THIS BUSINESS ASSOCIATE AGREEMENT (this “BAA”), is incorporated into and is subject to the terms and conditions of the Master Services Agreement (the “Agreement”) between Customer (also referred to herein as “Business Associate”) and Outmarket AI Inc. (“Outmarket” or “Subcontractor”) (each a “Party” and collectively, the “Parties”) applicable to the Customer’s use of the Service (as defined in the Agreement). This BAA is effective as of Customer’s acceptance of the Agreement (the “Effective Date”).
RECITALS
WHEREAS, Subcontractor has entered into the Agreement for the purposes of providing the Service to Business Associate, and Subcontractor may create, receive, maintain, or transmit Protected Health Information (defined below) in conjunction with the services being provided under the Agreement, thus necessitating a written agreement that meets applicable requirements of the Health Insurance Portability and Accountability Act of 1996, including its implementing regulations (45 C.F.R. Parts 160-64), as amended from time to time (collectively, “HIPAA”); and
WHEREAS, Subcontractor and Business Associate desire to satisfy HIPAA’s requirements through this BAA and otherwise to address related matters regarding HIPAA.
AGREEMENT
NOW THEREFORE, to the extent HIPAA applies to each Party, and in consideration of the mutual agreements and undertakings of the Parties, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Definitions.
The following terms shall have the following meaning when used in this BAA:
a. "Electronic Protected Health Information” or “ePHI” shall have the same meaning given to such term as 45 C.F.R. § 160.103, limited to the information created, received, maintained or transmitted from, or on behalf of, Business Associate.
b. “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g).
c. “Protected Health Information” or “PHI” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information received from Business Associate, or created, maintained or received on behalf of Business Associate. For avoidance of doubt, PHI shall include ePHI.
d. “Subcontractor” shall have the same meaning as the term “subcontractor” in 45 C.F.R. §160.103, except limited to any such individual or entity who creates, receives, maintains, or transmits PHI on behalf of Subcontractor.
Any capitalized term not specifically defined herein shall have the same meaning as is set forth in the Agreement and in 45 C.F.R. Parts 160 and 164, where applicable. The terms “use,” “disclose” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA.
2. Obligations and Activities of Subcontractor.
a. Subcontractor agrees to not use or disclose PHI other than as permitted or required by this BAA, the Agreement, or as Required By Law.
b. Subcontractor agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic PHI, to prevent use or disclosure of the PHI other than as provided for by this BAA.
c. Subcontractor agrees to report to the Business Associate any use or disclosure of PHI not provided for by this BAA, including, without limitation, Breaches of Unsecured PHI as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware without undue delay. The Parties acknowledge and agree that this Section 2(c) constitutes notice by Subcontractor to Business Associate of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Business Associate shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on Subcontractor’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as such incidents do not result, to the extent Subcontractor is aware, in unauthorized access, use or disclosure of Electronic PHI.
d. In accordance with 45 C.F.R. § 164.502(e)(1)(ii) and § 164.308(b)(2), if applicable, Subcontractor agrees to ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of Subcontractor agree in writing to substantially the same restrictions, conditions, and requirements that apply to Subcontractor under this BAA with respect to such PHI.
e. Subcontractor agrees to make available PHI in a Designated Record Set to Business Associate as necessary to satisfy Business Associate’s obligations under 45 C.F.R. § 164.524.
f. Subcontractor agrees to make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by the Business Associate pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Business Associate’s obligations under 45 C.F.R. § 164.526.
g. Subcontractor agrees to maintain and make available the information required to provide an accounting of disclosures to Business Associate as necessary to satisfy Business Associate’s obligations under 45 C.F.R. § 164.528.
h. To the extent that Subcontractor is to carry out one or more of Business Associate’s obligations under Subpart E of 45 C.F.R. Part 164, Subcontractor agrees to comply with the requirements of Subpart E that apply to Business Associate in the performance of such obligations.
i. Subcontractor agrees to make its internal practices, books, and records available to the Secretary for purposes of determining compliance with HIPAA.
