DEXCOM TERMS OF SERVICE
THESE DEXCOM TERMS OF SERVICE ARE EFFECTIVE AS OF FEBRUARY 26, 2015 AND REPLACE THE PRIOR DEXCOM TERMS OF SERVICE.
PLEASE NOTE THAT SECTION 8 CONTAINS A REQUIREMENT THAT CERTAIN DISPUTES WILL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION AND A CLASS ACTION WAIVER.
These Terms of Service are an agreement between DexCom, Inc. (“DexCom”) and each visitor to the DexCom website located at www.dexcom.com (our “Website”), and the DexCom Store accessed through our Website, and each user of 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”), or our data services available through the internet (“Data Services”) made available to users of our products or Software Apps. We refer to each visitor to our Website or the DexCom Store or user of a DexCom Product, our Data Services or Software Apps as “you” or as a “User.” We refer to our Website, the DexCom Store and our Data Services as the “DexCom Services.” We refer to DexCom products purchased from DexCom directly (through the DexCom Store or otherwise) or through a distributor as the “DexCom Products.” Certain DexCom Products require a prescription, 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”). This Agreement sets forth the rights and obligations of you and DexCom regarding your use of DexCom Services and Software Apps. Please note that the Apple is a registered mark of Apple Inc. and App Store is a service mark of Apple Inc.
By using any DexCom Product, DexCom Service or Software App, you agree with these Terms of Service.
For your convenience, we have phrased some of the terms of this Agreement in a question and answer format. Regardless of the format, all of the following terms together create 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 we may use that word or phrase again, and it will have the same meaning as set forth in the sentence containing the word or phrase in quotation marks.
1. Scope of this Agreement
1.1 What products and services are covered by this Agreement? This Agreement applies to your use of any DexCom Services, Software Apps and DexCom Products. When using a DexCom Service, Software App or DexCom Product, you must comply with the terms of 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 these Terms of Service (including the Appendices set forth in Section 18 below which may include End User License Agreements for specific Software Apps), the following additional documents apply to your use of DexCom Services and DexCom Products and that collectively form this “Agreement:”
- Any Description located at: www.dexcom.com/products
- Third-party copyright and other notices located: www.dexcom.com/notices
- Dexcom copyright and trademark notices located at: www.dexcom.com/copyrights
- Any documentation provided by DexCom in the manual or packaging for a DexCom Product, or otherwise provided to you by DexCom, including any Instructions for Use, Indications for Use, Contraindications and Product Warnings and Safety Statements (“DexCom Product Labeling”)
1.3 How do you accept this Agreement? Your use of any DexCom Service or DexCom Product or your download or use of any Software App is conditioned on your acceptance of the terms of this Agreement, and by accessing or using a DexCom Service or DexCom Product, by downloading or using a Software App, or by agreeing to this Agreement when the option is made available to you, you are agreeing to the terms of this Agreement.
1.4 Who can use DexCom Services and Software Apps? Anyone may visit our Website, but by doing so they are agreeing to be subject to the laws of the State of California and the laws of the United States as described in this Agreement. Except as we may expressly provide otherwise in connection with each, the DexCom Store, Data Services and Software Apps are provided from the United States and subject to the laws of the United States. We sell DexCom Products from the United States. If you have purchased a DexCom Product from a distributor located outside the United States, you should contact your distributor if you have any questions or need any support. Any warranty or other rights that may be provided with your DexCom Product purchased from a distributor located outside the United States will be provided by that distributor and not by DexCom. DexCom is not a party to the agreement between you and your distributor.
2. Using our Website
2.1 What is our Website? Our Website describes DexCom and our products and services and is available for public viewing in accordance with the terms of this Agreement.
2.2 What is Required for you to use our Website? Our Website is accessible through the internet by any computer with a compatible browser or a smart phone or other smart device (we refer to each as a “Smart Device”) connection with a compatible mobile 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.
3. Using the DexCom Store
3.1 What is the DexCom Store? The DexCom Store is accessible through our Website and is an online store where users of DexCom Products may be able to purchase or obtain certain items used in connection with the use of DexCom Products. A DexCom Store account may also be required for the download or use of certain DexCom Products, DexCom Services and Software Apps.
