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ישראלTHESE DEXCOM EU TERMS OF USE ARE EFFECTIVE AS OF SEPTEMBER 15, 2015 AND REPLACE THE PRIOR DEXCOM TERMS OF USE.
These EU Terms of Use (this “Agreement”) apply to residents of countries in the European Union. This Agreement is between DexCom, Inc. (“DexCom,” “we” or “us”) and you concerning your use of (including any access to): (a) the DexCom website located at www.dexcom.com and the pages and the other DexCom websites accessible from such site (collectively, our “Website”), (b) the software applications we make available for download or access at our Website, at the Apple® App Store or at other cell phone service provider locations or other locations we indicate (“Software Apps”), (c) any DexCom products purchased outside of the United States (“DexCom Products”), and (d) data services made available by DexCom through the internet to users of DexCom Products or Software Apps that provide and permit the access, collection, storage, processing, analysis and/or transmission of data generated by a DexCom Product or Software App (“Data Services”). We refer to our Website and our Data Services as the “DexCom Services.” We refer to you, and any minor child or other person for whose use and on whose behalf you have the legal right to purchase a DexCom Product, as a “User.” Certain DexCom Products require a prescription (“Prescription Device”), and such DexCom Products may only be used by the person for whom the prescription was issued (that person is referred to as the “Prescription Device User”).
By using (including accessing) any DexCom Product, DexCom Service or Software App or by clicking “accept” to this Agreement, you are agreeing to this Agreement. Further, you represent and warrant that you are a resident of a country in the European Union and your use of (and any access to) any DexCom Product, DexCom Service or Software App will be primarily in the European Union. If you are not a resident of a country in the European Union or your use of any DexCom Product, DexCom Service or Software App will not be primarily in the European Union, the Terms of Use, not the terms of this Agreement, apply to your use of (including any access to) any DexCom Product, DexCom Service or Software App.
For your convenience, we have phrased some of the terms of this Agreement in a question and answer format. All of the following terms are a single legal agreement between you and DexCom. If a word or phrase is framed in this Agreement by “Quotation Marks” and marked in bold text, it means that the word or phrase may be used again, and it will have the same meaning as set forth in the sentence containing the word or phrase in quotation marks and bold text.
1. Scope of this Agreement; Not Medical or Healthcare Services.
1.1 DexCom Services are not medical or healthcare services.You understand that DexCom is not a healthcare professional and does not provide medical, health or other professional services or advice, nor do we verify the accuracy of User Data (as such term is defined in Section 4.2 below). DexCom Services and Software Apps are not replacements for proper medical care, and you agree that the User or Prescription Device User, as applicable, is solely responsible for obtaining proper treatment for his or her conditions. You may provide the information and reports received from Data Services to the User’s or Prescription Device User’s, as applicable, healthcare providers at your own responsibility, understanding that the Software Apps and Data Services are provided without warranty except as required by law or as otherwise expressly set forth in this Agreement.
1.2 Are there additional terms that apply to your use of DexCom Services or DexCom Products? Yes, in addition to the terms set forth in this Agreement, any other terms and conditions that we post or make available through any DexCom Service, or otherwise make available to you, apply to your use of DexCom Services, Software Apps and DexCom Products and are incorporated into and made a part of this Agreement. These additional terms include (but are not limited to) the following:
1.3 Where can you use the DexCom Services, DexCom Products and Software Apps? Anyone may use the DexCom Services, DexCom Products and Software Apps, but the DexCom Products are provided by DexCom from the United States. The DexCom Services and Software Apps are provided by DexCom in either the United States or England and are not intended to subject DexCom to any jurisdiction or law other than as provided in Section 6 below.
1.4 Who should you contact if you have questions about your DexCom Product? If you have purchased a DexCom Product outside of the United States, such DexCom Product was sold by a third-party distributor and not by DexCom. You should therefore contact the distributor if you have questions or need support, and you should look to such distributor—not to DexCom—for any warranty or other rights that may be provided with your DexCom Product (e.g., any warranty included on the applicable DexCom Product Labeling).
