Second Sight Solutions

Welcome to our 340B ESP™ Platform, provided by Second Sight Solutions LLC and its affiliates (collectively, “Company,” “we,” “us,” “our”). These Terms of Use, as may be amended by us from time to time (the “Terms”) are a legally binding contract between Company and “you”, the Covered Entity (and/or its agent) using this Platform. The Terms explain how you are permitted to use the 340B ESP services provided by and through our platform available at www.340besp.com (the “Platform”). These Terms also govern your use of all the data, information, documentation, software, tools, applets, browser extensions, user interfaces, text, analytics, graphics, proprietary content and/or anything else (all of which we refer to collectively as “Materials”) that we and/or our affiliates may make accessible or available to you, as well as any services provided through the Platform. Collectively, the 340B ESP Platform, the Materials, and the related services provided by the company are referred herein to as the “340B ESP Platform” or “340B ESP.”

BY USING AND/OR REGISTERING TO USE THE 340B ESP PLATFORM, CLICKING THE “ACCEPT” BUTTON, OR OTHERWISE AFFIRMING ACCEPTANCE, YOU ACKNOWLEDGE THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE 340B ESP PLATFORM. THESE TERMS APPLY TO ALL VISITORS, USERS, CUSTOMERS, COVERED ENTITIES (AS DEFINED BELOW) AND ANY OTHER WHO ACCESS OR USES THE 340B ESP PLATFORM. IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT HAVE AUTHORITY TO AGREE, DO NOT USE THE 340B ESP PLATFORM.

Note: These Terms contain a dispute resolution (See Section 14), including a class action waiver that affects your rights.

YOUR ACCEPTANCE AND CONTRACTUAL RELATIONSHIP.
By using the 340B ESP Platform, you represent that you are at least 18 years of age, or that you are of age under the laws of your jurisdiction, and lawfully able to enter into contracts. If you are under 18 years of age or not legally able to enter into contracts in your place of residence, you are not allowed to use the 340B ESP Platform, in which case please do not use the 340B ESP Platform and do not provide us with your information.
IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COVERED ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY AND CAPACITY TO BIND SUCH COVERED ENTITY. IF YOU ARE NOT AUTHORIZED NOR DEEMED BY LAW TO HAVE SUCH AUTHORITY, YOU ASSUME SOLE PERSONAL LIABILITY FOR THE OBLIGATIONS SET OUT IN THESE TERMS. The terms “you” and “your” refer to you, the legal entity you represent, and its affiliates.
Your access to and use of the 340B ESP Platform is subject to your continued compliance with these Terms and all applicable laws. If you breach these Terms, your right to access and use the 340B ESP Platform will terminate immediately, without any further action by Company, except for those obligations expressly described by the Company in these Terms.
PRIVACY.
Please review our privacy policy (the “Privacy Policy”) available at https://www.340besp.com/privacy which explains how we use any personal information that you submit to Company. The Privacy Policy is hereby incorporated by reference.
MODIFICATIONS AND ADDITIONAL TERMS.
1. Changes to these Terms. Company can change, update, add or remove provisions of these Terms at any time by posting the updated Terms on the Site and by providing a notice on the 340B ESP Platform. We will ask for your express consent to the updated Terms when and where we are legally required to do so. If you do not agree with any of the updated Terms, you must stop using the 340B ESP Platform. Continued use of the 340B ESP Platform following notice of any such modifications indicates You acknowledge and agree to be bound by the modifications. Unless otherwise required by law, the updated Terms are effective as of the day of posting.
2. Changes to the 340B ESP Platform. Company may make changes to the 340B ESP Platform at any time, without notice to you. If you object to any changes to the 340B ESP Platform, your sole recourse will be to cease using the 340B ESP Platform. Continued use of the 340B ESP Platform following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the 340B ESP Platform as modified. We also reserve the right to discontinue the 340B ESP Platform, or any component of it, at any time without notice to you. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the 340B ESP Platform.
3. Additional Terms. In addition, certain features of the 340B ESP Platform may be subject to additional terms of use (“Additional Terms”), which shall be provided to you at the moment you choose to use such features or services. By using such features, or any part thereof, you agree to be bound by the Additional Terms applicable to such features. In the event that any of the Additional Terms governing such features conflict with these Terms, the Additional Terms will govern.
