Business Associate Agreement
Business Associate Agreement
If you are a Covered Entity or a Business Associate of a Covered Entity, under the HIPAA Rules and, pursuant to the Services Agreement1 between you (as “Purchaser”) and Azurative LLC, a Texas limited liability company (“Provider”), Purchaser provides/transmits or stores any Protected Health Information to or with Provider, then the terms of this Business Associate Agreement (the “Agreement”) shall apply. The terms of this Business Associate Agreement are limited to the receipt and handling of Protected Health Information.
By providing or transmitting Protected Health Information to Provider, Purchaser hereby agrees to the terms of this Agreement and the obligations herein stated regarding the relation of the parties as a Covered Entity and Business Associate.
This Agreement is otherwise a part of, is subject to, and is governed by the Provider’s Terms of Service and is only in effect while the Purchaser is under a paid subscription for Provider’s service for the related Purchaser data that is Protected Health Information.
Definitions Terms used but not otherwise defined in this Agreement shall have the same meaning as those terms in 45 CFR part 160 and part 164, including §§ 160.103, 164.103, 164.304, and 164.501.
Notwithstanding the above,
- “Business Associate” shall mean Provider.
- “Covered Entity” shall mean the Purchaser.
- “HITECH Act” shall mean the Health Information and Technology for Economic and Clinical Health Act of 2009.
- “ARRA” shall mean the American Recover and Reinvestment Act of 2009.
- “Individual” shall mean the person who is the subject of the Protected Health Information and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
- “Protected Health Information” shall have the meaning defined in 45 CFR §160.103, limited to the information created, received or maintained by Business Associate, and 45 CFR §160.103 shall also set forth the definition of health information, including genetic information as clarified by Pub. L. No. 110-233 and applicable regulations.
- “Secretary” shall mean the Secretary of the US Department of Health and Human Services or his designee.
- “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E.
- “Security Rule” shall mean the Standards for Security of Electronic Protected Health Information at 45 CFR part 160 and part 164, subparts A and C, as amended by ARRA and the HITECH Act.
- “Business Associate” generally has the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this Agreement, means Provider.
- “HIPAA Rules” means the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
Obligations of Covered Entity To the extent that Covered Entity or its customers are providing and/or storing Protected Health Information to or with Business Associate. Covered Entity agrees to:
- Not include or store any Protected Health Information in the subject, title or similar meta-level fields. All Protected Health Information must be stored within the body elements.
- Ensure its users and customers are aware of and complying with the proper transmission, care and storage of Protected Health Information.
- Ensure that retention schedules of information as defined in Provider’s systems meet their retention obligations.
Obligations as Business Associate Business Associate agrees to:
- Not Use or Disclose Protected Health Information other than as permitted or required by this Agreement or as Required by Law;
- Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information, to prevent Use or Disclosure of Protected Health Information other than as provided for by this Agreement;
- Report to Covered Entity any Use or Disclosure of Protected Health Information not provided for by this Agreement of which Business Associate becomes aware, including breaches of Unsecured Protected Health Information as required at 45 CFR 164.410, and any Security Incident of which it becomes aware. Notice of an unauthorized Disclosure will be made without unreasonable delay, but in no event more than thirty (30) days after discovery of the unauthorized Disclosure;
- In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
- Within fifteen (15) days of receipt of a written request for access to Protected Health Information provided to Business Associate for which Covered Entity is responsible, make available Protected Health Information in a Designated Record Set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;
- Within fifteen (15) days of receipt of a written request regarding Protected Health Information provided to Business Associate for which Covered Entity is responsible, make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;
- Maintain and, within fifteen (15) days of receipt of a written request by Provider, make available the information required to provide an accounting of Disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;
- To the extent the Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and
- Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules, subject to attorney-client and other applicable legal privileges and other legal prohibitions on Disclosure.
Permitted Uses and Disclosures
- Business Associate may only Use or Disclose Protected Health Information as necessary to perform the services set forth in the Terms of Service and this Agreement, provided, that, such use or disclosure of Protected Health Information would not violate the HIPAA Rules, including the minimum necessary requirement, if done by Covered Entity.
