Last updated: March 8, 2019.
These Terms apply to Users of the Intuity Services, including POGO Meter users, their designated healthcare professionals and other designated third parties (each, a “User” and collectively, the “Users”). These Terms govern your use of (including any access to): (a) the Intuity Medical websites located at http://www.presspogo.com and any other websites owned and operated by Intuity Medical (collectively, our “Websites”); (b) the Patterns® software application we make available for download or access at our Websites, at the Apple® App Store, Google Play® store, or other cell phone service provider locations or other locations we indicate (“Patterns”); (c) any Intuity Medical products supplied by or on behalf of Intuity Medical or Intuity Medical authorized resellers, including the POGO™ Automatic Blood Glucose Monitoring System (“POGO” or “POGO Meter”) and any software provided with or embedded in the POGO Meter and any updates, upgrades, bug fixes or modified versions thereto, and any related documentation (collectively, the “Software”); and (d) any data services made available by Intuity Medical through the internet to users of POGO or Patterns that provide and permit the access, collection, storage, processing, analysis and/or transmission of data generated by POGO or Patterns (“Data Services”). We refer to our Websites, Patterns and Data Services collectively as the “Intuity Services.”
THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS. BY AGREEING TO THE TERMS, YOU AGREE (A) TO RESOLVE ALL DISPUTES WITH US THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND (B) THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. YOU HAVE THE RIGHT TO OPT-OUT OF ARBITRATION AS EXPLAINED BELOW. VIEW THIS PROVISION HERE.
TABLE OF CONTENTS
- 1. WHO MAY USE THE SERVICES
- 2. ABOUT OUR DATA SERVICES
- 3. CHANGES TO THE INTUITY SERVICES
- 4. PROPRIETARY RIGHTS AND OWNERSHIP
- 5. THE PATTERNS SERVICE IS NOT MEDICAL ADVICE
- 6. DISCLAIMERS; NO WARRANTIES
- 7. LIMITATION OF LIABILITY
- 8. INDEMNIFICATION
- 9. TRADEMARKS
- 10. SERVICES LOCATION; EXPORT RESTRICTIONS
- 11. DISPUTE RESOLUTION AND GOVERNING LAW
- 12. CONFIDENTIALITY
- 13. MISCELLANEOUS
- 14. CONTACT US
WHO MAY USE THE SERVICES
If you use the Intuity Services on behalf of a company, organization or other entity, then (a) “you” includes you and that entity, (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf and (c) your entity is legally and financially responsible for your use of the Intuity Services as well as for the use of your Account by others affiliated with your entity, including any employees, agents or contractors. By using the Intuity Services, you represent and warrant that you meet all of these requirements.
ABOUT OUR DATA SERVICES
A. About Patterns
Patterns is an application for the display, retention and transmission of diabetes-related information. Patterns is intended for use on your internet-enabled computer or smart device, in connection with use of a POGO Meter. The individual using the POGO Meter, and about whom Patterns collects information is the “POGO User”. Our Data Services are intended to allow a POGO User to use the data generated by, or created in connection with, the use of their POGO Meter, as well as biographical information, forms, content or other data (including via any third party service that is integrated or interfaces with the Intuity Services) (“User Data”), in accordance with applicable Intuity Medical product labeling and usage guidelines, to manage the POGO User’s diabetes. Certain types of User Data can be uploaded to Patterns on your device or computer via Bluetooth or USB, or can be entered manually. We do not verify the accuracy of any User Data that you manually upload and do not provide any representations or warranties regarding, and are not responsible for, the accuracy of any such User Data. Our Data Services process User Data through proprietary methodologies, display data, and where applicable, provide reports.
If you are a POGO User, you are entitled to provide, or direct the Data Services to provide, such User Data to others in your sole discretion and are fully responsible for sharing any such data. Sharing depends on the affirmative choice of both the POGO User and healthcare professional to engage in the input and review process, and the Intuity Services do not guarantee this process will take place or that any results will be achieved. Even where a POGO User chooses to share information, a healthcare provider may not review the information or may decline to engage in the review process.