2. Changes
2.1 Can DexCom change the terms of this Agreement? Yes, subject to applicable law, DexCom can change the terms of this Agreement by notifying you of such changes by any reasonable means, including by posting a notice of new terms to our Website. Your clicking “accept” to the new terms or your continued use of any DexCom Product, DexCom Service or Software App after any such change is acceptance of the new terms. Any such changes will not apply to any dispute between you and us arising prior to the date on which we notified you of the revised Agreement incorporating such changes. If you do not agree with the new terms, you have the right to discontinue your use of the DexCom Services and Software Apps as described in Section 5.2 below (titled “Can you terminate your use of DexCom Services or your use of Software Apps?”).
2.2 Can DexCom change DexCom Services or Software Apps? DexCom Services and Software Apps, and the business, development and activities of DexCom, are subject to change as determined from time to time by DexCom in its discretion by notifying you of such changes by any reasonable means, including our posting of a notice on our Website or otherwise providing you with notice through the applicable DexCom Service or Software App. Subject to applicable law, your continued use of the applicable DexCom Service or Software App after any such change is acceptance of the change. We reserve the right to introduce new features or functionality for which the payment of fees may be required. If you do not agree with the changes, as described in Section 5.2 below (titled “Can you terminate your use of DexCom Services or your use of Software Apps?”), you have the right to discontinue your use of the DexCom Services, DexCom Products and Software Apps.
3. What is Required for you to use our Website? Our Website is accessible through the internet by any smart phone or other smart device (we refer to each as a “Smart Device”) or computer, in each case with a compatible browser. You are responsible for each computer or Smart Device you use to access our Website, including providing and maintaining properly running compatible updated software, a suitable internet connection, an appropriate firewall and virus scanning software.
4. Using Our Data Services and Software Apps
4.1 What are our Software Apps? We may provide Software Apps for your use on your computer or Smart Devices in connection with your use of DexCom Products. Software Apps may provide stand-alone functionality, may be used in connection with our Data Services, or both.
4.2 What are our Data Services? Our Data Services are intended to allow a User or Prescription Device User, as applicable, to use the data generated by, or created in connection with the use of, their DexCom Product (“User Data”) for which the Data Service is compatible (“User Device”) to help the User or Prescription Device User, as applicable, manage his or her diabetes in accordance with the applicable DexCom Product Labeling. Use of our Data Services requires an internet-enabled Smart Device or computer. Each Data Service receives User Data from a Software App that is downloaded to your Smart Device or computer. Our Data Services process User Data applying proprietary methodologies, provide data, and where applicable, provide reports to Users or Prescription Device Users. Our Data Services may also permit Users or Prescription Device Users to share User Data, reports and other information relating to the User or Prescription Device User. Prescription Device Users are entitled to provide, or direct the Data Service to provide, such data and reports to others as they determine at their own responsibility. You acknowledge and agree that Data Services are not a substitute for regular monitoring and medical care, and that you will ensure that all appropriate treatment, attention and efforts are made by and for the benefit of the User or Prescription Device User, as applicable, to maintain his or her health and wellness. Our collection, storage and transmission of User Data and any other information that you provide to DexCom through DexCom Services and Software Apps is governed by the Privacy Policy.
4.3 What is required for you to use our Data Services and Software Apps? Each Data Service or Software App may require the creation of a DexCom user account on our Website (“User Account”). If so, you are required to accurately complete and maintain the User Account and to provide us with all required information. You are responsible for obtaining, maintaining and paying for all hardware, software, telecommunications and other services necessary for the use of the Data Services and/or the Software Apps including, but not limited to, properly running compatible updated software, a suitable internet connection, an appropriate firewall and virus scanning software, a proper cable to connect your User Device to your computer or to a Smart Device, and a properly maintained User Device.