3. Permitted Uses and Disclosures by Subcontractor.
a. Subcontractor may use or disclose PHI as reasonably necessary to provide the Service under the Agreement or as otherwise permitted or required by this BAA. In addition, Subcontractor is authorized to use PHI to de-identify the PHI in accordance with 45 C.F.R. 164.502(d) and 164.514(a)-(c). For the avoidance of doubt, such de-identified data will no longer be considered PHI.
b. Subcontractor may use or disclose PHI as permitted or Required By Law.
c. Subcontractor agrees to make uses and disclosures and requests for PHI consistent with Business Associate’s minimum necessary policies and procedures.
d. Subcontractor may not use or disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Business Associate, except for the specific uses and disclosures set forth in subsections (e), (f) and (g), below.
e. Subcontractor may use PHI for its proper management and administration or to carry out its legal responsibilities.
f. Subcontractor may disclose PHI for its proper management and administration or to carry out its legal responsibilities, provided the disclosures are Required By Law, or Subcontractor obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notifies Subcontractor of any instances of which it is aware in which the information’s confidentiality has been breached.
g. Subcontractor may provide Data Aggregation services relating to the Health Care Operations of Business Associate.
4. Obligations of Business Associate.
a. Business Associate shall promptly notify Subcontractor of any limitation(s) in the notice of privacy practices of Covered Entity under 45 C.F.R. 164.520, to the extent that such limitation may affect Subcontractor’s use or disclosure of PHI.
b. Business Associate shall notify Subcontractor of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Subcontractor’s use or disclosure of PHI, prior to the effective date of such revocation.
c. Business Associate shall notify Subcontractor of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Subcontractor’s use or disclosure of PHI, prior to the effective date of such restriction.
d. Business Associate shall obtain any authorization or consents as may be required for any of the uses or disclosures of PHI pursuant to this BAA or the Agreement.
e. Business Associate shall not request Subcontractor to use or disclose PHI in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Business Associate.
5. Term and Termination.
a. Term.
The Term of this BAA shall commence as of the Effective Date and shall terminate upon the termination of the Agreement or on the date either Party terminates this BAA for cause as authorized in subsection (b) of this Section 5, whichever is sooner.
b. Termination for Cause.
Each Party authorizes termination of this BAA by the other Party if a Party determines the other Party has breached a material term of this BAA and the breach is not cured within thirty (30) days after the breaching Party’s receipt of written notice of the alleged breach.
c. Obligations of Subcontractor Upon Termination.
Upon termination of this BAA for any reason, Subcontractor shall:
(i) Retain only that PHI which is necessary for Subcontractor to continue its proper management and administration or to carry out its legal responsibilities;
(ii) Return to Business Associate or Business Associate’s designee (to the extent permitted by HIPAA) if feasible, or, if feasible and agreed to by Business Associate, destroy the remaining PHI that the Subcontractor still maintains in any form;
(iii) Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Subcontractor retains PHI;
(iv) Not use or disclose PHI retained by Subcontractor other than for the purposes for which such PHI was retained and subject to the same conditions set out at Section 3 (e) and (f), above, which applied prior to termination; and
(v) Return to Business Associate, or, if agreed to by Business Associate, destroy PHI retained by Subcontractor when it is no longer needed by Subcontractor for its proper management and administration or to carry out its legal responsibilities.
d. Survival.
The obligations of Subcontractor under this Section 5 shall survive the termination of this BAA.
6. Notices.
Any notice, consent, request or other communication required or permitted under this BAA shall be in writing and delivered in the manner set forth in the Agreement.
7. Miscellaneous.
a. Regulatory References.
A reference in this BAA to HIPAA means the provision as in effect or as amended.
b. Amendment.
The Parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for the Business Associate to comply with the requirements of HIPAA and any other applicable law.
c. Interpretation.
Any ambiguity in this BAA shall be resolved to permit compliance with HIPAA.
d. No Third Party Beneficiary.
Nothing express or implied in this BAA is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the Parties’ respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
e. Controlling Provisions.
In the event that it is impossible to comply with both the Agreement and this BAA, the provisions of this BAA shall control with respect to those provisions of each agreement that expressly conflict with regard to the subject matter herein. This BAA shall supersede and replace any prior business associate agreements between the Parties, with respect to any actions of Subcontractor after the Effective Date.
f. Effect.
This BAA shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors, assigns, heirs, executors, administrators and other legal representatives.
g. Severability.
In the event any provision of this BAA is rendered invalid or unenforceable under any new or existing law or regulation, or declared null and void by any court of competent jurisdiction, the remainder of this BAA's provisions shall remain in full force and effect if it reasonably can be given effect.