Patterns is designed to notify the POGO User if the POGO User’s blood glucose readings are either above or below certain limits, as set by the POGO User (“Alerts”). Each Alert will request that the POGO User verify the POGO User has taken remedial action to address the cause of the Alert. The POGO User’s initial Alert will be delivered in the form of a push notification, and later Alerts may be sent either through push notifications or via SMS message. Limited Alert functionality is available for POGO Meters that are not connected to the internet. If the POGO User does not respond to an Alert after receiving two SMS messages and the POGO User is connected to the internet or a cellular data network, Patterns will alert the POGO User’s Emergency Contacts (defined below) via SMS.
You acknowledge and agree that Patterns is 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 POGO User and/or patient, to maintain the POGO User’s health and wellness. The POGO User is responsible for choosing the appropriate blood glucose thresholds, and for taking any remedial action necessary to manage the POGO User’s condition, including without limitation, after receiving an Alert. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
Patterns is intended for use only with the POGO Meter. However, Intuity Medical understands that circumstances may arise where the POGO User is unable to access and/or use the POGO Meter. If a POGO User has registered such POGO Meter, but is unable to use or access it, the POGO User may pair another Bluetooth-enabled blood glucose monitor with their Patterns Account by visiting the Account settings in Patterns. Please note that Patterns will only accept data from non-POGO Meters up to a period of 30 days.
B. User Accounts
Full use of the Intuity Services requires the creation of an online Patterns account (“Account”). Two types of Accounts exist: (a) the account made for the POGO User (the “Primary Account”), and (b) accounts made for third parties, such as your health care provider, family member or emergency contact, to view User Data shared by a Primary Account holder (each, a “Passive Account”). You can access, edit and update your Account information at any time through the “My Profile” page in Patterns. You agree that you will supply truthful, accurate and complete information to Intuity Medical, and that you will update such information promptly if it changes. You acknowledge that if any information provided by you is untrue, inaccurate, not current or incomplete, you may experience adverse outcomes, and Intuity Medical reserves the right to terminate these Terms, your Account, and/or your use of the Intuity Services. You may not transfer, share or make available your Account information to others, except your authorized staff (if any).
Unless you are a Minor, you are the sole authorized user of your Account. You are responsible for maintaining the confidentiality and security of your Account and password and for any and all activities on your Account. You may be issued a new password or be required to change your password from time to time. To the extent you have permitted others to view your User Data via a Passive Account, you are solely responsible for ensuring the accuracy and propriety of inviting others to use the Intuity Services, and for any subsequent actions or inactions of any such individuals. You agree to: (i) immediately notify us at email@example.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account; and (ii) ensure that you secure your Account from unauthorized third party access. We are not liable for any acts or omissions by you in connection with your Account. Intuity Medical will not be liable for any loss or damage arising from your failure to comply with this section.
a. Primary Accounts
If you are a POGO User, we will ask you to create a Primary Account. Creation and use of your Primary Account is free of charge. In order to create a Primary Account, you must provide Intuity Medical with certain personal information, including your email address, full name, date of birth, gender and cell phone number, as well as the serial number of your POGO Meter. We will verify your email address by sending an email with a verification link. Your email address will be used as your username, and you will be prompted to provide a password. Once you have created your Primary Account, you will have the option to provide us with further information about yourself.