4.4 How do you use our Data Services? Our Data Services may directly interface and interoperate with your DexCom Product or may require the download of a Software App. Certain Data Services may allow you to send your User Data to certain third parties selected by you. By selecting the third party (which may be a person, a software app, or another business), you are authorizing us to send your User Data to each party you select. DexCom does not verify or validate any information regarding such third parties or the information you have provided regarding them. Once your information has been provided to a third party designated by you, DexCom has no further control or responsibility regarding that information. Our collection, storage and transmission of data in connection with Data Services is governed by the Privacy Policy.You are responsible for connecting your computer or Smart Device running the Software App or Data Service to the internet.
4.5 Third Party Software Updates. Our Software Apps run on specific versions of third party operating systems and browser software for your computer or Smart Device (“Platform Software”). When the third party provider issues an update to Platform Software, we will require additional time to provide a compatible update to the Software App. If you update Platform Software prior to our making available an appropriate update to a Software App, you may no longer be able to use the Software App you have been using, or the Software App may not properly function. We may determine not to provide a compatible update to the Software App, and therefore before you update Platform Software, you should first check the applicable location where you originally downloaded the Software App to determine if an update to the Software App or Data Service is needed.
4.6 Consistent Use. Certain DexCom Products, DexCom Services and Software Apps will archive and store the data generated by the applicable User Device (which archival and storage is governed by the Privacy Policy). As a result, such DexCom Products, DexCom Services and Software Apps must be used only with the applicable User Device and associated User Account. Failure to do so may (1) cause the applicable DexCom Product, DexCom Service or Software App to perform improperly, or not to perform at all, (2) corrupt the User Data, or (3) cause inaccurate User Data to be associated with the User or cause the User Data to be inaccurately displayed or analyzed.
4.7 What rights do you have to the DexCom Services and the Software Apps? Upon your acceptance of this Agreement, and so long as you comply with the terms of this Agreement, until either party terminates this Agreement, DexCom grants you the personal, limited and nonexclusive right to use (a) our Website for your personal noncommercial use, (b) Data Services as they are intended to be used as described at the relevant page of our Website or in materials provided through the Data Services, and (c) Software Apps as they are intended to be used, as described at the relevant page of our Website, in the Software App or in materials provided by us with or for the Software App or the DexCom Product for which the Software App is compatible, all in accordance with the terms of this Agreement. DexCom and the third parties from which we license certain technology (“licensors”) own all right, title and interest to the DexCom Services and the Software Apps; the information, artwork and other content available through or at DexCom Services and Software Apps; the processes, methodologies, documents and other materials we use to provide the DexCom Services and Software Apps, or that we provide to you in connection with your use of DexCom Products, DexCom Services, or Software Apps; and all patent, copyright, trademark, trade secret, and other rights of any nature arising from or relating in any way to DexCom Products, DexCom Services, and Software Apps (“Intellectual Property Rights”). DexCom Products, DexCom Services and Software Apps are subject to the notices of Intellectual Property Rights provided by DexCom on our Website, and you must abide by the requirements in all of such notices. All Intellectual Property Rights are reserved by DexCom and its licensors, and no Intellectual Property Rights are granted to you except as set forth in this Section 4.7. Trademarks, servicemarks, trade dress, logos, names and other symbols identifying DexCom, DexCom Services, DexCom Products, and Software Apps, and the goodwill relating thereto, are owned by DexCom and its licensors. You may not remove or alter any notice provided by DexCom on or in connection with DexCom Products, DexCom Services or Software Apps.
4.8 What third party requirements do you have to comply with? DexCom Products, DexCom Services and Software Apps may include software, data or other items licensed to us by third parties. Your use of such third party items is subject to the provisions of this Agreement, except as required otherwise by the applicable licensor. You must comply with the additional license provisions required by vendors of such third party items posted by us at our Website or which we otherwise provide or make available to you, as they are amended by us from time to time. The version of such license provisions that is applicable to your use is incorporated into and made a part of this Agreement.
