This Business Associate Agreement (“BAA”) is entered into by and between Avril Group Limited (“EyeCandys”) and ____________________ (“Covered Entity”), and is effective as of ________________ (the “BAA Effective Date”). EyeCandys and Covered Entity may be individually referred to as a “Party” and, collectively, the “Parties” in this BAA.
- EyeCandys is providing certain services to Covered Entity under the underlying Terms of Service (the “Services” or the “Underlying Arrangement”).
- To the extent that EyeCandys creates, receives, maintains or transmits “Protected Health Information” or “PHI” (as defined below) on behalf of Covered Entity in the course of providing the Services, and EyeCandys is acting as a “Business Associate” (defined below) of Covered Entity, the terms of this BAA shall apply with respect to such PHI.
- EyeCandys may create, receive, maintain or transmit PHI on behalf of Covered Entity only as set forth in this Agreement and to the extent allowed under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended (“HIPAA”), and the Privacy Rule, Security Rule, Enforcement Rule and Breach Notification Rule set forth at 45 C.F.R. Parts 160 and 164 (jointly, the “HIPAA Rules”) promulgated thereunder.
- Covered Entity and EyeCandys intend to protect the privacy and provide for the security of PHI in compliance with HIPAA and the HIPAA Rules.
- The purpose of this BAA is to satisfy certain standards and requirements of HIPAA and the HIPAA Rules, including, but not limited to, Title 45, §§ 164.314(a)(2)(i), 164.502(e) and 164.504(e) of the Code of Federal Regulations (“F.R.”).
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
- Capitalized Terms. Capitalized terms used in this BAA and not otherwise defined herein shall have the meanings set forth in the HIPAA Rules, which definitions are incorporated in this BAA by reference.
- “Business Associate” shall have the same meaning given to such term in 45 C.F.R. § 160.103.
- “Protected Health Information” or “PHI” shall have the same meaning given to such term in 45 C.F.R. § 160.103, as applied to the information created, received, maintained or transmitted by EyeCandys from or on behalf of Covered Entity.
- “Unsuccessful Security Incident” shall mean pings and other broadcast attacks on a firewall, port scans, unsuccessful log-on attempts, denials of service, or other similar attempted but unsuccessful Security Incident, or a combination thereof, so long as no such incident results in unauthorized access, use or disclosure of PHI.
- PERMITTED USES AND DISCLOSURES OF PHI
- Uses and Disclosures of PHI
. EyeCandys shall not use or disclose PHI other than as permitted or required to perform functions, activities or services for, or on behalf of, Covered Entity or as Required by Law, provided that such use or disclosure would not violate the Privacy Rule if done by Covered Entity, except as set forth in Sections 2.2, 2.3 and 2.4. To the extent EyeCandys is carrying out any of Covered Entity’s obligations under the Privacy Rule to provide the Services or pursuant to the terms of this BAA, EyeCandys shall comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of such obligation(s).
- Permitted Uses of PHI by EyeCandys
. Except as otherwise limited in this BAA, EyeCandys may use PHI for the proper management and administration of EyeCandys or to carry out the legal responsibilities of EyeCandys.
- Permitted Disclosures of PHI by EyeCandys
. Except as otherwise limited in this BAA, EyeCandys may disclose PHI for the proper management and administration of EyeCandys, provided that the disclosures are Required by Law, or EyeCandys obtains reasonable assurances from the person to whom the information is disclosed that it shall remain confidential and will be used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person (which purpose must be consistent with the limitations imposed upon EyeCandys pursuant to this BAA), and that the person agrees to notify EyeCandys of any instances of which it is aware in which the confidentiality of the information has been breached. EyeCandys may disclose PHI to report violations of law to appropriate federal and state authorities, consistent with 45 C.F.R. § 164.502(j)(1).
- Data Aggregation
. Except as otherwise limited in this BAA, EyeCandys may use PHI to provide Data Aggregation services as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).
- De-identified Data
. EyeCandys may de-identify PHI in accordance with the standards set forth in 45 C.F.R. § 164.514(b) and may use or disclose such de-identified data for any purpose.
- OBLIGATIONS OF EyeCandys
- Appropriate Safeguards
. EyeCandys shall use appropriate safeguards and shall comply with the Security Rule with respect to Electronic PHI, to prevent use or disclosure of such information other than as provided for by the Underlying Arrangement or this BAA.
