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 dba Founders Software (“Founders Software”) 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  Founders Software, 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  Founders Software from, or created, received, maintained, or transmitted by  Founders Software on behalf of, Customer (a) through the use of the  Founders Software Services or (b) for  Founders Software’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  Founders Software Services. Except as otherwise limited in this BAA,  Founders Software 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,  Founders Software may Use and Disclose Protected Health Information for the proper management and administration of  Founders Software and/or to carry out the legal responsibilities of  Founders Software  provided that any Disclosure may occur only if: (1) Required by Law; or (2)  Founders Software 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  Founders Software 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.  Founders Software Responsibilities. To the extent  Founders Software is acting as a Business Associate,  Founders Software agrees to the following:
(i) Limitations on Use and Disclosure.  Founders Software 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.  Founders Software 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.  Founders Software Services shall not use Protected Health Information for any advertising, Marketing or other commercial purpose of  Founders Software or any third party.  Founders Software shall not violate the HIPAA prohibition on the sale of Protected Health Information.  Founders Software 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.  Founders Software 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.  Founders Software 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  Founders Software becomes aware; (2) any Security Incident of which  Founders Software 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  Founders Software 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  Founders Software’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  Founders Software’s and Client’s legal obligations. For purposes of this Section, “Unsuccessful Security Incidents” mean, without limitation, pings and other broadcast attacks on  Founders Software’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  Founders Software selects, including through e-mail.  Founders Software’s obligation to report under this Section is not and will not be construed as an acknowledgement by  Founders Software 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,  Founders Software shall require its Subcontractors who create, receive, maintain, or transmit Protected Health Information on behalf of  Founders Software to agree in writing to: (1) the same or more stringent restrictions and conditions that apply to  Founders Software 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.  Founders Software remains responsible for its Subcontractors’ compliance with obligations in this BAA.
(v) Disclosure to the Secretary.  Founders Software 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,  Founders Software shall respond in accordance with the Agreement.
(vi) Access. If  Founders Software maintains Protected Health Information for Client, then  Founders Software  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  Founders Software maintains Protected Health Information for Client, then  Founders Software  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.  Founders Software at the request of Client, shall within fifteen (15) days make available to Client such information relating to Disclosures made by  Founders Software 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  Founders Software is to carry out a Covered Entity obligation under the Privacy Rule,  Founders Software 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  Founders Software 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  Founders Software pursuant to this BAA may be made electronically. Client shall provide contact information to  Founders Software (at such location or by method of updating contact information as  Founders Software 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  Founders Software’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,  Founders Software 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  Founders Software 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  Founders Software Services.

4. Applicability of BAA.
This BAA is applicable to BI Founders SoftwareS Services.  Founders Software may, from time to time, (a) include additional  Founders Software services that are incorporated into this agreement, and (b) update the definition of  Founders Software 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  Founders Software 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,  Founders Software 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  Founders Software 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  Founders Software 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  Founders Software an agent of Client.