4.9 What age do you have to be to use DexCom Services or Software Apps? By agreeing to this Agreement, you are representing that you are eighteen (18) years old or older and you have the legal capacity to enter into this Agreement.
4.10 Can you use third party software or equipment with DexCom Products, DexCom Services or Software Apps? DexCom does not endorse, recommend or validate any third party software or equipment for use with DexCom Products, DexCom Services or Software Apps. Any use by you of any such third party software or equipment is at your sole risk. We have no responsibility or liability arising from your use of such third party software or equipment, such as damage to your DexCom Products or problems, inaccuracies or malfunctions in DexCom Products, DexCom Services or Software Apps arising from such use.
4.11 What other restrictions apply to your use of DexCom Services and Software Apps? You will not, and you will not permit anyone under your control to, do or attempt to do any of the following:
4.12 What can happen if you misuse your DexCom Product, Service or Software App? Misusing a DexCom Product, DexCom Service or Software App, improperly accessing it or the information it processes and transmits, or taking other unauthorized actions may put the User (or their User Data) at risk, cause the DexCom Product, Service or Software App to malfunction, or otherwise prevent or hinder the proper and intended use of the DexCom Product, Service or Software App. Accordingly, any such misuse is not permitted. Such misuse includes (but is not limited to) “jailbreaking” a DexCom Product, which means the unauthorized removal of restrictions on a DexCom Product for any purpose, including to permit the installation of unauthorized software or to retrieve data from such DexCom Product. In addition, “jailbreaking” a Smart Device used in connection with any Software App, DexCom Product or DexCom Service may put the User (or their User Data) at risk or otherwise prevent or hinder the proper and intended use of such Software App, DexCom Product or DexCom Service.
4.13 What happens if DexCom Services or Software Apps are unavailable? DexCom Services and Software Apps may be interrupted or unavailable, and if they are, you must rely upon direct use of the User Device for the User or Prescription Device User’s, as applicable, health monitoring.
4.14 What happens if you provide feedback to DexCom? You may provide written or verbal feedback, suggestions, comments, or input to us relating to DexCom Services, Software Apps, DexCom Products, User Devices, or other opportunities for our existing or future activities (“Feedback”). By providing Feedback to us, you grant to us the worldwide, nonexclusive, unrestricted, perpetual, irrevocable (on any basis whatsoever), royalty free right for us to use such Feedback in any way we determine, including through third parties, without any obligation to you for compensation, attribution, accounting or otherwise. You will only provide to us Feedback for which you have the right to grant to us the rights listed in the preceding sentence.
4.15 By purchasing, registering or using DexCom Products, DexCom Services or Software Apps, you are making certain assurances to DexCom. You represent, warrant and agree that all information you provide to us will be true, accurate, current and complete, and you will only use DexCom Services, DexCom Products and Software Apps for the personal benefit of the applicable User or Prescription Device User in accordance with this Agreement.
4.16 DexCom is not responsible for third party matters. Without limiting the provisions of this Agreement or expanding the scope of DexCom’s responsibilities, DexCom is not responsible for outages or defects in power, telecommunications, computers, Smart Devices, third party software and any other event outside of DexCom’s direct control.
5. Suspension and Termination of DexCom Services
5.1 Can DexCom suspend or terminate DexCom Services or Software Apps? DexCom can suspend or terminate any DexCom Service or Software App, or suspend or terminate your right to use any DexCom Service or Software App, as it determines for any valid reason. By way of example, we may suspend or terminate a DexCom Service or Software App if you have, or if we reasonably believe you have, violated this Agreement or in connection with any event or legal development beyond our control that hinders or prevents our ability to offer any DexCom Service or Software App. To the extent reasonable, we will notify you at least twenty-four (24) hours in advance of any such suspension or termination. However, if you materially violate this Agreement (including any use of DexCom’s resources that exceeds or circumvents DexCom’s reasonable restrictions, such as accesses, calls or other uses of any application programming interface or server resources that DexCom makes available), we can immediately suspend or terminate your right to use any DexCom Service or Software App. In addition, we have no obligation to support any version of a DexCom Product, DexCom Service or Software App once a new version of such DexCom Product, DexCom Service or Software App is released.
