ASPEN PLATFORM AGREEMENT

TERMS OF USE FOR ASPEN FORGE SOFTWARE SERVICE

These terms of use (“Terms of Use”) govern Company’s and its Authorized Users’ use of the Aspen Platform and are an integral part of the Platform Agreement between Company and Aspen. Capitalized terms not defined herein shall have the meanings set forth in an applicable Site Order Form or Provider Access Form (based on the Company’s role as either a Site or a Provider, respectively) of the Platform Agreement.

These Terms of Use are designed to generally apply whether Company is a Provider (defined below) or a Site (defined below); however, from time to time, certain rights and obligations are expressly ascribed based on the Company’s role as either a Provider or a Site. Company hereby acknowledges and agrees that such expressly ascribed rights and obligations shall apply to Company based on Company’s role as either a Provider or a Site.

Aspen reserves the right to change, modify, add, or delete any portion(s) of these Terms of Use at any time.

1. DEFINITIONS.
Unless otherwise defined, capitalized terms in these Terms of Use have the meanings set forth below.

1.1 “Affiliates” means, with respect to either Party, any entity that, directly or indirectly, controls, is under common control with, or is controlled by, such entity.  For this purpose, “control” means, with respect to (i) a corporation, the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of such corporation, and (ii) with respect to any person other than a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through ownership of securities or partnership or other interests, by contract or otherwise.

1.2 “Applicable Law” means, with respect to a Party, any law, rule, regulation, guidance, standard, or other requirement promulgated by any governmental or self-regulatory authority, in each case that is applicable to such Party or its performance of its obligations under these Terms of Use.

1.3 “Aspen Platform” means the Aspen Forge software service offered in hosted form to which Company and its Authorized Users will be granted access and use for the Permitted Purpose pursuant to these Terms of Use.

1.4 “Authorized Site” means a Site, insofar as it has been designated by a Provider on the Aspen Platform as being authorized to use the Aspen Platform for the Site Permitted Purpose.

1.5 “Authorized User” means either a Provider Authorized User or a Site Authorized User, based on whether Company is a Provider or a Site.

1.6 “Candidate Identification Analysis” means identifying, from De-Identified Data Sets of certain patient Clinical Data, potential candidates matching certain criteria set forth for participation in a clinical study in connection with the Research.

1.7 “Clinical Data” means clinical data related to patients of a Provider that is contained in the Medical Record Data.

1.8 “De-Identified Data Set” means a data set containing Clinical Data that has been de-identified.

1.9 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, Pub. Law No. 111-5, and their implementing regulations; in each case as amended from time to time.

1.10 “Intellectual Property Rights” means all intellectual property and proprietary rights pursuant to the laws of any jurisdiction throughout the world, including any and all rights in, to, and under patents, copyrights, works, trade secrets, know-how, trademarks, trade names, software, data, confidential information, databases, designs and models; in each case including (but not limited to) registrations of, applications for, and all goodwill associated with, any of the foregoing.

1.11 “Medical Record Data” means any data (including Clinical Data) that a Provider maintains in its medical records and makes available to the Aspen Platform for the Site Permitted Purpose.

1.12 “Permitted Purpose” means either the Provider Permitted Purpose or the Site Permitted Purpose, based on whether Company is a Provider or a Site.

1.13 “Privacy Policy” means Aspen’s privacy policy hosted online at www.aspeninsights.com.

1.14 “Provider” means a healthcare provider that has made available certain Medical Record Data to the Aspen Platform pursuant to a Platform Agreement.

1.15 “Provider Authorized User(s)” means an individual(s) who has been designated by Provider as being permitted to access and use the Aspen Platform for the Provider Permitted Purpose on Provider’s behalf in accordance with these Terms of Use. All Provider Authorized Users are required to agree to these Terms of Use and the Privacy Policy prior to accessing the Aspen Platform.

1.16 “Provider Permitted Purpose” means to review, contact, and/or designate Site to contact, potential candidates identified under the Candidate Identification Analysis depending on the candidate contact option selected by Provider in the Provider Access Form.

