Business Associate Agreement
This Business Associate Agreement (“BAA”) is effective, as of the date executed by Counterparty below, by and between Merge API, Inc., a Delaware corporation having its principal place of business at 415 Mission St, Floor 37, San Francisco, CA 94105 (“Company” or “Merge”), and Counterparty (defined below).
Merge provides its proprietary, Software-as-a-Service solution for integrating various types of platforms, such as HR, payroll, recruiting, and accounting systems (“Service(s)”) to Customers and End Customer (each as defined below). The provision of the Services pursuant to Merge’s Master Services Agreement, available at http://merge.dev/baa (“Services Agreement”) may involve the Processing of PHI subject to HIPAA (each as defined further below). The purpose of this BAA is to set forth the terms under which Merge processes PHI.
THIS BAA APPLIES BETWEEN THE PARTIES WHERE COUNTERPARTY EXECUTES THE BAA BY CLICKING A BOX INDICATING ACCEPTANCE, TRANSFERS PHI TO MERGE FOR PROCESSING BY MEANS OF THE SERVICE, OR OTHERWISE AFFIRMATIVELY INDICATES ACCEPTANCE OF THIS BAA. BY DOING SO, YOU: (A) AGREE TO THIS BAA ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“COUNTERPARTY”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND COUNTERPARTY AND ITS AFFILIATES TO THIS BAA. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS BAA, YOU MAY NOT DIRECTLY OR INDIRECTLY TRANSFER PHI TO MERGE. MERGE RESERVES THE RIGHT TO MODIFY OR UPDATE THE TERMS OF THIS BAA IN ITS DISCRETION, THE EFFECTIVE DATE OF WHICH WILL BE THE EARLIER OF (I) 30 DAYS FROM THE DATE OF SUCH UPDATE OR MODIFICATION AND (II) COUNTERPARTY’S CONTINUED TRANSFER OF PHI.
In the provision of services by Merge involving Counterparty, the following roles (“Roles”) apply among the parties:
The parties agree as follows:
- Use and Disclosure
- Appropriate Safeguards. Business Associate and Subcontractor agree to maintain reasonable and appropriate administrative, technical and physical safeguards to protect PHI from uses or disclosures not permitted by this BAA, including maintaining policies and procedures to detect, prevent or mitigate identity theft based on PHI or information derived from PHI. Business Associate and Subcontractor agree to comply with the applicable requirements of the HIPAA Regulations with respect to electronic PHI and any guidance issued by the Secretary of the Department of Health and Human Services (“HHS”).
- Incident Notification.
- Access to Designated Record Sets. Within fifteen (15) days of a request by Covered Entity for access to PHI about an individual contained in a Designated Record Set (as defined at the HIPAA Regulations), Business Associate or Subcontractor will make available to Covered Entity such PHI in the form requested by Covered Entity. If the requested PHI is maintained electronically, Business Associate or Subcontractor will provide a copy of the PHI in the electronic form and format requested by the individual, if it is readily producible, or, if not, in a readable electronic form and format as agreed to by Covered Entity and the individual. If any individual requests access to PHI directly from Business Associate or Subcontractor, Business Associate or Subcontractor will within ten (10) days forward such request to Covered Entity. Any denials of access to the PHI requested shall be the responsibility of Covered Entity.
- Amendments to Designated Record Sets. Within fifteen (15) days of receipt of a request from Covered Entity for the amendment of an individual’s PHI contained in a Designated Record Set (for so long as the PHI is maintained in the Designated Record Set), Business Associate or Subcontractor will provide such information to Covered Entity for amendment and incorporate any such amendments in the PHI. In the event a request for an amendment is delivered directly to Business Associate or Subcontractor, Business Associate or Subcontractor shall within ten (10) days of receiving such request forward the request to Covered Entity.
- Access to Books and Records. Except for disclosures of PHI excluded from the accounting obligation as set forth in the HIPAA Regulations or regulations issued pursuant to HITECH, Business Associate and Subcontractor will record for each disclosure the information required to be recorded by covered entities pursuant to the HIPAA Regulations. Within twenty (20) days of notice by Covered Entity to Business Associate that it has received a request for an accounting of disclosures of PHI, Business Associate and/or Subcontractor will make available to Covered Entity, or the individual (if requested by Covered Entity), the information required to be maintained pursuant to this Section 6. In the event the request for an accounting is delivered directly to Business Associate or Subcontractor, Business Associate or Subcontractor shall within ten (10) days forward such request to Covered Entity.
- Accountings. At Covered Entity’s or HHS’ request, Business Associate or Subcontractor shall make its internal practices, books and records relating to the use and disclosure of PHI available to HHS for purposes of determining compliance with the HIPAA Regulations.
- Permitted Uses and Disclosures. Neither Business Associate nor Subcontractor are authorized to use or disclose PHI in a manner that would violate the HIPAA Regulations if done by Covered Entity, provided that Business Associate and/or Subcontractor may:
- Responsibilities of the Business Associate with Subcontractor. If applicable, for the use and/or disclosure of PHI by Subcontractor, Business Associate agrees:
- HIPAA Transaction Standards. If Business Associate or Subcontractor conducts standard transactions (as defined in the HIPAA Regulations) for or on behalf of Covered Entity, Business Associate or Subcontractor will comply and will require by written contract each agent or contractor (including any subcontractor) involved with the conduct of such standard transactions to comply, with each applicable requirement of the HIPAA Regulations. Neither Business Associate nor Subcontractor will enter into, or permit its agents or contractors (including subcontractors) to enter into, any trading partner agreement in connection with the conduct of standard transactions for or on behalf of Covered Entity that: (a) changes the definition, data condition, or use of a data element or segment in a standard transaction; (b) adds any data elements or segments to the maximum defined data set; (c) uses any code or data element that is marked “not used” in the standard transaction’s implementation specification or is not in the standard transaction’s implementation specification; or (d) changes the meaning or intent of the standard transaction’s implementation specification. Business Associate and Subcontractor agree to participate in any test modification conducted by Covered Entity in accordance with the HIPAA Regulations.
- Term and Termination. This BAA remains in effect until the Services Agreement is terminated or expires. Either party may terminate this BAA and the Services Agreement effective immediately if it determines that the other party has breached a material provision of this BAA and failed to cure such breach within thirty (30) days of being notified by the other party of the breach. If the non-breaching party determines that cure is not possible, such party may terminate this BAA and the Services Agreement effective immediately upon written notice to other party.
- Limitation of Liability. This BAA is subject to the limitations on liability set forth in the Services Agreement.
- Effect of Termination. Upon termination of this BAA, Merge agrees to either return or destroy, at no cost to Counterparty, all PHI that Merge maintains in any form. Notwithstanding the foregoing, to the extent that it is not feasible to return or destroy such PHI, the terms and provisions of this BAA shall survive termination of this BAA, and Merge will only use or disclose such PHI solely for such purpose or purposes which prevented the return or destruction of such PHI.
- Miscellaneous. To the extent Business Associate is acting as a business associate under the HIPAA Regulations, Business Associate shall be subject to the penalty provisions specified in HITECH. Upon the effective date of any final regulation or amendment to final regulations promulgated by HHS with respect to PHI, this BAA will be deemed to be automatically amended such that the obligations imposed on the parties remain in compliance with such regulations. If any term or condition of this BAA conflicts with the Services Agreement or DPA, the terms of this BAA will prevail.
Last Updated: June 23, 2022