STELO APP TERMS OF USE
These Stelo App Terms of Use (these “App Terms of Use”) are a legal contract between DEXCOM, INC. (“we”, “us”, “our” or “Dexcom”) and you and govern your use of Dexcom’s Stelo App and the Stelo Products (as defined below). We refer to you or other person for whose use and on whose behalf you have the legal right to purchase a Stelo Product, as a “User.”
Note: These App Terms of Use contain a dispute resolution and arbitration provision, including class action waiver, that affects your rights under these App Terms of Use and with respect to disputes you may have with Dexcom. You may opt out of the dispute resolution, binding arbitration and class action waiver as provided below.
The use of the Stelo Products is not appropriate for emergencies. If you have a medical emergency, seek in-person emergency care immediately or dial 911. The use of the Stelo Products is not intended to constitute medical advice. Please consult with a healthcare provider before making any medication adjustments or taking any medical actions.
1. SCOPE OF THESE APP TERMS OF USE.
1.1 Applicability. These App Terms of Use set forth the legally binding terms and conditions for your use of (a) Dexcom’s Stelo products, sensors, devices, equipment, accessories or other hardware (collectively, the “Stelo Devices”), whether purchased by you through a Dexcom e-commerce store (the “Dexcom Store”) located on a Dexcom website relating to Stelo Products (the “Stelo Website”) or obtained from any other source (collectively, “Device Store”), (b) data services made available by Dexcom and our affiliates through the Stelo App (as defined below) that provide and permit the access, collection, storage, processing, analysis and/or transmission of data generated by your use of Stelo Devices (collectively, the “Data Services”), and (c) access to and use of the Stelo mobile application that we make available for download or access at the Apple® App Store, Google Play™ store, or at other third party provider applications stores that we indicate (the “Stelo App”, and collectively with the Stelo Devices and Data Services and including any Artificial Intelligence Technology incorporated therein, the “Stelo Products”).
1.2 Changes to Services. Stelo Products, and the business, development and activities of Dexcom, are subject to change to, for example, add new Stelo Product(s) or Stelo App(s). Subject to applicable law, your continued use of the applicable Stelo Product or Stelo App 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, you have the right to discontinue your use of the Stelo Products.
1.3 Changes to App Terms of Use. Please note that we may change these App Terms of Use at any time. We will notify you of such modifications by any reasonable means, including by posting the modifications on the applicable service (provided that, for material modifications, we will seek to supplement such notice by email, an in-service pop-up message, or other prominent notice within the service, or other means), and it will be up to you to review and agree to these App Terms of Use and related terms and policies. If you object to any such modifications, your sole recourse shall be to cease using the Stelo Products or to reject any such changes within 30 days of the date such changes became effective by sending written notice by email to [email protected]. You must include in the opt-out email: (1) your name; (2) your address; and (3) a clear statement that you intend to reject changes to these App Terms of Use. Continued use of the Stelo Products after an opt-out or failing to timely opt out following notice of any such modifications indicates you acknowledge and agree to be bound by the modifications.
1.4 Data Services. Our Data Services process and analyze the data collected in connection with the use of, your Stelo Devices, including without limitation data from sensor readings for which the Data Services are compatible, resulting in the output, generation or creation of processed data or information, including reports, (such resulting data or information, including reports and Output (as defined below), collectively, the “Dexcom Data”). Dexcom Data includes, without limitation, the sensor readings and data from sensor readings and the glucose readings provided to you from your Stelo Products. Use of our Data Services requires an internet-enabled smart device or computer. Data Services receive Dexcom Data from the Stelo App that is downloaded to your smart device. Data Services process Dexcom Data by applying proprietary methodologies and provide to you certain Dexcom results including reports and may also permit you to share certain Dexcom Data, reports, and other information other than Dexcom Data i) relating to you that you enter into a Stelo App or ii) that relates to you and is collected by a Stelo App (collectively, “User Data”).
You acknowledge and agree that Data Services are not a substitute for regular monitoring and medical care and should not be used to change your treatment plan or other instructions given to you by your treating clinician without your treating clinician’s review and approval, and that you will ensure that all appropriate treatment, attention and efforts are made by and for your benefit to maintain your health and wellness. You may provide the information and reports received from Data Services to the User’s healthcare providers at your own responsibility, understanding that the Stelo Apps and Data Services are provided without warranty except as required by law or as otherwise expressly set forth in these App Terms of Use. Our collection, storage and transmission of Dexcom Data or User Data and any other information that you provide to Dexcom through the Stelo Products is governed by our Privacy Policy available here (the “Privacy Policy”).
Data Services may directly interface and interoperate with your Stelo Devices and may require the download of the Stelo App. Certain Data Services may allow you to send certain of your User Data and Dexcom 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 Dexcom Data and 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. You are responsible for connecting your smart device running the Stelo App or Data Services to the internet to access the Data Services, including to enable any such data transfer to third parties.
1.5 Stelo App. We may provide the Stelo App for your use on your smart devices in connection with your use of the Stelo Products. The Stelo App may provide stand-alone functionality, or may be used in connection with Stelo Devices and Data Services, or both. Standard carrier data charges may apply to your use of the Stelo App.
The following additional terms and conditions apply with respect to any version of the Stelo App that we provide to you designed for use on an Apple iOS-powered Mobile Device (an “iOS App”):
· You acknowledge that these App Terms of Use are between you and us only, and not with Apple, Inc. (“Apple”).
· Your use of our iOS App must comply with Apple’s then-current and applicable App Store or iOS App terms of use, terms of service, or other applicable agreements or terms and conditions.
· We, and not Apple, are solely responsible for our iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
· You agree that we, and not Apple, are responsible for addressing any claims by you or any third party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these App Terms of Use and any law applicable to us as provider of the iOS App.
· You agree that we, and not Apple, shall be responsible, to the extent required by these App Terms of Use, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
· You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
· You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
· The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these App Terms of Use as they relate to your license of our iOS App. Upon your acceptance of these App Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these App Terms of Use against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any version of the Stelo App that we provide to you designed for use on an Android-powered Mobile Device (an “Android App”):
· You acknowledge that these App Terms of Use are between you and us only, and not with Google, Inc. (“Google”).
· Your use of our Android App must comply with Google’s then-current and applicable Google Play™ store and/or Android App terms of use, terms of service, or other applicable agreements or terms and conditions.