1.17 “Research” means certain medical research conducted or anticipated to be conducted by a Site.

1.18 “Research Agreement” means an agreement between a Provider and a Site under which Provider agrees to support the performance of the Research being conducted by a Site.

1.19 “Services” means the Aspen Platform and any Support Services and Training Services selected in an applicable Site Order Form.

1.20 “Site” means a research site that is conducting certain Research and seeks to access and use the Aspen Platform pursuant to a Platform Agreement.

1.21 “Site Authorized User(s)” means an individual(s) who has been designated by Authorized Site as being permitted to access and use the Aspen Platform for the Site Permitted Purpose on Authorized Site’s behalf in accordance with these Terms of Use. All Site Authorized Users are required to agree to these Terms of Use and the Privacy Policy prior to accessing the Aspen Platform.

1.22 “Site Permitted Purpose” means, insofar as a Site has been designated as being an Authorized Site by a Provider, to (i) perform the Candidate Identification Analysis, and (ii) view or receive certain limited information sufficient to contact and recruit potential candidates identified as a result of the Candidate Identification Analysis as authorized by Provider’s privacy review board.  For the avoidance of doubt, the Site Permitted Purpose is limited to (i) viewing or receiving only that certain limited contact information made available to the Aspen Platform by or on behalf of the Provider that designated the corresponding Site as being an Authorized Site, and (ii) using that certain limited contact information for such recruiting purposes only in connection with the specific Research designated by the Provider that designated the corresponding Site as being an Authorized Site.

1.23 “Usage Data” means performance data, statistics, and other information related to the use of the Aspen Platform by all users.

2. SCOPE OF SERVICES.

2.1 Aspen Platform. During the Term, and subject to the terms and conditions of this Agreement, Aspen will provide Company and its Authorized Users access to use the Aspen Platform as described in the applicable Documentation provided by Aspen in accordance with the terms and conditions set forth in this Agreement.

2.2 Support Services. During the Term, and subject to the terms and conditions of this Agreement, Aspen will provide to Company the support services selected in the Site Order Form and further described in Schedule A of the Site Order Form (“Support Services”) in accordance with the terms and conditions set forth in this Agreement.

2.3 Training Services. During the Term, and subject to the terms and conditions of this Agreement, Aspen will provide to Company the training services selected in the Site Order Form and further described in Schedule B of the Site Order Form (“Training Services”) in accordance with the terms and conditions set forth in this Agreement.

2.4 Candidate Identification Analysis. Site will perform the Candidate Identification Analysis unless Site and Aspen otherwise arrange for Aspen to perform the Candidate Identification Analysis. In the event Site and Aspen arrange for Aspen to perform the Candidate Identification Services, Aspen’s performance of the Candidate Identification Analysis will be governed by a separate services agreement between Site and Aspen. Provider hereby acknowledges and agrees that Site is permitted to engage Aspen to perform the Candidate Identification Services without notice or consent of Provider.

3. FEES AND PAYMENT.

3.1 Service Fees. Site will pay Aspen in the amounts, and at such intervals, for the Services set forth in the Site Order Form (“Fees”) in accordance with the payment terms set forth in the Site Order Form.

4. ACCESS LICENSE GRANT.

4.1 License Grant. During the Term, Aspen hereby grants to Company, for the benefit of its Authorized Users (and subject to such Authorized Users’ acceptance of the Terms of Use and the Privacy Policy), a limited, non-exclusive, royalty-free, non-transferable (except as provided in Section 13.3) license to access and use the Aspen Platform for the Permitted Purpose, subject to and in accordance with the terms and conditions of the Platform Agreement, including these Terms of Use (the “Platform License”). For the avoidance of doubt, nothing in this Platform License is intended to grant Company and its Authorized Users any Intellectual Property Rights in, nor access to, any code (including in object code, source code, or any other format), databases, or other underlying components of the Aspen Platform.

