DEXCOM TERMS OF USE
THESE DEXCOM TERMS OF USE ARE EFFECTIVE AS OF JANUARY
26, 2023 AND REPLACE THE PRIOR DEXCOM TERMS OF USE.
These Terms
of Use (this "Agreement") are
available in other languages and may be viewed by going to our Website and selecting your country of residence. This
Agreement is between DexCom, Inc. and its
subsidiaries DexCom (UK) Limited, DexCom
Sweden AB, DexCom (UK) Intermediate Holdings Ltd., DexCom Operating Ltd., DexCom
(UK) Distribution Limited, DexCom Deutschland GmbH,
Nintamed Handels GmbH, DexCapital,
LLC, DexCom (Canada), Inc., DexCom
International Ltd., DexCom Philippines, DexCom International Limited, Nicosia, Zweigniederlassung
Horw, SweetSpot Diabetes Care, Inc., The Glucose
Program, LLC and Type Zero Technologies, Inc. (collectively, "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 ("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").
This Agreement also sets forth the agreement between
any DexCom subsidiary, including The Glucose Program,
LLC, that links to this Agreement, and you, concerning the following, with
references to DexCom, we or us in this Agreement
referring to that subsidiary: your use of (including any access to): (a) any
website provided by such subsidiary (included in the term our "Website"),
(b) any software applications made available by such subsidiary at our Website
(included in the term "Software Apps"), and (c) any data services made
available by such subsidiary through the internet that provide and permit the
access, collection, storage, processin, analysis
and/or transmission of data generated by a DexCom
Product or a Software App (included in the term "Data Services"). This agreement may be enforced by any 3rd
party referred to herein. These Terms of
Use may be rescinded or varied without the consent of any 3rd
party.
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.
PLEASE
NOTE THAT THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION
THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE
DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, TO THE EXTENT PERMITTED BY
APPLICABLE LAW.
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, or you and a DexCom
subsidiary. 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 5.2 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:
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any
description located on our Website;
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third-party
copyright and other notices located on our Website;
-
DexCom copyright and trademark notices located on our Website;
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any terms in
any documentation provided by DexCom in the manual or
packaging for a DexCom Product, Software App or DexCom Service, 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");
-
Any consent
or authorization you sign in connection with your use of DexCom
Services or DexCom Products;
-
our Privacy
Policy located on our Website ("Privacy Policy") and
-
Our Private
Short Code Terms of Use ("Text Messaging")
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 from the United
States and are not intended to subject DexCom to any
jurisdiction or law other than as provided in Section 7 below.
1.4 Who should you contact if you have questions about
your DexCom Product? If you have purchased a DexCom Product directly from DexCom
and have questions concerning your Dexcom Product, please contact DexCom. If you are in a
jurisdiction where you have purchased a DexCom Product through a third-party distributor, please
contact the distributor from which you purchased the Dexcom Product.
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, for seven (7) days without objecting to the new terms, 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
6.2 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 to, for example, add new App features, develop additional
services to support new functionality, and offer new intergrations,
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, for seven (7) days without objecting the change, 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 6.2 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, and an
appropriate firewall and virus scanning software.
4. Using the DexCom Store
4.1 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. The DexCom Store may only be
used by residents of those jurisdictions shown on the DexCom
website.
4.2 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 the Prescription Device User. The User must have
set up a proper DexCom Store account; and must
purchase items solely for use in connection with that DexCom
Product.
4.3 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, where available, 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.
5. Using Our Data Services and Software Apps
5.1 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.
5.2 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.
5.3 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 and 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.
5.4 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.
5.5 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. We may automatically download and install
updates to our Software Apps for time to time, and you agree to receive such
updates (and permit us to deliver these updates) as part of your use of the
Software Apps.
5.6 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.
5.7 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 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 5.7. 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.
5.8 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.
5.9 What age do you have to be to use DexCom Services or Software Apps? By agreeing to this Agreement, you
are representing that you of the age of majority of the country in which you
reside and have the legal capacity to enter into this Agreement.
5.10 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.
