A. Grant of a Limited License
Subject to your agreement and continuing compliance with these Terms, Intuity Medical hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited license to access and use (i) the Intuity Services for your personal and internal business use only and (ii) the Software for your personal, non-commercial use solely in connection with the POGO Meter. You hereby acknowledge that the Intuity Services and the Software is licensed, not sold, to you. You may not use the Intuity Services or the Software for any other purpose, including in any way that breaches these Terms or any other agreement applicable to the Intuity Services, your use of the POGO Meter or the Software. You do not acquire any other rights, express or implied, in the Software or the Intuity Services other than those rights expressly granted under these Terms. All rights not specifically granted to you herein are retained by Intuity Medical or its licensors.
You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the Intuity Services. We do not guarantee that the Intuity Services can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the Intuity Services will be available in, or that orders for products can be placed from, any particular geographic location. As part of the Intuity Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you outside or inside Patterns (“Push Messages”). You acknowledge that, when you use the Intuity Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Intuity Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the Intuity Services, including your receipt of Push Messages from Intuity Medical. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the Intuity Services on your mobile device, including for your receipt of push messages from Intuity Medical.
a. Mobile Software from the Apple App Store
b. Mobile Software from the Google Play Store
If you acquire Patterns from Google, Inc. or one of its affiliates (“Google”) via Google Play or its successor(s), then to the extent of any conflict between the Google Terms of Service and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and the other terms and conditions in these Terms, the Google Play Terms shall apply with respect to your use of any App that you acquire from Google Play. Intuity Medical and you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Intuity Medical or you (or any other user) under these Terms or the Google Play Terms.
B. License Limitations
Except as otherwise specifically permitted under these Terms and to the maximum extent permitted by applicable law, you may not modify, distribute, sell, resell, assign, pledge, license, sublicense, lease, loan, provide access to, deliver, or otherwise transfer, disassemble, decompile, translate, reverse engineer, make copies of or make derivative works of the Intuity Services or the Software, or any part thereof, and you may not permit any other person or entity to do so. You may not alter, obscure or remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of any Intuity Services or Software product or documentation (including those of third parties). You agree that you will not use the Intuity Services or the Software to upload, post, transmit or otherwise make available: content that infringes, misappropriates or otherwise violates any patent, trademark, copyright or other proprietary right of any party; content that is unlawful, threatening, harassing, defamatory or otherwise objectionable; content that you do not have a right to make available under any law or under contractual or fiduciary relationships; any unsolicited communications, advertising or promotional materials not authorized by Intuity Medical; any material that contains software viruses or computer codes, files or programs designed to interrupt, destroy or limit functionality. You agree not to use any device or routine to interfere or attempt to interfere with the proper working of, or any person’s use of, the Intuity Services or the Software. You agree not to obtain information or content from the Intuity Services or the Software using any robot, spider, scraper or other automated means for any purpose. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Intuity Services, the Software or their systems or networks, or any connected systems or networks. You agree that you will not use the Intuity Services or the Software to intentionally or unintentionally violate any applicable local, state, national or international law. You may not reverse look-up, trace, access, store, collect, or seek to undertake any of these actions with respect to, any information on any other User of the Intuity Services or the Software, visitor to our Websites, or any other customer of Intuity Medical, or exploit the Intuity Services, the Software or their content in any way where the purposes is to reveal any personal identification or information other than your own information, unless explicitly authorized by that individual, such as in your capacity as a healthcare professional accessing personal health records shared with you by a patient. Other than the use of your POGO Meter, you will not use automated systems to collect information from the Intuity Services or the Software.
Except as otherwise authorized herein, you shall not (a) create Internet “links” to or from the Software, or “frame” or “mirror” any content forming part of the Software, (b) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (c) interfere with or disrupt the integrity or performance of the Software or the data contained therein, or (d) attempt to gain unauthorized access to the Software or its related systems or networks.
C. Intellectual Property Ownership and Responsibilities
All Software (including source code), the POGO Meter specifications, designs, logos, icons, the Intuity Services’ “look and feel,” text, graphics, images, video clips, sound clips, notices, data, page layout and selection and arrangement of the content and all copyrights, patents, trade secrets, trademarks, and other intellectual property rights therein shall be owned solely and exclusively by Intuity Medical and/or its licensors and are protected by United States and international copyright, patent, trade secret or other intellectual property laws and treaties. Intuity Medical or its licensors own and hold all right, title and interest, including but not limited to copyright, patent, trade secret, and all other intellectual and industrial property rights, in and to the Intuity Services, the Software, the POGO Meter and their contents, and any changes, modifications or corrections thereto, including, without limitation, the exclusive right to create derivative works therefrom.
The Intuity Medical name, the terms PATTERNS™, POGO™, POGO AUTOMATIC™ and INTUITY MEDICAL™, the [Intuity logo], [POGO logo] and [Patterns logo] are all related names, logos, product and service names, designs and slogans are trademarks of Intuity Medical or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Intuity Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Intuity Medical. Any images of persons or personalities contained in the Intuity Services are not an indication or endorsement of Intuity Medical or any particular product or service unless otherwise indicated.
D. User Data
a. User Data and User Content License Grant
By submitting, uploading, providing, transmitting or otherwise making available User Data on or through the Intuity Services, you hereby grant to us a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable and sublicensable right and license to collect, access, use, process, transmit, display, publish, adapt and modify the User Data as required for us and our subcontractors and service providers to provide, improve, and enhance the Intuity Services, respond to service or technical problems, and to operate our business. You acknowledge and agree that both during the term of these Terms and thereafter, we may collect, analyze, disclose and use anonymized or aggregated User Data, or data derived from User Data, as well as data about your access and use of our Intuity Services, for any purpose (subject to our compliance with applicable law and confidentiality obligations to you and any patients), including for the purpose of providing, operating, analyzing, and improving the Intuity Services. We also may collect and use certain data and information, including de-identified patient data, and may disclose such data to certain of our subcontractors provided that we shall ensure that our subcontractors comply with any applicable obligations set forth in these Terms.
b. Notice of Infringement – DMCA Policy
Anyone who believes that his or her work has been reproduced on the Intuity Services in a manner which constitutes copyright infringement may submit a notification to Intuity Medical’s copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing: (a) identification of the copyrighted work that is claimed to be infringed; (b) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Website or Patterns; (c) information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address; (d) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (e) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and (f) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
Notices of copyright infringement claims should be sent by mail to: Intuity Medical, Inc., Attn: Copyright Agent, 3500 West Warren Avenue, Fremont, CA 94538; or by email to email@example.com. We will respond expeditiously to claims of copyright infringement using the Service that are reported to our copyright agent in the notification explained above. It is Intuity Medical’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
If you believe that your User Content that was removed (or to which access was disabled) after we received a notice of copyright infringement is not actually infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to Intuity Medical’s Copyright Agent: (1) your physical or electronic signature (with your full legal name); (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided the original notification of the alleged infringement.
If a counter-notice is received by Intuity Medical’s Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten business days or more after receipt of the counter-notice, at Intuity Medical’s sole discretion.
Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.
Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf.
We appreciate comments and suggestions from users of the Intuity Services. However, any feedback you submit through the Intuity Services will be considered non-personal, non-confidential and non-proprietary. You hereby grant and will grant to Intuity Medical an unrestricted, fully paid-up, sublicensable, transferable, royalty-free, irrevocable right to use, reproduce, display, perform, create derivative works of, transmit, distribute and otherwise exploit your comments and suggestions in any medium and for any purpose.