LICENSE TO USE THE 340B ESP PLATFORM, REGISTRATIONS AND ACCOUNTS, GENERALLY.
For as long as you agree to these Terms and abide by them, you may use the 340B ESP Platform. These Terms apply to all users of the 340B ESP Platform, including visitors and Registered Users (as further described in Section 4(e) below). The 340B ESP Platform is licensed, not sold, to you.
1. Grant of a Limited License to Use the 340B ESP Platform. The 340B ESP Platform is protected by copyright laws throughout the world. Subject to your agreement, and continuing compliance with these Terms, Company grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to use the 340B ESP Platform and/or download and use copy(ies) of App(s) or downloadable software on a mobile device or computer, including any desktop version of the platform, that you own or control, and to run such copy solely for your own individual, non-commercial purposes only. You agree not to use the 340B ESP Platform for any other purpose. Nothing in the license granted above or in these Terms shall restrict Company's ability to license the access and use of the 340B ESP Platform or provide any other services to any third parties, regardless of any potential conflict between such third parties and you.
2. Reserved Rights. All rights not expressly granted to you in these Terms are reserved and retained by Company and/or its licensors. The licenses granted by Company terminate if you do not comply with these Terms and/or any other 340B ESP Platform terms and conditions. By using the 340B ESP Platform, you representthat you are not a person barred from using the 340B ESP Platform under the laws, rules and regulations of the United States of America, your place of residence or any applicable jurisdiction. No other rights, assignment, licenses or legal relationship of any nature, including, but not limited to, agency, partnership, joint-venture, employer-employee, franchisor-franchisee or otherwise, either express or implied, are created through your use of the 340B ESP Platform unless expressly set forth in these Terms.
3. Registered Users. In order to access certain features of the 340B ESP Platform you may be required to become a Registered User. A “Registered User” is a user who has registered an account with us (your “Account”). Please refer to our Privacy Policy (https://www.340besp.com/privacy) for more details about submitting personal information to us. In registering for the 340B ESP Platform, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted by the 340B ESP Platform’s registration form (the “RegistrationData”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (A) notify Company immediately of any unauthorized use of your password or any other breach of security at support@340besp.com and (B) exit from your Account at the end of each session, on any device on which session was initiated. Even if you notify us, you will be responsible for any activities that occur using your access credentials, including any charges resulting from the use of your Account. Company will not be liable for any losses caused by any unauthorized use of your Account. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the 340B ESP Platform (or any portion thereof). You agree not to create an Account using a false identity or information. Company shall be entitled to monitor your username and password and, at its discretion, require you to change it. If you use a username and password that Company considers insecure or inappropriate, Company will be entitled to require this to be changed and/or terminate your Account. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to register for an Account on behalf of an individual other than Yourself or register for an Account on behalf of any group or entity unless you are authorized to bind such person, group, organization, or entity to these Terms. By registering another person, group, organization, or entity you hereby represent that you are authorized to do so. You agree not to create an Account or use the 340B ESP Platform if you have been previously removed by Company, or if you have been previously banned from any of the Company properties.
THE 340B ANALYTICS DATA 340B ESP PLATFORM AND COVERED ENTITIES IN PARTICULAR.
The 340B ESP Platform includes an integrated software-as-a-service platform that enables the submission of certain de-identified 340B claims data, for the 340B ESP Platform to run analytics on such 340B claims data, for the use by Participating Pharmaceutical Manufacturers or PPMs (defined in Sec 5(c)(iii) below), in order to identify duplicate Medicaid, Medicare, TriCare and commercial payer rebates that are not eligible for reimbursement (“Ineligible Rebates”) by such PPMs.
For additional information about the 340B ESP Platform than the information provided below, please see our Frequency Asked Questions (“FAQs”), available online at www.340besp.com/faqs.