5.11 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:
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use DexCom Services or Software Apps to harm, threaten, or
harass any person or organization;
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use DexCom Products, DexCom Services
or Software Apps for commercial purposes or to benefit any third party;
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use or
attempt to use any unauthorized means to modify, reroute, or gain access to DexCom Services;
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damage,
disable, overburden, interfere with or impair DexCom
Services (or any network or device connected to a DexCom
Service);
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enable
unauthorized third-party applications to access DexCom
Products or DexCom Services or interface with any
Software App;
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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;
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sublicense
or transfer any of your rights under this Agreement;
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modify, copy
or make derivative works based on any DexCom Service
or Software App;
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reverse
engineer or derive the source code for any DexCom
Product, DexCom Service or Software App not provided
to you in source code form, except to the extent such restriction is expressly
prohibited by applicable law;
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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;
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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
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use
unauthorized software or hardware to access any DexCom
Product, DexCom Service or Software App or to modify
any DexCom Product, DexCom
Service, Software App in any unauthorized way (e.g., through unauthorized
repairs, unauthorized upgrades or unauthorized
downloads).
5.12 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 security 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.
5.13 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.
5.14 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.
5.15 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, as applicable, in
accordance with this Agreement.
5.16 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.
6. Suspension and Termination of DexCom
Services
6.1 Can DexCom suspend or
terminate DexCom Services or Software Apps? To the extent permitted by
applicable law, 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.
6.2 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.
6.3 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 as long as it is required or permitted by
applicable law, (b) your rights to use the DexCom
Service or Software App will terminate, and (c) Sections 1, 5.2 (last sentence
only), 5.9, 5.11, 5.14, 5.15, 5.16, 6.3, and 7-18 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.
7. Disputes and Governing Law
7.1 How are disputes resolved under this agreement?
TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT
TO THE COUNTRY-SPECIFIC PROVISIONS BELOW, EXCEPT FOR DISPUTES THAT QUALIFY FOR
SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND DEXCOM, WHETHER BASED IN
CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY
(EACH, A "DISPUTE"), WILL
BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR
INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT DEXCOM AND YOU ARE
EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION
UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS. YOU FURTHER AGREE
THAT CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND THAT YOU ARE
AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. THE
ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA")
UNDER ITS CONSUMER ARBITRATION RULES (CURRENTLY AVAILABLE HERE), AS AMENDED BY THIS AGREEMENT. THE ARBITRATOR
WILL CONDUCT HEARINGS, IF ANY, BY TELECONFERENCE OR VIDEOCONFERENCE, RATHER
THAN BY PERSONAL APPEARANCES, UNLESS THE ARBITRATOR DETERMINES UPON REQUEST BY
YOU OR BY US THAT AN IN-PERSON HEARING IS APPROPRIATE. ANY IN-PERSON
APPEARANCES WILL BE HELD AT A LOCATION WHICH IS REASONABLY CONVENIENT TO BOTH
PARTIES WITH DUE CONSIDERATION OF THEIR ABILITY TO TRAVEL AND OTHER PERTINENT
CIRCUMSTANCES. IF THE PARTIES ARE UNABLE TO AGREE ON A LOCATION, SUCH
DETERMINATION SHOULD BE MADE BY THE AAA OR BY THE ARBITRATOR. THE
ARBITRATOR'S DECISION WILL FOLLOW THE TERMS OF THIS AGREEMENT AND WILL BE FINAL
AND BINDING. THE ARBITRATOR WILL HAVE AUTHORITY TO AWARD TEMPORARY,
INTERIM OR PERMANENT INJUNCTIVE RELIEF OR RELIEF PROVIDING FOR SPECIFIC
PERFORMANCE OF THIS AGREEMENT, BUT ONLY TO THE EXTENT NECESSARY TO PROVIDE
RELIEF WARRANTED BY THE INDIVIDUAL CLAIM BEFORE THE ARBITRATOR. THE AWARD
RENDERED BY THE ARBITRATOR MAY BE CONFIRMED AND ENFORCED IN ANY COURT HAVING
JURISDICTION THEREOF. NOTWITHSTANDING ANY OF THE FOREGOING, NOTHING IN
THIS AGREEMENT WILL PRECLUDE YOU FROM BRINGING ISSUES TO THE ATTENTION OF FEDERAL,
STATE OR LOCAL AGENCIES AND, IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US
FOR YOU.