· Google is only a provider of the Google Play™ store where you obtained the Android App. We, and not Google, are solely responsible for our Android App and the services and content available thereon. Google has no obligation or liability to you with respect to our Android App or these App Terms of Use.
· You acknowledge and agree that Google is a third-party beneficiary to these App Terms of Use as they relate to our Android App.
· Google Play is a trademark of Google LLC.
The Stelo App runs 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 Stelo App. If you update Platform Software prior to our making available an appropriate update to the Stelo App, you may no longer be able to use the Stelo App you have been using, or the Stelo App may not properly function. We may determine not to provide a compatible update to the Stelo App. Therefore, before you update Platform Software, you should first check the applicable location where you originally downloaded the Stelo App to determine if an update to the Stelo App or Data Service is needed. We may automatically download and install updates to or upgrades of the Stelo App from time to time, and you agree and consent to receive such updates and upgrades (and permit us to deliver these updates and upgrades) as part of your use of the Stelo App. You acknowledge that we may from time to time issue upgraded versions of the Stelo App, and may automatically electronically upgrade the version of the Stelo App that you are using on your Mobile Device. You agree and acknowledge that these App Terms of Use will apply to all such updates and upgrades.
1.6 User Account. The Data Services or the Stelo App require the creation of a Dexcom user account within the Stelo App or on our designated website (“User Account”). 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 Data Services and/or the Stelo App including properly running compatible updated software, a suitable internet connection, an appropriate firewall and virus scanning software, and a properly maintained computer or smart device.
You may never use another User’s User Account without such User’s permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, you will keep your User Account password(s) and/or any other authentication credentials secure, and you will not share your password(s) and/or any other authentication credentials with anyone else. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers, and symbols) to protect your User Account. We will not be liable for, and expressly disclaim liability for, any losses caused by any unauthorized use of your User Account and/or any changes to your User Account, including, without limitation, changes made by any user with administrator-level access to your User Account. You will notify us immediately of any breach of security or unauthorized use of your User Account.
The Data Services and/or Stelo App will archive and store the data generated by the applicable Stelo Device and certain related Dexcom Data (which archival and storage is governed by the Privacy Policy). As a result, such Stelo Devices, Data Services and Stelo App must be used only with the associated User Account. Failure to do so may (1) cause the applicable Stelo Device, Data Service or Stelo App to perform improperly, or not to perform at all, (2) corrupt the User Data or Dexcom Data, or (3) cause inaccurate User Data or Dexcom Data to be associated with your use of the Stelo Products or cause the User Data or Dexcom Data to be inaccurately displayed or analyzed.
1.7 Additional Terms. The use of our Stelo Website is also subject to additional terms of use, which are available here (the “Web Terms of Use”) and incorporated herein by this reference. In the event of a conflict between these App Terms of Use and the Web Terms of Use, these App Terms of Use will govern and control with respect to the use of the Stelo Products. By using Stelo Products, you are agreeing to and accepting these App Terms of Use, the Web Terms of Use, and you consent to our practices as set forth in our Privacy Policy.
Additional terms (“Additional Terms”) may apply to particular Stelo Products, additional features or functions that Dexcom may make available, or delivery or return options, which will be presented as part of the process of ordering such Stelo Products, features, or functions or otherwise provided or made available to you, including by posting on the Stelo Website. In the event of a conflict between these App Terms of Use i) and any applicable Additional Terms, these App Terms of Use shall govern and control with respect to all subject matter herein including use of the Stelo Products; ii) and any other applicable Additional Terms, the other Additional Terms shall govern and control with respect to such particular Stelo Products, features, functions or delivery or return options or if such Additional Terms specifically provide for control over these App Terms of Use.
1.8 Third Party Terms. Stelo Products 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 these App Terms of Use, except as required otherwise by the applicable licensor. If you use a third-party service in connection with the Stelo Products, you are subject to and agree to, and must comply with, the third party’s terms and conditions made available via, or agreed in connection with, its services. We do not endorse or assume any responsibility for any third-party services. If you access a third-party service from the service or share your user content or output on or through any third-party service, you do so at your own risk, and you understand that these App Terms of Use and our privacy notice do not apply to your use of any third-party service. You must comply with the additional license provisions required by vendors of such third party items posted on the Stelo 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 these App Terms of Use. You expressly relieve us from any and all liability arising from your access to and/or use of any third-party service. Additionally, your dealings with, or participation in promotions of, advertisers found on the service, including as relates to payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You understand and acknowledge that we will not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
1.9 Interpretation. In these App Terms of Use, any words following the term “including” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.
1.10 Copies. You are encouraged to download and save a copy of these App Terms of Use, the Web Terms of Use, and the Privacy Policy for your records. If the versions of these documents that applied at the time of your acceptance of these documents are no longer available online, you may request that Dexcom send you a copy of the App Terms of Use, the Web Terms of Use, and/or the Privacy Policy that was applicable to your initial registration by opening a case with Dexcom’s virtual assistant bot (“SteloBot”) which is accessible via the Stelo Website (including at https://www.stelo.com), or contacting us as set forth in the Privacy Policy as applicable, and requesting a copy of such documents as of the date you specify, or any other method as applicable.
2. NOT FOR RESALE; NO USE FOR RESEARCH.
The Stelo Products are provided solely for the personal use and benefit of end user consumers and any purchase or use of Stelo Products for any other purpose, including for resale or for research use (including clinical research, market research, engineering studies or other testing), in each case, is strictly prohibited. By accepting these App Terms of Use, you agree that you have purchased Stelo Products for personal use only and not for any prohibited purpose (including resale or research use). Accordingly, if Dexcom determines or has reason to believe, in its sole discretion, that you have purchased or otherwise obtained any Stelo Products for a prohibited purpose, such as with the intent of reselling the same, in whole or in part, to others (such as to other consumers, businesses, or any other third party) or of using or enabling any third party to use any Stelo Product, or User Data or Dexcom Data, for research use, or if Dexcom has reason to believe that you have engaged in any such prohibited purpose or use, Dexcom reserves the right, in its sole discretion, and as it relates to such purchase or order to: (a) suspend the application of any Dexcom policy that provides a right or benefit intended for direct-to-consumer purchases, as such may relate or pertain to you; and (b) take any action necessary to stop such purchase (and deter future purchases), including but not limited to restricting sales to you or any consumer account or member account, e-mail, or order, associated with you, cancel orders, charge restocking fees, impose purchase quantity limits, decline to issue refunds or take returns, deny access to any Dexcom Store and/or suspend or close any account, as such may relate or pertain to you.
