NONDISCLOSURE AGREEMENT.docx
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- MMIS_PL_1
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NONDISCLOSURE AGREEMENT
FOR ACCESS TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
PROCUREMENT LIBRARY
RECIPIENT INFORMATION (to be completed by Recipient)
Company Name:
Address:
Contact Name:
Contact Title:
Telephone No:
Email:
FOR AND IN CONSIDERATION of access to the South Carolina Department of Health and Human Services (SCDHHS) Procurement Library, and for other good and valuable consideration, the above-named recipient of information (“Recipient”) agrees as follows:
1. Definition of Terms.
| 1.1. | “Electronic Protected Health Information” means Protected Health Information which is transmitted by Electronic Media (as defined in the HIPAA Security and Privacy Rule) or maintained in Electronic Media. |
| 1.2. | “HIPAA Security and Privacy Rule” means the Standards for Security and Privacy of Individually Identifiable Health Information found in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-91, as amended and related HIPAA regulations at 45 C.F.R. part 160-164, as in effect or as amended. |
| 1.3. | “Protected Health Information” has the same meaning as the term “protected health information” defined in 45 C.F.R. §164.103, limited for the purposes of this Nondisclosure Agreement to such information as the Recipient may receive from SCDHHS as part of the Protected Materials. Protected Health Information includes without limitation "Electronic Protected Health Information" as defined above in Section 1.1. |
| 1.4. | “Protected Materials” means the data, in whatever form, contained in SCDHHS’ Procurement Library. Protected Materials shall not include any information that: (i) is or becomes part of the public domain through no act or omission on the part of the Recipient, (ii) is in the Recipient’s possession, as evidenced by a writing, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this Nondisclosure Agreement, (iii) is released from confidential treatment by written consent of SCDHHS; (iv) is disclosed to the Recipient by a third party with the legal right to do so; or (v) is required to be disclosed pursuant to any legal proceedings. |
| 1.5. | “Required By Law” has the same meaning as the term “required by law” defined in 45 C.F.R. §164.103. |
| 1.6. | “RFP” means the Request for Proposal issued by the Information Technology Management Office of the Procurement Services Division on behalf of SCDHHS for the Replacement MMIS System Project. |
2. Confidential Nature of Protected Materials.
The Recipient acknowledges that the Protected Materials have tangible value, and may contain valuable trade secrets, copyrights and confidential information of SCDHHS or its licensors.
3. Nondisclosure and Security.
3.1. Confidentiality.
Recipient agrees to use reasonable and appropriate safeguards to prevent use or disclosure of the Protected Materials other than as provided for by this Nondisclosure Agreement or as Required By Law. The Recipient shall not in any manner or form reproduce, copy, disclose, provide or otherwise make available, in whole or in part, the Protected Materials. Recipient acknowledges and agrees that it acquires no title or rights to the Protected Materials, including any de-identified Protected Health Information, as a result of this Nondisclosure Agreement.
3.2. Improper Disclosure.
Recipient agrees to mitigate, to the extent practicable, any harmful effect that is known to Recipient of a use or disclosure of Protected Materials by Recipient in violation of the requirements of this Nondisclosure Agreement. Recipient agrees to report any use or disclosure of the Protected Materials not provided for by this Nondisclosure Agreement to the SCDHHS Privacy Officer within one (1) business of the Recipient’s discovery of such unauthorized use and/or disclosure. Recipient shall report to the SCDHHS Privacy Officer within one (1) business day of discovery any Security Incident of which Recipient becomes aware. For purposes of this Nondisclosure Agreement, "Security Incident" shall mean the attempted or successful unauthorized access, use, disclosure, modification or destruction of information or interference with system operations in an information system used with respect to Protected Materials.
4. Permitted Purposes.
If Recipient intends to review the Protected Materials to determine whether Recipient wishes to serve as a supplier or subcontractor to a contractor on the RFP, then Recipient may use the Protected Materials only for that purpose. If Recipient intends to review the Protected Materials as a potential direct contractor on the RFP, then Recipient may use the Protected Materials only for the purposes of (a) evaluating whether it intends to respond to the RFP and (b) preparing its response to the RFP. SCDHHS shall not request Recipient to use or disclose Protected Health Information in any manner that would not be permissible under the HIPAA Security and Privacy Rule if done by SCDHHS.