3.2 What is Required for you to use the DexCom Store? Each User of the DexCom Store must have properly purchased a DexCom Product for the User’s personal use or for the use of a minor for whom the User is acting as a parent or guardian, or for an adult for whom the User has the legal right, and must have set up a proper DexCom Store account, and must purchase items solely for use in connection with that DexCom Product.
3.3 Rules for Use of the DexCom Store. You must use the DexCom Store in your own name only. You must use your own credit card (or a card you are lawfully authorized to use for the benefit of the User), and you must comply with all requirements of the credit card provider. You agree to only purchase DexCom Products for personal use by or on behalf of the Prescription Device User. DexCom Products purchased through the DexCom Store are shipped only to the United States and are subject to the warranty and return policy included in the DexCom Product Labeling. All DexCom Products are shipped by the DexCom Store FOB the DexCom shipping dock, which means that title transfers to you when DexCom places the items ordered with a shipper for transportation, and you bear the risk while the items are in transit.
4. Using Our Data Services and Software Apps
4.1 What are our Software Apps? Software Apps may be available for download at www.dexcom.com. In addition, mobile applications may be downloaded at the Apple App Store and other download locations. We may provide Software Apps for your use on your computing devices or Smart Devices in connection with your use of DexCom Products. Software Apps may provide stand-alone functionality, or may be used in connection with our Data Services, or both.
4.2 What are our Data Services? Our Data Services permit an individual to access, display or analyze the data generated by the Prescription Device User’s DexCom Continuous Glucose Monitoring System or other DexCom glucose monitoring device for which the Data Service is compatible (“User Device”) to help the Prescription Device User manage his or her diabetes in accordance with the applicable DexCom Product Labeling. Use of our Data Services requires an internet-enabled Smart Device. Each Data Service uses a Software App to upload data from User Devices (“User Data”), process User Data applying its proprietary methodologies, and provide data and where applicable, reports, to Prescription Device Users, and may also permit Prescription Device Users to share or direct the Data Service to share Prescription Device User information including processed User Data, reports and other information relating to the 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, and at their own responsibility.
4.3 What is required for you to use our Data Services? If registration is required, then you are required to accurately complete and maintain the required registration process and to provide all required information. You are responsible for providing and maintaining all items required to use each Data Service as they change from time to time, including for each computer you use to access a Data Service, 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 wireless or cell phone connection, and a properly maintained User Device.
4.4 How do you use our Data Services? Data Services may directly interface and interoperate with your DexCom Product, or may require the download of a Software App. Where a Software App is required, the Software App extracts the data from your User Device and sends it via the internet to the DexCom site for processing of User Data and return to you, and for sending to others if that is a feature of the Data Service, according the functionality of the Data Service. If the Data Service sends User Data or other of your information to third parties, you select those third parties and their email, or other information used by the Data Service to send your information to such third parties, and 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 you designate, DexCom has no further control or responsibility regarding that information. You are responsible for connecting the computer or Smart Device running the Software App with the internet.
4.5 Third Party Software Updates. Software Apps run on specific versions of third party operating system 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(s) 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 before you update Platform Software, you should check the applicable download site to determine if we have made available an appropriate update.