4.2 No Affiliate License. The Platform License does not permit Company to sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, or otherwise provide access to the Aspen Platform in any form to any third party other than its Authorized Users. For the avoidance of any doubt, and without limiting the foregoing, third parties include not only companies and persons unrelated to Company, but also any Affiliate or subsidiary of Company. Notwithstanding the foregoing, Aspen may, in its sole discretion, permit use of the Aspen Platform by an Affiliate or subsidiary of Company, but in each such case, Affiliates and subsidiaries will be required to execute a separate Platform Agreement with Aspen and may be required to pay additional fees.

4.3 VICARIOUS LIABILITY. COMPANY ACKNOWLEDGES AND AGREES THAT IT IS RESPONSIBLE FOR AND HEREBY ACCEPTS ALL LIABILITY ASSOCIATED WITH ALL ACTIVITIES CONDUCTED UNDER ITS ADMINISTRATOR ACCOUNT AND ITS AUTHORIZED USERS’ ACCOUNTS, AND FOR ITS AUTHORIZED USERS’ COMPLIANCE WITH ALL APPLICABLE LAWS AND THESE TERMS OF USE. COMPANY ACKNOWLEDGES AND AGREES THAT ANY ACTION OR BREACH BY ITS AUTHORIZED USERS OR OTHER PERSONS WITHIN ITS CONTROL OR ACTING ON ITS BEHALF SHALL BE DEEMED AN ACTION OR BREACH BY COMPANY, AND COMPANY HEREBY WAIVES ALL OF THOSE DEFENSES THAT IT MAY HAVE AS TO WHY IT SHOULD NOT BE LIABLE FOR THE ACTS, OMISSIONS, AND NONCOMPLIANCE WITH THESE TERMS OF USE BY ITS AUTHORIZED USER(S) AND SUCH OTHER PERSONS.

5. ACCESS AND USE RESTRICTIONS.

5.1 Terms of Use; Privacy Policy. All access to and use of the Aspen Platform by Company and its Authorized Users must be in strict compliance with these Terms of Use, including these Terms of Use and the Privacy Policy. Authorized Users will be required to review and accept the Terms of Use and the Privacy Policy during the process of creating their individual accounts on the Aspen Platform.

5.2 Account Credentials; Compliance with Law. Company shall require its Authorized Users to protect and maintain the confidentiality of their account login credentials and shall not allow its Authorized Users to share their account login credentials with any other individual, including other individuals employed by or otherwise associated with Company. Company shall promptly notify Aspen if it becomes aware of any loss or theft or unauthorized use of its Authorized Users’ account login credentials. Company shall comply, and shall ensure that its personnel comply, with any and all applicable laws of any and all applicable jurisdictions throughout the Term of these Terms of Use, and as required by law or as otherwise required in these Terms of Use after the Term of these Terms of Use

5.3 Provider Restrictions. Notwithstanding any features and functionality available under the Aspen Platform that may be used to the contrary, Provider shall not use or attempt to use the Aspen Platform:

(a) For any purpose whatsoever other than the Provider Permitted Purpose; and

(b) In any way that violates or breaches the terms and conditions of an applicable Research Agreement between Provider and a Site.

5.4 Site Restrictions. Notwithstanding any features and functionality available under the Aspen Platform that may be used to the contrary, Site shall not use or attempt to use the Aspen Platform:

(a) For any purpose whatsoever other than the Site Permitted Purpose;

(b) To access or use any data of any Provider who has not designated Site as an Authorized Site in connection with accessing and using such Provider’s data;

(c) To access or use any data of a Provider who has designated Site as an Authorized Site other than in connection with the specific Research designated by such Provider; and

(d) In any way that violates or breaches the terms and conditions of the applicable Research Agreement between Site and a Provider.

