1. USER COMMENTS
Any comments, feedback, notes, messages, ideas, suggestions or other communications (collectively, “Comments”) sent to us, whether through the Website, a Program, e-mail, facsimile, U.S. mail, Tandem’s social media platforms (e.g. Facebook, Twitter, etc.) or other means, shall be and remain the exclusive property of Tandem. Your submission of any such Comments shall constitute an irrevocable assignment to Tandem of any and all worldwide rights, titles and interests in all copyrights and other intellectual property rights in the Comments. As such, Tandem and any of its affiliates will be entitled to use, reproduce, disclose, publish and distribute any material you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Comments which you do not intend to assign to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork.
TANDEM DIABETES CARE™ and other marks indicated on our Website and the Programs are trademarks or registered trademarks of Tandem in the United States and other countries. All rights in such names are hereby reserved. All rights in the product names, company names, trade names, graphics, logos, page headers, button icons, scripts, product packaging, trade dress and designs of all Tandem or third-party products or services, whether or not appearing in large print or with the trademark symbol, belong exclusively to Tandem or their respective owners and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited, and nothing stated or implied on the Website or the Programs confers on you any license or right under any patent or trademark of Tandem or any third party.
All copyright rights in the text, images, photographs, graphics, user interface, music and other content provided on the Website and the Programs, and the selection, coordination, and arrangement of such content, are owned by Tandem or its third-party licensors to the full extent provided under the United States Copyright Act and all international copyright laws. Under applicable copyright laws, you are prohibited from copying, reproducing, modifying, distributing, displaying, performing, or transmitting any of the contents of the Website or Programs for any purposes. Nothing stated or implied on the Website or Programs confers on you any license or right under any copyright of Tandem or any third party.
The Website, Programs and the information contained therein are for your personal, non-commercial use only. Except as otherwise specifically permitted herein, you shall not broadcast, duplicate, copy, reproduce, edit, manipulate, modify, publish, rent, sell, publicly display, perform, distribute, transmit, or circulate to anyone the contents of the Website or Programs, or use the contents of the Website or Programs in litigation, or for any commercial or promotional purposes, without the express written consent of Tandem or its lawful successors and assigns.
5. THIRD PARTY AND CO-BRANDED WEBSITES
The Website may contain hyperlinks (“links”) to websites operated by persons or entities other than Tandem (“third-party Websites”) or to co-branded websites operated by a third party, including affiliates (“co-branded Websites”). We provide such links for your reference and convenience only. A link from the Website to a third-party Website does not imply or mean that we endorse the content on that third-party or co-branded Website or the operator or operations of those websites. You are solely responsible for determining the extent to which you use any content at any third party or co-branded Websites to which you might link from our Website. TANDEM IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES INCURRED AS A RESULT OF ANY DEALINGS WITH ANY THIRD-PARTY WEB SITE OR CO-BRANDED WEB SITE, ANY MERCHANT OR OPERATOR OF A THIRD-PARTY WEB SITE OR CO-BRANDED WEB SITE, OR ANY OTHER PERSON WITH WHOM YOU ENGAGE IN ANY TRANSACTION.
6. YOUR RESPONSIBILITIES
You agree to comply with all applicable laws in connection with your use of the Website and the Programs, and such further limitations as may be set forth in any written or on-screen notice from Tandem. As a condition of your use of the Website and Programs, you warrant that you will not use the Website or Programs for any purpose that is unlawful or prohibited by this Agreement. All information that you provide in connection with a purchase or transaction or other interaction with the Programs, the Website or any co-branded Website will be accurate, complete, and current. You will pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other interaction with the Programs, the Website or any co-branded Website at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other interactions.
By using the Website or Programs, you agree not to violate or attempt to violate the security of the Website or Programs, including, by way of illustration but not limitation, actions such as accessing data not intended for you or logging into a server or account that you are not authorized to access; attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; attempting to interfere with service to any user, host, or network, including, without limitation, by way of submitting a virus to or overloading, “flooding,” “spamming,” “mailbombing,” or “crashing” the Website or Programs; sending unsolicited email, including promotions and/or advertising of products or services; and forging any TCP/IP packet header or any part of the header information in any email or posting.