THIS BUSINESS ASSOCIATE AGREEMENT (this “BAA”), is incorporated into and is subject to the terms and conditions of the Master Services Agreement (the “Agreement”) between Customer (also referred to herein as “Business Associate”) and Outmarket AI Inc. (“Outmarket” or “Subcontractor”) (each a “Party” and collectively, the “Parties”) applicable to the Customer’s use of the Service (as defined in the Agreement). This BAA is effective as of Customer’s acceptance of the Agreement (the “Effective Date”).
RECITALS
WHEREAS, Subcontractor has entered into the Agreement for the purposes of providing the Service to Business Associate, and Subcontractor may create, receive, maintain, or transmit Protected Health Information (defined below) in conjunction with the services being provided under the Agreement, thus necessitating a written agreement that meets applicable requirements of the Health Insurance Portability and Accountability Act of 1996, including its implementing regulations (45 C.F.R. Parts 160-64), as amended from time to time (collectively, “HIPAA”); and
WHEREAS, Subcontractor and Business Associate desire to satisfy HIPAA’s requirements through this BAA and otherwise to address related matters regarding HIPAA.
AGREEMENT
NOW THEREFORE, to the extent HIPAA applies to each Party, and in consideration of the mutual agreements and undertakings of the Parties, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Definitions.
The following terms shall have the following meaning when used in this BAA:
a. "Electronic Protected Health Information” or “ePHI” shall have the same meaning given to such term as 45 C.F.R. § 160.103, limited to the information created, received, maintained or transmitted from, or on behalf of, Business Associate.
b. “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g).
c. “Protected Health Information” or “PHI” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information received from Business Associate, or created, maintained or received on behalf of Business Associate. For avoidance of doubt, PHI shall include ePHI.
d. “Subcontractor” shall have the same meaning as the term “subcontractor” in 45 C.F.R. §160.103, except limited to any such individual or entity who creates, receives, maintains, or transmits PHI on behalf of Subcontractor.
Any capitalized term not specifically defined herein shall have the same meaning as is set forth in the Agreement and in 45 C.F.R. Parts 160 and 164, where applicable. The terms “use,” “disclose” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA.
2. Obligations and Activities of Subcontractor.
a. Subcontractor agrees to not use or disclose PHI other than as permitted or required by this BAA, the Agreement, or as Required By Law.
b. Subcontractor agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic PHI, to prevent use or disclosure of the PHI other than as provided for by this BAA.
c. Subcontractor agrees to report to the Business Associate any use or disclosure of PHI not provided for by this BAA, including, without limitation, Breaches of Unsecured PHI as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware without undue delay. The Parties acknowledge and agree that this Section 2(c) constitutes notice by Subcontractor to Business Associate of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Business Associate shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on Subcontractor’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as such incidents do not result, to the extent Subcontractor is aware, in unauthorized access, use or disclosure of Electronic PHI.
d. In accordance with 45 C.F.R. § 164.502(e)(1)(ii) and § 164.308(b)(2), if applicable, Subcontractor agrees to ensure that any Subcontractors that create, receive, maintain, or transmit PHI on behalf of Subcontractor agree in writing to substantially the same restrictions, conditions, and requirements that apply to Subcontractor under this BAA with respect to such PHI.
e. Subcontractor agrees to make available PHI in a Designated Record Set to Business Associate as necessary to satisfy Business Associate’s obligations under 45 C.F.R. § 164.524.
f. Subcontractor agrees to make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by the Business Associate pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Business Associate’s obligations under 45 C.F.R. § 164.526.
g. Subcontractor agrees to maintain and make available the information required to provide an accounting of disclosures to Business Associate as necessary to satisfy Business Associate’s obligations under 45 C.F.R. § 164.528.
h. To the extent that Subcontractor is to carry out one or more of Business Associate’s obligations under Subpart E of 45 C.F.R. Part 164, Subcontractor agrees to comply with the requirements of Subpart E that apply to Business Associate in the performance of such obligations.
i. Subcontractor agrees to make its internal practices, books, and records available to the Secretary for purposes of determining compliance with HIPAA.