You shall not use, directly or indirectly, and you shall not permit any third party to use, the Stelo Products, Dexcom Data or User Data (i) in connection with any Artificial Intelligence Technology (as defined below) that is not provided or made available to you by or on behalf of Dexcom, or to create any products or services that are substitutes for or competitive to any Stelo Product; (ii) to train, fine-tune, or otherwise modify the weights, algorithms, or other parameters of, or as inputs to, any Artificial Intelligence Technology; or (iii) to ground (including via retrieval-augmented generation or otherwise), prompt, or otherwise develop or influence any Artificial Intelligence Technology or outputs therefrom. For purposes of these App Terms of Use, “Artificial Intelligence Technology” means machine-based systems that are designed to operate with varying levels of autonomy, and that can, for a given set of objectives, infer, from the input received, how to generate predictions, recommendations, data, content or decisions that influence physical or virtual environments. Artificial Intelligence Technology as used in this App Terms of Use includes, but is not limited to, large language models, generative AI systems, algorithms, neural networks or any other artificial intelligence related components and any derivative technologies and applications, both as they exist today and as they may evolve or be created in the future.
3. TERRITORY.
Stelo Products may only be used by customers in the United States (“U.S.”) (the “Territory”).
4. DISCLAIMER OF WARRANTIES.
Except to the extent required by applicable law, and except for any limited warranty included in the applicable Dexcom products labeling, the Stelo Products are provided “as is” and “as available”, without any representation or warranty of any kind, whether express, implied or statutory, including warranties of merchantability, fitness for a particular purpose, title, or non‑infringement, with respect to all uses. The Stelo Products use artificial intelligence algorithms and may sometimes provide inaccurate content. You use the Stelo Products at your own risk. Due to the nature of machine learning, the Output (as defined herein) may not be unique across users and the Stelo App may generate the same or similar Output for other users. Use of the Stelo App may result in incorrect Output that does not accurately reflect reality. You must evaluate the accuracy of any Output as appropriate for your use case, including by using human review of the output. You understand and agree that the Output may contain “hallucinations” and may be inaccurate, objectionable, inappropriate, or otherwise unsuited to your purpose, and you agree that we shall not be liable for any damages you or any third party alleges to incur as a result of or relating to any Output or other content generated by or accessed on or through the Stelo App. To the fullest extent permissible by applicable law and except as expressly set forth herein, all such representations and warranties are hereby expressly disclaimed. Without limiting the foregoing, except as expressly set forth herein: (a) Dexcom disclaims any and all warranties, express or implied, for any product; (b) Dexcom further disclaims any warranties express or implied as to the accuracy or completeness of each product including pricing and quantity; (c) Dexcom does not represent or warrant that the information posted at the Dexcom Store is accurate, complete, or current or that the Dexcom Store will operate without interruption, without error or without defects, bugs, viruses, or other harmful components; (d) the foregoing disclaimer of warranty is enforceable to the fullest extent permissible by applicable law and does not apply to any product or manufacturer warranty expressly offered by Dexcom and/or any third-party manufacturer of merchandise; and (e) Dexcom disclaims, and these App Terms of Use do not include, the provisions of the Uniform Computer Information Transactions Act, the Uniform Commercial Code, the United Nations Convention on Contracts for the International Sale of Goods, and any other provisions implied into these App Terms of Use if not disclaimed.
Dexcom does not make any warranty as to the results that may be obtained from the use of the Stelo Products. Dexcom does not make any warranty that Stelo Products are suitable for use in or for research, including clinical research, market research, engineering studies or other forms of research by any third party not affiliated with or acting on behalf of Dexcom. Dexcom does not warrant any third party device, smart device, software, service or data that you may use in connection with any Stelo Product, whether or not such third party item is described in, or available or can be connected to or through, any Stelo Product. No information or communications, whether oral or written, obtained by you from or through the Stelo Products will create any warranty, except for any limited warranty included in the applicable Stelo Product’s labeling (this does not apply to your rights with respect to defective or faulty Stelo Products). Dexcom does not assume any obligation to, and does not warrant that it will, create or include additional features or functionality for Stelo Products. Except as included in any Stelo Product labeling, and without limiting your rights under applicable law, if you are dissatisfied with any portion of the Stelo Products your sole and exclusive remedy is to discontinue your use.
You acknowledge that Dexcom is not a healthcare professional, does not employ healthcare professionals for the provision of licensed medical services, and does not offer any licensed professional medical services or advice, nor do we verify the accuracy of User Data (as such term is defined in Section 1.4). The Stelo Products are not replacements for ongoing medical care provided by licensed medical professionals. You acknowledge that you will not take medical action based on the output of Stelo Products, including the data collected from Stelo Products, without consulting a qualified healthcare professional. You agree that you are solely responsible for consulting with medical professionals regarding any questions you may have as a result of your use of the Stelo Products, including in order to obtain proper treatment for health or medical conditions.
Do not delay in seeking medical diagnosis or advice because of any information made available to you from the use of Stelo Products. The use of Stelo Products is not appropriate for emergencies. If you have a medical emergency, seek in-person emergency care immediately or dial 911. Consult your treating healthcare provider before making any medication adjustments based on your sensor readings and do not take any other medical action based on your sensor readings without consulting your healthcare provider. Failure to use Stelo Products and its components according to the instructions for use provided by Dexcom and to properly consider all indications, contraindications, warnings, precautions, and cautions in those instructions for use may result in you missing a severe hypoglycemia (low blood glucose) or hyperglycemia (high blood glucose) occurrence. If your sensor readings are not consistent with your symptoms, a blood glucose meter may be an option as needed. consult with your healthcare provider. Seek medical advice and attention when appropriate, including before making any medication changes or for any medical emergency. Your decision to take action based on any information transmitted to or stored in your Stelo Products or any information received from Dexcom, or its affiliates, or its or their respective employees, agents or suppliers is solely at your own risk.
Dexcom disclaims, to the maximum extent permitted by law, all liability for any loss or damage suffered by you or any person, be it directly or indirectly, as a result of or in connection with your decision to take, or not take, action based on any information transmitted to you or stored in your user account.