5. Destruction of Protected Materials.
If, prior to the award of the Contract that is the subject of the RFP, SCDHHS notifies Recipient of the termination of access to any or all documents in the SCDHHS Procurement Library Recipient shall promptly destroy all Protected Materials and copies thereof in its possession or under its control, and certify such destruction to SCDHHS in writing.
If the Contract that is the subject of the RFP is awarded to an entity other than Recipient, then upon such award, Recipient shall promptly destroy all Protected Materials and copies thereof in its possession or under its control, and certify such destruction to SCDHHS in writing. If the Contract is awarded to Recipient, Recipient shall destroy all Protected Materials and copies thereof in its possession or under its control, and certify such action in writing, upon the earlier of the expiration or termination of the Contract or such time as Recipient may cease to use the Protected Materials for the purposes permitted above.
6. Access.
The Recipient agrees to provide SCDHHS or its agents with access to all necessary persons and records for the purpose of monitoring, evaluating, or auditing Recipient’s compliance with this Nondisclosure Agreement.
7. Term and Termination.
The term of this Nondisclosure Agreement shall commence upon execution by Recipient and shall terminate on the date of award of the Contract that is the subject of this RFP, unless earlier terminated by SCDHHS. Upon such termination Recipient shall immediately certify to SCDHHS that Recipient has destroyed all of the Protected Materials provided by SCDHHS. Upon SCDHHS’ knowledge of a material breach by Recipient, SCDHHS may immediately terminate Recipient’s access to the SCDHHS Procurement Library. Any noncompliance with this Nondisclosure Agreement or the HIPAA Security and Privacy Rule will be deemed a material breach, if Recipient knew or reasonably should have known of such noncompliance and failed to immediately take reasonable steps to cure the noncompliance.
8. Survival of Promises.
Recipient agrees that Recipient's obligations with respect to the confidentiality and security of the Protected Materials survive the termination of this Nondisclosure Agreement.
9. Breach of Nondisclosure Agreement.
In the event of a material breach of this Nondisclosure Agreement by the Recipient, in addition to any other remedy available to SCDHHS by law or in equity, the Recipient will be disqualified from being awarded the Contract that is the subject of the RFP.
10. Choice of Laws.
The validity of this Nondisclosure Agreement and any of its terms or provisions, as well as the rights and duties of the Recipient and SCDHHS, are governed by the laws of South Carolina, exclusive of its conflicts of laws provisions. The Recipient, by signing this Nondisclosure Agreement, agrees and submits, solely for matters concerning this Nondisclosure Agreement, to the jurisdiction of the courts of South Carolina and agrees, solely for such purpose, that the venue for any legal proceedings shall be Richland County, South Carolina. The place of all contracts, transactions, agreements, their situs and forum, shall be Richland County, South Carolina, where all matters, whether sounding in contract or tort, relating to the validity, construction, interpretation, and enforcement shall be determined.
11. Priority Among Agreements.
In the event that Recipient is awarded the Contract that is the subject of the RFP and there is any conflict between the terms of this Nondisclosure Agreement and the terms of that Contract or its ancillary agreements (including without limitation any HIPAA Business Associate Agreement entered into by SCDHHS and Recipient), the terms of that Contract and its ancillary agreements shall control over the terms of this Nondisclosure Agreement.
12. Signature Warranty.
Each individual signing below warrants that he or she is duly authorized by the party to sign this Nondisclosure Agreement and to bind the party to the terms and conditions of this Nondisclosure Agreement. Facsimile and scanned signatures of this Nondisclosure Agreement shall be binding signatures.
13. Severability.
Any provision of this Nondisclosure Agreement prohibited by the laws of the State of South Carolina shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of this Nondisclosure Agreement.
14. Non-Waiver.
The failure or delay of SCDHHS to enforce any particular provision of this Nondisclosure Agreement shall not be deemed a waiver by SCDHHS of any of its rights hereunder, nor shall it be deemed a waiver of any subsequent or continuing breaches of that provision, unless such waiver is expressed in writing signed by SCDHHS.
IN WITNESS WHEREOF, Recipient has executed this Nondisclosure Agreement as of this day of , 201 .
RECIPIENT:
BY:
Authorized Signature
Print Name
WITNESS:
Sign
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