4.6 Registration Process and Consistent Use. The use of certain DexCom Products, DexCom Services and Software Apps requires the creation and use of a DexCom Store account ("Registration Process"). As part of the Registration Process, you are required to provide the serial number of the User Device for you or the person on whose behalf you are completing the Registration Process. Certain DexCom Products, DexCom Services and Software Apps will archive and store the data generated by the applicable User Device. As a result, such DexCom Products, DexCom Services and Software Apps must be used only with the applicable User Device. 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) the DexCom Store for your personal purchases of items sold there for your use in connection with your User Device or the User Device of a minor for whom you are a parent or legal guardian, or another adult on whose behalf you have the legal right to act, (c) 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 (d) 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 DexCom with or for the Software App , all in accordance with the terms of this Agreement. DexCom and its licensors own all right, title and interest to the DexCom Services and the Software Apps, and the information, artwork and other content available through or at DexCom Services and Software Apps and 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 patent, copyright and other notices of Intellectual Property Rights provided by DexCom in connection with each, 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. Software Apps may be subject to terms required by third party vendors, and you will be notified of those terms in the applicable End User License Agreement, Description of the Service, through your account or by other notice from DexCom. 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 vendor. You will comply with the additional license provisions required by vendors of such third party items posted by us at our Website or otherwise provided to you or made available to you by us, as they are amended by us from time to time, and the most current version of such license provisions are 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? Only an adult or a minor with the legal right to bind himself or herself to contract terms under applicable law can agree to the terms of this Agreement and use DexCom Services or Software Apps. By agreeing to this Agreement, you are representing that you are an individual at least 18 years old or that you have the legal right to bind yourself to contract terms under applicable law, and you are using the DexCom Services or Software Apps for yourself, you are the parent or legal guardian of a minor on whose behalf you are using the DexCom Services or Software Apps, or you have the legal right to act on behalf of another adult on whose behalf you are using the DexCom Services or Software Apps.
4.10 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 except as expressly permitted by this Agreement:
- use DexCom Services or Software Apps to harm, threaten, or harass any person or organization;
- use DexCom Products, DexCom Services or Software Apps for commercial purposes or to benefit any third party;
- use or attempt to use any unauthorized means to modify, reroute, or gain access to DexCom Services;
- damage, disable, overburden, interfere with or impair DexCom Services (or any network or device connected to a DexCom Service);
- enable unauthorized third party applications to access DexCom Products or DexCom Services or interface with any Software App;
- share your account password or otherwise authorize a third party to access or use DexCom Services or Software Apps on your behalf unless we provide an approved mechanism;
- sublicense or transfer any of your rights under this Agreement;
- modify, copy or make derivative works based on any DexCom Service or Software App;
- reverse engineer or derive the source code for any DexCom Product, DexCom Service or Software App not provided to you in source code form;
- create Internet "links" to or from any DexCom Service, or "frame" or "mirror" any content which forms part of any DexCom Service or Software App;
- use any automated process or service (such as a bot, a spider, or periodic caching of information) to access or use any DexCom Service or Software App, or to copy or scrape data from any DexCom Product, DexCom Service or Software App;
- otherwise use any DexCom Product, DexCom Service or Software App in any manner that exceeds the scope of use granted to you in this Agreement or set forth in any DexCom Product Labeling; or
- use unauthorized software or hardware to access any DexCom Product, DexCom Service or Software App or modify any DexCom Product, DexCom Service, Software App in any unauthorized way (e.g., through unauthorized repairs, unauthorized upgrades, or unauthorized downloads). You agree that we have the right, but not the obligation, to send data, applications or other content to any software or hardware that you are using to access a DexCom Service or use a Software App for the purpose of detecting an unauthorized modification and/or disabling the modified device.
4.11 What can happen if you misuse your DexCom Product? Misusing a DexCom Product, improperly accessing it or the information it processes and transmits, “jailbreaking” your DexCom Product (improperly accessing the hardware or software comprising the DexCom Product), and taking other unauthorized actions may put the User at risk, cause the DexCom Product to malfunction, is not permitted and voids any warranty that may be provided with your DexCom Product.
4.12 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. DexCom has 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.
4.14 Can you use Jailbroken Smart Devices? You are required to use Smart Devices in the condition provided by the manufacturer. “Jailbroken” Smart Devices are those Smart Devices that have been modified in an unauthorized manner to permit the loading of unauthorized software or the unauthorized pulling of data from the DexCom Product, Software App, Data Service or Smart Device to another Smart Device, software application, data service or other means to store or process such data. Jailbroken Smart Devices create unacceptable security risks, and you agree you will not use a Jailbroken Smart Device in connection with DexCom Services or Software Apps.
4.15 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 Prescription Device User’s health monitoring.