Certain Data Services may allow you to share your User Data with third parties selected by you, such as healthcare providers, family members or emergency contacts. Intuity Medical does not verify any information you provide regarding these third parties, including any contact information.
b. Passive Accounts
Registration for and use of Passive Accounts is free. If a Primary Account holder has authorized you to view his or her User Data, you will be prompted to create a Passive Account or link the Primary Account holder’s User Data to your existing Passive Account. In order to create a Passive Account, you must provide Intuity Medical with your email address. We will use your email address as the username, and you must provide a password. Unlike Primary Accounts, Passive Accounts offer a “read-only” version of the Primary Account holder’s User Data. A Passive Account holder will not be permitted to edit or upload any User Data to Patterns, but will be permitted to change the Passive Account holder’s contact information. If you are a Passive Account holder who has been granted access to a POGO User’s User Data and reports, you agree not to share the information contained therein with anyone else without the express written consent of the Primary Account holder, except as otherwise permitted by law.
c. Emergency Contacts
You may also designate individuals to receive emails and SMS notifications in the event that you do not respond to Alerts within the allotted timeframe (“Emergency Contacts”). Such individuals can be Passive Account holders, Emergency Contacts or both. If an individual is an Emergency Contact, but not a Passive Account holder, he or she will receive Alerts but will not otherwise have an Account or have access to any of the POGO User’s User Data. If you have been chosen as an Emergency Contact, you will receive an email asking you to accept this designation and consent to being contacted by Intuity Medical in the event that the Primary Account holder fails to respond to Alerts. Please remember that Patterns is unable to contact Emergency Contacts if the POGO User is not connected to the internet or a cellular network.
d. Linked Apps
Intuity Medical’s Data Services may also allow you to upload information from certain other applications or databases to your Primary Account (“Linked Apps”). You may view compatible applications on the Patterns Settings page and select the applications that contain data you would like to merge into your Patterns account. Please note that Patterns will not share the POGO User’s User Data with these Linked Apps unless requested by the POGO User through the Linked App.
C. Termination or Suspension of Accounts
These Terms are effective until terminated in accordance with this Section.
We may suspend access to your Account at any time, for any reason, including without limitation, for administrative or maintenance purposes. We may terminate your Account and access to the Intuity Services without liability if: (i) we have reason to believe that the Intuity Services have been, are being, or will be used in violation of these Terms; (ii) we reasonably believe that your Account is being accessed or used by third parties without your authorization; or (iii) we are, or reasonably believe to be, required to do so by law. All liabilities accrued under these Terms prior to the effective date of termination shall survive the termination of these Terms.
If these Terms are terminated for any reason, then (i) your access to the Intuity Services and the Software will terminate, and you agree to stop using the Intuity Services immediately, (ii) your license to the Software shall automatically terminate and you must immediately cease all use of the Software, and (iii) you will destroy or return any of Intuity Medical’s Confidential Information, and if requested by us, certify such destruction or return. Notwithstanding any termination hereof, the provisions of Sections 2(C) (“Termination or Suspension of Accounts”), 2(D) (“Third Party Websites, Apps or Resources”), 4(B) (“License Limitations”), 4(C) (“Intellectual Property Ownership and Responsibilities”), 4(D) (“User Data”), 5 (“The Patterns Service is not Medical Advice”), 6 (“Disclaimers; No Warranties”), 7 (“Limitation of Liability”), 8 (“Indemnification”), 9 (“Services Location; Export Restrictions”), 10 (“Dispute Resolution and Governing Law”), 11 (“Confidentiality”) and 12 (“Miscellaneous”) will survive any expiration or termination of these Terms for any reason. Upon expiration or termination of these Terms, Intuity Medical will have no obligation to delete, maintain or provide any of the User Data and will have the right, unless legally prohibited, to retain or delete (in its sole discretion) all of the User Data in its systems or otherwise in its possession or under its control. Termination will not limit any of Intuity Medical’s other rights or remedies at law or in equity.
D. Third Party Websites, Apps or Resources
CHANGES TO THE INTUITY SERVICES
Intuity Medical is constantly evolving its products. You acknowledge and agree that the Intuity Services may be varied, updated, replaced, removed, supplemented or added to over time by us at any time in our sole discretion. Intuity Medical may change, discontinue or disable access to the Software or impose new or additional rules, policies, terms or conditions on your use of the Software at any time, without direct notice to you. You will not be charged fees for changes to the Intuity Services or Software without notice. Fees may apply for additional services and products offered by Intuity Medical and others, including, but not limited to, services that integrate with the Intuity Services or Software or extend the functionality of the Software. If you want to purchase these services, such fees shall apply. Nothing in this Section 3 requires us to continue to provide the Intuity Services or any portion thereof.