5. PERSONAL DATA; DATA RIGHTS.
Your privacy is important to us. All communications sent over an Internet connection are inherently vulnerable to hacking, theft, unauthorized access and/or disclosure, misdirection, loss of data, or corruption of data. By accepting these App Terms of Use, you acknowledge and agree that Dexcom is not responsible for the security and privacy of communications services or devices that you use to receive and send your Personal Data (as defined below). You further understand and agree that Dexcom will not be responsible in any way for any loss, injury, or claims of any kind resulting from your failure to read or respond to communications from Dexcom. To provide you with transparency regarding our data practices, we provide you with a notice explaining our online information practices and the choices you have regarding your personal information that we collect, use and otherwise process. Click here to review the Privacy Policy for a description of how we may collect, use, and disclose your personal information and click here for the Cookie Policy, all of which form part of these App Terms of Use. Please note that we may change the Privacy Policy or Cookie Policy at any time, notice of which we may provide to you via the Stelo Website or the Stelo App, as applicable. It is up to you to review these changes.
5.1 With respect to User Data and other personal information that you provide to us in connection with your use of the Stelo Products (“Personal Data”), you represent and warrant that you have all rights, consents and licenses necessary to transmit and provide access to User Data and Personal Data and to permit Dexcom to use such User Data and Personal Data as contemplated herein and in accordance with our Privacy Policy, including in connection with the provision of the Data Services by Dexcom, and for data benchmarking, data aggregation and data analytics, and that use of User Data and Personal Data by Dexcom as contemplated herein and in accordance with our Privacy Policy does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third party, or violate any applicable law.
5.2 You grant to Dexcom a non-exclusive, worldwide, royalty-free, transferable, irrevocable, sublicensable (through multiple tiers), perpetual, fully paid up right and license to use, reproduce, modify and otherwise exploit the User Data and Personal Data for the following purposes: (1) to provide the Stelo Products to you and to operate the Stelo Products in connection with the Authorized Use (as defined below); and (2) to maintain, support, enhance, train, and improve the Stelo Products and other Dexcom products and services, and (3) to generate, analyze and extract metrics, patterns, trends, metadata, benchmarking, system, or usage data based on your use of the Stelo Products (collectively, “Usage Data”), provided that such Usage Data does not identify you. For the avoidance of doubt, as between Dexcom and you, Dexcom will own all rights, title and interest in and to Usage Data, and Dexcom may use such Usage Data to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing.
6. LIMITED LICENSE; INTELLECTUAL PROPERTY RIGHTS; FEEDBACK.
6.1 Limited License. Upon your acceptance of these App Terms of Use, and so long as you comply with the terms of these App Terms of Use, Dexcom grants you, during the term of these App Terms of Use, a personal, limited, nonexclusive, non-transferable, non-sublicensable and revocable license in the Territory solely for your noncommercial, personal use (“Authorized Use”), to (a) download, install, access and use an object code copy of the Stelo App for one registered account only on a mobile device owned or leased by you (“Mobile Device”), (b) access and use the Data Services and (c) access, use and display in the Stelo App the Dexcom Data that Dexcom displays to you through the Stelo Products, and, in each of (a), (b) and (c) internally and as they are intended to be used as described in the relevant materials provided or made available to you by Dexcom for use with the Stelo Products and in accordance with the terms of these App Terms of Use. All other use is expressly prohibited.
6.2 Intellectual Property Rights. Dexcom and the third parties from which we license certain technology (“licensors”) own all right, title and interest in and to the Stelo Products and Dexcom Data; the information, artwork and other content available through or on the Stelo Products; the processes, methodologies, documents and other materials we use to provide the Stelo Products or that we provide to you in connection with your use of Stelo Products; and all patent, copyright, trademark, trade secret, and other rights of any nature arising from or relating in any way to the Stelo Products (the foregoing, collectively, the “Dexcom Intellectual Property”). To the extent you acquire any rights, title or interest in the Dexcom Intellectual Property, you hereby assign to Dexcom all of your right, title, and interest in the Dexcom Intellectual Property, including without limitation all intellectual property rights therein. The Stelo Products are subject to the notices of intellectual property rights provided by Dexcom (including on the Stelo Website or on or accompanying the Stelo Products), and you must abide by the requirements in all such notices. All intellectual property rights in the Dexcom Intellectual Property are reserved by Dexcom and its licensors, and no intellectual property rights are granted to you whether express, implied, by way of estoppel or otherwise, except for the limited license granted to you in Section 6.1 (Limited License) of these App Terms of Use. Trademarks, service marks, trade dress, logos, names, and other symbols identifying Dexcom, or the Stelo Products, and the goodwill relating thereto, are owned exclusively by Dexcom and its licensors. You may not remove or alter any notice provided by Dexcom on or in connection with the Stelo Products.
6.3 Outputs. Subject to your compliance with these App Terms of Use, you may use any output derived by you through use of any Artificial Intelligence Technology functionality via the Stelo App (“Output”) for any lawful purpose described in these App Terms of Use, on a royalty-free basis, provided that you acknowledge and agree: (i) that your use of the Stelo App and the Output does not transfer to you ownership of any intellectual property rights in the Stelo Products, Dexcom Data, or any Dexcom Intellectual Property, and that (ii) we may, by notice to you at any time, limit your use of the Output or require you to cease using them (and delete any copies of them) if we form the view, in our sole and absolute discretion, that your use of the Output may infringe the rights of any third party. You shall not represent that Output was human-generated or use the Output to train your own machine learning models.
6.4 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 Stelo Products 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 Stelo Product, 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, Stelo Product users who are deemed by Dexcom to be repeat infringers. Dexcom may also at its sole discretion limit access to the Stelo Product and/or terminate the accounts of any Stelo Product users who infringe any intellectual property rights of others, whether or not such users are deemed to be repeat infringers.