4.16 What happens if you provide feedback to DexCom? You are not required to, but you may in your discretion choose to provide written or verbal feedback, suggestions, comments, or input to DexCom relating to DexCom Services, Software Apps, User Devices, or other opportunities for DexCom’s existing or future activities ("Feedback"). By providing Feedback to DexCom, you grant to DexCom the worldwide, nonexclusive, unrestricted, perpetual, irrevocable (on any basis whatsoever), royalty free right for DexCom to use such Feedback in any way it determines, including through third parties, without any obligation to you for compensation, attribution, accounting or otherwise. You will only provide to DexCom Feedback for which you have the right to grant to DexCom the rights in the preceding sentence.
4.17 DexCom Services are not medical or healthcare services. You understand that DexCom is not a health care professional and does not provide medical, health or other professional services or advice, nor does DexCom perform any verification of the accuracy of User Data. DexCom Services and Software Apps are not replacements for proper medical care, and you agree that you are solely responsible to obtain proper treatment for your conditions. You are permitted to provide the information and reports received from Data Services to your healthcare providers at your own responsibility, understanding that Data Services are provided without warranty except as required by law, as set forth in this Agreement.
4.18 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 Data Services and Software Apps for the personal benefit of the Prescription Device User in accordance with this Agreement. Data Services are not a substitute for regular monitoring and medical care, and you will ensure that all appropriate treatment, attention and efforts are made by and for the benefit of the Prescription Device User to maintain his or her health and wellness.
4.19 Your responsibility for third party actions. You are responsible for any act or omission by any person that access or uses any DexCom Product, DexCom Service, or Software App under your account, using your password or from your computer or Smart Device.
4.20 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 impact outside of DexCom’s direct control.
5. Personal Data
5.2 What can you do with the User Data received from a Data Service? You can use the User Data received from a Data Service as information to help you better control your diabetes. It is your data and you are permitted to provide your User Data to any person or entity you determine, and your decision whether and to whom to provide such data is your responsibility and you do so at your own risk.
6. Suspension And Termination Of DexCom Services
6.1 Can DexCom suspend DexCom Services? DexCom can suspend DexCom Services from time to time as it determines, for all Users or for any User.
6.2 Can DexCom terminate DexCom Services or your right to use Software Apps? DexCom may terminate any DexCom Service or your right to use any Software App at any time, and may discontinue supporting any version of a DexCom Product, DexCom Service or Software App when a new version is released. DexCom has no obligation to support any discontinued DexCom Product, DexCom Service or Software App. DexCom may also terminate your access if you breach the terms of this Agreement.
6.3 Can you terminate Data Services or your use of Software Apps? You may terminate any Data Service at any time by notice through your account, if you have one, and if not, then by ceasing your use of the Data Service. You may terminate your use of any Software App as you determine, and you may delete it from your Smart Device, and you may remove it from your computer using your operating system removal procedures if you use a Windows® based computer, or by downloading an uninstall program from our Website if you use an Apple® based computer. You are not obligated to continue using any Data Service or Software App whether you terminate or not.
8.1 Can DexCom change the terms of this Agreement? Yes, DexCom can change the terms of this Agreement by posting an update to the DexCom site where this document is posted. Your continued use of any DexCom Product, DexCom Service or Software App is acceptance of the new terms.
8.2 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.
9. Disputes, Binding Arbitration And Class Action Waiver
9.1 How are dispute resolved under this Agreement? Disputes regarding the validity or enforcement of Intellectual Property Rights will be resolved exclusively in the courts located in San Diego, California. You and DexCom each irrevocably consent to the personal and subject matter jurisdiction and venue of the courts located in San Diego, California for any such dispute. Any other dispute will be resolved exclusively by final and binding arbitration as described below.
9.2 What laws govern this Agreement? You are contracting with DexCom, Inc., a Delaware corporation headquartered in San Diego, California. Performance of this Agreement will occur in San Diego, California. This Agreement is governed by and will be construed in accordance with the internal laws of the state of California applicable to contracts entered into and performed within California, excluding choice of law or conflict of principles.
