IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”). BY INSTALLING THIS PROGRAM AND/OR CLICKING THE “I ACCEPT” BUTTON, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (3) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU (AS AN INDIVIDUAL IF ON YOUR OWN BEHALF OR AS A PARENT OR GUARDIAN FOR A MINOR (“YOU” OR “YOUR”)) AND, (4) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATION BETWEEN YOU AND TANDEM DIABETES CARE, INC. (“LICENSOR”). IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT CLICK BELOW.
Licensor hereby grants to You a limited, non-exclusive, non-transferable license (without the right to sublicense) to use a single copy of Licensor’s software available through this page, in object code form only (the “Device Updater”) solely for Your own use; and to copy the Device Updater for archival or backup purposes.
You will not copy or use the Device Updater except as expressly permitted by this Agreement. You will not relicense, sublicense, rent or lease the Device Updater or use the Device Updater for third-party training, commercial time-sharing or service bureau use. You will not, and will not permit any third party to, reverse engineer, disassemble or decompile any Device Updater, except to the extent expressly permitted by applicable law, and then only after You have notified Licensor in writing of Your intended activities.
Licensor will retain all right, title and interest in and to the patent, copyright, trademark, trade secret and any other intellectual property rights in the Device Updater and any derivative works thereof, subject only to the limited licenses set forth in this Agreement. You do not acquire any other rights, express or implied, in the Device Updater other than those rights expressly granted under this Agreement.
Licensor has no obligation to provide support, maintenance, upgrades, modifications or new releases under this Agreement.
We take the privacy of your personal data very seriously, and several laws and regulations require us to handle your data in very specific ways. The data privacy principles we follow are:
LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE DEVICE UPDATER. THE DEVICE UPDATER IS PROVIDED “AS IS” WITH NO WARRANTY. YOU AGREE THAT YOUR USE OF THE DEVICE UPDATER IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE DEVICE UPDATER, 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. Licensor does not warrant that the Device Updater will operate in combination with any specific hardware or software, or that the operation of the Device Updater will be uninterrupted or error-free. The Licensor insulin pump, including any Pump Firmware installed on it utilizing the Device Updater, remains subject to the original manufacturer’s warranty.
The Device Updater is a software program intended to allow You: (a) to determine if updated firmware for your Licensor insulin pump (“Pump Firmware”) is available for your insulin pump, and (b) to install such updated Pump Firmware on your insulin pump. Your use of the Device Updater, and the Limited License, is at all times subject to your compliance with any electronic or printed materials accompanying the Device Updater or your Tandem Insulin Pump, including without limitation, any user manuals, the Indications for Use, Product Warnings and Contraindications, and this Agreement.
The Pump Firmware may only be downloaded to your insulin pump. Your use of the Pump Firmware, and the Limited License, is at all times subject to your compliance with any electronic or printed materials accompanying the Device Updater or your Tandem Insulin Pump, including without limitation, any user manuals, the Indications for Use, Product Warnings and Contraindications, and this Agreement.
PLEASE BE ADVISED THAT ONCE YOU INSTALL AN UPDATE TO YOUR PUMP FIRMWARE IT IS PERMANENT AND YOU WILL NOT BE ABLE TO USE ANY PREVIOUS VERSIONS OF THAT PUMP FIRMWARE. PRIOR TO INSTALLING AN UPDATE, YOU SHOULD FIRST STOP ALL INSULIN DELIVERY, REMOVE YOUR CARTRIDGE, AND DETACH YOUR INFUSION SET. INSTALLING AN UPDATE TO THE PUMP FIRMWARE WILL CLEAR YOUR INSULIN ON BOARD AND WILL REQUIRE THE USE OF A NEW CARTRIDGE.
Authorization to Use and Disclose Information for Device Updater Purposes. IF YOU USE FEATURES PROVIDED WITH THE DEVICE UPDATER TO ELECTRONICALLY UPDATE YOUR PUMP FIRMWARE VIA THE INTERNET, YOU HEREBY AUTHORIZE LICENSOR TO RETRIEVE AND USE INFORMATION GATHERED ABOUT YOUR COMPUTER AND PUMP AS FOLLOWS:
I understand and agree that data collected by Licensor will include information about my computer and my Tandem Insulin Pump, including the current Firmware version of my Pump, my Pump serial number, certain other non-health related information about the Pump configuration, and certain other information such as the time and date of any update attempt, the computer host name from which the update was attempted, and authorization codes used, if any.
I understand and agree that Licensor may analyze and evaluate the data collected for diagnostic purposes to aid in troubleshooting my Tandem Insulin Pump, for the purposes of identifying Pump Firmware versions in the field, and for the purposes of evaluating and managing field update processes, for research and development, and for business operation purposes.
This Agreement is effective until terminated. Licensor 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 Device Updater, return to Licensor or destroy the Device Updater in Your possession, and so certify to Licensor. Except for the license granted herein and as expressly provided herein, the terms of this Agreement will survive termination.
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.
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 LICENSOR’S LIABILITY FOR DAMAGES HEREUNDER EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO LICENSOR FOR THE DEVICE UPDATER. 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 LICENSOR WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. LICENSOR’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
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.
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 Licensor. 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.
You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, You will not, and You will require Your representatives not to, export, direct or transfer the Device Updater, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by both parties; no other act, document, usage or custom will be deemed to amend or modify this Agreement.