Some jurisdictions outside the United States may not
allow for arbitration of certain Disputes in certain circumstances. To the
extent that you are a resident of such jurisdiction, and this arbitration
provision is found to be unenforceable by a court within such jurisdiction in
connection with a Dispute between you and DexCom,
such Dispute will instead, to the extent permitted by applicable law, be
resolved exclusively in the federal and state courts located in San Diego,
California, and you and DexCom each waive any
jurisdictional, venue or inconvenient forum objections to such courts.
7.2 What laws govern this agreement? Except to the extent prohibited by
applicable law, the terms of this Agreement are governed by the laws of the
State of California, U.S.A., without regard to its principles of conflicts of
law and regardless of your location.
7.3 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.
7.4 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.
8. No Warranties
8.1 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.
8.2 EXCEPT TO THE EXTENT THAT
SUCH LIMITATION IS PROHIBITED UNDER APPLICABLE LAW, DEXCOM DISCLAIMS ALL
IMPLIED WARRANTIES OR CONDITIONS, 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 UNIFORM
COMPUTER INFORMATION TRANSACTIONS ACT, THE UNIFORM COMMERCIAL CODE, THE UN
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, AND ANY OTHER
PROVISIONS IMPLIED INTO THIS AGREEMENT IF NOT DISCLAIMED.
8.3 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, BE RETRIEVABLE,
UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT ALL ERRORS WILL BE
CORRECTED.
8.4 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.
8.5 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.
8.6 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. THIS DOES
NOT APPLY TO YOUR RIGHTS WITH RESPECT TO DEFECTIVE OR FAULTY DEXCOM PRODUCTS.
8.7 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.
8.8 EXCEPT AS INCLUDED IN ANY
DEXCOM PRODUCT LABELING, AND WITHOUT LIMITING YOUR RIGHTS UNDER APPLICABLE LAW,
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.
9. Liability Limitations and Your Responsibility
9.1 SUBJECT TO PARAGRAPH 9.7, 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.
9.2 SUBJECT TO PARAGRAPH 9.7, 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.
9.3 SUBJECT TO PARAGRAPH 9.7, 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),
EXTRA-CONTRACTUAL LIABILITY, 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 9, AND EVEN IF
SUCH EXCLUSIONS CAUSE THIS AGREEMENT OR ANY REMEDY TO FAIL OF ITS ESSENTIAL
PURPOSE.
9.4 SUBJECT TO PARAGRAPH 9.7, 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.
9.5 SUBJECT TO PARAGRAPH 9.7, 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.
9.6 SUBJECT TO PARAGRAPH 9.7, 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 (INCLUDING, WITHOUT LIMITATION, THOSE SET
OUT IN SECTION 8) 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.
9.7 Nothing in this Section 9 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
willful 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; (d) any willful misconduct on the part of DexCom;
(e) for
UK residents, Section 12
of The Sale of Goods Act 1979; or (f) any term which cannot be excluded by
virtue of sections 31, 47 and 57 of the Consumer Rights Act 2015.
9.8 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, (3) your violation of this Agreement, or (4) your violation
of any rights of any other person or entity.
10. Notices; Questions or Complaints.
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 any notice under this Agreement to DexCom (or contact us regarding any question or complaint)
by mail or overnight delivery at the following address: General Counsel, DexCom, Inc., 6340 Sequence Drive, San Diego, California
92121, United States. If you have a question or complaint regarding the
Service, and you are in a jurisdiction where you have purchased a DexCom Product through a third-party distributor, please
contact the third-party distributor from whom you purchased your DexCom Product. If you are
located in the United States, send an e-mail to [email protected], or call us at (888) 738-3646. Please note that e-mail
communications will not necessarily be secure. Accordingly, you should not
include credit card information or other sensitive information in your e-mail
correspondence with us. California residents may reach the Complaint
Assistance Unit of the Division of Consumer Services of the California
Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento,
California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
11. 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.
12. Assignment.
We may assign this Agreement in whole or in part at
any time without notice (except to the extent such notice is mandatory under
applicable law, in which case such 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.
13. 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 here).
14. Minors.
We hereby notify you that parental control protections
(such as computer hardware, software or filtering
services) are commercially available that may assist you in limiting access to
material that is harmful to minors. Information identifying current providers
of such protections is available from OnGuard Online. Please note that DexCom does not endorse any of the products or services
listed on such sites.
15. 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
10 (titled "Notices; Questions and Complaints"). 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.