5.5 Other Restrictions. Company shall not (and shall not allow any third party to): (i) gain or attempt to gain unauthorized access to the Aspen platform, or any element thereof, or circumvent or otherwise interfere with any authentication or security measures of the Aspen Platform; (ii) interfere with or disrupt the integrity or performance of the Aspen Platform; (iii) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (iv) decompile, disassemble, scan, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Aspen Platform (except to the extent that applicable law expressly prohibits such a reverse engineering restriction); (v) provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use or allow others to use the Aspen Platform for the benefit of any third party; (vi) list or otherwise display or copy any code of any Aspen Platform; (vii) copy any Aspen Platform (or component thereof) or develop any improvement, modification, or derivative work thereof; (viii) include any portion of any Aspen Platform in any other service, equipment, or item; (ix) allow the transfer, transmission (including without limitation making available on-line, electronically transmitting, or otherwise communicating, to the public), export, or re-export of any Aspen Platform (or any portion thereof) or any Aspen technical data; (x) perform benchmark tests on the Aspen Platform or (xi) use, evaluate, or view the Aspen Platform for the purpose of designing, modifying, or otherwise creating any environment, software, models, algorithms, products, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Aspen Platform; provided further that Company will not attempt to, or encourage any third party to, sell, rent, lease, license, sublicense, distribute, transfer, or syndicate such software, without prior written approval from Aspen.

6. SUSPENSION AND ACCOUNT TERMINATION.

6.1 Delinquent Account and Breach. Aspen reserves the right to suspend Company’s access to and/or use of the Aspen Platform if Company is delinquent in paying any amounts due to Aspen. Aspen also reserves the right to suspend Company’s access to and/or use of the Aspen Platform if Company is in material breach of these Terms of Use or if Company is otherwise in material breach of any related agreement with Aspen, such as a research services agreement between Provider and Aspen.

6.2 Ongoing Harm. Aspen reserves the right to suspend and/or terminate Company’s access to and/or use of the Aspen Platform if Aspen believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the Aspen Platform, or to prevent the Aspen Platform from being used to engage in denial of service attacks, spamming, illegal activity, or other activities causing immediate, material, and ongoing harm to Aspen or others.  In the extraordinary event that Aspen suspends access to the Aspen Platform for such reasons, Aspen will use commercially reasonable efforts to limit the suspension to the offending portion of the Aspen Platform and resolve the issues causing the suspension of the Aspen Platform.

6.3 Bankruptcy or Cessation of Business. Aspen reserves the right to suspend and/or terminate access to and/or use of the Aspen Platform, subject to applicable law, if Company has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

6.4 Termination of Third-Party Licenses. Aspen reserves the right to suspend and/or terminate Company’s access to and/or use of the Aspen Platform if any vendor or licensor of Aspen has suspended or terminated Aspen’s access to or use of any third-party services or products required to enable Company to access and use the Aspen Platform.

6.5 No Liability. Company agrees that Aspen shall not be liable to Company or other third party for any suspension of the Aspen Platform pursuant to this Section 6.

7. PROPRIETARY RIGHTS.

7.1 Aspen Platform; Usage Data. As between the Parties, Aspen shall retain all rights, title, and interest in and to the Aspen Platform and all Usage Data, in each case including all Intellectual Property Rights therein and thereto. No ownership rights or licenses in any Aspen Platform, whether express or implied, are being conveyed to Company under these Terms of Use.

7.2 Feedback.  Company shall assign, and does hereby assign, to Aspen any and all Intellectual Property Rights associated with any improvements to, additional or modified functionality or features of, and potential industry applications for or relating to the Aspen Platform (collectively, “Feedback”) that Company or its Authorized Users may conceive of, whether in whole or in part. To the extent these rights cannot be assigned by Company to Aspen, Company hereby grants to Aspen a fully paid-up, royalty-free, exclusive, worldwide, irrevocable, transferable, and sublicensable (with rights to sublicense through multiple tiers of sublicensees) license to fully exploit such Feedback without any further accounting to Company or its Authorized Users. To the extent these rights can neither be assigned or licensed, Company hereby waives any and all claims against Aspen and its customers and other parties in its manufacture, supply, distribution, and sales ecosystem in connection with such rights, including any moral rights Company or its Authorized Users may have in such Feedback.