9.3 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 Dr., San Diego, CA 92121. For any dispute subject to arbitration, you and DexCom will attempt to resolve the dispute through negotiation for 60 days from the date such notice is sent. After 60 days, either party may initiate arbitration if the dispute is not resolved.
9.4 How long does a party have to bring a claim? You and DexCom each agree that any claim arising under or relating to this Agreement will be brought within 1 year of when the party first has notice of the facts providing the basis for the claim.
9.5 Litigation. 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.
9.6 Final and Binding Arbitration. A dispute subject to arbitration that is not informally resolved the parties will be resolved exclusively by final and binding arbitration under the Federal Arbitration Act. You are giving up your right to litigate or participate as a party or class member before a judge or jury for any such dispute. The decision of the arbitrator will be final and binding on the parties except for a limited right of appeal that is available under the Federal Arbitration Act. Any court with jurisdiction may enforce the arbitrator’s award, and the parties agree to the nonexclusive jurisdiction of the state and federal courts in San Diego, California, for such purposes.
9.7 Class Action Waiver. ANY PROCEEDING TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR DEXCOM WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR LITIGATION WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR LITIGATIONS.
9.8 Arbitration Procedure. Any arbitration under this Agreement will be conducted by the American Arbitration Association under its Supplementary Procedures for Consumer-Related Disputes. You may commence arbitration in your county of residence within the United States or in San Diego, California. DexCom will only commence arbitration in your county of residence if you reside within the United States or in San Diego, California if you do not. The arbitrator may award damages to each party individually to the same extent a court could. The arbitrator may award injunctive relief and specific performance only to you or DexCom individually and only to the extent required to satisfy the individual claim.
10. No Warranties
10.1 EXCEPT AS REQUIRED BY APPLICABLE LAW, DEXCOM SERVICES AND SOFTWARE APPS, AND EXCEPT FOR ANY LIMITED WARRANTY INCLUDED IN DEXCOM PRODUCT LABELING, DEXCOM PRODUCTS, 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. 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, OR NON-INFRINGEMENT. DEXCOM DISCLAIMS, AND THIS AGREEMENT DOES NOT INCLUDE, THE PROVISIONS OF THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, THE UNIFORM COMMERCIAL CODE, AND ANY OTHER PROVISIONS IMPLIED INTO THIS AGREEMENT IF NOT DISCLAIMED. DEXCOM DOES NOT WARRANT THAT DEXCOM PRODUCTS, DEXCOM SERVICES OR SOFTWARE APPS, OR ANY DATA OR REPORTS PROVIDED BY DEXCOM, WILL MEET YOUR REQUIREMENTS, BE RETRIEVABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. 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. DEXCOM DOES NOT WARRANT ANY THIRD PARTY 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 AT, OR AVAILABLE OR CAN BE CONNECTED TO THROUGH ANY DEXCOM PRODUCT, SOFTWARE APP OR DEXCOM SERVICE. NO INFORMATION OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH DEXCOM OR DEXCOM PRODUCTS, DEXCOM SERVICES OR SOFTWARE APPS WILL CREATE ANY WARRANTY, EXCEPT FOR ANY LIMITED WARRANTY INCLUDED IN DEXCOM PRODUCT LABELING.
10.2 DEXCOM DOES NOT WARRANT THE ACCURACY OF ANY USER DEVICE, AND THE USER DATA UPLOADED FROM ANY USER DEVICE IS RECEIVED BY DEXCOM AND 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.
10.3 EXCEPT AS INCLUDED IN ANY DEXCOM PRODUCT LABELING, IF YOU ARE DISSATISFIED WITH ANY PORTION OF DEXCOM PRODUCTS, DEXCOM SERVICES, OR SOFTWARE APPS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE THEIR USE.