We may revise and update these Terms at any time, in which case we will update the “Last Updated” date at the top of these Terms. It is your sole responsibility to check the Website or App from time to time to view any such changes in these Terms. When we change these Terms in a material manner, we will use reasonable efforts to attempt to notify you, such as by posting an announcement on the Website and Patterns. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued use or access of Intuity Services and/or the Software after the modifications have become effective will be deemed your acceptance of the modified Terms. If you do not agree to any of these Terms or any future Terms, you agree not to use or access (or continue to access) the Intuity Services.
PROPRIETARY RIGHTS AND OWNERSHIP
A. Grant of a Limited License
Subject to your agreement and continuing compliance with these Terms, Intuity Medical hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited license to access and use (i) the Intuity Services for your personal and internal business use only and (ii) the Software for your personal, non-commercial use solely in connection with the POGO Meter. You hereby acknowledge that the Intuity Services and the Software is licensed, not sold, to you. You may not use the Intuity Services or the Software for any other purpose, including in any way that breaches these Terms or any other agreement applicable to the Intuity Services, your use of the POGO Meter or the Software. You do not acquire any other rights, express or implied, in the Software or the Intuity Services other than those rights expressly granted under these Terms. All rights not specifically granted to you herein are retained by Intuity Medical or its licensors.
You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the Intuity Services. We do not guarantee that the Intuity Services can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the Intuity Services will be available in, or that orders for products can be placed from, any particular geographic location. As part of the Intuity Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you outside or inside Patterns (“Push Messages”). You acknowledge that, when you use the Intuity Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Intuity Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the Intuity Services, including your receipt of Push Messages from Intuity Medical. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the Intuity Services on your mobile device, including for your receipt of push messages from Intuity Medical.
a. Mobile Software from the Apple App Store
b. Mobile Software from the Google Play Store
If you acquire Patterns from Google, Inc. or one of its affiliates (“Google”) via Google Play or its successor(s), then to the extent of any conflict between the Google Terms of Service and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and the other terms and conditions in these Terms, the Google Play Terms shall apply with respect to your use of any App that you acquire from Google Play. Intuity Medical and you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Intuity Medical or you (or any other user) under these Terms or the Google Play Terms.
B. License Limitations
Except as otherwise specifically permitted under these Terms and to the maximum extent permitted by applicable law, you may not modify, distribute, sell, resell, assign, pledge, license, sublicense, lease, loan, provide access to, deliver, or otherwise transfer, disassemble, decompile, translate, reverse engineer, make copies of or make derivative works of the Intuity Services or the Software, or any part thereof, and you may not permit any other person or entity to do so. You may not alter, obscure or remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of any Intuity Services or Software product or documentation (including those of third parties). You agree that you will not use the Intuity Services or the Software to upload, post, transmit or otherwise make available: content that infringes, misappropriates or otherwise violates any patent, trademark, copyright or other proprietary right of any party; content that is unlawful, threatening, harassing, defamatory or otherwise objectionable; content that you do not have a right to make available under any law or under contractual or fiduciary relationships; any unsolicited communications, advertising or promotional materials not authorized by Intuity Medical; any material that contains software viruses or computer codes, files or programs designed to interrupt, destroy or limit functionality. You agree not to use any device or routine to interfere or attempt to interfere with the proper working of, or any person’s use of, the Intuity Services or the Software. You agree not to obtain information or content from the Intuity Services or the Software using any robot, spider, scraper or other automated means for any purpose. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Intuity Services, the Software or their systems or networks, or any connected systems or networks. You agree that you will not use the Intuity Services or the Software to intentionally or unintentionally violate any applicable local, state, national or international law. You may not reverse look-up, trace, access, store, collect, or seek to undertake any of these actions with respect to, any information on any other User of the Intuity Services or the Software, visitor to our Websites, or any other customer of Intuity Medical, or exploit the Intuity Services, the Software or their content in any way where the purposes is to reveal any personal identification or information other than your own information, unless explicitly authorized by that individual, such as in your capacity as a healthcare professional accessing personal health records shared with you by a patient. Other than the use of your POGO Meter, you will not use automated systems to collect information from the Intuity Services or the Software.