3. Permitted Uses and Disclosures by Subcontractor.
a. Subcontractor may use or disclose PHI as reasonably necessary to provide the Service under the Agreement or as otherwise permitted or required by this BAA. In addition, Subcontractor is authorized to use PHI to de-identify the PHI in accordance with 45 C.F.R. 164.502(d) and 164.514(a)-(c). For the avoidance of doubt, such de-identified data will no longer be considered PHI.
b. Subcontractor may use or disclose PHI as permitted or Required By Law.
c. Subcontractor agrees to make uses and disclosures and requests for PHI consistent with Business Associate’s minimum necessary policies and procedures.
d. Subcontractor may not use or disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Business Associate, except for the specific uses and disclosures set forth in subsections (e), (f) and (g), below.
e. Subcontractor may use PHI for its proper management and administration or to carry out its legal responsibilities.
f. Subcontractor may disclose PHI for its proper management and administration or to carry out its legal responsibilities, provided the disclosures are Required By Law, or Subcontractor obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notifies Subcontractor of any instances of which it is aware in which the information’s confidentiality has been breached.
g. Subcontractor may provide Data Aggregation services relating to the Health Care Operations of Business Associate.
4. Obligations of Business Associate.
a. Business Associate shall promptly notify Subcontractor of any limitation(s) in the notice of privacy practices of Covered Entity under 45 C.F.R. 164.520, to the extent that such limitation may affect Subcontractor’s use or disclosure of PHI.
b. Business Associate shall notify Subcontractor of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Subcontractor’s use or disclosure of PHI, prior to the effective date of such revocation.
c. Business Associate shall notify Subcontractor of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Subcontractor’s use or disclosure of PHI, prior to the effective date of such restriction.
d. Business Associate shall obtain any authorization or consents as may be required for any of the uses or disclosures of PHI pursuant to this BAA or the Agreement.
e. Business Associate shall not request Subcontractor to use or disclose PHI in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Business Associate.
5. Term and Termination.
a. Term.
The Term of this BAA shall commence as of the Effective Date and shall terminate upon the termination of the Agreement or on the date either Party terminates this BAA for cause as authorized in subsection (b) of this Section 5, whichever is sooner.
b. Termination for Cause.
Each Party authorizes termination of this BAA by the other Party if a Party determines the other Party has breached a material term of this BAA and the breach is not cured within thirty (30) days after the breaching Party’s receipt of written notice of the alleged breach.
c. Obligations of Subcontractor Upon Termination.
Upon termination of this BAA for any reason, Subcontractor shall:
(i) Retain only that PHI which is necessary for Subcontractor to continue its proper management and administration or to carry out its legal responsibilities;
(ii) Return to Business Associate or Business Associate’s designee (to the extent permitted by HIPAA) if feasible, or, if feasible and agreed to by Business Associate, destroy the remaining PHI that the Subcontractor still maintains in any form;
(iii) Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Subcontractor retains PHI;
(iv) Not use or disclose PHI retained by Subcontractor other than for the purposes for which such PHI was retained and subject to the same conditions set out at Section 3 (e) and (f), above, which applied prior to termination; and
(v) Return to Business Associate, or, if agreed to by Business Associate, destroy PHI retained by Subcontractor when it is no longer needed by Subcontractor for its proper management and administration or to carry out its legal responsibilities.
d. Survival.
The obligations of Subcontractor under this Section 5 shall survive the termination of this BAA.
6. Notices.
Any notice, consent, request or other communication required or permitted under this BAA shall be in writing and delivered in the manner set forth in the Agreement.
7. Miscellaneous.
a. Regulatory References.
A reference in this BAA to HIPAA means the provision as in effect or as amended.
b. Amendment.
The Parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for the Business Associate to comply with the requirements of HIPAA and any other applicable law.
c. Interpretation.
Any ambiguity in this BAA shall be resolved to permit compliance with HIPAA.
d. No Third Party Beneficiary.
Nothing express or implied in this BAA is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the Parties’ respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
e. Controlling Provisions.
In the event that it is impossible to comply with both the Agreement and this BAA, the provisions of this BAA shall control with respect to those provisions of each agreement that expressly conflict with regard to the subject matter herein. This BAA shall supersede and replace any prior business associate agreements between the Parties, with respect to any actions of Subcontractor after the Effective Date.
f. Effect.
This BAA shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors, assigns, heirs, executors, administrators and other legal representatives.
g. Severability.
In the event any provision of this BAA is rendered invalid or unenforceable under any new or existing law or regulation, or declared null and void by any court of competent jurisdiction, the remainder of this BAA's provisions shall remain in full force and effect if it reasonably can be given effect.