BUFFALO INTELLIGENT TECHNOLOGY SYSTEMS, LLC

HIPAA Business Associate Agreement

The Health Insurance Portability and Accountability Act (“HIPAA”) requires certain covered entities and their business associates to protect the privacy and security of protected health information (“PHI”). Under regulations implementing HIPAA, a business associate may create, receive, maintain, or transmit PHI on behalf of a covered entity or business associate only if there are satisfactory assurances that the business associate will safeguard the information, which are to be documented in a business associate agreement.

If Client is a Covered Entity or a Business Associate and includes Protected Health Information in its use of Buffalo Intelligent Technology Systems, LLC (“BITS”) software or services, execution of a Software as a Service Agreement (“Agreement”) will incorporate the terms of this HIPAA Business Associate Agreement (“BAA”) into that Agreement. If there is any conflict between a provision in this BAA and a provision in the Agreement, this BAA will control.

1. Definitions

Except as otherwise defined in this BAA, capitalized terms shall have the definitions set forth in HIPAA, and if not defined by HIPAA, such terms shall have the definitions set forth in the Agreement.
“Breach Notification Rule” means the Breach Notification for Unsecured Protected Health Information Final Rule.
“Business Associate” shall have the same meaning as the term “business associate” in 45 CFR § 160.103 of HIPAA.
“Covered Entity” shall have the same meaning as the term “covered entity” in 45 CFR § 160.103 of HIPAA.
“Client”, for this BAA only, means Client and its Affiliates.
“Client Data” means all of Client’s data submitted to and processed through the Services.
“Services” means the Software, which is hosted on computer systems controlled by BITS, and which is made available to Client through the internet.
“HIPAA” collectively means the administrative simplification provision of the Health Insurance Portability and Accountability Act enacted by the United States Congress, and its implementing regulations, including the Privacy Rule, the Breach Notification Rule, and the Security Rule, as amended from time to time, including by the Health Information Technology for Economic and Clinical Health (“HITECH”) Act and by the Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules; Final Rule.
“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information.
“Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR § 160.103 of HIPAA, provided that it is limited to such protected health information that is received by BITS from, or created, received, maintained, or transmitted by BITS on behalf of, Customer (a) through the use of the BITS Services or (b) for BITS’s performance of the Services.
“Security Rule” means the Security Standards for the Protection of Electronic Protected Health Information.

2. Permitted Uses and Disclosures of Protected Health Information.
a. Performance of the Agreement for BITS Services. Except as otherwise limited in this BAA, BITS may Use and Disclose Protected Health Information for, or on behalf of, Client as specified in the Agreement; provided that any such Use or Disclosure would not violate HIPAA if done by Client, unless expressly permitted under paragraph b of this Section.
b. Management, Administration, and Legal Responsibilities. Except as otherwise limited in this BAA, BITS may Use and Disclose Protected Health Information for the proper management and administration of BITS and/or to carry out the legal responsibilities of BITS, provided that any Disclosure may occur only if: (1) Required by Law; or (2) BITS obtains written reasonable assurances from the person to whom the Protected Health Information is Disclosed that it 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 person, and the person notifies BITS of any instances of which it becomes aware in which the confidentiality of the Protected Health Information has been breached.