5.2 Can you terminate your use of DexCom Services or your use of Software Apps? You may terminate your use of any DexCom Service by ceasing your use of the DexCom Service. You may terminate your use of any Software App by deleting it from your Smart Device, removing it from your Windows® based computer using your operating system removal procedures, or removing it from your Apple® based computer by downloading an uninstall program from our Website. You are not obligated to continue using any Data Service or Software App whether you terminate or not.
5.3 What happens if your use of a DexCom Service is terminated? If your use of a DexCom Service or Software App is terminated for any reason, (a) we may retain all of your Personal Information (as defined in the Privacy Policy) associated with your use of a DexCom Product, Software App or a DexCom Service for which you are registered, subject to your right to request deletion of such Personal Information under applicable law or as otherwise set forth in the Privacy Policy, (b) your rights to use the DexCom Service or Software App will terminate, and (c) Sections 1, 4.2 (last sentence only), 4.9, 4.11, 4.14, 4.15, 4.16, 5.3, and 6-15 will survive such termination and continue to apply to the parties. If you later re-activate your account, and we have retained your Personal Information, we would re-associate your retained Personal Information with your newly re-activated account if we are able to do so, provided that you provide us with appropriate information enabling us to make the proper association. Notwithstanding the foregoing, if your use of a Software App or DexCom Service is terminated for any reason, we may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials (including Personal Information), without any obligation to provide any further access to such materials.
6. Disputes and Governing Law
6.1 How are dispute resolved under this Agreement? Disputes arising out of or in connection with this Agreement or your use of any DexCom Service, DexCom Product or Software App will be resolved exclusively in the courts located in London, England, and you and DexCom each irrevocably consent to the personal and subject matter jurisdiction and venue of the courts located in London, England for any such dispute.
6.2 What laws govern this Agreement? This Agreement (including any claim or dispute of any nature arising out of or relating to this Agreement) is governed by and will be construed in accordance with the internal laws of England and Wales applicable to contracts entered into and performed within England and Wales, excluding choice of law or conflict of laws principles.
6.3 Notice of Dispute. In the event of a dispute arising under or relating to this Agreement, the disputing party must provide the other party with written notice of the dispute, including the facts giving rise to the dispute and the relief sought by the disputing party. We will provide such notice by email to your email address. You will provide such notice to DexCom by mail or overnight delivery at the following address: General Counsel, DexCom, Inc., 6340 Sequence Drive, San Diego, California 92121, United States.
6.4 Equitable Relief. Any violation of a party’s intellectual or industrial property rights will cause the non-violating party irreparable harm for which monetary damages are an inadequate remedy, and the non-violating party is entitled to temporary, preliminary and permanent injunctive relief and specific performance without the posting of bond or other security, or if required, the minimum bond or security required.
7. No Warranties
7.1 EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AND EXCEPT FOR ANY LIMITED WARRANTY INCLUDED IN THE APPLICABLE DEXCOM PRODUCT’S LABELING, DEXCOM PRODUCTS, DEXCOM SERVICES AND SOFTWARE APPS ARE PROVIDED “AS-IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AND YOU USE DEXCOM PRODUCTS, DEXCOM SERVICES AND SOFTWARE APPS AT YOUR OWN RISK.
7.2 EXCEPT TO THE EXTENT THAT SUCH LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, DEXCOM DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR USE, QUIET ENJOYMENT, ACCURACY, OPERATION, COMPLIANCE WITH DOCUMENTATION AND NON-INFRINGEMENT. DEXCOM DISCLAIMS, AND THIS AGREEMENT DOES NOT INCLUDE, THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND ANY OTHER PROVISIONS IMPLIED INTO THIS AGREEMENT IF NOT DISCLAIMED.
