect at the time, the rate must be recalculated and will apply on a go forward basis. If there is a rate change, zHealth will provide Customer with 30 days’ advance electronic notice of the change. Customer is responsible for keeping its updated email address on file with zHealth.

7. Postage Fees. Since postage rate increases are publicly announced by the United States Postal Service, zHealth will automatically apply the rate increase to all services impacted by the change without advance notice.

8. Early Termination Fee. Any Early Termination Fee (defined and specified on an order) is a liquidated damage, not a penalty, and is a reasonable estimate of the damage sustained by zHealth in the event of an early termination of an order by Customer (other than for a material breach on the part of zHealth).

4) WARRANTY

1. Mutual Compliance with Laws Warranty. Each party represents and warrants to the other party that it will comply with all applicable laws regarding its performance under this agreement.

2. No Medical Advice and Disclaimer. zHealth does not provide medical advice, provide medical or diagnostic services, or prescribe medication. Use of the Billing Service is not a substitute for the professional judgment of health care providers in diagnosing and treating patients. Customer agrees that it is solely responsible for verifying the accuracy of patient information (including, without limitation, by obtaining all applicable patients’ medical and medication history and allergies), and for all of its decisions or actions with respect to the medical care, treatment, and well-being of its patients, including without limitation, all of its acts or omissions. Any use or reliance by you upon the Billing Service will not diminish that responsibility. Customer assumes all risks associated with its clinical use of the Billing Service for the treatment of patients. Neither zHealth nor its licensors assume any liability or responsibility for damage or injury (including death) to customer, other persons, or tangible property arising from any use of the Billing Service. zHealth will not be liable for and will not incur any credit or remedy against it for failure to provide Billing Services or functionality with respect to any claim, statement, or transaction that it believes in good faith contains inaccurate, misleading, or otherwise improper information. ZHEALTH DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT BILLING SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE ZHEALTH TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE BILLING SERVICE, ZHEALTH DOES NOT GUARANTY THAT THE BILLING SERVICE OR ONLINE SOFTWARE SERVICE CANNOT BE COMPROMISED.

5) MUTUAL CONFIDENTIALITY

1. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), 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 (Confidential Information). zHealth’s Confidential Information includes without limitation the non-public portions of the Billing Service.

2. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement. The Recipient may disclose Confidential Information to the extent required by law or legal process.

3. Exclusions. Confidential Information excludes information that: is or becomes generally known to the public without breach of any obligation owed to Discloser, was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, is received from a third party without breach of any obligation owed to Discloser, or was independently developed by the Recipient without use or access to the Confidential Information.

6) PROPRIETARY RIGHTS

1. Reservation of Rights by zHealth. The software, workflow processes, user interface, designs and other technologies provided by zHealth as part of the Billing Service and the Online Software Service are the proprietary property of zHealth and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with zHealth. zHealth reserves all rights unless expressly granted in this agreement.

2. AMA Content. The AMA Content is licensed to Customer as follows: zHealth grants Customer a non-exclusive, license for the duration of the Billing Service to use such materials for Customer’s internal use solely with the Billing Service, with the right to make additional copies of the material for such duration and purpose. AMA Content means the coding work of nomenclature and codes for reporting of healthcare services from the print publication Current Procedural Terminology, Fourth Edition and the data file of Current Procedural Terminology (CPT) published by the American Medical Association in the English language as used in the United States.

• AMA Restrictions. Customer may not use outside the United States, publish, distribute or create any derivate work (including without limitation translation), transfer, sell, lease, license or otherwise make available the AMA Content, or a portion or copy of such content, except as expressly provided in this agreement. This sublicense is limited to one user for each active provider associated with Customer’s account. Customer is responsible for seeking additional user licenses directly from the American Medical Association if it requires more than one user license per active provider. CPT is a copyright and a registered trademark, of the American Medical Association.

7) LIMITS ON LIABILITY

1. No Indirect Damage. zHealth is not liable for any indirect, special, or consequential damages (including without limitation, costs of delay, loss of data or information, lost profits or revenue or loss of anticipated costs savings) arising under or related to this agreement, even if advised of the possibility of such loss or damage.  