11. Liability Limitations and Your Responsibility
11.1 YOU AGREE THAT DEXCOM PRODUCTS, DEXCOM SERVICES AND SOFTWARE APPS ARE PROVIDED BY DEXCOM, AND ONLY DEXCOM WILL HAVE ANY LIABILITY ARISING FROM OR RELATING TO DEXCOM PRODUCTS, DEXCOM SERVICES, SOFTWARE APPS, OR THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL DEXCOM’S AFFILIATES, LICENSORS, SUPPLIERS AND OTHER CONTRACT RELATIONSHIPS, AND THE OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AND AGENTS OF DEXCOM AND EACH OF THOSE OTHER ENTITIES 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.
11.2 NEITHER DEXCOM NOR ITS AFFILIATES, NOR ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, SUPPLIER OR OTHER PERSON OR ENTITY ASSOCIATED WITH ANY OF THEM WILL BE LIABLE FOR (A) ANY DAMAGES ARISING FROM THE USE OF OR INABILITY TO USE DEXCOM PRODUCTS, DEXCOM SERVICES OR SOFTWARE APPS, (B) ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, DAMAGES RESULTING FROM LOSS OF DATA OR BUSINESS INTERRUPTION OR FOR TOTAL DAMAGES FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, DEXCOM PRODUCTS, DEXCOM SERVICES AND SOFTWARE APPS IN AN AMOUNT GREATER THAN $500, OR (C) THE ACTIONS OR OMISSIONS OF USER OR ANY THIRD PARTY. THE PROVISIONS OF THIS SECTION APPLY WHETHER THE CLAIM OR DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF DEXCOM OR ITS AFFILIATES OR A PERSON AFFILIATED WITH EITHER OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES EXCLUDED IN THIS SECTION AND EVEN IF SUCH EXCLUSIONS CAUSE THIS AGREEMENT OR ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
11.3 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. 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.
11.4 Your Responsibility. You agree to indemnify, defend and hold harmless DexCom, our affiliates, licensors, suppliers and other contract relationships, and 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, (3) your violation of this Agreement, or (4) your violation of any rights of any other person or entity.
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 Dr., San Diego, CA 92121.
Any provision of this Agreement determined to be void, invalid or unenforceable will be deemed modified to the minimum extent necessary to be effective, valid and enforceable, and the other provisions of this Agreement will remain in full force and effect and enforceable according to their terms.
We may assign this Agreement in whole or in part at any time without any notice to you. You may not assign this Agreement or transfer any rights to use DexCom Services or Software Apps.
15. Export Restrictions.
Software Apps are subject to United States export control laws, and you will comply with those laws.
16. Relationship; No Third Party Beneficiaries.
We are acting 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.
17. 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 by a new version or amendment posted by DexCom at its website or otherwise provided by DexCom to you. 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.
18. Supplemental Provisions.
The following provisions apply to your use of specific DexCom Products, DexCom Services and Software Apps and are part of this Agreement:
18.1 Share System End User License Agreement
This End User License Agreement (“EULA”) sets forth additional terms applicable to your use of the DexCom Share System (we refer to these and the Software Apps we provide for you to use these Data Services collectively as the “Licensed Services”). By downloading or using the Licensed Services in any way, you agree with the terms of this Agreement, including this EULA, as the exclusive and binding contract between you and DexCom regarding your use of the Licensed Services, and you and DexCom each agree to comply with all of the provisions of this EULA.
- Definitions. We use the following terms in this EULA:
DexCom G4 PLATINUM System means our DexCom G4 PLATINUM Continuous Glucose Monitoring System, including a sensor, transmitter, receiver, and any accessories approved by DexCom for use with any of the foregoing.
DexCom Share Data Services means the transmission of User Data from DexCom G4 PLATINUM Systems and the provision of notifications to Sharers and Followers through any DexCom system marketed with the Share name or logo (“DexCom Share System”). For the DexCom Share system, the transmission is made either pursuant to the DexCom SHARE Cradle or the receiver provided as part of the DexCom G4 PLATINUM System (“DexCom G4 PLATINUM Receiver with Share”). In each case, the User Data is transmitted to DexCom Share Software, which provides User Data to Users and notifications to Sharers and Follows.
DexCom SHARE Cradle means the physical cradle available as an accessory from DexCom that connects the DexCom G4 PLATINUM System with the Sharer’s Smart Device using the DexCom Share App.