7.3 DEXCOM DOES NOT MAKE ANY WARRANTIES THAT DEXCOM PRODUCTS, DEXCOM SERVICES, SOFTWARE APPS, OR ANY DATA OR REPORTS PROVIDED BY DEXCOM WILL MEET YOUR REQUIREMENTS OR BE RETRIEVABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.
7.4 DEXCOM DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF DEXCOM PRODUCTS, DEXCOM SERVICES OR SOFTWARE APPS.
7.5 DEXCOM DOES NOT WARRANT ANY THIRD PARTY DEVICE, SMART DEVICE, SOFTWARE, SERVICE OR DATA THAT YOU MAY USE IN CONNECTION WITH ANY DEXCOM PRODUCT, SOFTWARE APP OR DEXCOM SERVICE, WHETHER OR NOT SUCH THIRD PARTY ITEM IS DESCRIBED IN, OR AVAILABLE OR CAN BE CONNECTED TO THROUGH, ANY DEXCOM PRODUCT, SOFTWARE APP OR DEXCOM SERVICE.
7.6 NO INFORMATION OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH DEXCOM, DEXCOM PRODUCTS, DEXCOM SERVICES OR SOFTWARE APPS WILL CREATE ANY WARRANTY, EXCEPT FOR ANY LIMITED WARRANTY INCLUDED IN THE APPLICABLE DEXCOM PRODUCT’S LABELING.
7.7 DEXCOM DOES NOT WARRANT THE ACCURACY OF ANY USER DEVICE, AND THE USER DATA UPLOADED FROM ANY USER DEVICE AND RECEIVED BY DEXCOM IS PROVIDED TO THE USER “AS-IS.” DEXCOM DOES NOT ASSUME ANY OBLIGATION TO, AND DOES NOT WARRANT THAT IT WILL, CREATE OR INCLUDE ADDITIONAL FEATURES OR FUNCTIONALITY FOR DEXCOM PRODUCTS, DEXCOM SERVICES OR SOFTWARE APPS.
8. Liability Limitations and Your Responsibility
8.1 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL DEXCOM’S AFFILIATES, LICENSORS, SUPPLIERS AND OTHER THIRD PARTIES WITH WHICH DEXCOM HAS A CONTRACTUAL RELATIONSHIP (INCLUDING ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AND AGENTS) HAVE ANY LIABILITY WHATSOEVER ARISING FROM OR RELATING TO DEXCOM PRODUCTS, DEXCOM SERVICES, SOFTWARE APPS, OR THIS AGREEMENT, WHETHER FOR DIRECT OR ANY OTHER TYPE OF DAMAGES WHATSOEVER.
8.2 EXCEPT TO THE EXTENT THAT SUCH LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, NEITHER DEXCOM, ITS AFFILIATES, NOR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS (COLLECTIVELY, “DEXCOM PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE OF OR INABILITY TO USE DEXCOM PRODUCTS, DEXCOM SERVICES OR SOFTWARE APPS.
8.3 EXCEPT TO THE EXTENT THAT SUCH LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, NONE OF THE DEXCOM PARTIES SHALL BE LIABLE FOR ANY CONSEQUENTIAL, UNFORESEEABLE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR DAMAGES RESULTING FROM LOSS OF DATA OR BUSINESS INTERRUPTION WHETHER THE CLAIM OR DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF DEXCOM, ITS AFFILIATES OR A PERSON AFFILIATED WITH EITHER OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES EXCLUDED IN THIS SECTION 8, AND EVEN IF SUCH EXCLUSIONS CAUSE THIS AGREEMENT OR ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
8.4 EXCEPT TO THE EXTENT THAT SUCH LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, NONE OF THE DEXCOM PARTIES SHALL BE LIABLE FOR TOTAL DAMAGES FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, DEXCOM PRODUCTS, DEXCOM SERVICES AND/OR SOFTWARE APPS IN AN AGGREGATE AMOUNT GREATER THAN €500.