Except as otherwise authorized herein, you shall not (a) create Internet “links” to or from the Software, or “frame” or “mirror” any content forming part of the Software, (b) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (c) interfere with or disrupt the integrity or performance of the Software or the data contained therein, or (d) attempt to gain unauthorized access to the Software or its related systems or networks.
C. Intellectual Property Ownership and Responsibilities
All Software (including source code), the POGO Meter specifications, designs, logos, icons, the Intuity Services’ “look and feel,” text, graphics, images, video clips, sound clips, notices, data, page layout and selection and arrangement of the content and all copyrights, patents, trade secrets, trademarks, and other intellectual property rights therein shall be owned solely and exclusively by Intuity Medical and/or its licensors and are protected by United States and international copyright, patent, trade secret or other intellectual property laws and treaties. Intuity Medical or its licensors own and hold all right, title and interest, including but not limited to copyright, patent, trade secret, and all other intellectual and industrial property rights, in and to the Intuity Services, the Software, the POGO Meter and their contents, and any changes, modifications or corrections thereto, including, without limitation, the exclusive right to create derivative works therefrom.
The Intuity Medical name, the terms PATTERNS™, POGO™, POGO AUTOMATIC™ and INTUITY MEDICAL™, the [Intuity logo], [POGO logo] and [Patterns logo] are all related names, logos, product and service names, designs and slogans are trademarks of Intuity Medical or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Intuity Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Intuity Medical. Any images of persons or personalities contained in the Intuity Services are not an indication or endorsement of Intuity Medical or any particular product or service unless otherwise indicated.
D. User Data
a. User Data and User Content License Grant
By submitting, uploading, providing, transmitting or otherwise making available User Data on or through the Intuity Services, you hereby grant to us a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable and sublicensable right and license to collect, access, use, process, transmit, display, publish, adapt and modify the User Data as required for us and our subcontractors and service providers to provide, improve, and enhance the Intuity Services, respond to service or technical problems, and to operate our business. You acknowledge and agree that both during the term of these Terms and thereafter, we may collect, analyze, disclose and use anonymized or aggregated User Data, or data derived from User Data, as well as data about your access and use of our Intuity Services, for any purpose (subject to our compliance with applicable law and confidentiality obligations to you and any patients), including for the purpose of providing, operating, analyzing, and improving the Intuity Services. We also may collect and use certain data and information, including de-identified patient data, and may disclose such data to certain of our subcontractors provided that we shall ensure that our subcontractors comply with any applicable obligations set forth in these Terms.
b. Notice of Infringement – DMCA Policy
Anyone who believes that his or her work has been reproduced on the Intuity Services in a manner which constitutes copyright infringement may submit a notification to Intuity Medical’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing: (a) identification of the copyrighted work that is claimed to be infringed; (b) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Website or Patterns; (c) information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address; (d) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (e) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and (f) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
Notices of copyright infringement claims should be sent by mail to: Intuity Medical, Inc., Attn: Copyright Agent, 3500 West Warren Avenue, Fremont, CA 94538; or by email to firstname.lastname@example.org. We will respond expeditiously to claims of copyright infringement using the Service that are reported to our copyright agent in the notification explained above. It is Intuity Medical’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
If you believe that your User Content that was removed (or to which access was disabled) after we received a notice of copyright infringement is not actually infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to Intuity Medical’s Copyright Agent: (1) your physical or electronic signature (with your full legal name); (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided the original notification of the alleged infringement.