7.3 Further Assurances.  Company agrees to cooperate with Aspen in executing and delivering such documents and other papers in a timely manner as are necessary or desirable to carry out their respective obligations and permit the filing and prosecution of any applications for patents, copyrights or other Intellectual Property Rights. Company shall cause its Authorized Users to, sign, execute and acknowledge or caused to be signed, executed and acknowledged any and all documents and to perform such acts as may be reasonably requested by Aspen for the purposes of perfecting the foregoing assignments and ownership rights, and enforcing and defending Intellectual Property Rights as set forth herein. Company further agrees that its obligation to sign, execute, and acknowledge, or cause to be signed, executed and acknowledged, when it is in its power to do so, any such documents will survive following the termination of these Terms of Use.

8. MUTUAL CONFIDENTIALITY.

8.1 Confidential Information. Each Party has made and will continue to make available to the other party information that is not generally known to the public and at the time of disclosure is identified as, or would reasonably be understood by the receiving party to be, proprietary or confidential information of the disclosing party (“Confidential Information”). Information will be deemed Confidential Information of a Party, whether disclosed in written, electronic, oral, visual or other form, if at the time of disclosure the receiving Party is informed, or should reasonably understand, it to be proprietary or confidential, or it is marked or designated as “confidential” or with similar language. Confidential Information shall not include any information that (i) the receiving Party possessed prior to disclosure by the disclosing Party, without an obligation of confidentiality, (ii) is or becomes publicly available without breach of these Terms of Use by the receiving Party, (iii) is or was independently developed by the receiving Party without the use of any Confidential Information of the disclosing Party, or (iv) is or was received by the receiving Party from a third party that does not have an obligation of confidentiality to the disclosing Party or its Affiliates.

8.2 Restrictions on Use and Disclosure. The receiving Party will (a) hold in strict confidence and not disclose to any third party any of the disclosing Party’s Confidential Information except to the Receiving Party’s employees, contractors, agents and other representatives who need to know it as necessary for the receiving Party to exercise its rights and fulfill its obligations under these Terms of Use; (b) not use the disclosing Party’s Confidential Information except solely as necessary to exercise its rights and fulfill its obligations under these Terms of Use; and (c) take the same degree of care with respect to the disclosing Party’s Confidential Information as it takes with its own similar confidential or proprietary information, but in no event less than a reasonable degree of care. Notwithstanding the foregoing, the receiving Party may disclose the disclosing Party’s Confidential Information to the extent required to be disclosed by law or court order, provided that the receiving Party: (i) provides the Disclosing Party with prompt notice of such disclosure requirement if legally permitted, (ii) affords the disclosing Party an opportunity to oppose or limit, or secure confidential treatment for such required disclosure and (iii) if the disclosing Party is unsuccessful in its efforts pursuant to subsection (ii), discloses only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

9. REPRESENTATIONS, WARRANTIES, AND COVENANTS.

9.1 Authority. Company represents and warrants that it (i) it is duly organized, validly existing, and in good standing as a corporation or limited liability company under the laws of the jurisdiction of its incorporation or organization; (ii) has the full corporate or other power and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under these Terms of Use; (iii) the execution of these Terms of Use by its representative whose signature is set forth at the end of these Terms of Use has been duly authorized by all necessary corporate or organizational action of Company; and (iv) when executed, these Terms of Use will constitute the legal, valid, and binding obligation of Company, enforceable against Company in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity).

9.2 Compliance. Company will comply with the terms of any Applicable Law in connection with Company’s use of the Aspen Platform, including the Foreign Corrupt Practices Act, the Federal Food Drug and Cosmetic Act, the Stark Act, the False Claims Act, the Federal Anti-Kickback Statute (and each of their implementing regulations), the Affordable Care Act, and HIPAA.