6.5 Feedback. Any comments, questions, suggestions, materials, survey responses, reviews or feedback (collectively, “Feedback”) that you provide to us through any communication whatsoever (e.g., call, fax, email, video, chat, or comments) is entirely voluntary and will be treated as both non-confidential and non-proprietary without any compensation or other obligation to you. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. Notwithstanding the foregoing, you understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
7. RESTRICTIONS AND PROHIBITED USES.
You shall not, directly or indirectly, and you shall not permit any third party to:
a. modify, create derivative works of, disassemble, decompile, decode, reverse engineer or otherwise attempt to derive or gain access to the source code of the Stelo Products or any Artificial Intelligence Technologies therein, in whole or in part, except to the extent that such restriction is expressly prohibited by law;
b. use any content available on or via the Stelo Products (including any caption information, keywords, or other metadata) for any machine learning and/or artificial intelligence training or development purposes, or for any technologies designed or intended for the identification of natural persons;
c. jailbreaking a Stelo Product, which means the unauthorized removal of security restrictions on a Stelo Product for any purpose, including to permit the installation of unauthorized software or to retrieve data from such Stelo Product. In addition, jailbreaking a smart device used in connection with any Stelo Product may put the User (or their Dexcom Data or User Data) at risk or otherwise prevent or hinder the proper and intended use of such Stelo Product;
e. make any copies of the Stelo Products;
f. remove, circumvent, disable, damage or otherwise interfere with security-related features or the proper working of the Stelo Products, features that prevent or restrict use or copying of any content accessible through the Stelo Products, or features that enforce limitations on use of the Stelo Products;
g. use the Stelo Products, Dexcom Data or User Data to develop, optimize, create, train, enhance, test, or improve (directly or indirectly) any other product or service, including other software products, algorithms, applications or related services, without the prior written approval of Dexcom in each instance;
h. delete or remove the copyright and other proprietary rights notices on the Stelo Products.
i. use the Stelo Products for any purpose other than the Authorized Use;
j. use the Stelo Products for any unlawful purpose, or to violate any national or international law, statute, decree, rule or regulation;
k. use the Stelo Products in a manner that modifies, publicly displays, publicly performs, reproduces or distributes any component of the Stelo Products;
l. access or use the Stelo Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of Dexcom or any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Dexcom user or customer);
m. enable unauthorized third-party applications to access Stelo Products or interface with any Stelo Product;
n. collect or store personal data about others through the Stelo Products;
o. to allow any unauthorized person to access your user account or to use the Stelo Products;
p. disrupt or interfere with the Data Services, Stelo App or our systems, servers, or networks, or disobey any requirements, procedures, policies, or regulations of networks connected to the Stelo App, or transmit any viruses, worms, defects, Trojan horses, spyware, malware, ransomware, or any items of a destructive nature through your use of the Stelo Products;
q. use the Stelo Products in an abusive way as determined in Dexcom’s sole discretion;
r. use the Stelo Products, User Data or Dexcom Data, for research purposes, including clinical research, market research, engineering studies or other forms of research that are not expressly authorized in writing by Dexcom; or
s. disclose, publish, share or otherwise make available any information, feedback, suggestions, benchmarking information about or related to your use of the Stelo Products other than to Dexcom and with Dexcom’s prior written approval.
8. TERM AND TERMINATION.
8.1 Term. These App Terms of Use shall commence on the date you download the Stelo App and will continue until terminated by you or Dexcom. You may terminate these App Terms of Use in accordance with Section 8.2.
8.2 Termination. You may terminate these App Terms of Use by deleting the Stelo App and all copies thereof from your Mobile Device. Dexcom may terminate these App Terms of Use at any time without notice if it ceases to support the Stelo Products, which Dexcom may do in its sole discretion and without notice to you. In addition, these App Terms of Use will terminate immediately and automatically without any notice if you breach any of its terms and conditions.
8.3 Effect of Termination. Upon termination of these App Terms of Use for any reason: (i) all rights granted to you under these App Terms of Use will also terminate; and (ii) you must cease all use of the Stelo Products, including the Stelo App and delete all copies of the Stelo App from your Mobile Device. This Section and those provisions of these App Terms of Use which by their nature must survive termination of these App Terms of Use will continue in force after termination or expiration, including but not limited to Sections 2 (Not for Resale; No Use for Research), 4 (Disclaimer of Warranties), 6.2 (Intellectual Property Rights), 6.5 (Feedback), 7 (Restrictions and Prohibited Uses), 9 (Confidentiality), 10 (Dispute Resolution; Binding Arbitration; Class Action Waiver), 11 (Indemnification), 12 (Limitation of Liability), and 14 (California Notices) through 22 (Forward-Looking Statements), shall survive any termination or expiration of these App Terms of Use.
For purposes of these App Terms of Use, “Confidential Information” means any information (in whatever form, including written, oral, or stored in any information storage and/or retrieval medium or device) that Dexcom treats as confidential or proprietary. You will protect and keep confidential all Confidential Information that is disclosed to you by Dexcom, including any non-public information marked as confidential. You will not, except as may be authorized in writing by Dexcom or to the extent required to comply with applicable law, disclose any Confidential Information of Dexcom to any third party, and will not use such Confidential Information except as required to access or use the Stelo Products as contemplated in these App Terms of Use. Upon termination of these App Terms of Use, at Dexcom’s request, you will return or destroy all Confidential Information, including any tangible materials that contain any Confidential Information. The foregoing obligations regarding Confidential Information will not apply to any information which you can demonstrate: (a) was previously known to you; (b) is or becomes publicly available, through no fault of your own; or (c) is disclosed to you by a third party having no obligation of confidentiality to Dexcom.
10. DISPUTE RESOLUTION; BINDING ARBITRATION; CLASS ACTION WAIVER.
Please Read This Provision Carefully. It Affects Your Legal Rights.
This Dispute Resolution; Binding Arbitration; Class Action Waiver provision (this “Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy), whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and us, including, without limitation, any dispute arising out of or relating in any way whatsoever to these App Terms of Use; your use of the Stelo Products; or to any purchase, transaction, or other interaction with Dexcom facilitated through the Stelo Website, Stelo App or Device Store (including, without limitation, claims relating to Dexcom’s advertisements, marketing, pricing, and disclosures; email, SMS or other messages sent by Dexcom; or Dexcom’s collection, processing or retention of your information). For the avoidance of doubt, “dispute” will be given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding. Disputes shall also encompass any claim or controversy that arose before this Provision or after termination.