16. 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, Apple and Apple's
subsidiaries, there are no third-party beneficiaries to this Agreement.
17. Forward-Looking Statements.
The DexCom Services may
contain forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended, and subject to the safe harbor created by the
Securities Litigation Reform Act of 1995. Such statements include declarations
regarding DexCom's intent, belief, or current
expectations and those of DexCom's management.
Any such forward-looking statements are not guarantees of future performance
and involve a number of risks, uncertainties and other
factors, some of which are beyond DexCom's control;
actual results could differ materially from those indicated by such
forward-looking statements. Important factors that could cause actual results
to differ materially from those indicated by such forward-looking statements
include, but are not limited to: (a) that the information is of a preliminary
nature and may be subject to further adjustment; (b) those risks and
uncertainties identified as "risk factors" in our Annual Report on Form 10-K;
and (c) the other risks detailed from time-to-time in our reports and
registration statements filed with the Securities and Exchange Commission.
Except as required by law, we undertake no obligation to revise or update
publicly any forward-looking statements, whether as a result of new
information, future events or otherwise.
18. 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. This Agreement has been drafted in English
at the express request of the parties. Ce contrat a été rédigé en anglais à la
demande expresse des parties.
19. Copyright Infringement Claims. The Digital Millennium Copyright Act
of 1998 (the "DMCA") provides recourse for copyright owners who believe
that material appearing on the Internet infringes their rights under U.S.
copyright law. If you believe in good faith that materials available on
the DexCom Services infringe your copyright, you (or
your agent) may send to DexCom a written notice by
mail or by e-mail requesting that DexCom remove such
material or block access to it. If you believe in good faith that someone
has wrongly submitted to us a notice of copyright infringement involving
content that you made available through any DexCom
Service, the DMCA permits you to send to DexCom a
counter-notice. Notices and counter-notices must meet the then-current
statutory requirements imposed by the DMCA. Click here for details. Notices and
counter-notices must be sent in writing to DexCom's
DMCA agent as follows: By mail to General Counsel, DexCom,
Inc., 6340 Sequence Drive, San Diego, California 92121, United States, or by
e-mail to [email protected]. You can also reach DexCom's
DMCA agent at the following phone number: 1 (888) 738-3646.
We suggest that you consult your legal advisor before
filing a DMCA notice or counter-notice. You may have equivalent rights under
other applicable laws.
In accordance with the DMCA and other applicable law, DexCom has adopted a policy of terminating, in appropriate
circumstances, DexCom Service users who are deemed by
DexCom to be repeat infringers. DexCom may also at its sole discretion limit access to the DexCom Service and/or terminate the accounts of any DexCom Service users who infringe any intellectual property
rights of others, whether or not such users are deemed to be repeat infringers.
20.
Country-Specific Terms
The following terms are country-specific and apply in addition to or instead
of the specified clauses of this Agreement when application of these local laws
is mandatory.
20.1 Japan
Non-applicability of Section 4:
Section 4 ('Using
the DexCom Store') does not apply to
Users in Japan.
20.2 South Korea
Amendment to Preamble:
By using (including accessing) any DexCom
Product, DexCom Service or Software App for [7] days
without objection or by clicking "accept" to this Agreement, you are agreeing
to this Agreement. You will receive a separate notice for the foregoing via
e-mail.
Addition to Section 1.4:
If you have purchased a DexCom
Product outside 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). If you are a consumer who has your habitual residence in
Korea, the foregoing would not apply to you and you may look to DexCom for warranty or other rights that may be provided
with your DexCom Product (e.g., any warranty included on the applicable DexCom
Product Labeling) under applicable laws.
Amendment to Section 2.1:
Your clicking "accept" to the new terms or your
continued use of any DexCom Prod-uct,
DexCom Service or Software App for seven [7] days
without objection after any such change is acceptance of the new terms. You will
receive a separate notice for the foregoing via e-mail.
Amendment to Section 2.2:
DexCom Services and Software Apps, and the
business, development and activities of DexCom, are
subject to change under reasonable circumstances 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 for seven
[7] days without objection after any such change is acceptance of the change.
You will receive a separate notice for the foregoing via e-mail or pop-up.
Non-applicability of Section 4:
Section 4 ('Using
the DexCom Store') does not apply to
Users in Korea.