9.3 Consents. Company and its Authorized Users have provided notifications to, obtained consents from, and otherwise have all rights necessary (and will continue to ensure the foregoing) to: (i) transmit, upload, permit access to, or otherwise provide any and all data it provides to Aspen (whether directly, indirectly, or through the Aspen Platform), and (ii) for Aspen to use such data Company provides to Aspen in accordance with these Terms of Use. To the extent Company shares or otherwise permits Aspen or the Aspen Platform to make use of any credentials to obtain any data Company makes available to Aspen (whether directly, indirectly, or through the Aspen Platform), such sharing of credentials shall not violate the rights of, or any contractual obligations with, any Authorized User or third party.  Company covenants that use of the short message service (“SMS”) text message feature and other communications about the Research (“SMS Communications”) on the Aspen Platform is limited to the Permitted Purposes and scope of the obtained consent from the potential candidate.

9.4 Additional Representations, Warranties, and Covenants of Provider. Provider represents, warrants, and covenants that (i) any Medical Record Data provided to or accessed by the Aspen Platform under these Terms of Use has been collected, generated, maintained, used, and disclosed by Provider in compliance with Applicable Law; (ii) Provider has obtained and will continue to maintain any and all rights, approvals, authorizations, consents, waivers, or other legal permissions required, if any, (a) under HIPAA and any other Applicable Law, including a documented waiver from an Institutional Review Board or Privacy Board, as identified by Aspen and Provider, that would grant Aspen the ability to use and access the Medical Record Data without patient authorization for the Research purposes; (b) to protect any and all necessary Intellectual Property Rights, and (c) any and all necessary contractual rights, to provide the Medical Record Data to Aspen for use and disclosure as permitted or otherwise set forth under these Terms of Use and to grant Aspen the rights to access and use the Medical Record Data to as set forth in these Terms of Use, and without any third party claiming payment or other compensation for, or limitation on, use or disclosure of such Medical Record Data and a De-Identified Data Set by Aspen and its Affiliates.

9.5 Additional Representations, Warranties, and Covenants of Site. Site represents, warrants, and covenants that (i) it and its Authorized Users will access and use the Aspen Platform, and any data made available through the Aspen Platform, only as permitted by these Terms of Use, including these Terms of Use and the Privacy Policy, in connection with Research that Provider has agreed to conduct or otherwise participate in.

9.6 Additional Representations, Warranties, and Covenants of Company. Company has and will maintain adequate physical, administrative, and technical safeguards to (a) reasonably ensure that access and use of the Aspen Platform and Medical Record Data is limited to its Authorized Users for the Permitted Purpose, and (b) promptly identify any instances of unauthorized access or use of the Aspen Platform or Medical Record Data by Company or its personnel.

9.7 DISCLAIMER. ASPEN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ASPEN SHALL NOT BE LIABLE TO COMPANY FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE.

11. INDEMNIFICATION. Company agrees to indemnify, defend, and hold harmless Aspen from any and all third-party claims, demands, actions, suits and proceedings, whether civil, criminal or administrative (collectively, “Third-Party Claims”), and all losses, liabilities, damages, costs, fines, penalties, interest and expenses, whether direct or indirect, (including without limitation, settlement costs and any legal, accounting and other expenses for investigation or defending any actions or threatened actions)  (collectively, “Losses”) arising from or out of Company’s or its Authorized Users’ access to and use of the Aspen Platform including, without limitation, any material breach of, or any misrepresentation under, these Terms of Use or Aspen’s Privacy Policy, or any non-compliance or violation of Applicable Law by Company or its Authorized Users. Aspen shall promptly notify Company immediately in writing of any claim of injury or damage related to activities performed pursuant to these Terms of Use, whether the claim is verbal or written, or whether informal or by summons and complaint. The Parties shall cooperate with each other in the investigation and disposition of any claim arising out of the activities of these Terms of Use; provided, however, that nothing herein shall require either Party to disclose any documents, records, or communications that are protected under the attorney-client privilege or the attorney work-product privilege; provided, further, that Aspen shall at all times have the power and right to appoint legal counsel at its own cost and expense.  The provisions of this Section 11 shall survive the termination of these Terms of Use.

