340B Report LLC – TERMS OF USE

Last Updated December 23, 2020

IMPORTANT: PLEASE READ THESE TERMS OF USE AND THIS INFORMATION CAREFULLY BEFORE USING THIS WEBSITE AND NEWSLETTER SERVICE. USING THIS WEBSITE AND NEWSLETTER INDICATES THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING MANDATORY ARBITRATION. DO NOT USE THIS WEBSITE AND NEWSLETTER PLATFORM IF YOU DO NOT UNDERSTAND THESE TERMS AND AGREE TO BE BOUND BY THEM.

Welcome to 340B Report!

340B Report LLC, a Virginia corporation (“340B Report,” “we,” “us,” or “our”) owns and controls all rights related to 340B Report’s products and services including, but not limited to, any twelve-month subscription to the 340B Report, any access to the website https://340breport.com platform and content including the newsletter service hosted thereon (the “Site,” the “Subscription,” or the “Service”).

340B Report makes the Service available for your use subject to your agreement with these Terms of Use. We also reserve the right to change or discontinue any aspect or feature of the Service at any time without notice.

Intellectual Property

The materials at this Site are protected by worldwide copyright laws and treaty provisions. Except as expressly provided in these Terms, all Site content is a copyright, trademark, trade dress or other intellectual property owned, controlled or licensed by 340B Report, one of its affiliates or by third parties who have licensed their materials to 340B Report and are protected by U.S. copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all content on the Site is the exclusive property of 340B Report and is also protected by U.S. copyright laws. 340B Report and its licensors expressly reserve all intellectual property rights in all text, programs, products, processes, technology, content, and other materials appearing on this Site. Access to this Site and Service does not confer and shall not be considered as conferring upon anyone any license under any of 340B Report’s or any third party’s intellectual property rights. 340B Report and its suppliers do not grant any express or implied rights to you. 340B Report may grant other rights to you in a separate writing or as incorporated elsewhere in these Terms or in other materials on the Site.

Use of Information and Materials

Unauthorized use of the Site or Service including, but not limited to, unauthorized entry into 340B Report’s systems, misuse of passwords, or misuse of any information posted on the Site is strictly prohibited. Forwarding of the 340B Report newsletter or articles in the newsletter to anyone inside or outside of your company or organization that is not already a currently licensed, paid-up, subscriber is expressly prohibited. Not all features, products and services may be available in all geographic areas. Your eligibility or the availability of all features, particular products and services is subject to final determination by 340B Report or its affiliates.

Links to Other Materials

If 340B Report provides links to third-party websites it is solely as a convenience to you. If you use these links, you will leave this Site. 340B Report does not control, and is not responsible for, any of these sites or their content or any link contained in a linked site. 340B Report hereby disclaims liability for, any information, materials, products or services posted or offered at any of the third-party sites linked to this Site. By creating a link to a third-party web site, 340B Report does not endorse or make any representations about them, or any information, software or other products or materials found there, or any results that you may obtain from using them. Such third party may provide less security than the 340B Report Site. If you decide to access any of the third-party sites linked to this Site, you do this entirely at your own risk. 340B Report reserves the right to terminate any link at any time.

User Submissions

Any material, information or other communication you transmit or post to this Site (“Submissions”) will be considered non-confidential and non-proprietary. 340B Report will have no obligation with respect to such Submissions. 340B Report and its designees will be free to copy, disclose, distribute, incorporate, and otherwise use such communications and all data, images, sounds, text, and other things embodied in them for any commercial or non-commercial purposes. Such disclosure, offer, submission, or transfer of such Submissions shall constitute an assignment to 340B Report of all worldwide rights, titles and interests in all copyrights and other intellectual properties in the Submission.

You are prohibited from posting or transmitting to or from this Site any Submissions that are unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material that would violate any law or regulation. You also may not submit any Submissions that contain any viruses, worms, Trojan horses, time bombs, corrupted files or other malicious or harmful computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.

License Grant

Subject to these Terms of Use, 340B Report grants you, if a currently licensed, paid-up, subscriber, a limited, personal, non-exclusive, non-transferable right and license to use the Service for the sole purpose of accessing the 340B Report on your computing device or mobile phone, to use it in connection with the 340B Report website accessible whether installed on workstations or servers, and for other internal business purposes, and properly purchased in accordance with our Subscription Pricing. 340B Report reserves all other rights not granted expressly to you under these Terms of Use. Although you may “bookmark” a particular portion of this Site or Service and bypass these Terms, your use of this Service still binds you to these Terms. We reserve the right to change these Terms or to impose new conditions on use of the Site, from time to time, in which case we will post the revised Terms on this website.

