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BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement is incorporated by reference into the Terms of Service where Customer is a Covered Entity (as defined below).

  1. DEFINITIONS:

    The following terms shall have the following meaning when used in this Agreement:

    1. "Breach" shall have the same meaning as the term "breach" in 45 C.F.R. § 164.402.
    2. "Company" shall mean Common Sun, Inc. d.b.a. Heymarket, and is the Business Associate as defined at 45 C.F.R. § 160.103.
    3. "Customer" shall mean the Covered Entity as defined at 45 C.F.R. § 160.103.
    4. "Designated Record Set" shall have the same meaning as the term "designated record set" in 45 C.F.R. § 164.501.
    5. "Electronic Protected Health Information" shall mean Protected Health Information that is "electronic protected health information" as defined in 45 C.F.R. § 160.103.
    6. "HIPAA" shall mean the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, and the regulations promulgated under these statutes.
    7. "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).
    8. "Protected Health Information" 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 Customer, or created, maintained or received on behalf of Customer.
    9. "Unsecured Protected Health Information" shall mean Protected Health Information that is "unsecured protected health information" as defined in 45 C.F.R. § 164.402.
    10. "Required By Law" shall have the same meaning as the term "required by law" in 45 C.F.R. § 164.103.
    11. "Secretary" shall mean the Secretary of HHS or the designee of the Secretary of HHS.
    12. "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 Protected Health Information on behalf of Company.

    Any capitalized term not specifically defined herein shall have the same meaning as is set forth 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 COMPANY:

    1. Company agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.
    2. Company agrees use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.
    3. Company agrees to report to the Customer any use or disclosure of Protected Health Information not provided for by this Agreement, including, without limitation, Breaches of Unsecured Protected Health Information as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware. The parties acknowledge and agree that this Section 2(c) constitutes notice by Company to Customer of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Customer shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on Company’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 Company is aware, in unauthorized access, use or disclosure of Electronic Protected Health Information.
    4. In accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Company agrees to ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Company agree in writing to substantially the same restrictions, conditions, and requirements that apply to Company under this Agreement with respect to such Protected Health Information.
    5. Company agrees to make available Protected Health Information in a Designated Record Set to Customer as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.524 or any business associate agreement.
    6. Company agrees to make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Customer pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.526 or any business associate agreement.
    7. Company agrees to maintain and make available the information required to provide an accounting of disclosures to Customer as necessary to satisfy Customer’s obligations under 45 C.F.R. § 164.528 or any business associate agreement.
    8. To the extent that Company is to carry out one or more of Customer’s obligations under Subpart E of 45 C.F.R. Part 164, Company agrees to comply with the requirements of Subpart E that apply to Customer in the performance of such obligations.
    9. Company 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 COMPANY:

    1. Company may only use or disclose Protected Health Information as necessary to perform the Agreement. In addition, Company is authorized to use Protected Health Information to de-identify the Protected Health Information in accordance with 45 C.F.R. 164.514(a)-(c).
    2. Company may use or disclose Protected Health Information as Required By Law.
    3. Company agrees to make uses and disclosures and requests for Protected Health Information consistent with Customer’s minimum necessary policies and procedures.
    4. Company may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Customer, except for the specific uses and disclosures set forth in subsections (e), (f) and (g), below.
    5. Company may use Protected Health Information for the proper management and administration of the Company or to carry out the legal responsibilities of the Company.
    6. Company may disclose Protected Health Information for the proper management and administration of the Company or to carry out the legal responsibilities of the Company, provided the disclosures are Required By Law, or Company 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 notified Company of any instances of which it is aware in which the confidentiality of the information has been breached.
    7. Company may provide Data Aggregation services relating to the Health Care Operations of Customer.

  4. OBLIGATIONS OF CUSTOMER:

    1. Customer shall notify Company of any limitation(s) in the notice of privacy practices of Customer or, if Customer is a Business Associate, any Covered Entity served by Customer, under 45 C.F.R. 164.520, to the extent that such limitation may affect Company’s use or disclosure of Protected Health Information.
    2. Customer shall notify Company of any changes in, or revocation of, the permission by an Individual to use or disclose his or her Protected Health Information, to the extent that such changes may affect Company’s use or disclosure of Protected Health Information.
    3. Customer shall notify Company of any restriction on the use or disclosure of Protected Health Information that Customer has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Company’s use or disclosure of Protected Health Information.
    4. Except with respect to uses and disclosures by Company of Protected Health Information under Sections 3(e), 3(f) and 3(g), above, Customer shall not request Company to use or disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Customer. Customer acknowledges that the services provided under this agreement include SMS text messaging which is and while Company provides end to end encryption, the messages in transit are not fully secure. Customer represents and warrants that Customer (i) shall advise, or has advised, all patients with whom Customer communicates that SMS is not secure in transit; (ii) has obtained, or will obtain, consent from its patients to communicate via SMS; and (iii) shall take steps to mitigate the risks associated with SMS text messaging by limiting the information transmitted to non-sensitive PHI and the minimum necessary to accomplish the goal of the communication between Customer and its patients.

  5. TERMINATION:

    1. Obligations of Company Upon Termination. Upon termination of the Agreement for any reason, Company shall:

      1. Retain only that Protected Health Information which is necessary for Company to continue its proper management and administration or to carry out its legal responsibilities;
      2. Return to Customer or Customer’s designee (to the extent permitted by HIPAA), or, if agreed to by Customer, destroy the remaining Protected Health Information that the Company still maintains in any form;
      3. Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information to prevent use or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Company retains Protected Health Information;
      4. Not use or disclose Protected Health Information retained by Company other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Section 3 (e) and (f), above, which applied prior to termination; and
      5. Return to Customer, or, if agreed to by Customer, destroy Protected Health Information retained by Company when it is no longer needed by Company for its proper management and administration or to carry out its legal responsibilities.

    2. Survival. The obligations of Company under this Section 5 shall survive the termination of the Agreement.

  6. MISCELLANEOUS:

    1. Regulatory References. A reference in this Business Associate Agreement to a section in the HIPAA regulations means the provision as in effect or as amended.

    2. Amendment. The parties agree to take such action as is necessary to amend this Business Associate Agreement from time to time as is necessary for the Customer to comply with the requirements of the HIPAA and any other applicable law.

    3. Interpretation. Any ambiguity in this Business Associate Agreement shall be resolved to permit compliance with HIPAA.

    4. Controlling Provisions. In the event that it is impossible to comply with both the Terms and Conditions and this Business Associate Agreement, the Business Associate Agreement shall control with respect to those provisions of each agreement that expressly conflict.