WEBMD CONNECT TERMS AND CONDITIONS OF USE

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING OUR SERVICES OR OUR SITE.

The WebMD Connect Services (as defined below) are provided to you subject to the following WebMD Connect Terms and Conditions of Use, which may be updated by WebMD, LLC. ("we", "us", or "WebMD") from time to time with or without notice to you. You will always be able to view the most current version of the WebMD Connect Terms and Conditions of Use by clicking on a link on the bottom of any WebMD Connect page.

By using the WebMD Connect Services, you agree to these WebMD Connect Terms and Conditions of Use. If you do not agree to all of these WebMD Connect Terms and Conditions of Use, do not use the WebMD Connect Services.

INDEX

WebMD Connect Services
Liability of WebMD and Its Licensors
Indemnification
Proprietary Rights
Notice
General
Jurisdiction
Complete Agreement
Questions or Comments; WebMD Customer Service Contact Information
Exhibit A: Business Associate Agreement

WebMD Connect Services

"WebMD Connect Services" means the WebMD Connect website (the "Site") and "Claim Your Profile" and "Messenger" services. The WebMD Connect Services are intended for healthcare professionals and are for clinical, not commercial use.

A. Claim Your Profile Services

Your Profile Information

It is your responsibility to update your physician profile and practice profile, if applicable, and keep all information in your profile accurate. You may update your physician profile or practice profile at any time on the Site. If you close your WebMD Connect account, we will remove information that you provide through the WebMD Connect Services from your profile (contact us at the email address we provide at the end of this document).

Consent to Use of Information

When you submit information to WebMD for the Claim Your Profile Services, you give WebMD an irrevocable, perpetual license to use, reproduce, modify, adapt, publicly perform and publicly display that information in connection with the WebMD Connect Services, including, without limitation, the right to publish such information on webmd.com and other properties owned and operated by WebMD and its affiliates. If you are or become a Medscape member. by claiming your physician profile, you consent to WebMD using your Medscape registration information to supplement your physician profile. WebMD has no obligations with respect to the information you provide to through the Claim Your Profile Services, including no obligation to publish any information that you provide through the Claim Your Profile Services. We ask that you not post any misleading, false, or inappropriate language or statements. We reserve the right but expressly disclaim any obligation to remove any such information that we deem offensive or fraudulent at any time without your consent, as further described below.

Claiming and Editing Profiles of Other Physicians

If you claim a physician practice and/or edit a physician’s profile other than your own through the Claim Your Profile Services, you represent that you are authorized to claim such physician practice and edit such physician’s profile on behalf of such physician. You agree to defend, indemnify, and hold WebMD and its affiliates and respective officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from you claiming a physician practice and/or editing another physician’s profile.

If you are using the WebMD Connect Services on behalf of a practice or company, you are also individually bound by these Terms and Conditions of Use.

B. Messenger Services

The Messenger Services are intended to facilitate communication among health care providers and are provided for communications purposes only. WebMD is not responsible for and does not monitor the content of communications between you and other health care providers. You assume full responsibility for the communications with any health care provider that you contact through the Messenger Services.

Connecting with Other Health Care Providers

A health care provider must register for WebMD Connect and be “Connected” with you in order for you to communicate with him or her through the Messenger Services. You will be "Connected" with a colleague if you have accepted his or her invitation to "Connect" or if such colleague has accepted your invitation to "Connect." If you invite a colleague who has registered to use the WebMD Connect Services to "Connect", WebMD will send an email and WebMD Connect notification to such colleague with your invitation to "Connect". WebMD may also send messages to you by email or other means on behalf of other WebMD Connect members to "Connect".

As part of the Messenger Services, all health care providers who register for WebMD Connect are identity-verified using a third-party service or, in the case of support staff, are enabled by a verified health care provider’s account.

You may add health care professionals who are members of WebMD Connect to your messages to initiate a group message.

WebMD is not responsible for the delivery of messages through the WebMD Connect Services and does not guarantee a reply.

Inviting Other Health Care Providers to Register for WebMD Connect

WebMD may use your information, including, without limitation, specialty and location, to recommend other health care providers to you and you to other health care providers as possible "Connections".