Your Obligations

You agree to use the Service only for lawful purposes and in accordance with these Terms of Use. You agree to abide by, and not to exceed any associated usage limitations as set forth in your appropriate Category of the Subscription Rates (“Subscription Fees”) for which you have subscribed (“Subscription Agreement”). In using the Service available through it, you agree not to do any of the following: (1) copy, display, republish, modify or use for any commercial purpose the Service without advance written permission from 340B Report; (2) remove any copyright, trademark or other proprietary notices contained in the Service; (3) assign, distribute, transmit, sell, rent, lease, sublease, license, sublicense, encumber or otherwise transfer or attempt to transfer the Service to others; (4) modify, translate, reverse engineer, decompile or disassemble the Service; (5) permit any third party to use or have access to the Service, including any affiliate, subsidiary or parent, whether by timesharing, use in a service bureau mode, networking (except as expressly permitted under these Terms of Use) or any other means; (6) permit processing for another party or allowing access to another party; (7) possess or use the Service or any portion of it; (8) frame or link the Service using any third party’s website without the advance written consent of 340B Report; (9) use the Service or any related content to disparage 340B Report or otherwise harm its reputation in any way; (10) use the Service to transmit any unlawful, threatening, harassing, libelous, offensive, defamatory, obscene, or pornographic materials, or other materials that would violate any law or the rights of 340B Report or others, including intellectual property laws, and rights of privacy and publicity; (11) upload, post, or otherwise transmit through the Service any viruses or other harmful, disruptive, or destructive files, or any unsolicited mail, email, or fax; (12) use the Service to create a false identity or any false biographical, company or job information; (13) use or attempt to use another’s account or password, or otherwise access or attempt to access any features of the Service you are not authorized to access; (14) disrupt or interfere with any other user’s enjoyment of the Service or any linked sites; or (15) disrupt or interfere with the security of, or otherwise cause harm to, the Service, system resources, accounts, passwords, servers, or networks connected to or accessible through the Service or any linked sites. We may deny or limit your access to the Service if you violate any of these restrictions.

If a password is used to protect your account and personal information, it is your responsibility to keep your password confidential. You must also require any employees or other representatives to whom you grant access to the Service to maintain the confidentiality of all passwords. Your use may not exceed your license purchased.

Obligations Relating to Your Category of Subscription Rates of Your Subscription Agreement

You agree if you are a current Subscriber to the Service, to pay the annual Subscription Fee, to abide by the associated number-of-user limitations, if any, of the appropriate category for which you have subscribed, in accordance with your currently paid Subscription Pricing.

Number-of-User Limitations

With respect to any number-of-user limitations, for all categories except Unlimited level Subscriptions, for purposes of the Subscription Agreement, a “user” is defined to be an employee of the Subscriber, whether Subscriber is an entity, a HRSA/Federal Grantee, a Critical Access Hospital , a Small Non-Profit Clinic, a Health System, a Business of any Company Size, a Government (whether a Federal, a state, and/or a local government entity, or division or administrative agency), a Trade Association, an Advocacy Group, a Non-Profit, or other entity (collectively referred to as “Subscriber Entity”) and is presumed to include any user where the number of employees, is calculated as the total number of employees (of any title including owner) of the Subscriber Entity, (to be clear total number of employees, not total number of readers), the number of employees of which have the same domain name (“DNS” or “domain”) or universal resource locator (“URL”), as the domain of the Subscribing Entities’ Subscriber’s electronic mail (e-mail) address. Subscribers at the unlimited user level also must abide by the rule that subscriptions are limited to employees only. Users must have the same DNS or URL as the Subscriber Entity.

No Rights to Derivative Works

You further agree that you will not copy, provide outputs of, divulge, share, transmit to, modify, create derivative works of, and/or distribute, transmit, etc., whether in printed and/or electronic form, or in any other fashion, any of the contents of the newsletter, with any individual who does not have the same DNS to the Subscriber DNS, nor in excess of the Subscription limits, without the prior written permission of 340B Report.