If a counter-notice is received by Intuity Medical’s Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten business days or more after receipt of the counter-notice, at Intuity Medical’s sole discretion.
Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.
Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf.
We appreciate comments and suggestions from users of the Intuity Services. However, any feedback you submit through the Intuity Services will be considered non-personal, non-confidential and non-proprietary. You hereby grant and will grant to Intuity Medical an unrestricted, fully paid-up, sublicensable, transferable, royalty-free, irrevocable right to use, reproduce, display, perform, create derivative works of, transmit, distribute and otherwise exploit your comments and suggestions in any medium and for any purpose.
THE PATTERNS SERVICE IS NOT MEDICAL ADVICE
You acknowledge and agree that Intuity Medical 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. Nothing contained in the Intuity Services shall be construed as creating a health care relationship between Users and Intuity Medical. The Intuity Services are not replacements for proper medical care, and you agree that the POGO User is solely responsible for obtaining proper treatment for his or her conditions. You may provide the information and reports received from the Data Services at your own responsibility, understanding that Patterns and the Data Services are provided without warranty except as required by law or as otherwise expressly set forth in these Terms or our Warranty Policy. You may not use the Intuity Services to perform medical diagnostic functions, to set treatment procedures or to substitute for the medical judgment of a physician or qualified healthcare provider. Healthcare professionals and clinicians should consult directly with their patients when providing diagnoses, treatment or other care. Health information changes quickly and, therefore, it is always best for patients and healthcare professionals to consult directly and confirm information. To the extent you participate in Coaching Services, you understand that such services are not intended to be for medical diagnosis or treatment of any nature, especially regarding prevention of cardiovascular and other chronic diseases.
DISCLAIMERS; NO WARRANTIES
A. NO WARRANTIES
EXCEPT FOR ANY LIMITED WARRANTY INCLUDED IN THE APPLICABLE POGO PRODUCT WARRANTY POLICY, THE INTUITY SERVICES, THE POGO METER AND THE SOFTWARE ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE AND OUR SUPPLIERS, LICENSORS AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF INTELLECTUAL OR PROPRIETARY RIGHTS, WITH REGARD TO THE INTUITY SERVICES, THE POGO METER AND THE SOFTWARE. WE DO NOT REPRESENT OR WARRANT THAT THE POGO METER, THE SOFTWARE OR ANY INTUITY SERVICES OR DATA PROVIDED BY US WILL BE ACCURATE, COMPLETE, ERROR-FREE, OR BACKWARDS-COMPATIBLE WITH PRIOR VERSIONS, OR THAT SUCH POGO METER, THE SOFTWARE OR THE INTUITY SERVICES OR DATA WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS. EXCEPT FOR THE LIMITED WARRANTY INCLUDED WITH THE POGO METER, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INTUITY MEDICAL, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
The laws of certain jurisdictions do not allow the disclaimer of liability, so the above provisions may not apply to you, in which case the duration of any such implied warranties is limited to 30 days from the date the Software is installed or first accessed. You may have other legal rights which vary from jurisdiction to jurisdiction.
B. NO RESPONSIBILITY FOR DATA LOSS
NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED HEREIN, WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO TRANSMIT, STORE OR MAINTAIN ANY USER DATA, OR ANY OTHER DATA OR INFORMATION. YOU ARE SOLELY RESPONSIBLE FOR SEPARATELY BACKING UP AND SECURING YOUR USER DATA. YOU BEAR THE ENTIRE RISK AS TO LOST DATA OR CONTENT. INTUITY MEDICAL AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL RESPONSIBILITY FOR HOSTING OR BACKING UP YOUR DATA OR CONTENT. YOU BEAR THE ENTIRE RISK AS TO THE OPERATION AND QUALITY OF THE SOFTWARE.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED THE INTUITY SERVICES, THE POGO METER AND THE SOFTWARE AND ENTERED INTO THESE TERMS IN RELIANCE ON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US, WITHOUT WHICH THE ECONOMIC TERMS OF THESE TERMS WOULD BE DIFFERENT. THE FOREGOING LIMITATIONS SET FORTH IN THIS SECTION 7 WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The laws of certain jurisdictions do not allow the disclaimer of liability, so the above provisions may not apply to you, in which case the duration of any such implied warranties is limited to 30 days from the date the Software is installed or first accessed. You may have other legal rights which vary from jurisdiction to jurisdiction.