Amendment to Section 5.14:
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. However, if you are a
consumer who has your habitual residence in Korea, the foregoing would not
apply to you and your rights for Feedback may be protected under applicable
laws.
Amendment to Section 9:
In case you are a consumer who has your habitual
residence in Korea, terms of liability limitation without considerable reasons
shall not apply to you.
Addition to Section 9.7:
This Section shall not be applicable if there is no
intentional act or negligence of Users.
20.3 Austria
Addition to
Section 1.2:
Any additional terms will only apply to your use of the DexCom Services or DexCom
Products in case you accept such additional terms that will be presented to you
in advance.
Amendment to
Section 2.1:
You shall be notified about any change of the terms of this Agreement via
email. Your
clicking "accept" to the new terms is acceptance of the new terms. Further, you
shall be deemed accepting the new terms in case you do not expressly contradict
the changes within an appropriate period of 14 days starting from the
notification about the changes of the terms of this Agreement. You will be
informed about the consequences of remaining silent in the notification email.
Amendment to
Section 5.14:
The words "irrevocable (on any basis whatsoever") are deleted
and replaced by "revocable".
Addition to
Section 7.1:
If you are a consumer, this Section is not applicable.
Addition to
Section 7.2:
If you are a consumer and have your habitual residence in the EU, you
additionally enjoy the protection afforded to you by mandatory provisions of
the law of your country of residence.
Addition to
Section 8:
Nothing in this Section shall limit the consumer's statutory warranty
rights.
Addition to Section 9:
Nothing in this Section shall limit DexCom's
liability for gross negligence and willful misconduct. Further, nothing in this
Section shall limit DexCom's liability for damages
from injury to life, body or health, for a defect
after a guarantee for the condition of the product, for fraudulently concealed
defects or for claims under the Product Liability Act.
Section 11 and Section 12
are not applicable if you are a consumer.
20.4 Switzerland
Addition to Section 1.2 and 5.8:
Any additional terms will
only apply to your use of the DexCom Services, DexCom Products and Software Apps in case you accept such
additional terms that will be presented to you in advance.
Amendment to Section 2.1, 2.2 and 5.8:
You shall be notified about
any change of the terms of this Agreement via email in advance. Your clicking "accept" to the new
terms is acceptance of the new terms. Further, you shall be deemed accepting
the new terms in case you do not expressly contradict the changes within an
appropriate period of 14 days starting from the notification about the changes
of the terms of this Agreement. You will be informed about the consequences of
remaining silent in the notification email.
Amendment to Section 6.1:
Unless required by
applicable mandatory law or contractually agreed to, DexCom
shall 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.
Addition to Section 7.1:
If are a consumer, this
Section is not applicable to you. At the consumer's choice, the court where DexCom is domiciled or, alternatively, the court where the
consumer is domiciled shall have exclusive jurisdiction to hear any disputes arising out of or in connection with
this Agreement or the use of any DexCom Service, DexCom Product or Software App.
Addition to Section 7.2:
If you are a consumer and
have your habitual residence in the European Union, you additionally enjoy the
protection afforded to you by mandatory provisions of the law of your country
of residence.
Addition to Section 7.4:
This section shall not be
applicable in case this Agreement is governed by Swiss Procedural law.
Addition to Section 8:
Nothing in this Section
shall limit the consumer's statutory warranty rights.
Addition to Section 9:
Nothing in this Section
shall limit DexCom's liability for gross negligence
and willful misconduct. Further, nothing in this Section shall limit DexCom's liability for damages from injury to life, body or health, for a defect after a guarantee for the
condition of the product, for fraudulently concealed defects or for claims
under the Federal Act on Product Liability.
Section 11 and Section 12 are not applicable if you are a consumer.
20.5 Germany
Amendment to Section 2.1:
If you are a consumer, Section 2.1 is complemented
with the following:
DexCom may make changes to this Agreement
if it has valid reason for the change and does not unreasonably disadvantage
the User. DexCom will notify User in advance by no
later than one (1) month prior to the application of these changes 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. You will be informed about the
consequences of remaining silent in the notification. 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 6.2
below (titled "Can you terminate your use of DexCom
Services or your use of Software Apps?").