1. Covered Entity Registration. If you are employed by, represent or acting as an agent of a health care organization or “covered entity” (as such term is defined under the 340B Drug Pricing Program codified at 42 U.S.C. § 256b) (hence forth a “Covered Entity”), in order to use the 340B ESP Platform, you (i) must register for an account at www.340besp.com/register and www.340besp.com/login using an e-mail address associated with the Covered Entity by whom you are employed or acting as an agent and on whose behalf you will be submitting de-identified 340B claims data (“Claims Data”), or (ii) you must register using an invitation received from an Administrator Account (defined below) associated with the Covered Entity. You agree that you are subject to the terms of Section 5(d) below.
2. Data Collected By the 340B ESP Platform.
  1. De-identification and re-identification. The 340B ESP Platform enables you, on behalf of the Covered Entity, to use your computer under your control to (A) de-identify 340B claims data into Claims Data that is fully de-identified as defined under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as may be modified from time to time (“HIPAA”); and (B) subsequently upload the Claims Data to Company's servers for further processing. Company shall not attempt to re-identify or de-anonymize any of the Claims Data, including, without limitation, attempting to correlate any such data with any number, identifier, characteristic or other information that could be used, alone or in combination with other information, to identify any individual patient.
  2. Data Accuracy. You represent and warrant that the 340B claims data that you load into the 340B ESP Platform and the Claims Data that you submit through the 340B ESP Platform will be complete and accurate, and follow the format and instructions provided within the 340B ESP Platform. If any data is provided in an incorrect format (e.g., a misidentification of a field) the deidentification process may not work as intended. If you inadvertently submit any PHI to the 340B ESP Platform, Company shall upon discovery of such error delete the PHI from the 340B ESP Platform and notify you accordingly. Company assumes no responsibility or liability for any errors in the data received from you, to the extent arising from errors in your records or from incorrect use of the 340B ESP Platform.
  3. The availability of the 340B ESP Platform is not designed to be, nor is it intended to qualify as, a delivery of services on your behalf involving PHI.
3. Rights You Grant to Us.
  1. Data License. You represent and warrant that you have any and all necessary right, title, license and authority (including any and all necessary permissions from third-party owners and rights holders) to provide the Claims Data to the 340B ESP Platform. You grant Company a worldwide, sublicensable through multiple tiers, non-exclusive, royalty-free, perpetual, irrevocable license to collect, process, disclose, analyze, combine with other data, create derivative works of and otherwise use the Claims Data (“Data License”) for the purposes set forth herein, including specifically pursuant to Sections 5(c)(iv) and 5(c)(v), and represent and warrant that you are authorized to grant such Data License on behalf of the Covered Entity. This Data License survives after termination of the Agreement and shall survive as to any Claims Data that you have submitted on behalf of the Covered Entity or that a TPA (as defined in Section 5(c)(iii) herein) has submitted on behalf of the Covered Entity after such respective dates of submission. You further represent and warrant that you are under no obligation to any third party that would prohibit or interfere with entering into these Terms, providing such Claims Data, granting the Data License or otherwise performing under these Terms, and that entering into these Terms and the arrangements set forth in these Terms (including without limitation providing such data and granting the Data License) and performance hereunder will neither conflict with, result in, nor constitute a breach under any other agreement or arrangement to which you are a party.
  2. You assume responsibility for ensuring that data is entered correctly into the 340B ESP Platform to ensure correct submission of Claims Data. You agree to follow all instructions provided within the 340B ESP Platform to provide 340B claims data on behalf of the Covered Entity in the specified format to facilitate de-identification thereof and submission of Claims Data.
  3. You agree that Company may use the 340B ESP Platform to collect Claims Data for pharmaceutical manufacturers identified within the 340B ESP Platform (“Participating Pharmaceutical Manufacturers” or “PPMs”). You agree that if the Covered Entity has authorized and consented to having one or more third party administrators submit Claims Data associated with such Covered Entity to Company on its behalf (each, a “TPA”), Company may reach out to such TPAs to collect such Claims Data from the TPAs. You may, on behalf of a Covered Entity, withdraw the authorization and consent for a TPA to provide Claims Data to Company, with ten (10) business days advance written notice provided to Company at the Notices contact provided below, and to the TPA.