- Reporting of Improper Use or Disclosure, Security Incident or Breach
. EyeCandys shall report to Covered Entity any use or disclosure of PHI not permitted under this BAA, Breach of Unsecured PHI or Security Incident, without unreasonable delay, and in any event no more than ten (10) business days following discovery; provided, however, that the Parties acknowledge and agree that this Section constitutes notice by EyeCandys to Covered Entity of the ongoing existence and occurrence of Unsuccessful Security Incidents.
- EyeCandys’s Agents
. In accordance with 45 C.F.R. § 164.502(e)(1)(ii) and 45 C.F.R. § 164.308(b)(2), as applicable, EyeCandys shall enter into a written agreement with any agent or subcontractor that creates, receives, maintains, or transmits PHI on behalf of EyeCandys for services provided to Covered Entity, providing that the subcontractor or agent agrees to substantially the same restrictions and conditions that apply to EyeCandys through this BAA with respect to such PHI.
- Access to PHI
. To the extent EyeCandys has PHI contained in a Designated Record Set, EyeCandys agrees to make information available to Covered Entity pursuant to 45 C.F.R. § 164.524, to respond to an Individual’s request to Covered Entity to review or copy the Individual’s PHI; provided, however, that EyeCandys is not required to provide such access where the PHI contained in a Designated Record Set is duplicative of the PHI contained in a Designated Record Set possessed by Covered Entity. If an Individual makes a request for access pursuant to 45 C.F.R. § 164.524 directly to EyeCandys, or inquires about his or her right to access, EyeCandys shall either forward such request to Covered Entity or direct the Individual to Covered Entity.
- Amendment of PHI
. To the extent EyeCandys has PHI contained in a Designated Record Set, EyeCandys agrees to make such information available to Covered Entity for amendment pursuant to 45 C.F.R. § 164.526. If an Individual submits a written request for amendment pursuant to 45 C.F.R. § 164.526 directly to EyeCandys, or inquires about his or her right to amendment, EyeCandys shall either forward such request to Covered Entity or direct the Individual to Covered Entity.
- Documentation of Disclosures
. EyeCandys agrees to document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. EyeCandys shall document, at a minimum, the following information: (i) the date of the disclosure, (ii) the name and, if known, the address of the recipient of the PHI, (iii) a brief description of the PHI disclosed, (iv) the purpose of the disclosure that includes an explanation of the basis for such disclosure, and (v) any additional information required under the HITECH Act and any implementing regulations.
- Accounting of Disclosures
. EyeCandys agrees to provide to Covered Entity, upon receipt of a written request from Covered Entity, information collected in accordance with Section 3.6 of this BAA to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. If an Individual submits a written request for an accounting of disclosures of PHI pursuant to 45 C.F.R. § 164.528 directly to EyeCandys, or inquires about his or her right to an accounting of disclosures of PHI, EyeCandys shall direct the Individual to Covered Entity.
- Governmental Access to Records
. EyeCandys shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by EyeCandys on behalf of, Covered Entity available to the Secretary for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule.
. To the extent practicable, EyeCandys will reasonably cooperate with Covered Entity’s efforts to mitigate a harmful effect that is known to EyeCandys of a use or disclosure of PHI by EyeCandys that is not permitted by this BAA.
- Minimum Necessary
. EyeCandys shall request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure, in accordance with 45 C.F.R. § 164.514(d), and any amendments thereto.
- OBLIGATIONS OF COVERED ENTITY
- Notice of Privacy Practices
. Covered Entity shall notify EyeCandys of any limitation(s) in its notice of privacy practices in accordance with 45 C.F.R. § 164.520, to the extent that such limitation may affect EyeCandys’s use or disclosure of PHI.
- Notification of Changes Regarding Individual Permission
. Covered Entity shall obtain any consent or authorization that may be required by the Privacy Rule, or applicable state law, prior to furnishing EyeCandys with PHI. Covered Entity shall notify EyeCandys of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect EyeCandys’s use or disclosure of PHI.
- Notification of Restrictions to Use or Disclosure of PHI
. Covered Entity shall notify EyeCandys of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 C.F.R. § 164.522, to the extent that such restriction may affect EyeCandys’s use or disclosure of PHI.
- Permissible Requests by Covered Entity
. Covered Entity shall not request EyeCandys to use or disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity, except as permitted pursuant to the provisions of Sections 2.2, 2.3 and 2.4 of this BAA.