If you choose to invite a colleague by providing your colleague’s email address, WebMD will use the email address you provide to send an email on your behalf, including a message that you include, to such colleague inviting him or her to join WebMD Connect as well as reminder emails to respond to the invitation. The email messages will note that you have invited such colleague to join WebMD Connect.

Business Associate Agreement

The Messenger Services are designed to be compliant with HIPAA (as defined below).

You and WebMD agree to the terms of the business associate agreement Exhibit A to these Terms and Conditions (the "Business Associate Agreement"). Any protected health information, as defined in the Health Insurance Portability and Accountability Act, as amended from time to time ("HIPAA"), that is included in messages that you send or receive through the Messenger Services is subject to the Business Associate Agreement. To the extent there is a conflict between the express terms of these Terms and Conditions and the Business Associate Agreement, the terms of the Business Associate Agreement shall control.

Patient Data

The Messenger Services are intended for communication among health care providers. Messages and other information provided to or through the Messenger Services are not designated record sets as defined under U.S. regulations. If you decide to include any data made available in the Messenger Services in your records, you are responsible for storing such data in your own system.

You may print data in the Messenger Services at any time by selecting the applicable message or other data and using the print function on your browser.

If your WebMD Connect account and/or Messenger Services are terminated, we may permanently delete your data from our systems as set forth in our Business Associate Agreement. We have no obligation to return data to you after termination of your WebMD Connect account or Messenger Services. If your WebMD Connect account or Messenger Services are terminated, messages that you have sent through the Messenger Services to other health care providers may remain in such health care providers’ WebMD Connect account.

You represent and warrant that you and your use of the WebMD Connect Services will, at all times comply with all laws directly or indirectly applicable to you that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of any patient information, including, without limitation laws regarding designated record sets. You are, at all times during the term of these Terms and Conditions and thereafter, solely responsible for obtaining and maintaining all patient consents and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the patient information you transmit, store, or receive in connection with the WebMD Connect Services.

WE CANNOT AND DO NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED USING THE WEBMD CONNECT SERVICES AND WE CANNOT AND DO NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED USING THE WEBMD CONNECT SERVICES.

Termination

You agree that we may discontinue, temporarily or permanently, the Messenger Services (or any part thereof), or your access to the Messenger Services; provided that, so long as you are not in violation of these WebMD Connect Terms and Conditions of Use we will provide at least thirty (30) days' notice prior to terminating your access to messages and other data in the Messenger Services. We retain the right to block or otherwise prevent delivery of any type of communication to or from the Messenger Services. We may limit the number of "Connections" you have to other WebMD Connect members and may prohibit you from contacting other WebMD Connect members through the Messenger Services. We may also limit the maximum number of messages that may be sent or received by an account or the maximum size of any message. You agree that all terminations shall be made at our sole discretion, and we shall not be liable to you or any third party for any termination of your account or access to the Messenger Services or any portion thereof.

B. General WebMD Connect Services Terms

The WebMD Connect Services are intended for physicians and other healthcare professionals. By using the WebMD Connect Services, you represent and warrant that you have the right, authority, and capacity to agree to and abide by these Terms and Conditions of Use and that you are not prohibited from using the WebMD Connect Services or any portion thereof.

WebMD Connect Services

You grant WebMD and all other persons involved in the operation of the Site and WebMD Connect Services the right to transmit, monitor, retrieve, store and use your information in order to provide the WebMD Connect Services.

You are prohibited from using the WebMD Connect Services to (i) violate any local, state, national or international laws, including, but not limited to, HIPAA or any other applicable privacy laws, (ii) include in messages material that infringes on the intellectual property rights, privacy rights or any other rights of others, (iii) include in messages material that is misleading, false, unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity, (iv) include in messages advertisements or solicitations of business; or (v) distribute viruses or other harmful computer code.

The information and tools that we make available through the WebMD Connect Services are provided for educational and informational purposes only. WebMD does not provide medical advice. While we hope you find the WebMD Connect Services useful to you as a healthcare professional, they are in no way intended to serve as a diagnostic service or platform, to provide certainty with respect to a diagnosis, to recommend a particular product or therapy or to otherwise substitute for the clinical judgment of a qualified healthcare professional. You agree that you will not use the WebMD Connect Services with the intention of creating any kind of physician/patient relationship, e.g., to diagnose or treat users. You are solely responsible for evaluating the information obtained from the WebMD Connect Services and for your use or misuse of such information in connection with your treatment decisions or otherwise. You agree that you shall be solely responsible for your compliance with all laws and standards of professional practice applicable to you and the practice of medicine or other relevant health profession.