12. TERM AND TERMINATION.

12.1 Term. These Terms of Use are effective from the Effective Date and will remain in effect, unless terminated in accordance with this Section 12.

12.2 Termination. Either Party may terminate these Terms of Use without cause upon 60 (sixty) days’ notice to the other Party. In addition, either Aspen or Company may terminate these Terms of Use if the other Party materially breaches these Terms of Use and fails to cure the breach within thirty (30) days after receipt of written notice from the non-breaching Party specifying in detail the nature of the breach.

12.3 Termination for Violation of Applicable Law. If either Party is advised by health regulatory counsel that, due to a change in Applicable Law or developments in litigation relating to the creation, use, or disclosure of de-identified health information, these Terms of Use presents a material risk of subjecting either Party or any of its directors, officers, employees, or agents to any enforcement actions, fines, penalties, or sanctions under any Applicable Law, then such Party may notify the other Party in writing of the material risk and the Parties shall enter into good faith negotiations to amend these Terms of Use to resolve the material risk. If the Parties are unable to reach mutual agreement within the thirty (30) day period following the date the notice was given, then the notifying Party may terminate these Terms of Use immediately upon written notice given no more than thirty (30) days after the end of the thirty (30) day negotiation period.

13. GENERAL.

13.1 Governing Law. These Terms of Use are governed by the laws of the State of Texas, without regard to its conflict of laws principles.

13.2 Notices. Any notice required to be given under these Terms of Use shall be sent to the other Parties by traceable overnight delivery or certified mail, return receipt requested, and shall be deemed given, in the case of overnight delivery, the day following delivery to the carrier or, in the case of certified mail, three days after the date of postmark. Notice shall be given to each Party at the address set forth at the end of these Terms of Use or any other address provided by a Party pursuant to this Section. In the case of Aspen, all notices shall be addressed to Legal Department.

13.3 Assignment. These Terms of Use may not be assigned by operation of law or otherwise, in whole or in part, by Company without Aspen’s prior written consent. Any assignment by Company in violation of this provision shall be void. Aspen may assign these Terms of Use at any time.

13.4 Waivers. The failure of either Party to enforce strict performance by the other Party of any provision of these Terms of Use or to exercise any right under these Terms of Use will not be construed as a waiver to any extent of that Party’s right to assert or rely upon any provision of these Terms of Use or right in that or any other instance.  A delay or omission by a Party to exercise any right or power under these Terms of Use will not be construed to be a waiver of that right or power.  Waiving one breach will not be construed to waive any succeeding breach.  All waivers must be in writing and signed by the Party waiving rights.

13.5 Third Party Beneficiaries. Company acknowledges and agrees that each Aspen Affiliate is an intended third party beneficiary of these Terms of Use and is entitled to rely upon all rights, representations, warranties and covenants made by Company in these Terms of Use to the same extent as if each of those Aspen Affiliates were Aspen hereunder.  Otherwise, no third party will be deemed to be an intended or unintended third party beneficiary of these Terms of Use.

13.6 Survival.  Except as otherwise expressly provided in these Terms of Use, all covenants, agreements, representations and warranties, express or implied, shall survive the execution of these Terms of Use, and shall remain in effect and binding upon the Parties until they have fulfilled all of their obligations hereunder.  Any terms of these Terms of Use that must survive the expiration or termination of these Terms of Use in order to have their intended effect, shall survive the expiration or termination of these Terms of Use whether or not expressly stated in these Terms of Use.

13.7 Headings. The headings in these Terms of Use are for convenience and reference only and are not intended to, and shall not, define or limit the scope of the provisions to which they relate.

13.8 Enforceability/Severance Clause.  The invalidity or unenforceability of any term or provisions of these Terms of Use in any jurisdiction shall not affect the validity or enforceability of any of the other terms or provisions in that jurisdiction or of the entire Agreement in any other jurisdiction. If any provision is held invalid by a court of competent jurisdiction, such shall be severed and these Terms of Use shall be interpreted as though the severed provision had not existed.

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