- TERM AND TERMINATION
. The term of this BAA shall commence as of the BAA Effective Date, and shall terminate when all of the PHI provided by Covered Entity to EyeCandys, or created or received by EyeCandys on behalf of Covered Entity, is destroyed or returned to Covered Entity. If it is infeasible to return or destroy PHI, EyeCandys shall extend protections to such information in accordance with Section 5.3.
- Termination for Cause
. Upon either Party’s knowledge of a material breach by the other Party of this BAA, such Party may terminate this BAA immediately if cure is not possible. Otherwise, the non-breaching Party shall provide written notice to the breaching Party detailing the nature of the breach and providing an opportunity to cure the breach within thirty (30) business days. Upon the expiration of such thirty (30) day cure period, the non-breaching Party may terminate this BAA if the breaching Party does not cure the breach or if cure is not possible.
- Effect of Termination
- Except as provided in Section 5.3.2, upon termination of the Underlying Arrangement or this BAA for any reason, EyeCandys shall return or destroy all PHI received from Covered Entity, or created or received by EyeCandys on behalf of Covered Entity, and shall retain no copies of the PHI.
- If it is infeasible for EyeCandys to return or destroy the PHI upon termination of the Underlying Arrangement or this BAA, EyeCandys shall: (a) extend the protections of this BAA to such PHI and (b) limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as EyeCandys maintains such PHI.
- COOPERATION IN INVESTIGATIONS
The Parties acknowledge that certain breaches or violations of this BAA may result in litigation or investigations pursued by federal or state governmental authorities of the United States resulting in civil liability or criminal penalties. Each Party shall cooperate in good faith in all respects with the other Party in connection with any request by a federal or state governmental authority for additional information and documents or any governmental investigation, complaint, action or other inquiry.
The respective rights and obligations of EyeCandys under Section 5.3 of this BAA shall survive the termination of this BAA and the Underlying Arrangement.
This BAA may be modified, or any rights under it waived, only by a written document executed by the authorized representatives of both Parties. In addition, if any relevant provision of the HIPAA Rules is amended in a manner that changes the obligations of EyeCandys or Covered Entity that are embodied in terms of this BAA, then the Parties agree to negotiate in good faith appropriate non-financial terms or amendments to this BAA to give effect to such revised obligations.
- EFFECT OF BAA
In the event of any inconsistency between the provisions of this BAA and the Underlying Arrangement, the provisions of this BAA shall control. In the event that a court or regulatory agency with authority over EyeCandys or Covered Entity interprets the mandatory provisions of the HIPAA Rules, in a way that is inconsistent with the provisions of this BAA, such interpretation shall control. Where provisions of this BAA are different from those mandated in the HIPAA Rules, but are nonetheless permitted by such rules as interpreted by courts or agencies, the provisions of this BAA shall control.
This BAA is governed by, and shall be construed in accordance with, the laws of the State of New York. Any action relating to this BAA must be commenced within one (1) year after the date upon which the cause of action accrued. Covered Entity shall not assign this BAA without the prior written consent of EyeCandys, which shall not be unreasonably withheld. If any part of a provision of this BAA is found illegal or unenforceable, it shall be enforced to the maximum extent permissible, and the legality and enforceability of the remainder of that provision and all other provisions of this BAA shall not be affected. All notices relating to the Parties’ legal rights and remedies under this BAA shall be provided in writing to a Party, shall be sent to its address set forth below, or to such other address as may be designated by that Party by notice to the sending Party, and shall reference this BAA. Nothing in this BAA shall confer any right, remedy, or obligation upon anyone other than Covered Entity and EyeCandys. This BAA is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing all prior agreements, communications, and understandings (written and oral) regarding its subject matter.
- Independent contractor
EyeCandys will be considered, for all purposes, an independent contractor, and EyeCandys will not, directly or indirectly, act as agent, servant or employee of Covered Entity or make any commitments or incur any liabilities on behalf of Covered Entity without its express written consent. Nothing in this BAA shall be deemed to create an employment, principal-agent or partner relationship between the Parties. EyeCandys shall retain sole and absolute discretion in the manner and means of carrying out its activities and responsibilities under this BAA.
IN WITNESS WHEREOF, the Parties have caused this BAA to be executed in their names by their duly authorized representatives as of the BAA Effective Date.
Avril Group Limited
Flat C 22F, 235 Wing Lok St Trade Center, Sheung Wan, Hong Kong