WebMD assumes no responsibility or liability for and does not endorse or recommend any advice, treatment, products, services or other information rendered or communicated by you or your practice or any other health care provider or practice. WebMD assumes no responsibility or liability for your or any health care provider' or third party’s use or misuse of information transmitted or received using the WebMD Connect Services. The inclusion of a physician or practice in the WebMD Connect Services is not an endorsement of any such physician or practice by WebMD or any of its affiliates and you may not state or imply and such endorsement.

You represent and warrant to WebMD that (i) you are authorized to submit the information you provide in connection with the WebMD Connect Services, including on behalf of your practice(s), if applicable, (ii) such information is accurate, (iii) the submission of such information does not violate any third party rights or any agreement to which you are a party, (iv) information you submit in connection with Claim Your Profile Services is not confidential and (v) you are (a) a certified U.S. physician or (b) for Claim Your Profile Services only, an administrator designated by your practice to administer the WebMD Connect account on behalf of your practice.

WebMD Connect Account

You will be required to register separately for the WebMD Connect Services but will use your WebMD user name and password to access the WebMD Connect Services.

Privacy Policy

All personal information you submit to WebMD in connection with the WebMD Connect Services is governed by the WebMD Connect Privacy Policy. To the extent there is an inconsistency between these WebMD Connect Terms and Conditions of Use and the WebMD Connect Privacy Policy, these Terms and Conditions of Use shall govern.

Disclaimer

THE WEBMD CONNECT SERVICES ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ANY WARRANTIES, EXPRESS IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE WEBMD CONNECT SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE WEBMD CONNECT SERVICES. NO INFORMATION PROVIDED THROUGH THE WEBMD CONNECT SERVICES OR BY US IN ORAL OR WRITTEN FORM WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOUR RELIANCE UPON THE CONTENT OBTAINED OR USED BY YOU THROUGH THE WEBMD CONNECT SERVICES IS SOLELY AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF WEBMD CONNECT. YOU UNDERSTAND THAT WE DO NOT ASSUME RESPONSIBILITY FOR SCREENING ANY USER OF THE WEBMD CONNECT SERVICES (EXCEPT THIRD PARTY VERIFICATION OF WEBMD CONNECT MEMBERS AS SET FORTH ABOVE) NOR DO WE VERIFY OR TAKE RESPONSIBILITY FOR ANY USER PROVIDED INFORMATION. WE DO NOT PROVIDE MEDICAL ADVICE AND WE DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC PRODUCTS, PRODUCT USERS, THERAPIES, TESTS, PHYSICIANS, HEALTHCARE PROFESSIONS OR OPINIONS.

Use of the WebMD Connect Services to verify the credentials of physicians is prohibited.

Termination and Modification

You agree that we may, under certain circumstances and without prior notice, discontinue, temporarily or permanently, the WebMD Connect Services (or any part thereof) or eliminate your account and remove any information that you have made available through the WebMD Connect Services, with or without notice, for any of the following reasons (which are not intended to be exclusive): (a) breaches or violations of these Terms and Conditions or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you, (d) discontinuance or material modification to the WebMD Connect Services (or any part thereof), (e) technical or security issues or problems, (f) extended periods of inactivity, and/or (g) your engagement in fraudulent or illegal activities. You agree that all terminations for cause shall be made at our sole discretion, and we shall not be liable to you or any third party for any termination of your account or access to the WebMD Connect Services.

You may cancel your WebMD Connect account at any time by contacting WebMD Customer Service using the contact information listed below.

We reserve the right, at our sole discretion, to modify, discontinue or terminate any of the WebMD Connect Services or the WebMD Connect Terms and Conditions of Use, at any time and without prior notice. If we modify these terms in a material way, we will provide notice of such modification within the Site. By continuing to access or use the WebMD Connect Services after we have modified these terms, you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you agree to immediately stop using the WebMD Connect Services.

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Liability of WebMD and Its Licensors

The use of the Site, WebMD Connect Services and the content of any messages sent or received is at your sole risk.