Amendment to
Section 2.2:
If you are a consumer, Section 2.2 is complemented
with the following:
DexCom Services and Software Apps of DexCom, are subject to change as determined from time to
time by DexCom. Therefore, DexCom
may make such changes to its DexCom Services and
Software Apps which (i) do not essentially change the
agreed DexCom Services and Software Apps, (ii) for
which there is a valid reason and, (iii) which do not place User in an
objectively less favorable position.
In the case of an essential change
for which there is a valid reason and which does not
place the User in an objectively less favorable position, the User shall be
informed of these changes no later than one (1) month before the intended
implementation of the change. The User
is responsible at its cost to ensure that the User's systems also support these
essential changes in DexCom's Services and Software
Apps. In case the User does not want to accept an essential change in the DexCom Services or Software Apps, it may terminate the
Agreement as of the date the essential change is implemented.
Amendment to
Section 6.1:
If you are a consumer, Section 6.1 is complemented
with the following:
DexCom has the right to suspend any DexCom Service or Software App or suspend or terminate your
right to use any DexCom Service or Software App if
there is valid reason for this suspension. Valid reasons include, for example,
installations of or changes or maintenance to the DexCom
Service or Software App. DexCom shall notify User reasonably
in advance of these suspensions. DexCom shall not be
liable to compensate any potential damage incurred by User due to said
suspensions.
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.
Addition to Section 7.1:
If you are a
consumer, this Section shall not be applicable.
Addition to Section 7.2:
If you are a
consumer and have your habitual residence in the EU, you additionally enjoy the
protection afforded to you by mandatory provisions of the law of your country
of residence.
Addition to Section 8:
Nothing in
this Section shall limit the consumer's statutory warranty rights.
Amendment to Section 9.1 - 9.7:
Section 9.1 - 9.7 is complemented with the following
in case you are a consumer:
- DexCom is liable without
limitation in the event of intentional acts and gross negligence.
- DexCom is liable for
simple negligence - except in the case of injury to life, limb
or health - only if material contractual obligations are breached with
liability being limited to damage that is foreseeable and typical for the
contract in question at the time the respective service was performed. Material
contractual obligations are deemed to be such obligations whose fulfilment is
crucial for the proper performance of the contract and on the fulfilment of
which the User will and may rely on as a matter of course.
- The limitations of liability pursuant to bullet
point 2 above shall not apply to any strict liability prescribed by statute
(such as the German Product Liability Act [Produkthaftungsgesetz]
or to any liability under a guarantee given irrespective of the party at fault.
For losses arising from the lack of any guaranteed characteristics DexCom shall be liable up to the amount which is covered by
the purpose of the guarantee and which was foreseeable
for DexCom at the time the guarantee was given.
- Any further liability other than that provided in
this Agreement is excluded, regardless of the legal basis of such claim.
- If the liability of DexCom
is excluded or limited pursuant to bullet points 2 and 4, this also applies to
the personal liability of DexCom's employees, staff
members, representatives or vicarious agents.
Addition to Section 9.8:
If you are a consumer, the duty to indemnify and
refund shall not apply insofar as the underlying incident shall have been
caused through gross negligence or willful misconduct by DexCom
or any of its employees, representatives, agents or
any affiliate.
Amendment to Section 12:
If you are a consumer, Section 12 is complemented with
the following:
We may assign this Agreement in
whole or in part at any time with prior notice. DexCom
will notify User in advance by no later than one (1) month prior to the
assignment by notifying you of such changes by any reasonable means, including
by posting a notice of new terms to our Website. If
you do not agree with the assignment, you have the right to discontinue your
use of the DexCom Services and Software Apps as
described in Section 6.2 above (titled "Can you terminate your use of DexCom Services or your use of Software Apps?"). You may
not assign this Agreement or transfer any rights to use DexCom
Services or Software Apps.
20.6
Singapore
Please review the product
instructions before using the Dexcom G6.
Blood glucose testing is required:
-
When glucose
levels are changing rapidly. This is because glucose takes time to travel
between the blood and the interstitial fluid. For example, when blood glucose
levels are falling rapidly, sensor glucose readings may be inaccurately high.
Similarly, when glucose levels are rising rapidly, sensor glucose readings may
be inaccurately low.
-
When the
sensor glucose readings indicate existing or upcoming hypoglycemia.
-
When your
glucose alerts and G6 readings do not match what you are feeling.
Version
This
Agreement is dated January 26, 2023.
DCP-000026 Rev.
004