Follow App means a Software App included in the Licensed Services that is installed on a Follower’s Smart Device to receive Sharer readings and threshold notifications and permit the Follower to configure settings in the DexCom Follow App.
Followers means family, friends and non-medical personnel who at the Sharer’s invitation subscribe to Licensed Services to receive readings and threshold notifications from Licensed Services relating to the Sharer’s User Device.
Support Services means the technical and customer support services that DexCom may offer from time to time to assist you with your use of Licensed Services and includes any information and materials we may provide in connection with these support services. Sharer means a Prescription Device User who uses a Licensed Service for the purpose of sharing User Data with a Follower.
You and your refers to each Sharer and/or Follower, as the context requires.
- Licensed Services. Licensed Services are made available to Prescription Device Users who have validly purchased and use a compatible User Device to monitor their glucose levels. Licensed Services upload readings from the compatible User Device and permit the Sharer to transmit readings and threshold notifications to Followers. Licensed Services also permit each Follower to set measurement thresholds, alarms and alerts for readings sent to the Follower by the Sharer. Licensed Services are accessed by installing the User Device receiver in the DexCom SHARE Cradle for the DexCom Share system, and for connecting the User Device receiver to an internet connection for the DexCom Share System. Using the Follow App installed on the Follower’s Smart Device, each Follower can view the Sharer’s most recent glucose trends, receive notifications and configure settings on the Follow App, including notification thresholds.
- Followers. A Sharer may invite any person to be a Follower, except that Licensed Services are not intended to be used by licensed health professionals performing licensed healthcare services for the Sharer (for example, the Sharer’s endocrinologist). Each Follower using Licensed Services represents that he or she is not, and during the term of his or her service as a Follower will not be, a licensed healthcare professional performing licensed healthcare services for the Sharer.
- Follower Subscription. Each Follower will receive an email invitation to become a Follower, and by accepting the invitation and this Agreement, the person will become a Follower. A Follower may terminate his or her Follower status at any time by canceling the Sharer in the Follow App or by deleting the Follow App. A Follower’s subscription will be terminated when the Sharer terminates his or her Licensed Services subscription or when the Sharer removes the person as a Follower.
- Limited License. We hereby grant to you a limited, non-exclusive, nontransferable access right to use the Licensed Services and the Support Services during the term of your subscription as follows, so long as you comply with the terms of this Agreement:
a. The Prescription Device User is granted the right to download the applicable Software App onto his or her Sharer’s Smart Device and to use the Software App solely as described in the Service Description and DexCom Product Labeling in connection with his or her use of Licensed Services as a Prescription Device User.
b. Each Follower is granted the right to download the Follow App onto his or her Follower’s Smart Device and to use the Follow App solely as described in the Service Description and DexCom Product Labeling in connection with his or her use of Licensed Services as a Follower.
c. You may use information received from Licensed Services solely for the purposes of the Prescription Device User’s personal health.
d. You may use Support Services solely to support the use of Licensed Services by you and your associated Sharer and Followers. You agree not to use or disclose Support Services for any other reason.
- No Medical Services. Licensed Services are information services and not medical services or any other licensed healthcare service. We do not monitor the information received from User Devices or provided to you, and we will not provide you with notice through Licensed Services; it is up to the Prescription Device User to determine whether to name Followers, and up to the Prescription Device User and the Follower to determine thresholds, alerts and alarms to set and how to use the features of the Licensed Services. Licensed Services are not replacements for the Prescription Device User’s regular healthcare and health monitoring.
- Geographical Restrictions. Licensed Services are not available for use by persons located outside the United States, and you represent that you reside within the United States. Survival. The provisions of this EULA survive the expiration or earlier termination of this EULA to the extent such provisions are applicable following such expiration or termination.
- Contact Us. If you have any questions about this EULA, please: (1) send us an email at CustomerService@dexcom.com; or (2) call us at 1-888--738-3646 (Monday through Friday, 6 a.m. to 5 p.m. PST; Saturday, 8am to 12pm PST).
- Version. This EULA is dated February 26, 2015.