When using the WebMD Connect Services, information will be transmitted over a medium that may be beyond the control and jurisdiction of WebMD. Accordingly, WebMD assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with your use of the WebMD Connect Services.

The Site and the WebMD Connect Services are provided on an "as is" basis. WEBMD AND ITS LICENSORS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. Without limiting the foregoing, WebMD, its licensors make no representations or warranties about the following:

  1. The accuracy, reliability, completeness, usefulness, adequacy, suitability, currentness, or timeliness of the communications provided through the use of the WebMD Connect Services; and
  2. That data flowing to and from the Site or WebMD (regardless of the means) will not be delayed, interrupted or experience losses of data, or that files available for downloading from the Site, if applicable, will be free of infection by viruses, worms, Trojan horses or other code with destructive properties.

Except as is required by law in no event shall WebMD, its licensors, or any third parties mentioned on the Site be liable for any damages (including, without limitation, incidental and consequential damages, personal injury/wrongful death, lost profits, or damages resulting from lost data or business interruption) resulting from the use of or inability to use the WebMD Connect Services, whether based on warranty, contract, tort, or any other legal theory, and whether or not WebMD is advised of the possibility of such damages. WebMD shall be liable only to the extent of actual damages incurred by you, not to exceed U.S. $1000. WebMD is not liable for any personal injury, including death, caused by your use or misuse of the Site or the WebMD Connect Services. Any claims arising in connection with your use of the Site or the WebMD Connect Services must be brought within one (1) year of the date such action occurred. Remedies under these Terms and Conditions of Use are exclusive and are limited to those expressly provided for in these Terms and Conditions of Use.

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Indemnification

You agree to defend, indemnify, and hold harmless WebMD and its parent, subsidiaries, affiliates and respective officers, directors, employees, agents, licensors, and contractors, from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your violation of these WebMD Connect Terms and Conditions of Use, any content you provide in connection with the WebMD Connect Services or your use of the WebMD Connect Services.

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Proprietary Rights

You acknowledge and agree that the WebMD Connect Services and the information and software presented to you through the WebMD Connect Services or used in connection with the WebMD Connect Services contain proprietary and confidential information that is protected under U.S. and international intellectual property laws, including copyright, trademarks, service marks, patents or other proprietary rights and laws. Except with respect to communications that you send or receive through the WebMD Connect Services or as expressly authorized by us or our licensors, you agree not to sell, rewrite, modify, reproduce, redistribute, create derivative works, or rent any information presented to you through the WebMD Connect Services, in whole or in part.

We reserve all of our other rights not granted in these Terms and Conditions of Use. You agree not to access the WebMD Connect Services by any means other than through the interface that is provided by us for use in accessing the WebMD Connect Services.

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Notice

When you register on the Site for WebMD Connect Services, you agree to keep your contact information, such as email address, accurate and up-to-date so that we can contact you regarding our policies. Failure to have accurate contact information may affect our ability to provide you notice.

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General

WebMD is based in New York, New York in the United States of America with its principal offices in New York, New York. If you access the Site and the WebMD Connect Services from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. All provisions of these Terms and Conditions of Use shall survive termination of your WebMD Connect account except for your license to access and use the WebMD Connect Services.

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Jurisdiction

You expressly agree that exclusive jurisdiction for any dispute with WebMD, or in any way relating to your use of the Site, resides in the state or Federal courts in the State of New York, the Borough of Manhattan, and you further agree and expressly consent to the exercise of personal jurisdiction in the state or Federal courts of the City of New York, the Borough of Manhattan in connection with any such dispute including any claim involving WebMD, its parent, subsidiaries and affiliates, licensors and suppliers, and their directors, officers, employees, agents and contractors.

These Terms and Conditions of Use are governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. If any provision of these Terms and Conditions of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions of Use, which shall remain in full force and effect. No waiver of any of these Terms and Conditions of Use shall be deemed a further or continuing waiver of such term or condition or any other term or condition.

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Complete Agreement

Except as expressly provided in a particular "legal notice" on the Site, these WebMD Connect Terms and Conditions of Use, the WebMD Connect Privacy Policy and your Business Associate Agreement with WebMD constitute the entire agreement between you and WebMD with respect to the use of the WebMD Connect Services.