This Provision provides that all disputes between you and us shall be resolved by binding arbitration (except those brought in small claims court as described below) because acceptance of these App Terms of Use constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these App Terms of Use and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
10.1 Mandatory Pre-Arbitration Claim Resolution. Before pursuing a dispute, whether in court or arbitration, you or we must first give the other party an opportunity to resolve the dispute by first sending a notice of dispute to at the other party. The notice must include: (1) the claimant’s name, (2) the claimant’s email address, physical address, and telephone number, (3) a written description of the claim, (4) a description of the specific relief sought with a detailed calculation of damages sought, if any, and (5) a statement personally signed by you as claimant (or for Dexcom as claimant, it’s corporate representative) verifying the accuracy of the content of the notice. The notice must also be individualized, meaning it can only concern claimant’s dispute and no other person’s dispute. Your notice shall be sent by email at [email protected]. Our notice shall be sent to the email or physical address we have on file for you. Once the notice is received by the other party, you and we agree to participate and negotiate (personally and, if represented, with counsel) in good faith about the dispute for 45 days. This personal participation includes personal attendance by you and a Dexcom representative at a mandatory telephone settlement conference between you and us if it is requested by the party that receives the notice. If the dispute is not resolved within 45 days after receiving the notice (or a longer period agreed to by the parties), you or we may initiate an arbitration or a small claims court proceeding in accordance with the circumstances described herein. Compliance with this Mandatory Pre-Arbitration Claim Resolution procedures is a condition precedent to pursuing a dispute pursuant to this Provision, and neither party may initiate an arbitration or small claims court proceeding unless that party has fully complied with this Section. If either party violates this Section, a court of competent jurisdiction has the authority to enjoin the prosecution of the arbitration or small claims court proceeding, and, unless prohibited by law, the American Arbitration Association (“AAA”), www.adr.org, or Judicial Arbitration and Mediation Services (“JAMS”), www.jamsadr.com, shall neither accept nor administer such arbitration nor assess arbitration fees in connection with such arbitration. A party may elect to raise, and seek monetary relief in connection with, non-compliance with this Section in arbitration or small claims court. Any relevant limitations period and filing fee or other deadlines will be tolled during the forty-five (45) day Mandatory Pre-Arbitration Claim Resolution unless that period is extended by agreement of the parties.
10.2 Exclusions from Arbitration/Right to Opt-Out. Notwithstanding the above, you or we may choose to pursue a dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE APP TERMS OF USE (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing the following information to us at [email protected]: (1) your name; (2) your address; (3) a clear statement that you do not wish to resolve disputes with us through arbitration. Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Provision will have no adverse effect on your relationship with us and will not affect in any way the benefits to which you would otherwise be entitled. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
10.3 Small Claims. If the parties are not able to resolve the dispute through the Mandatory Pre-Arbitration Claim Resolution outlined above, you and we agree that either party may elect to have the dispute heard in small claims court in the county or parish in which you reside, seeking only individualized relief so long as the dispute falls within the jurisdictional limits of that court and the matter remains in that court and is not removed or appealed to a court of general jurisdiction.
10.4 Arbitration Procedures. If this Provision applies and the dispute is not resolved as provided above through the Mandatory Pre-Arbitration Claim Resolution, either you or we may initiate arbitration proceedings. The AAA or JAMS will arbitrate all disputes, and the arbitration will be conducted before a single, neutral arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply. For disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules for Emergency Measures of Protection shall apply. The AAA rules are available at www.adr.org/Rules or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com/adr-rules-procedures/ or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration. If the AAA and JAMS are unavailable or unwilling to administer the arbitration consistent with this Provision, the parties shall agree on an alternative provider to administer the arbitration consistent with the applicable AAA rules outlined above based on the amount of the dispute, except as modified by this Provision. If the parties cannot agree on an alternative provider, they shall jointly petition a court of competent jurisdiction to appoint a provider that will administer the arbitration consistent with the applicable AAA rules outlined above based on the amount of the dispute, except as modified by this Provision.
Because these App Terms of Use and the Stelo Products concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
A party seeking to initiate an arbitration must provide the other party with a written demand for arbitration as specified in the applicable AAA or JAMS rules outlined above based on the amount of the dispute and arbitral body selected, except as modified by this Provision. The demand for arbitration must be personally signed by the party initiating arbitration (and their counsel if they are represented). By signing the demand for arbitration, a party (and their counsel if they are represented) certifies that they have complied with (i) the Mandatory Pre-Arbitration Claim Resolution and (ii) all of the requirements of Federal Rule of Civil Procedure 11(b), including that the claims or the relief sought are neither frivolous nor brought for an improper purpose. The arbitrator is authorized to award any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or applicable federal or state law against all appropriate persons (including counsel) as a court would.
You and we each have the right to request a telephone preliminary management hearing after the appointment of the arbitrator or other hearing consistent with the applicable AAA or JAMS rules outlined above based on the amount of the dispute and arbitral body selected, except as modified by this Provision. If a preliminary management hearing or other hearing is held, you and a Dexcom representative agree to personally attend (with counsel, if you and/or we are represented) if requested by you or us and ordered by the arbitrator. If such a request is made of, and ordered by, the arbitrator and a party fails to personally attend the preliminary management hearing or other hearing and is represented by counsel, the arbitrator shall have the authority to issue sanctions, including, but not limited to, reimbursement of the fees imposed by the arbitration administrator (including any filing fees, case management fees, hearing fees, and arbitrator compensation) paid by the other party as of the date of the hearing. If a party seeks to withdraw a demand for arbitration after the appointment of the arbitrator but before a preliminary management hearing or other hearing (and the dispute has not been settled or otherwise resolved by agreement), and the party is represented by counsel, the arbitrator shall retain authority to consider any request by the other party for reimbursement of the arbitration fees paid as of the date of the withdrawal.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law. The arbitrator’s award shall not be given preclusive effect or be binding in any other proceeding involving different consumers. The arbitrator will apply and be bound by this Provision as a court would, and will adjudicate any dispute according to applicable law and facts based upon the record and no other basis. An arbitrator’s award that has been fully satisfied shall not be entered in any court. An award, however, may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or we may initiate arbitration in either California or the federal judicial district that includes your billing address.
Mass Arbitrations – If more than 50 claimants (including you) assert similar claims against Dexcom through the same or coordinated counsel or are otherwise coordinated (“Mass Arbitrations”), you understand and agree that the additional procedures in this Mass Arbitrations provision apply and that the resolution of your dispute might be delayed. For Mass Arbitrations before AAA, the AAA’s Mass Arbitration Supplementary Rules will apply. The AAA Mass Arbitration Supplementary Rules are available at https://www.adr.org/mass-arbitration or by calling 1-800-778-7879. For Mass Arbitrations before JAMS, the JAMS Mass Arbitration Procedures and Guidelines will apply, which are available at https://www.jamsadr.com/mass-arbitration-procedures or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable AAA Mass Arbitration Supplementary Rules or JAMS Mass Arbitration Procedures and Guidelines.