Damages Remedies 

If a Subscriber is found to be in violation of the Subscription terms for any reason including, e.g., for exceeding any associated number-of-user limitations of the appropriate category for which the Subscriber has paid, Subscriber agrees, in addition to paying all reasonable attorney’s fees and/or other fees and/or costs incurred by 340B Report in enforcement, to pay the Full, Undiscounted, Unlimited User Rate Price plus a 25% of that Full, Undiscounted, Unlimited User Rate Price surcharge penalty (“Surcharge Penalty”). For illustration, consider if for example a “Government category” Subscriber, purchases an up to 10-user subscription with pricing of $749 (discounted to $599 for a limited time), and at that time unlimited subscription pricing of $999 (discounted to $799 for a limited time) could have been purchased instead. If the example Government category Subscriber subscribes at the discounted $599 level for “up to 10 users” rate (normally $749), and is later found to have exceeded the Subscriber’s 10-user number limitation, for any reason, even if by only 1 user, by, e.g., sending to someone having a different DNS than the Subscriber, then the Subscriber will need to pay the difference between what was paid, i.e., the $599, and the Full, Undiscounted, Unlimited pricing of $999, or an incremental sum in the amount of $400, PLUS a 25% Surcharge Penalty of the Full, Undiscounted, Unlimited price of $999, (or approximately a $250 Surcharge Penalty), for a total incremental cost of $650 (on top of any previously paid Subscription Fee), PLUS any reasonable attorneys’ fees and costs incurred by 340B Report in seeking enforcement of its Subscription pricing.

Equitable Remedies

Subscriber further agrees that acting in contravention to the agreed upon terms of the Subscription number-of-user levels and Subscription Pricing is stipulated to amount to irreparable harm to 340B Report, and Subscriber hereby stipulates and agrees to a temporary, preliminary and permanent injunction be issued to prevent Subscriber from any further acts in contravention to the Subscription, before, during and after any associated enforcement action brought by 340B Report.

No Waiver

Failure to enforce such rights of 340B Report shall NOT be deemed to amount to any waiver of any such rights of enforcement.

Federal Government End Use Provisions

If you are an entity of the U.S. Federal Government, 340B Report provides the Service solely in accordance with the following: the Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as these terms are used in FAR 12.212. This license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Service) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). Use of either the Service or Documentation or both constitutes agreement by the government that the Service and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions in this Agreement.

Ownership Rights

All of the Service, as well as the design, layout and other elements of the Service, are the sole property of 340B Report or its licensors and are protected by copyright, trademark, and other U.S. and foreign laws. You may use the Service only for your internal business purposes. Forwarding of the 340B Report newsletter or articles in the newsletter to anyone from outside of your company or organization that is not already a currently licensed, paid-up, subscriber is expressly prohibited. The rights granted to you constitute a license and not a transfer of title.

Third-Party Sites and Services

The Service may also provide links or references to other web sites or otherwise make available materials, products, information, or services provided by third parties. We provide these links merely as a convenience for our customers and other users of the Service. You understand and agree that (a) 340B Report does not control or endorse any third parties referenced on the Service; (b) 340B Report makes no representation or warranties whatsoever about any such third parties, their information, materials, products or services; (c) any dealings you may have with such third parties are at your own risk; and (d) 340B Report has no responsibility or liability for any information, materials, products or services offered or provided by third parties, including any third-party information, materials, products or services offered or provided through the Service.

No Warranties

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN A WRITTEN AGREEMENT SIGNED BY YOU AND 340B REPORT OR YOU AND A THIRD PARTY WITH RESPECT TO SUCH PARTY’S MATERIALS OR SERVICES, THE SERVICE, INCLUDING THE MATERIALS PROVIDED AT THIS SITE, INCLUDING TEXT, DESIGN, LAYOUT, DATA, GRAPHICS, LINKS OR OTHER ITEMS (“CONTENT”) ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF TITLE OR NON-INFRINGEMENT, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ACCURACY, AND FREEDOM FROM COMPUTER VIRUS. Without limiting the foregoing, 340B Report makes no representation or warranty that: (a) the Service will meet your requirements; (b) access to the Service will be uninterrupted, timely, secure, or error-free; (c) the results that may be obtained from the use of the Service will be effective, accurate or reliable; or (d) any errors or defects in the Service will be corrected.

You understand the Service may include technical or other mistakes, inaccuracies or typographical errors.

YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM SUCH USE. You agree that 340B Report will have no liability for any computer virus or other similar Service code that is downloaded to your computer from the Service. Except as otherwise stated in a written agreement signed by you and 340B Report, no advice or information you may obtain from 340B Report or through the Service creates any warranty or obligation that is inconsistent with these Terms of Use.

This clause does not limit or disclaim any of the warranties specified in the GSA Schedule 70 contract under FAR 52.212-4(o). In the event of a breach of warranty, the U.S. Government reserves all rights and remedies under the contract, the Federal Acquisition Regulations, and the Contract Disputes Act, 41 U.S.C. 7101-7109.