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Questions or Comments; WebMD Customer Service Contact Information

Questions or comments regarding this website, including any reports of non-functioning links, should be submitted using our Contact Us Form or via U.S. mail to WebMD Connect Services at:

WebMD Messenger
Attn: Customer Service
705 5th Ave South, Suite 810
Seattle, WA 98104

We try to answer every email in a timely manner but are not always able to do so.

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Exhibit A: Business Associate Agreement

RECITALS

WHEREAS, Business Associate now and in the future may have relationships with Covered Entity in which Business Associate creates, receives, maintains or transmits Protected Health Information (as defined below) for or on behalf of Covered Entity through the performance of Services to Covered Entity.

WHEREAS, Business Associate and Covered Entity (each a "Party" and collectively the "Parties") desire to meet their obligations, to the extent applicable, under the Standards for Privacy of Individually Identifiable Health Information (the "Privacy Rule") and the Health Insurance Reform: Security Standards (the "Security Rule") published by the U.S. Department of Health and Human Services ("HHS") at 45 C.F.R. parts 160 and 164 under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"); the Health Information Technology for Economic and Clinical Health Act ("HITECH") and implementing regulations.

WHEREAS, the Parties desire to set forth the terms and conditions pursuant to which Protected Health Information received from, or created, received, maintained or transmitted by the Business Associate on behalf of, the Covered Entity, will be used and disclosed. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

TERMS AND CONDITIONS

1. DEFINITIONS

1.1 Unless otherwise specified in this Agreement, all capitalized terms used in this Agreement not otherwise defined shall have the meanings established for purposes of HIPAA and HITECH, as each is amended from time to time.

1.2 "Breach" shall mean the acquisition, access, use or disclosure of Protected Health Information in a manner not permitted by the Privacy Rule that compromises the security or privacy of the Protected Health Information as defined, and subject to the exceptions set forth, in 45 C.F.R. 164.402.

1.3 "Electronic Protected Health Information" shall mean Protected Health Information, as defined in Section 1.5, that is transmitted or maintained in electronic media.

1.4 "HITECH" shall mean Subtitle D of the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, 42 U.S.C. §§17921-17954, and any and all references in this Agreement to sections of HITECH shall be deemed to include all associated existing and future implementing regulations, when and as each is effective.

1.5 "Protected Health Information" shall mean Protected Health Information, as defined in 45 C.F.R. § 160.103, and is limited to the Protected Health Information received from, or created, received, maintained, or transmitted on behalf of, Covered Entity by Business Associate pursuant to performance of the Services.

1.6 "Privacy Rule" shall mean the federal privacy regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, codified at 45 C.F.R. Parts 160 and 164 (Subparts A & E).

1.7 "Security Rule" shall mean the federal security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, codified at 45 C.F.R. Parts 160 and 164 (Subparts A & C).

2. PERMITTED USES AND DISCLOSURES OF PROTECTED HEALTH INFORMATION

2.1 Services. Business Associate provides services ("Services") that involve the use and/or disclosure of Protected Health Information. These Services are provided to Covered Entity under various agreements, including, without limitation, the Terms of Use ("Service Agreements"). Except as otherwise specified herein, the Business Associate may make any and all uses and disclosures of Protected Health Information created or received from or on behalf of Covered Entity necessary to perform the Services.

2.3. Business Activities of the Business Associate. Unless otherwise limited herein, the Business Associate may, consistent with 45 C.F.R. § 164.504(e)(4), use and disclose the Protected Health Information in its possession for its proper management and administration and to fulfill any present or future legal responsibilities of the Business Associate, provided that (i) the disclosures are Required by Law; or (ii) any third party to which Business Associate discloses Protected Health Information for those purposes provides reasonable assurances that the information will be held confidentially and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the third party, and the third party promptly will notify Business Associate of any instances of which it becomes aware in which the confidentiality of the information has been breached.