Stage One. Counsel for the claimants and counsel for Dexcom shall each select 25 claims per side to be filed first and to proceed in individual arbitration proceedings as part of a staged process. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees (including, but not limited to, any filing fees, case management fees, hearing fees, and arbitrator compensation) be assessed in connection with those claims unless and until they are selected to be filed as individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall engage in a global mediation of all remaining claims with a retired federal or state court judge, and Dexcom shall pay the mediation fee.
Stage Two. If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Dexcom shall each select 50 claims to be filed per side and to proceed in individual arbitration proceedings as part of a second staged process. The remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees (including, but not limited to, any filing fees, case management fees, hearing fees, and arbitrator compensation) be assessed in connection with those claims, unless and until they are selected to be filed as individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall engage in a global mediation of all remaining claims with a retired federal or state court judge, and Dexcom shall pay the mediation fee.
Stage Three. If the remaining claims are not resolved, the parties shall meet and confer to discuss potential ways to streamline the proceedings, increase efficiencies, and conserve costs. Unless the parties agree otherwise, counsel for the claimants and counsel for Dexcom shall each select 75 claims per side to be filed and to proceed in individual arbitration proceedings as part of a third staged process. The remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees (including, but not limited to, any filing fees, case management fees, hearing fees, and arbitrator compensation) be assessed in connection with those claims, unless and until they are selected to be filed as individual arbitration proceedings as part of a staged process. After this third set of staged proceedings, the parties shall engage in a global mediation of all remaining claims with a retired federal or state court judge, and Dexcom shall pay the mediation fee.
In connection with each stage set forth above, (i) each of the claims within that stage shall be assigned to a different, single, neutral arbitrator and (ii) each arbitrator shall aim to issue their award within 120 days after their appointment. If your claim is not resolved after the three sets of staged proceedings and related mediations, either: (i) you and we may, separately or by agreement, opt out of arbitration and elect to have your claim heard in a court of competent jurisdiction consistent with this Provision. You may opt out of arbitration by providing your individual written notice of your intention to opt out to the arbitration administrator and to Dexcom at [email protected] within 30 days after the conclusion of the third mediation. Your written notice must be personally signed by you. Dexcom may opt your claim out of arbitration by sending written notice of its intention to opt out to the AAA or JAMS (or, if the AAA or JAMS are not administering the arbitration, then to the alternative provider that is administering the arbitration) and to your counsel within 14 days following the expiration of your 30-day opt-out period. Dexcom’s written notice must be personally signed by a Dexcom representative. Counsel for the parties may agree to adjust these deadlines; or (ii) if neither you nor Dexcom elects to have your claim heard in court consistent with (i), then you agree that your claim will be resolved through additional staged proceedings as set forth below. Assuming the number of claims exceeds 200 claims, then 200 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to proceed in individual arbitration proceedings as part of a staged process. If the number of claims is fewer than 200, all of those claims shall proceed in individual arbitration proceedings. Each of these 200 claims (or fewer if the total number of claims is less than 200) shall be assigned to a different, single arbitrator. Each arbitrator shall aim to issue their award within 120 days after appointment. The remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees (including, but not limited to, any filing fees, case management fees, hearing fees, and arbitrator compensation) be assessed in connection with those claims, unless and until they are selected to be filed as individual arbitration proceedings as part of a staged process. After each set of 200 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and the arbitration administrator to explore ways to streamline the adjudication of claims, promote efficiencies, conserve resources, and resolve the remaining claims.
Unless the parties agree otherwise, an arbitrator may not be appointed to cases in consecutive sets of staged proceedings. An arbitrator may be appointed to cases in non-consecutive sets of staged proceedings. You and Dexcom agree that the parties have a mutual interest in reducing the costs and increasing the efficiency of arbitration, and as such, either party may negotiate with the arbitration administrator for reduced arbitration fees (including, but not limited to, any filing fees, case management fees, hearing fees, and arbitrator compensation) and for streamlined or other procedures designed to reduce costs and increase the efficiency of arbitration.
Any relevant limitations period and filing fee or other deadlines shall be tolled for claims subject to these additional procedures that apply to Mass Arbitrations from the time that the first cases are selected for a staged process until the time your claim is selected for a staged process, withdrawn, otherwise resolved, or opted out of arbitration. You and Dexcom agree to engage in the process in good faith. A court of competent jurisdiction shall have the authority to enforce this Mass Arbitrations provision and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees (including, but not limited to, any filing fees, case management fees, hearing fees, and arbitrator compensation).
Payment of Arbitration Fees and Costs – So long as your dispute is not part of a Mass Arbitration as set forth above, and you place a request in writing prior to commencement of the arbitration, we will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration, unless an arbitrator determines that your dispute was frivolous, brought for harassment or an illegitimate or improper purpose, brought in bad faith, or brought without material compliance with the requirements set forth in this Provision. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the Section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
10.5 Class Action Waiver. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and we specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of this Provision, as specified above, this Class Action Waiver clause will not apply to you. Neither you, nor any other purchaser or user of the Stelo Products or the Device Store can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
10.6 No Judge or Jury in Arbitration. Arbitration does not involve a judge or jury. You understand and agree that by entering into these App Terms of Use you and we are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
10.7 Severability. If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and, if possible, modified or replaced by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, however, this entire Provision will be unenforceable and the dispute will be decided by a court.
10.8 Continuation. This Provision shall survive the termination of your account with us or our affiliates and your discontinued use of Stelo Products. Notwithstanding any provision in these App Terms of Use to the contrary, we agree that if we make any change to this Provision (other than a change to the our address for providing notice under this Provision), you may reject any such change and require us to adhere to the present language in this Provision if a dispute between us arises.
To the fullest extent permissible by applicable law, you agree to indemnify, defend and hold harmless Dexcom, its affiliates, officers, directors, employees, agents, licensors, suppliers, or any third parties with whom Dexcom has a contractual relationship (collectively, the “Dexcom Parties”) from and against all claims, losses, liabilities, expenses, damages and costs, including attorneys’ fees, arising from or relating to (1) any information you submit, post, or transmit through Stelo Products, and (2) your use of the Stelo Products, any violation by you of these App Terms of Use or the Privacy Policy, or any law, or the infringement, violation or misappropriation by you of any rights, including intellectual property rights, of any third party.