You hereby agree to indemnify, defend and hold harmless the Intuity Medical Entities from and against any and all claims, causes of action, demands, liabilities, taxes, obligations, damages, loss, fines or penalties imposed by a court of competent jurisdiction or expense (including reasonable attorneys’ fees) and all amounts paid in investigation, defense or settlement of any of the foregoing resulting from or arising out of (i) your use of the Intuity Services, the POGO Meter or the Software (ii) the care, advice or consultation you (or your employees, agents or contractors) provide or fail to provide to patients, regardless of whether such care, advice or consultation relies on information communicated or not communicated through the Intuity Services, (iii) any act of fraud or dishonesty by you in connection with the Intuity Services, the POGO Meter or the Software, (iv) any breach by you of these Terms or any applicable laws, (v) any unauthorized use of the Intuity Services, the POGO Meter or the Software by or on behalf of you, (vi) your violation of any rights of any third party, (vii) your User Content, or (viii) your negligence or willful misconduct.
POGO, POGO AUTOMATIC, PATTERNS, INTUITY MEDICAL, INTUITY MEDICAL SIMPLIFYING DIABETES, the I LOGO and POGO PRESS. TEST. GO. are registered trademarks of Intuity Medical Inc
SERVICES LOCATION; EXPORT RESTRICTIONS
The Intuity Services are controlled and operated from our facilities in the United States. We make no representations that the Intuity Services are appropriate or available for use in other locations. Those who access or use the Intuity Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. The POGO Meter and the Software are subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the POGO Meter or the Software and its use. The POGO Meter and the Software may not be re-exported, downloaded or otherwise exported to, or downloaded or installed by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
DISPUTE RESOLUTION AND GOVERNING LAW
A. Governing Law
Except as stated otherwise, these Terms shall be governed by, and will be construed under, the laws of the United States of America and the laws of the State of California and with respect to arbitration by the CPR rules, without regard to choice of law principles. All arbitration and other litigation of any dispute between you and Intuity Medical related to these Terms will be conducted in San Mateo County, California, U.S.A. The application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act is expressly excluded.
B. Arbitration (“Arbitration Agreement”)
THIS SECTION INCLUDES AN ARBITRATION AGREEMENT AND AN AGREEMENT THAT ALL CLAIMS WILL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY (AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING). PLEASE READ IT CAREFULLY. YOU MAY OPT OUT OF THE ARBITRATION AGREEMENT BY FOLLOWING THE OPT OUT PROCEDURE DESCRIBED BELOW.
You agree that if you have any dispute with Intuity Medical relating in any way to these Terms or from access to or use of the Intuity Services, the POGO Meter, or the Software, you will first contact us and attempt to resolve the dispute with us informally.
If we are unable to resolve the dispute informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration. If you are an individual, you may opt out of this Arbitration Agreement within 30 days from the date you first access or use the Intuity Services by following the procedure below. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolved by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Intuity Medical are each waiving the right to a trial by jury or to participate in a class action. This Arbitration Agreement will survive any termination of these Terms.