3. Responsibilities of the Parties with Respect to Protected Health Information.
a. BITS’s Responsibilities. To the extent BITS is acting as a Business Associate, BITS agrees to the following:
(i) Limitations on Use and Disclosure. BITS shall not Use and/or Disclose the Protected Health Information other than as permitted or required by the Agreement and/or this BAA or as otherwise Required by Law. BITS shall not disclose, capture, maintain, scan, index, transmit, share or Use Protected Health Information for any activity not authorized under the Agreement and/or this BAA. BITS Services shall not use Protected Health Information for any advertising, Marketing or other commercial purpose of BITS or any third party. BITS shall not violate the HIPAA prohibition on the sale of Protected Health Information. BITS shall make reasonable efforts to Use, Disclose, and/or request the minimum necessary Protected Health Information to accomplish the intended purpose of such Use, Disclosure, or request.
(ii) Safeguards. BITS shall: (1) use reasonable and appropriate safeguards to prevent inappropriate Use and Disclosure of Protected Health Information other than as provided for in this BAA; and (2) comply with the applicable requirements of 45 CFR Part 164 Subpart C of the Security Rule.
(iii) Reporting. BITS shall report to Client: (1) any Use and/or Disclosure of Protected Health Information that is not permitted or required by this BAA of which BITS becomes aware; (2) any Security Incident of which BITS becomes aware, provided that notice is hereby deemed given for Unsuccessful Security Incidents and no further notice of such Unsuccessful Security Incidents shall be given; and/or (3) any Breach of Client’s Unsecured Protected Health Information that BITS may discover (in accordance with 45 CFR § 164.410 of the Breach Notification Rule). Notification of a Breach will be made without unreasonable delay, but in no event more than five (5) business days after BITS’s determination of a Breach. Taking into account the level of risk reasonably likely to be presented by the Use, Disclosure, Security Incident, or Breach, the timing of other reporting will be made consistent with BITS’s and Client’s legal obligations. For purposes of this Section, “Unsuccessful Security Incidents” mean, without limitation, pings and other broadcast attacks on BITS’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, as long as no such incident results in unauthorized access, acquisition, Use, or Disclosure of Protected Health Information. Notification(s) under this Section, if any, will be delivered to contacts identified by Client pursuant to Section 3b(ii) (Contact Information for Notices) of this BAA by any means BITS selects, including through e-mail. BITS’s obligation to report under this Section is not and will not be construed as an acknowledgement by BITS of any fault or liability with respect to any Use, Disclosure, Security Incident, or Breach.
(iv) Subcontractors. In accordance with 45 CFR §§ 164.502(e)(1)(ii) and 164.308(b)(2) of HIPAA, BITS shall require its Subcontractors who create, receive, maintain, or transmit Protected Health Information on behalf of BITS to agree in writing to: (1) the same or more stringent restrictions and conditions that apply to BITS with respect to such Protected Health Information; (2) appropriately safeguard the Protected Health Information; and (3) comply with the applicable requirements of 45 CFR Part 164 Subpart C of the Security Rule. BITS remains responsible for its Subcontractors’ compliance with obligations in this BAA.
(v) Disclosure to the Secretary. BITS shall make available its internal practices, records, and books relating to the Use and/or Disclosure of Protected Health Information received from Client to the Secretary of the Department of Health and Human Services for purposes of determining Client’s compliance with HIPAA, subject to attorney-client and other applicable legal privileges. In the event such request is made, BITS shall respond in accordance with the Agreement.
(vi) Access. If BITS maintains Protected Health Information for Client, then BITS, at the request of Client, shall within fifteen (15) days make access to such Protected Health Information available to Client in accordance with 45 CFR § 164.524 of the Privacy Rule.
(vii) Amendment. If BITS maintains Protected Health Information for Client, then BITS, at the request of Client, shall within fifteen (15) days make available such Protected Health Information to Client for amendment and incorporate any reasonably requested amendment in the Protected Health Information in accordance with 45 CFR § 164.526 of the Privacy Rule.
(viii) Accounting of Disclosure. BITS, at the request of Client, shall within fifteen (15) days make available to Client such information relating to Disclosures made by BITS as required for Client to make any requested accounting of Disclosures in accordance with 45 CFR § 164.528 of the Privacy Rule.
(ix) Performance of a Covered Entity’s Obligations. To the extent BITS is to carry out a Covered Entity obligation under the Privacy Rule, BITS shall comply with the requirements of the Privacy Rule that apply to Client in the performance of such obligation.