2. Limit. zHealth’s total liability arising under or related to this agreement (in contract, tort or otherwise) does not exceed the fees charged by zHealth under the order in the 6 month period preceding the event which gave rise to the claim. Any claim by Customer against zHealth must be brought within 12 months of the event which gave rise to the claim, and if it is not brought within such time period then such claim is expressly waived Customer.

8) TERM, TERMINATION, AND RETURN OF DATA

1. Term. Unless this agreement is month-to-month, this agreement shall be effective for an initial term from and after the Effective Date until six month anniversary of the Effective Date. This Agreement shall automatically renew for successive terms of six months unless either party gives notice to the other party at least thirty (30) days prior to the end of the then current term (the “TERMINATION NOTICE DATE”).

2. Termination for Material Breach. Either party may terminate this agreement and the applicable orders if the other party material breaches any term of the agreement or an order and does not cure the breach within 30 days of receipt of written, including email, notice of the breach.

• Additional terms in the Term, Termination and Return of Data FAQ page.

3. Termination for Non-Cooperation. Customer has certain responsibilities which are listed and defined at the Responsibilities page of the order.

• zHealth cannot perform under an order and this agreement without Customer cooperation and completion of certain assigned tasks.
• If Customer fails to complete its tasks when due, zHealth may terminate this agreement and any order for cause upon a 10 day written notice, including email, to Customer regarding the open tasks.
• Customer will be provided with the opportunity to complete the open tasks during this 10-day period.

4. Return of Data. Details outlined in the Term, Termination and Return of Data FAQ page.

5. Customer Actions upon Termination. Upon termination, Customer must pay any unpaid fees and destroy all zHealth property. Customer upon request will confirm in writing that it has complied with this requirement.

6. Suspension or Cancellation of Service for Violations of Law. zHealth may immediately suspend or terminate the Billing Service, or both, and remove applicable Customer Data if it in good faith believes that, as part of using the Billing Service, Customer may have violated a law. zHealth may try to contact Customer in advance, but it is not required to do so.

9) INDEMNITY

1. General Indemnity. Customer must indemnify, defend, and hold harmless zHealth against all third-party claims (including without limitation by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:

• Customer’s breach of any term in this agreement,
• Any claim by Customer’s third party payment processing agent,
• any unauthorized use, access or distribution of the Online Software Service by Customer, or
• violation of any individual’s privacy rights related to information submitted under Customer’s account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account or by Customer.

10) GOVERNING LAW AND ARBITRATION

1. Governing Law. This agreement is governed by the laws of the State of California (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement.

2. General Arbitration Process. Any dispute or claim that may arise between the parties relating in any way to or arising out of this agreement, or Customer’s use of the Billing Services (collectively, Claim), must be resolved exclusively through final and binding arbitration (rather than in court) under the then current commercial or international rules of the American Arbitration Association. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive or equitable relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.

3. Governing Law. This agreement is governed by the laws of the State of California (without regard to  conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement.

4. Optional Arbitration for Claims Less than $10,000. Notwithstanding the foregoing, for any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may choose to resolve the dispute in a more cost effective manner through binding non-appearance-based arbitration. If a party elects arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.

5. PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS. EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL PARTY BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING.

11) OTHER TERMS

1. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement or the order. No representation, promise or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless signed by both parties. The Convention on Contracts for the International Sale of Goods does not apply.

2. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that with respect to successors which are not competitors of the other party, this agreement with all orders may be assigned (without the consent) as part of a merger, or sale of all or substantially all of the business or assets, of a party.

3. Electronic Notice. For purposes of messages and notices about the Billing Service (including without limitation, collections and payments issues), zHealth may send email notices to the email address associated with Customer’s account or provide in service notifications. zHealth has no liability associated with Customer’s failure to maintain accurate contact information within the Billing Service or its failure to review any emails or in service notices.

4. Independent Contractors and Enforceability. The parties are independent contractors with respect to each other. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.

5. No Additional Terms and Conflict. zHealth rejects additional or conflicting terms of a form-purchasing document. If there is an inconsistency between this agreement and an order, the order prevails.

6. Survival of Terms. All terms survive termination of this agreement that by their nature survive for a party to assert its rights and receive the protections of this agreement.

7. Customer Name. zHealth may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of zHealth, which use must be in accordance with Customer’s trademark guidelines and policies.

Last Updated: This policy was last updated on June 12, 2023.