If you intend to seek arbitration, after following the informal dispute resolution procedure, you must first send written notice to Intuity Medical of your intent to arbitrate (“Notice”). The Notice to Intuity Medical should be sent by sending the Notice by registered or certified mail to Intuity Medical, Inc., 3500 West Warren Avenue, Fremont, CA 94538. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. The arbitration will be administered by the International Institute for Conflict Prevention and Resolution (“CPR”) under the CPR Rules for Administered Arbitration by a single arbitrator.
Each party will be responsible for paying any CPR, administrative and arbitrator fees (other than the initial filing fees) in accordance with CPR Rules, except that Intuity Medical will pay for your reasonable filing, administrative, and arbitrator fees if your claim for damages does not exceed $75,000 and is non-frivolous (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Nothing in this Arbitration Agreement shall prevent either party from seeking injunctive or other equitable relief form the courts for matters related to data security, intellectual property or unauthorized access to the Intuity Services.
If you do not want to arbitrate disputes with Intuity Medical and you are an individual, you may opt out of this Arbitration Agreement by sending an email to: email@example.com within 30 days of the first date you access or use the Intuity Services.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then the entirety of this Arbitration Agreement will be null and void.
“Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential, including, for the avoidance of doubt, the Software. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of these Terms; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to any Confidential Information.
You shall not use, disclose or reproduce any Confidential Information or any information derived therefrom for any purpose except as specifically permitted under these Terms or with Intuity Medical’s prior written permission. You will hold the Confidential Information in strict confidence, and use reasonable precautions to protect such Confidential Information. You will notify Intuity Medical in writing immediately if you become aware of or suspect that the security of the Confidential Information has or may be compromised in any way. You agree that you will comply with the foregoing obligations at all times and notwithstanding the termination of these Terms. If you are compelled by law or a government authority to disclose Confidential Information, you shall provide Intuity Medical with prior notice of such compelled disclosure (to the extent practicable and legally permitted) and reasonable assistance, at Intuity Medical’s cost, if Intuity Medical wishes to contest the disclosure. If you disclose or use (or threaten to disclose or use) any Confidential Information in breach of these Terms, Intuity Medical shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by you that such unauthorized disclosure or use may cause irreparable harm to Intuity Medical for which any other available remedies are inadequate.
You acknowledge that your breach of these Terms will cause irreparable harm to Intuity Medical for which monetary relief would be insufficient, and you hereby agree that Intuity Medical will be entitled to seek injunctive relief as well as such further relief as may be granted by a court of competent jurisdiction. All notices provided in connection with these Terms shall be in writing and shall be deemed to have been given upon delivery by email, first class mail, or personal delivery at the other party’s primary place of business. Notice will be deemed given twenty-four (24) hours after email is sent or three (3) business days after the date of postal mailing. The failure of either party to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by the waiving party. Your and our respective rights and remedies hereunder are cumulative.
If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions. Without limiting the generality of the foregoing, the limitation of liability provisions will remain in effect notwithstanding any unenforceability of any warranty or warranty disclaimer provision. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent (which may be withheld in our sole discretion), but may be assigned by us without restriction. Any permitted assignment of these Terms will be binding upon and enforceable by and against your and our respective successors and assigns, and any unauthorized attempted assignment will be null and void and constitute a breach of these Terms. We will have sole authority in determining the method of operating and maintaining the Intuity Services, the POGO Meter and the Software, including the right to subcontract any or all of its responsibilities and obligations; provided, however, that we will remain responsible for our obligations hereunder.
Under California Civil Code Section 1789.3, California users of the Intuity Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
If you have any questions, comments or concerns regarding these Terms or the Intuity Services, please contact us via email at firstname.lastname@example.org or by phone at 1-855-IMI-POGO (464-7646). However, please note that communications made through the Patterns website’s email or through Patterns shall not be deemed to constitute legal notice to Intuity Medical or any of its officers, employees, agents or representatives in any situation where notice to Intuity Medical is required by contract or any law or regulation.
Legal notices may be sent to:Intuity Medical, Inc. 3500 West Warren Avenue Fremont, CA 94538 Attn: Legal department