  4. You agree that Company may enable Claims Data to be combined with rebate data remitted to PPMs by payers (including Medicaid, Medicare, TRICARE and commercial payers) (“Rebate Data”) in order to identify Ineligible Rebates, determine eligibility under the 340B Drug Pricing Program, and determine compliance with PPMs' policies. You agree that Company may enable reporting of the Ineligible Rebates, together with any other 340B ESP Platform Data (as defined below), to PPMs, commercial payers, rebate claims processors or state Medicaid agencies. You acknowledge and agree that PPMs, commercial payers, rebate claims processors or state Medicaid agencies may link the Claims Data with identifiable complete rebate data possessed by such entities.
  5. You agree that Company may disclose and sub-license the Claims Data and any other data derived from the interpretation, analysis, and combination of the foregoing data with other data (the “340B ESP Platform Data”) to the PPMs, commercial payers, rebate claims processors, Centers for Medicare & Medicaid Services, or state Medicaid agencies under the same Terms as applicable to us for the purpose of identifying Ineligible Rebates, determining eligibility under the 340B Drug Pricing Program, and determining compliance with PPMs' policies. Claims Data will only be disclosed or sublicensed to the specific Participating Pharmaceutical Manufacturer that owns or markets the specific product included on the claim, and only for the purposes set forth herein, including specifically pursuant to Sections 5(c)(iv) and 5(c)(v). Further, you agree that Company may use the 340B ESP Platform Data for purposes of identifying Ineligible Rebates, improving the 340B ESP Platform and improving the process for identifying Ineligible Rebates.
4. Use of the 340B Analytics Data 340B ESP Platform.
  1. Account. Your access and use of the 340B ESP Platform shall be solely for your use on behalf of the Covered Entity. Upon registration, you will be assigned a User ID and you shall select a password to access and use the 340B ESP Platform.
  2. User Accounts. In order to register for an Account, you must either (A) use an email address having a domain name associated with the Covered Entity to register for an Account that can invite other users to register on behalf the Covered Entity (“Administrator Account”), or (B) register using an invitation from the Administrator Account of the Covered Entity. As part of the registration process we will ask you to provide some information, such as first name, last name, work e-mail address, cell phone number, and/or the Covered Entity on whose behalf you are accessing the 340B ESP Platform (“User Information”). Your User Information will be used as part of the registration process and for authentication purposes. Please be aware that if you register using a work e-mail having a domain name associated with a Covered Entity, you represent and warrant to us that you are an employee or agent of such Covered Entity. If you register via an invitation by an Administrator Account using a work e-mail having a domain name different than the Covered Entity, you represent and warrant that you are an employee or agent of the Covered Entity, or an employee or agent of a legal entity that has been contracted and authorized by the Covered Entity to provide Claims Data to the 340B ESP Platform on its behalf. Your registration may be subject to our verification and further requests for information and may be denied for any reason or no reason. Please refer to our Privacy Policy (https://www.340besp.com/privacy) for more details about how we use any User Information you may submit to us.
  3. Conditions of Use. You agree to comply with these Terms as well as all Applicable Laws related to or in connection with the 340B ESP Platform, its use, and data provided to or displayed by the 340B ESP Platform.
  4. Account Access and Termination. Company reserves the right to deny access to any user, or terminate the use of any User ID and password, at any time in the event Company determines in its sole discretion that unauthorized or otherwise inappropriate use of the 340B ESP Platform by a user has occurred or may occur, including but not limited to conduct in breach of these Terms or in violation of Applicable Laws.
5. Monitoring. You acknowledge and grant us the right to (i) monitor your use of the 340B ESP Platform, (ii) monitor compliance with this Agreement, (iii) investigate any complaint or reported violation of our policies; or (iv) report any activity that we suspect may violate any law or regulation to regulators, law enforcement officials or other persons or entities that we deem appropriate. If any such monitoring reveals that you are not using the 340B ESP Platform in compliance with this Agreement, then you will remedy any such non-compliance within five (5) business days of receiving notice from us.
6. Security and Confidentiality. Company agrees to use appropriate administrative, physical, and technical safeguards to keep Claims Data secure and to prevent the use or disclosure of Claims Data other than as provided by this Agreement. For additional information, please see the FAQs at www.340besp.com/faqs.