3. RESPONSIBILITIES OF THE PARTIES

3.1. Responsibilities of the Business Associate with Respect to Protected Health Information. With regard to its use and/or disclosure of Protected Health Information, Business Associate agrees to:

  1. not use or further disclose Protected Health Information other than as necessary to provide the Services, as permitted or required by this Agreement, and in compliance with each applicable requirement of 45 C.F.R. § 164.504(e) or as otherwise Required by Law; provided that, to the extent Business Associate is to carry out Covered Entity’s obligations under the Privacy Rule, Business Associate will comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of those obligations;
  2. implement and use appropriate administrative, physical, and technical safeguards and, as of September 23, 2013, comply with the applicable requirements of the Security Rule with respect to Electronic Protected Health Information, to prevent use or disclosure of Protected Health Information other than as provided for by this Agreement;
  3. without unreasonable delay, report to the Covered Entity: (i) any use and/or disclosure of the Protected Health Information of which Business Associate becomes aware that is not permitted or required by this Agreement, in accordance with 45 C.F.R. § 164.504(e)(2)(ii)(C); and/or (ii) any Security Incident of which Business Associate becomes aware in accordance with 45 C.F.R. § 164.314(a)(2)(C);
  4. without unreasonable delay, and in any event no later than sixty (60) calendar days after Discovery, Business Associate shall notify Covered Entity of any Breach of Unsecured Protected Health Information. The notification shall include, to the extent possible and subsequently as the information becomes available, the information required by 45 C.F.R. § 164.410;
  5. in accordance with 45 C.F.R. § 164.502(e)(1)(ii) and 45 C.F.R. § 164.308(b)(2), ensure that any subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Business Associate agree, in writing, to the same restrictions and conditions on the use and/or disclosure of Protected Health Information that apply to the Business Associate, including complying with the applicable Security Rule requirements with respect to Electronic Protected Health Information;
  6. make available its internal practices, books and records relating to the use and/or disclosure of Protected Health Information to the Secretary of HHS for purposes of determining the Covered Entity’s compliance with the Privacy Rule;
  7. document and within thirty (30) days after receiving a written request from Covered Entity, make available information necessary for Covered Entity to make an accounting of disclosures of an Individual's Protected Health Information, in accordance with 45 C.F.R. § 164.528 and, as of the date compliance is required by final regulations, 42 U.S.C. § 17935(c);
  8. within fifteen (15) days of receiving a written request from Covered Entity, make available (in accordance with the requirements of 45 C.F.R. § 164.524) Protected Health Information necessary for Covered Entity to respond to Individuals’ requests for access to Protected Health Information about them, including, providing or sending a copy to a designated third party and providing or sending a copy in electronic format, to the extent that the Protected Health Information in Business Associate’s possession constitutes a Designated Record Set;
  9. to the extent that the Protected Health Information in Business Associate’s possession constitutes a Designated Record Set, make available, within thirty (30) days after a written request by Covered Entity, Protected Health Information for amendment and incorporate any amendments to the Protected Health Information as directed by Covered Entity, all in accordance with 45 C.F.R. § 164.526;

3.2 Responsibilities of the Covered Entity with Respect to Protected Health Information.

  1. With regard to the use and/or disclosure of Protected Health Information by the Business Associate, the Covered Entity agrees: (i) to obtain any consent, authorization or permission that may be required by the Privacy Rule or any other applicable federal, state or local laws and/or regulations prior to furnishing Business Associate the Protected Health Information pertaining to an Individual; and (ii) that it will not furnish Business Associate Protected Health Information that is subject to any arrangements permitted or required of the Covered Entity, including but not limited to, arrangements agreed to by Covered Entity under 45 C.F.R. § 164.522 that may impact in any manner the use and/or disclosure of Protected Health Information by the Business Associate under this Agreement and the Service Agreement(s).
  2. Covered Entity represents and warrants that its notice of privacy practices permits Covered Entity to use and disclose Protected Health Information in the manner that Business Associate is authorized to use and disclose Protected Health Information under this Agreement.

4. TERM AND TERMINATION

4.1. Term. Unless otherwise specified in this Agreement, each term and condition of this Agreement shall become effective on the Effective Date. This Agreement shall continue in effect unless terminated as provided in this Section 4, provided, that certain provisions and requirements of this Agreement shall survive the expiration or termination of this Agreement in accordance with Section 5.4 herein.