- The Business Associate is authorized to Use Protected Health Information to de-identify the information in accordance with 45 CFR 164.514(a)-(c).
- Business Associate may Use or Disclose Protected Health Information as Required by Law.
- Business Associate may not Use or Disclose Protected Health Information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity.
- Business Associate may disclose Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the Disclosures are Required by Law, or Business Associate 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 Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
- Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information to provide data aggregation services to Covered Entity as permitted by 45 CFR § 164.504(e)(2)(i)(B).
- Business Associate shall share Protected Health Information as reasonably requested by Covered Entity with Covered Entity, with the understanding that Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.
Covered Entity Privacy Practices
- Covered Entity agrees that any reports, notification or other notice by Business Associate pursuant to this Agreement may be made electronically. Covered Entity shall provide contact information to email@example.com or such other location or method of updating contact information as Business Associate may specify hereafter. Prior to such notice, Business Associate may rely on the information it has on file. Covered Entity will diligently update its contact information with Business Associate during the term of this Agreement and Business Associate may rely on the direction so received.
- Covered Entity shall notify Business Associate of any limitation(s) in the Notice of Privacy Practices of Covered Entity (or its client) under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s Use or Disclosure of Protected Health Information.
- Covered Entity shall notify Business Associate 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 Business Associate’s Use or Disclosure of Protected Health Information.
- Covered Entity shall notify Business Associate of any restriction on the Use or Disclosure of Protected Health Information that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s Use or Disclosure of Protected Health Information.
- Covered Entity is responsible for implementing appropriate privacy and security safeguards to protect its Protected Health Information in compliance with the HIPAA Rules
- Covered Entity shall not request Business Associate to Use or Disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Covered Entity.
Term and Termination
- Term. The Term of this Agreement shall be effective during the term of the Covered Entity’s paid relationship with the Business Associate, and shall terminate upon the termination of the paid relationship or upon the date either party terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner.
- Termination for Cause. Either party may terminate this Agreement if the other party has violated a material term of the Agreement and the violating party has not cured the breach or ended the violation within thirty (30) days.
- Effect of Termination. Upon termination of this Agreement for any reason, Business Associate, with respect to Protected Health Information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
- Retain only that Protected Health Information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
- Destroy the remaining Protected Health Information that the Business Associate still maintains in any form;
- Continue to use appropriate safeguards and comply with Subpart C of 45 CFR 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 Business Associate retains the Protected Health Information;
- Not Use or Disclose the Protected Health Information retained by Business Associate other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set forth in this Agreement; and Return to Covered Entity or, if agreed to by Covered Entity, destroy the Protected Health Information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
In addition, Covered Entity’s termination of this Agreement for cause constitutes good cause for Covered Entity to terminate any other agreements in connection with which Business Associate received any Protected Health Information from Covered Entity. The obligations of Business Associate under this Section shall survive the termination of this Agreement.
- Interpretation. A reference in this Agreement to a section of the HIPAA Rules means the section in effect or as amended. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.
- Amendment. Business Associate may amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable laws.
- No Third Party Beneficiaries. Nothing express or implied in this Business Associate Agreement is intended, nor shall it confer on any person other than Covered Entity or Business Associate, and their respective successors and assigns, any rights, remedies, obligations or liabilities whatsoever.
- Independent Contractors. Covered Entity and Business Associate are independent contractors. Nothing in this Business Associate Agreement shall create a partnership, agency or fiduciary relationship between them.
- Regulatory references. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended and for which compliance is required.
- Governing law. This Agreement shall be governed by and construed in accordance with the laws of the state of Texas to the extent not preempted by the HIPAA Rules or other applicable federal law.
- Severability. If any provision of this Agreement is held illegal, invalid, prohibited, or unenforceable by a court of competent jurisdiction, that provision shall be limited or eliminated in that jurisdiction to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
Effective: October 22, 2022