OUR INTELLECTUAL PROPERTY RIGHTS AND FEEDBACK.
The 340B ESP Platform and its features and functionality, including, without limitation, any Materials, and the selection and arrangement thereof, are the exclusive property of Company, our licensors or other content suppliers, and are protected by United States of America and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, and may not be used or exploited in any way without our prior written consent.
Company owns, solely and exclusively, all intellectual property rights embodied in or practiced by our products, services, and systems, and any improvements and derivatives therein.
No right, title or interest in or to the 340B ESP Platform or any Materials is transferred to you and all rights not expressly granted are reserved. Any use of the 340B ESP Platform that is not expressly permitted by these Terms may be a breach of these Terms and may violate copyright, trademark and other intellectual property laws.
In addition to the intellectual property rights mentioned above, for purposes of these Terms, “Materials” also include all information such as the “look and feel” of the 340B ESP Platform, data files, graphics, text, information, analytics, blogs, photographs, drawings, logos, images, sounds, music and video and audio files on the 340B ESP Platform. Company exercises reasonable efforts to ensure that the Materials are accurate, however Your use of the 340B ESP Platform is at your own risk.
Any comments, questions, suggestions, or materials regarding the 340B ESP Platform from You to Us (collectively, “Feedback”) through any communication whatsoever (e.g., call, email) will be treated as both non-confidential and non-proprietary. Except as prohibited by Applicable Law, you hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Us an exclusive, transferable, worldwide, royalty-free, fully paid-up license (including the right to sublicense) to use and exploit all Feedback as We may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
UNAUTHORIZED ACTIVITIES.
Unauthorized use of the 340B ESP Platform may result in violation of various United States and international laws. In addition to the restrictions set forth in Section 4(b), You are not authorized to use this 340B ESP Platform in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):
You agree to hire attorneys to defend Us if You violate these Terms and that violation results in a problem for Us. You also agree to pay any damages that We may end up having to pay as a result of Your violation. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Our defense of such claim
WARRANTIES AND DISCLAIMERS.
You use the 340B ESP Platform at your own risk. THE 340B ESP PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY (ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSOCIATES, PARTNERS, LICENSORS AND SUPPLIERS) DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
COMPANY DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE 340B ESP PLATFORM AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE 340B ESP PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ALL DEFECTS WILL BE CORRECTED; OR THAT THE 340B ESP PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY DOES NOT WARRANT THAT THE FUNCTIONAL ASPECTS OF THE 340B ESP PLATFORM OR THE MATERIALS WILL BE ERROR FREE OR THAT THE 340B ESP PLATFORM, THE MATERIALS OR THE PLATFORM THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS SUPPLIERS MAKE NO WARRANTIES ABOUT THE MATERIALS OR ABOUT RESULTS TO BE OBTAINED FROM USING THE 340B ESP PLATFORM. COMPANY RESERVES THE RIGHT TO WITHDRAW, TEMPORARILY OR PERMANENTLY, ANY MATERIALS FROM THE 340B ESP PLATFORM AT ANY TIME AND FOR ANY REASON AND SUCH REMOVAL MAY BE IMMEDIATE AND WITHOUT NOTICE. AS AN EXPRESS CONDITION TO YOUR USE OF AND ACCESS TO THE 340B ESP PLATFORM, YOU ACKNOWLEDGE, AGREE AND CONFIRM THAT COMPANY IS NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SUCH WITHDRAWAL. WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF OUR 340B ESP PLATFORM (INCLUDING ANY NETWORKS AND SERVERS USED TO PROVIDE ANY PART OF THE 340B ESP PLATFORM).
You will take appropriate steps, both before accessing and using the 340B ESP Platform and at all times thereafter, to copy and protect your own data and programs that may be lost, harmed or destroyed and to protect your equipment from any damage. You will be responsible for reconstruction, replacement, repair or recreation of lost programs, data or equipment in the event of any hardware, software, or services failure as a result of accessing or using the 340B ESP Platform. Company will not, under any circumstances, be responsible for any such losses or damages.
LIMITATIONS OF LIABILITY. YOU UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES, ECONOMIC OR OTHER LOSS OR DAMAGE, WHETHER INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SHALL NOT APPLY TO COMPANY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. COMPANY'S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (i) AMOUNTS PAID HEREUNDER, OR (ii) ONE HUNDRED DOLLARS ($100).