12.1 THESE APP TERMS OF USE SET OUT THE FULL EXTENT OF THE AGREEMENT AND UNDERSTANDING BETWEEN DEXCOM AND YOU IN RESPECT TO ANY CLAIM ARISING FROM OR RELATED TO YOUR ACCESS OR USE OF STELO PRODUCTS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, DEXCOM’S MAXIMUM AGGREGATE LIABILITY TO YOU ON ALL CLAIMS ARISING FROM OR RELATING TO THE STELO PRODUCTS OR THESE APP TERMS OF USE, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR OTHERWISE, SHALL BE LIMITED TO THE RETAIL CASH PRICE FOR THE STELO PRODUCT(S) PURCHASED BY YOU OR ON YOUR BEHALF IN THE RELEVANT TRANSACTION. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NONE OF THE DEXCOM PARTIES WILL BE LIABLE FOR ANY LOST PROFITS OR LOST DATA OR ANY DIRECT, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES THAT RESULT FROM YOUR ACCESS OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, ANY STELO PRODUCTS; OR FOR THE PERFORMANCE OF ANY PURCHASED STELO PRODUCTS; OR FOR THE CONDUCT OF DEXCOM USERS OR CONSUMERS (WHETHER ONLINE OR OFFLINE); OR FOR ANY USER CONTENT OR ANY OTHER ACTIVITY IN CONNECTION WITH YOUR USE OF ANY STELO PRODUCTS, EVEN IF DEXCOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE AND ACCESS TO ALL STELO PRODUCTS. YOUR ONLY REMEDY AGAINST DEXCOM IN CONNECTION WITH ANY ALLEGED DAMAGES ARISING FROM YOUR USE OR ACCESS TO ANY STELO PRODUCTS OR ANY CONTENT ON ANY OF THE FOREGOING IS TO STOP USING OR ACCESSING SUCH STELO PRODUCTS.
12.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT THAT WE MAY NOT 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 APPLICABLE LAW. IF ANY PART OF THIS LIMITATION OF LIABILITY IS DETERMINED TO BE UNENFORCEABLE OR INVALID FOR ANY REASON, YOU AGREE THAT DEXCOM’S LIABILITY TO YOU FOR ANY DAMAGE OR LOSS SHALL BE LIMITED TO THE FULLEST EXTENT ENFORCEABLE BY APPLICABLE LAW.
12.3 NOTHING IN THIS SECTION 12 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 GROSSLY 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) ANY TERM WHICH CANNOT BE EXCLUDED BY VIRTUE OF SECTIONS 31, 47 AND 57 OF THE CONSUMER RIGHTS ACT 2015.
13. NOTICES AND QUESTIONS.
You agree that we may give you notices or otherwise respond to you by mail or to your e-mail (if we have it on file) or in any other manner reasonably elected by us. If we elect to send electronic communications, you agree that any notice, agreement, disclosure, or communication that we send electronically will satisfy legal communication requirements including that such be in writing. All legal notices to us must be sent to: 6340 Sequence Drive, San Diego, California 92121, Attn: Legal Department. If you have a question, you may contact us by visiting https://www.stelo.com/support, opening a case with our virtual assistant bot SteloBot (which is accessible via the Stelo Website), or as set forth in the Privacy Policy, as applicable. For all technical support or general product inquiries, please visit. You acknowledge that customer service personnel cannot change or waive these App Terms of Use or any applicable Additional Terms.
14.1 California residents can obtain information on our privacy practices specific to California residents here.
14.2 The legal name under which Dexcom conducts business is Dexcom, Inc., and Dexcom’s business address is 6340 Sequence Drive, San Diego, California 92121. Upon Dexcom’s receipt of your request, California residents may receive verification of this information by submitting an inquiry via SteloBot.
14.3 Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Stelo Website is provided by Dexcom, Inc., 6340 Sequence Drive, San Diego, California 92121. If you have a question or complaint regarding the Stelo Website, please contact us by visiting https://www.stelo.com/support, opening a case with SteloBot, or as set forth in the Privacy Policy, as applicable. You may also contact us by writing to us at Dexcom, Inc., 6340 Sequence Drive, San Diego, California 92121. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
15. EQUITABLE RELIEF.
Any violation of a party’s intellectual or industrial property rights will cause such party irreparable harm for which monetary damages are an inadequate remedy, and such party shall be entitled to seek temporary, preliminary, and permanent injunctive relief and specific performance without the requirement of posting of a bond or other security, or if required, the minimum bond or security required.
16. INTEGRATION.
You and Dexcom agree that these App Terms of Use are the complete and exclusive statement of the mutual understanding between you and Dexcom regarding the subject matter herein, and that they supersede and cancel all previous written and oral agreements, communications, and other understandings relating to the subject matter of these App Terms of Use.
17. RIGHT TO ASSIGN.
Dexcom may assign its rights and duties under these App Terms of Use to any party at any time without notice to you, unless notice is required by applicable law, but this will not affect your rights or our obligations under these App Terms of Use. You may only transfer your rights or your obligations under these App Terms of Use to another person with our prior written consent.
18. NO WAIVER.
Dexcom’s failure to insist upon or enforce strict performance of these App Terms of Use is not a waiver of any of these App Terms of Use or Dexcom’s rights. If we do elect to waive a default by you, we will only do so in writing, and doing so shall not mean that we intend to or will automatically waive any later default(s) by you.
19. APPLICABLE LAW.
These App Terms of Use shall be governed by and construed in accordance with the FAA, the substantive laws of the State of California, United States of America, and applicable U.S. federal law, without regard to any choice or conflicts of law provisions and regardless of your location. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these App Terms of Use. Except for disputes subject to arbitration as described above, any disputes relating to these App Terms of Use or the Stelo Products will be heard in the courts located in San Diego County, California.
20. SEVERABILITY.
If any court or relevant authority shall deem any provision of these App Terms of Use to be invalid, unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these App Terms of Use and if possible, modified or replaced by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The severance of any provision shall not affect the validity and enforceability of any remaining provisions and the remainder of these App Terms of Use shall continue to be fully enforceable.
21. EXPORT CONTROL.
The Stelo Products may be subject to United States export control laws. Accordingly, 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).
22. FORWARD-LOOKING STATEMENTS.
Stelo Products or the Dexcom Store 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: (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 applicable 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.
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