8.5 EXCEPT TO THE EXTENT THAT SUCH EXCLUSION OR LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, NONE OF THE DEXCOM PARTIES SHALL BE LIABLE FOR THE ACTIONS OR OMISSIONS OF A USER OR ANY THIRD PARTY.
8.6 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU, AND YOU MAY HAVE CERTAIN ADDITIONAL RIGHTS. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT OUR LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW, AND THIS AGREEMENT WILL BE DEEMED MODIFIED TO THE MINIMUM EXTENT NECESSARY TO COMPLY WITH SUCH APPLICABLE LAW.
8.7 Nothing in this Section 8 is intended to limit or exclude liability where such liability is mandatory under applicable law and arises from the following: (a) death or personal injury resulting directly from wilful or negligent act(s) or omission by DexCom or any of its employees or agents; (b) any fraudulent misrepresentation on the part of DexCom; (c) any breach of an essential contractual duty; or (d) any wilful misconduct on the part of DexCom.
8.8 Your Responsibility. Except to the extent prohibited under applicable law, you agree to indemnify, defend and hold harmless DexCom, our affiliates, licensors, suppliers and other contract relationships (including the officers, directors, employees, consultants, and agents of each) from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from (1) any information you submit, post or transmit through DexCom Services or Software Apps, (2) your use of DexCom Products, DexCom Services or Software Apps in violation of this Agreement, or (3) your violation of any rights of any other person or entity.
9. Notices.
Except as expressly provided elsewhere in this Agreement, we will provide any notice under this Agreement by email to your email address. You will provide such notice to DexCom by mail or overnight delivery at the following address: General Counsel, DexCom, Inc., 6340 Sequence Drive, San Diego, California 92121, United States.
The DexCom Services are operated by:
DexCom, Inc.
Registered Address: 6340 Sequence Drive, San Diego, California 92121, United States
Place of Business: 6340 Sequence Drive, San Diego, California 92121, United States
Email Address: Legal@dexcom.com
TAX ID: 33-0857544
10. Severability.
In the event that any court holds any provision of this Agreement to be void, invalid or unenforceable, such provision will be modified to the minimum extent necessary to be effective, valid and enforceable while preserving the original intentions of the parties to the greatest extent possible, and the other provisions of this Agreement will remain in full force and effect and enforceable according to their terms.
11. Assignment.
We may assign this Agreement in whole or in part at any time with notice (which notice may be made via a posting to our Website). You may not assign this Agreement or transfer any rights to use DexCom Services or Software Apps.
12. Export Restrictions.
The Software Apps may be subject to United States export control laws. As a result, you represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a United States government embargo or other restriction or any country that has been designated by the United States government as a “terrorist supporting” country (click here for more information); and (b) on any of the United States government lists of restricted end users (for example, including the “Specially Designated Nationals” list available at click here).
13. Apple-Specific Terms.
In addition to the foregoing, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of any Software App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for any Software App. Apple is not providing any warranty for any Software App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for any Software App and will not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to any Software App, including any third-party product liability claims, claims that any Software App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of any Software App, including those pertaining to intellectual property rights, must be directed to us in accordance with Section 9 (titled “Notices”). The license you have been granted herein is limited to a non-transferable license to use a Software App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Use. In addition, you must comply with the terms of any third-party agreement applicable to you when using any Software App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, our right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
14. Relationship; No Third Party Beneficiaries.
Our relationship with you is as an independent contractor, and nothing in this Agreement creates an agency or partnership. Except for DexCom’s licensors, there are no third party beneficiaries to this Agreement.
15. Complete Agreement.
This Agreement is the complete and final agreement between the parties relating to DexCom Products, DexCom Services and Software Apps; supersedes any prior agreements or communications between the parties; and may only be modified as described in this Agreement (see Section 2.1 (titled “Can DexCom change the terms of this Agreement?”)). Failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