b. Client Responsibilities.
(i) No Impermissible Requests. Client shall not request BITS to Use or Disclose Protected Health Information in any manner that would not be permissible under HIPAA if done by a Covered Entity (unless permitted by HIPAA for a Business Associate).
(ii) Contact Information for Notices. Client hereby agrees that any reports, notification, or other notice by BITS pursuant to this BAA may be made electronically. Client shall provide contact information to BITS (at such location or by method of updating contact information as BITS may specify from time to time) and shall ensure that Client’s contact information remains up to date during the term of this BAA. Failure to submit and maintain as current the aforementioned contact information may delay BITS’s ability to provide Breach notification under this BAA.
(iii) Safeguards and Appropriate Use of Protected Health Information. Client is responsible for implementing appropriate privacy and security safeguards to protect its Protected Health Information in compliance with HIPAA. Without limitation, it is Client’s obligation to:
1) Not include Protected Health Information in: (1) information Client submits to technical support personnel through a technical support request or to community support forums; and (2) Client’s address book or directory information. In addition, BITS does not act as, or have the obligations of, a Business Associate under HIPAA with respect to Client Data once it is sent to or from Client outside of BITS Services over the public Internet, or if Client fails to follow applicable instructions regarding physical media transported by a common carrier.
2) Implement privacy and security safeguards in the systems, applications, and software Client controls, configures, and uploads into or uses in connection with the BITS Services.

4. Applicability of BAA.
This BAA is applicable to BITS Services. BITS may, from time to time, (a) include additional BITS services that are incorporated into this agreement, and (b) update the definition of BITS Services in this BAA accordingly, and such updated definitions will apply to Client without additional action by Client. It is Client’s obligation to not store or process in an online service, or provide to BITS for performance of a professional service, protected health information (as that term is defined in 45 CFR § 160.103 of HIPAA) until this BAA is effective as to the applicable service.

5. Term and Termination.

a. Term. This BAA shall continue in effect until the earlier of (1) termination by a Party for breach as set forth in Section 5b, below, or (2) expiration of Client’s Agreement.

b. Termination for Breach. Upon written notice, either Party immediately may terminate the Agreement and this BAA if the other Party is in material breach or default of any obligation in this BAA. Either party may provide the other a thirty (30) calendar day period to cure a material breach or default within such written notice.

c. Return, Destruction, or Retention of Protected Health Information Upon Termination. Upon expiration or termination of this BAA, BITS shall return or destroy all Protected Health Information in its possession, if it is feasible to do so and permitted by applicable laws and regulations, and as set forth in the applicable termination provisions of the Agreement. If it is not feasible or permitted by applicable law to return or destroy any portions of the Protected Health Information upon termination of this BAA, then BITS shall extend the protections of this BAA, without limitation, to such Protected Health Information and limit any further Use or Disclosure of the Protected Health Information to those purposes that make the return or destruction infeasible for the duration of the retention of the Protected Health Information.

6. Miscellaneous.

a. Interpretation. The Parties intend that this BAA be interpreted consistently with their intent to comply with HIPAA and other applicable federal and state law. Except where this BAA conflicts with the Agreement, all other terms and conditions of the Agreement remain unchanged. Any captions or headings in this BAA are for the convenience of the Parties and shall not affect the interpretation of this BAA.

b. BAAs; Waiver. This BAA may not be modified 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, as a bar to, or as a waiver of any right or remedy as to subsequent events.

c. No Third-Party Beneficiaries. Nothing express or implied in this BAA is intended to confer, nor shall anything in this BAA confer, upon any person other than the Parties, and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.

d. Severability. In the event that any provision of this BAA is found to be invalid or unenforceable, the remainder of this BAA shall not be affected thereby, but rather the remainder of this BAA shall be enforced to the greatest extent permitted by law.

e. No Agency Relationship. It is not intended that an agency relationship (as defined under the Federal common law of agency) be established hereby expressly or by implication between Client and BITS under HIPAA or the Privacy Rule, Security Rule, or Breach Notification Rule. No terms or conditions contained in this BAA shall be construed to make or render BITS an agent of Client.