4.2. Termination. If either Party knows of a pattern of activity or practice of the other Party that constitutes a material breach or violation of this Agreement then the non-breaching Party shall provide written notice of the breach or violation to the other Party that specifies the nature of the breach or violation. The breaching Party must cure the breach or end the violation on or before thirty (30) days after receipt of the written notice. In the absence of a cure reasonably satisfactory to the non-breaching Party within the specified timeframe, or in the event the breach is reasonably incapable of cure, then the non-breaching Party may terminate this Agreement.

4.3 Automatic Termination. This Agreement will automatically terminate with respect to any Business Associate without any further action of the Parties upon the termination of the Services.

4.4 Effect of Termination or Expiration. Within sixty (60) days after the expiration or termination for any reason of this Agreement, Business Associate shall return or destroy all Protected Health Information, if feasible to do so, including all Protected Health Information in possession of Business Associate’s subcontractors. In the event that Business Associate determines that return or destruction of the Protected Health Information is not feasible, Business Associate shall notify Covered Entity in writing and may retain the Protected Health Information subject to this Section 4.4. Under any circumstances, Business Associate shall extend any and all protections, limitations and restrictions contained in this Agreement to Business Associate’s use and/or disclosure of any Protected Health Information retained after the expiration or termination of this Agreement, and shall limit any further uses and/or disclosures solely to the purposes that make return or destruction of the Protected Health Information infeasible.

5. MISCELLANEOUS

5.1. Entire Agreement. This Agreement, and all attachments, schedules and exhibits hereto, together with any applicable Services Agreement(s), constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous written or oral memoranda, negotiations, arrangements, contracts or understandings of any nature or kind between the Parties with respect to the subject matter hereof.

5.2. Change of Law. Covered Entity shall notify Business Associate within ninety (90) days of any amendment to any provision of HIPAA or its implementing regulations, and/or HITECH or its implementing regulations, which materially alters either Party’s or the Parties’ obligations under this Agreement. The Parties agree to negotiate in good faith mutually acceptable and appropriate amendment(s) to this Agreement to give effect to such revised obligations; provided, however, that if the Parties are unable to agree on mutually acceptable amendment(s) within ninety (90) days of the relevant change of law, either Party may terminate this Agreement consistent with Sections 4.3 and 4.4.

5.3. Construction of Terms. The terms of this Agreement to the extent they are unclear shall be construed to allow for compliance by Covered Entity and Business Associate with HIPAA and HITECH.

5.4. Survival. Sections 1, 4.4, 5.3, 5.8, 5.11, 5.12, 6 and this Section 5.4, and any other provisions of this Agreement that by their terms are intended to survive, shall survive the termination of this Agreement.

5.5. Amendment; Waiver. This Agreement may not be modified, nor shall any provision hereof be waived or amended, except in a writing duly signed by authorized representatives of the Parties. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events.

5.6. Notices. Any notices to be given hereunder to a Party shall be made via U.S. Mail or express courier to such Party’s address given above, and/or via facsimile to the facsimile telephone numbers listed above. Each Party may change its address and that of its representative for notice by the giving of notice thereof in the manner herein above provided.

5.7. Counterparts; Facsimiles. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which will be one and the same document. Facsimile copies hereof shall be deemed to be originals.

5.8. Disputes. If any controversy, dispute or claim arises between the Parties with respect to this Agreement, the Parties shall make good faith efforts to resolve such matters informally.

5.9 Effective Date. The Effective Date of this Agreement shall be the last date on which both Parties have executed the Agreement.

5.10 Binding Agreement; New Parties; Agency. This Agreement shall be binding upon the Parties and their successors and permitted assigns. .

5.11 No Third Party Beneficiaries. Nothing in this Agreement shall confer upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

5.12 Contradictory Terms. Any other provision of the Service Agreement(s) that is directly contradictory to one or more terms of this Agreement ("Contradictory Term") shall be superseded by the terms of this Agreement to the extent and only to the extent of the contradiction, only for the purpose of Covered Entity’s compliance with HIPAA and HITECH, and only to the extent reasonably impossible to comply with both the Contradictory Term and the terms of this Agreement.

5.13 Independent Contractor. Business Associate and Covered Entity are and shall remain independent contractors throughout the term. Nothing in this Agreement shall be construed to constitute Business Associate and Covered Entity as partners, joint venturers, agents or anything other than independent contractors.

6. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

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Last Updated: May 6, 2016
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