INDEMNIFICATION.
1. Indemnification by you, your employer or principal. You, and if applicable your employer or principal (“Indemnitors”) agree to defend, indemnify and hold harmless (including reasonable expenses, costs and attorneys' fees) Company and its directors, officers, managers, employees, agents, representatives, successors and assigns (“Company Indemnitees”) from any claims by thirdparties, second-parties, government authorities, or actions arising from injury or damage to persons or tangible property resulting directly or indirectly from (i) your access or use or unauthorized access or use of the 340B ESP Platform, (ii) your breach of these Terms, (iii) any third party's access or use of the 340B ESP Platform permitted by you, or (iv) your sharing of any claims Data in breach of any agreements between you and a third party. Indemnitors will assume control of the defense and settlement of any claim subject to indemnification by Indemnitors; provided, however, that Company may, at any time, elect to take control of the defense and settlement of any such claim without modifying or releasing your obligations hereunder. In any event, you will not settle any such claim without Company's prior written consent.
2. Indemnification by Company. Company agrees to defend, indemnify and hold harmless (including reasonable expenses, costs and attorneys' fees) any Covered Entity and their directors, officers, managers, employees, agents, representatives, successors and assigns (“Covered Entity Indemnitees”) from any claims by third-parties, second-parties, government authorities, or actions arising from injury or damage to persons or tangible property resulting directly or indirectly from (i) unauthorized disclosure of Claims Data from the 340B ESP Platform or (ii) a security incident or breach impacting the 340B ESP Platform that results in an obligation to notify governmental authorities of such security incident or breach, provided that Covered Entity Indemnitees have complied and are in compliance with all Terms under this Agreement. Company will assume control of the defense and settlement of any claim subject to indemnification by Company; provided, however, that Covered Entity Indemnitees may, at any time, elect to take control of the defense and settlement of any such claim without modifying or releasing Company's obligations hereunder. In any event, Company will not settle any such claim without Covered Entity Indemnitees' prior written consent.
TERM AND TERMINATION.
The Terms commence on the date when you start using the 340B ESP Platform and/or upon your agreement to these Terms and remain in full force and effect while you use the 340B ESP Platform, unless terminated earlier in accordance with the Terms. If you want to terminate the 340B ESP Platform, you may do so by (a) notifying Company thirty (30) days in advance; and/or (b) deleting your account.
We reserve the right to terminate or suspend your account or access to the 340B ESP Platform at any time and for any reason. It is within our sole discretion and determination to terminate your Account for what we deem to be a violation or breach of these Terms. In the event that we terminate or suspend your Account, you will have no further access to your Account or anything associated with it. Termination of the 340B ESP Platform includes (i) automatic termination of all licenses and you must immediately destroy any downloaded or printed Materials (including software); and (ii) deletion of your password and related information, files and content associated with or inside your Account (or any part thereof), except to the extent of any surviving licenses or applicable record retention requirements. Company will not have any liability whatsoever to you for any suspension or termination.
Termination of the 340B ESP Platform shall immediately and automatically terminate your right to access and use the 340B ESP Platform. Upon termination, you will promptly cease using the 340B ESP Platform and Company may immediately terminate your access to the 340B ESP Platform and Company shall have no obligation to return to you any data stored on Company's systems.
All provisions of the Terms, which by their nature should survive, shall survive termination of the 340B ESP Platform, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
LINKS TO THIRD-PARTY SITES.
The 340B ESP Platform may be linked to other websites that are not Company properties (collectively, “Third-Party Sites”). You acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Company, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions and/or user guides. Company does not verify, make any representations or take responsibility for any Third-Party Site, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please read this carefully. It affects your rights.
1. Applicable Law. These Terms will be subject to and construed in accordance with the laws of the State of Illinois, United States of America, excluding its rules regarding conflicts of law. You agree that any claim or dispute you may have against Company must be resolved exclusively by a state or federal court located in the Northern District of Illinois, except as otherwise agreed by the parties or as described in the Arbitration subsection below. You agree to submit to the personal jurisdiction of the courts located in Illinois for the purpose of litigating all such claims or disputes.