7. PRODUCT INFORMATION AND DATA
Tandem attempts to be accurate in describing its products. We do not warrant that the Programs or product descriptions or other content of the Website are complete, reliable, current, or error-free. We make no representations or warranties about the amount of data users may access through the Website or Programs, or the duration such data will be available and reserve the right to change the Website and Programs in our discretion.
You agree to defend, indemnify, and hold harmless Tandem and its affiliates, successors and assigns, and its and their respective directors, officers, employees, agents, co-branders or other partners from and against any and all allegations, claims, demands, actions, causes of action, proceedings (whether threatened or pending), orders, damages, losses, liabilities, costs and expenses, including reasonable attorney’s fees and other legal expenses, and judgments of any kind of nature, incurred by Tandem arising out of or relating to your use of the Website or the Programs, your violation of this Agreement, or your violation of any rights of another.
9.1. Tandem grants you a limited, revocable and nonexclusive license to access and make personal use of the Website and the Programs in accordance with this Agreement and the applicable indications, instructions for use and end user license agreement (“Program EULA”) of the Programs but not to download (other than page caching) or modify them, or any portion of them, except with express written consent of Tandem. This license does not include any resale or commercial use of the Website, the Programs or their respective contents; any collection and use of any product listings, descriptions; any derivative use of the Website, the Programs or their respective contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, spiders or similar data gathering and extraction tools. Neither the Website, Programs nor any portion thereof may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Tandem. You may not frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Tandem and its affiliates without express written consent of Tandem. You may not use meta tags or any other hidden text using Tandem’s name or trademarks without the express written consent of Tandem. Any unauthorized use will immediately terminate the permission or license granted by Tandem.
9.2. You are also granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of Tandem so long as the link does not portray Tandem or its products or services in a false, misleading, derogatory, or otherwise offensive manner as determined by Tandem in its sole discretion. You may not use any Tandem logo or other proprietary graphic or trademark as part of the link without express written permission of Tandem. You may not make any other part of the Website, other than the home page of the Website, available as part of another service by “deep linking,” or otherwise, without prior written permission from Tandem.
9.3. You will not use any Program except as expressly permitted by the applicable Program EULA. In any event, you will not, and will not permit any third party to, reverse engineer, disassemble or decompile any Program, except to the extent expressly permitted by applicable law, and then only after you have notified Tandem in writing of your intended activities.
9.4. Tandem will retain all right, title and interest in and to the patent, copyright, trademark, trade secret and any other intellectual property rights in the Website and the Programs and any derivative works thereof, subject only to the limited licenses set forth in this Agreement and the applicable Program EULA. You do not acquire any other rights, express or implied, in the Website or any Program other than those rights expressly granted under this Agreement or in the applicable Program EULA.
9.5. Tandem has no obligation under this Agreement to provide support, maintenance, upgrades, modifications or new releases to the Website or any Programs. All rights not expressly granted herein are hereby reserved to Tandem.
10. NO WARRANTIES
TANDEM MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE WEBSITE OR THE PROGRAMS. THE WEBSITE AND THE PROGRAMS ARE PROVIDED “AS IS” WITH NO WARRANTY. YOU AGREE THAT YOUR USE OF THE WEBSITE AND THE PROGRAMS IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TANDEM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE AND THE PROGRAMS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Tandem does not warrant that the Website or the Programs will operate in combination with any specific hardware or software, or that the operation of the website or the Programs will be uninterrupted or error-free.
11. AGGREGATE DATA
This Agreement is effective until terminated. Tandem may terminate this Agreement at any time upon your breach of any of the provisions hereof. Upon termination of this Agreement, you will cease all use of the Website and Tandem may also request that you cease all use of one or more Programs. Except for the license granted herein and as expressly provided herein, the terms of this Agreement will survive termination.
13. GENERAL TERMS
13.1. Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of the State of California without giving effect to any choice of law rule. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement, such controversy, claim or dispute may be tried solely in a state or federal court for San Diego County, California, and the parties hereby irrevocably consent to the jurisdiction and venue of such courts.
13.2 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL TANDEM’S LIABILITY FOR DAMAGES HEREUNDER EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO TANDEM FOR THE PROGRAMS. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH TANDEM WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. TANDEM’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
13.3 Class Action Waiver. ANY PROCEEDING TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR TANDEM WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR LITIGATION WILL BE COMBINED WITH ANY OTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR LITIGATIONS.
13.4 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
13.5. No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Tandem. Any purported assignment, transfer or delegation by you will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.