Limitation of Liability

YOU UNDERSTAND AND AGREE THAT 340B REPORT, ITS OFFICERS, MANAGERS, EMPLOYEES, PARTNERS, OR SUPPLIERS WILL NOT IN ANY WAY BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING DAMAGES CONSTITUTING OR RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT 340B REPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SERVICE; THE STATEMENTS OR ACTIONS OF ANY THIRD PARTY ON OR THROUGH THE SERVICE; ANY DEALINGS WITH OUR VENDORS, PARTNERS, OR OTHER THIRD PARTIES; ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA; ANY INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED THROUGH THE SERVICE; ANY FAILURE TO STORE OR LOSS OF ANY DATA, FILES, OR OTHER CONTENT AVAILABLE THROUGH THE SERVICE; ANY DELAY OF OR INTERRUPTION IN THE USE OF THE SERVICE; OR ANY WEB SITE REFERENCED OR LINKED TO OR FROM THE SERVICE. FURTHER, SUBSCRIBER AGREES, UNDER NO CIRCUMSTANCES WILL 340B REPORT’S LIABILITY IN TOTAL, FOR ANY DISPUTE, EXCEED THE SUBSCRIPTION FEES PAID BY SUBSCRIBER IN THE LAST 12-MONTH CALENDAR PERIOD PRECEDING ANY DISPUTE. This clause shall not impair the U.S. Government’s right to recover for fraud or crimes arising out of or related to this Contract under any federal fraud statute, including the False Claims Act, 31 U.S.C. 3729-3733. Furthermore, this clause shall not impair nor prejudice the U.S. Government’s right to express remedies provided in the GSA Schedule contract (e.g., clause 552.238-75 – Price Reductions, clause 52.212-4(h) – Patent Indemnification, and GSAR 552.215-72 – Price Adjustment – Failure to Provide Accurate Information).

Indemnification

You agree, upon 340B Report’s demand, to defend, indemnify, and hold harmless 340B Report and its affiliates from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your use of the Site. Further, as stipulated to above at Obligations Relating to Your Category of Subscription Rates of Your Subscription Agreement, Damages Remedies, and Equitable Remedies, You agree to indemnify, and hold harmless 340B Report for any damages to 340B Report caused by Subscriber’s acts, and agree to pay any and all penalties and surcharges as set forth, and You agree to paying 340B Report for all remedies, whether in damages and/or at equity, with respect to your failure to abide by the obligations of the Subscription and these Terms for the 340B Report Service.

Arbitration 

Any action or proceeding arising out of or related to these Terms or your use or access of this Site shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction. There shall be no authority for any claims to be arbitrated on a class action basis. Such arbitration claims shall be heard by a single arbitrator. The place of arbitration shall be Fairfax, Virginia. Each party will, upon written request of the other party, promptly provide the other with copies of all relevant documents. There shall be no other discovery allowed. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Any cause of action you may have against 340B Report arising out of or related to the Site must be brought within one (1) year after the action arose; otherwise such action will be permanently barred.

Governing Law and Jurisdiction 

The laws of the United States of America govern all matters relating to these Terms of Use and your access to or use of the Service, without regard to conflicts of laws principles.

Termination

These Terms of Use will remain in effect until terminated. You may terminate these Terms of Use at any time by written notification to info@340BReport.com. Any unused prepaid, subscription, at time of Termination, will NOT be reimbursed. Termination may also be conducted in accordance with the terms and conditions of the GSA Schedule 70 contract. All provisions of these Terms of Use related to limitations of liability, remedies, indemnification, damages, and governing law will survive termination.

Trademarks

The 340B Report logo, and the 340B ReportTM common law trademark on the 340B Report website are the trademarks of 340B Report, LLC. Other trademarks displayed in the Service are the property of their respective owners. You may not use any of these trademarks, logos or service marks without the advance written consent of 340B Report or the third-party owner, as applicable.

General

If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the other provisions of these Terms shall remain in full force and effect. The failure of 340B Report to act with respect to a breach of the Terms by you or others does not constitute a waiver and shall not limit 340B Report rights with respect to such breach or any subsequent breaches. 340B Report may terminate your access to this Site, change the Site, or delete content or features on the Site at any time and for any reason or no reason. 340B Report may revise these Terms at any time by updating this posting. You should visit this page from time to time to review the then current Terms because they are binding on you. Certain provisions of these Terms may be superseded by expressly designated legal notices or terms located on particular pages at this Site. These Terms of Use constitute an addendum to a solicitation or contract, as defined in Federal Acquisition Regulation 52.212-4(s). If for any reason a court of competent jurisdiction finds any of the provisions of these Terms of Use to be unenforceable, that provision will be enforced to the maximum extent permissible, and the remainder of the Terms of Use shall remain in full force and effect. Any failure by 340B Report to enforce or exercise any provision of these Terms of Use or any related right does not constitute a waiver of that right or any other provision. The words “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation” or the phrase “but not limited to.” The word “will” shall be construed to have the same meaning and effect as the word “shall,” and vice versa. The headings used in these Terms of Use are included for convenience only and will not limit or otherwise affect the interpretation of these Terms of Use.

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