2. Dispute Resolution. Before either party may seek arbitration as provided below, the party must first send to the other party a written notice of dispute (“Notice") describing the nature and basis of the claim or dispute, and the requested relief. After the Notice is received, you and Company may attempt to resolve the claim or dispute informally. If you and Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin a judicial or an arbitration proceeding.
3. Arbitration. You agree that Company may elect to resolve the dispute in a cost-effective manner through binding arbitration (including non-appearance-based arbitration), except that you may assert claims in small claims court if your claims qualify. In the event Company elects arbitration, you hereby agree to move any claims to the exclusive jurisdiction of an arbitration procedure, which shall be initiated through the American Arbitration Association or another established alternative dispute resolution provider (collectively, “ADR”) chosen by Company. The ADR provider and the parties must comply with the following rules for non-appearance arbitration:(i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties, in which case the location of the arbitration shall be in Illinois, and (iii) the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration expressly excludes claims for injunctive or other equitable relief. The U.S. Federal Arbitration Act and U.S. federal arbitration law apply to these Terms.
4. Waiver of Jury Trial. YOU HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. In the event any litigation should arise between you and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
5. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE
ELECTRONIC COMMUNICATIONS.
The communications between you and Company use electronic means, whether you visit the Site, send Company e-mails, or use the 340B ESP Platform or whether Company posts notices on the Site or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. Where Company requires that you provide an e-mail address; you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. We are not responsible for any automatic filtering you or your network or e-mail provider may apply to communications we send to an e-mail address that you provide to us.
GENERAL.
1. Entire Agreement. These Terms together with our Privacy Policy (https://www.340besp.com/privacy), and any Additional Terms that we may make available from time to time through our internet properties, constitute the entire agreement between you and Company regarding your use of our 340B ESP Platform and supersede and replace any prior written or oral agreements regarding the foregoing. Our failure to exercise or enforce any right or provision in these Terms shall not operate as a waiver of such right or provision. If any provision of the Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. Neither the rights nor obligations arising under these Terms are assignable by you. Any such attempted assignment or transfer shall be void and without effect. We may assign these Terms (and any licenses granted hereunder) without restriction. You specifically authorize our use of subcontractors and our right to delegate any of the rights or obligations hereunder. Section headings used herein are provided for convenience of reference only and shall not constitute a part of these Terms.
2. Third Party Beneficiaries and No Agency. Except for PPMs that are identified upon logging in to the 340B ESP Platform, these Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. You expressly acknowledge and agree that the PPMs are third party beneficiaries of these Terms and have the full rights to enforce these Terms as if any one of them was a signatory hereto. These Terms do not create or imply any partnership, agency, or joint venture between the parties hereto.
3. Confidentiality. You may be given access to certain non-public proprietary information related to the 340B ESP Platform and Company (the “Confidential Information”). You shall use this Confidential Information only as necessary in exercising the rights granted to you by these Terms. You shall not disclose any Confidential Information to any third party without our prior written consent and you agree that you will protect this Confidential Information from unauthorized use, access, or disclosure in the same manner that you would use to protect your own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
4. Force Majeure. We will not be deemed to be in breach of these Terms or liable for any breach of these Terms or our Privacy Policy (https://www.340besp.com/privacy) due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire, pandemics or epidemics (whether or not already active at the time you accept these Terms), act of government (including but not limited to “shelter in place,” “travel ban,” “quarantine” or “shutdown” orders, whether or not already active at the time you accept these Terms) or other disaster.
5. United States Only. The 340B ESP Platform is intended for use by individuals located in the United States and is not intended for use by anyone located outside of the United States. You should not use the 340B ESP Platform if you are not located in the United States. Company makes no claims that the 340B ESP Platform is accessible or appropriate outside of the United States.
CONTACT US.
If you have any questions about these Terms or otherwise need to contact Company for any reason, you can reach us at telephone: 1.888.398.5520 (toll free); e-mail: support@340Besp.com.

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340B ESP™ PLATFORMTERMS OF USE

340B ESP™ PLATFORM
TERMS OF USE