Insulet Corporation End User License Agreement
This End User License Agreement (“EULA") is a binding agreement between the Insulet entity that either (i) provided this product to you or (ii) made this product available in the country in which you received it (referred to as “Insulet”, “we” or “us”) and you and applies to your use of www.Omnipod.com, online Omnipod account, or other Websites (the "Websites"), the Omnipod DASH® Insulin Management System and the Omnipod® 5 Automated Insulin Delivery System (collectively, the “Omnipod® System”), Omnipod® 5 application or other mobile applications (collectively, the “Application(s)”), or any other content or services we create, use, offer, operate, make accessible or available for download (including all related documentation) (collectively the “Services”). The Omnipod System and the Applications are collectively known as the “Controller.”
BY CLICKING THE BOX AND SUBSEQUENTLY USING THE APPLICATION, YOU SIGNIFY YOUR AGREEMENT TO THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA YOU MUST NOT USE THE SERVICES. WE RESERVE THE RIGHT TO CHANGE THE TERMS OF THIS EULA, IN WHICH EVENT WE WILL PROVIDE AN UPDATE (AS FURTHER SET FORTH IN SECTION 6) OR VIA THE APPLICATION PORTAL. YOUR USE OF THE SERVICES AFTER SUCH CHANGES ARE POSTED SHALL MEAN THAT YOU ACCEPT SUCH CHANGES.
Subject to the terms of this EULA, we grant you a limited, non-exclusive, and nontransferable license to use the Services for your personal, non-commercial use on the Controller strictly in accordance with this EULA and the Services’ documentation. You shall not (except as and only to the extent any following restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services in accordance with Section 4 hereof):
a) copy the Services, except as expressly permitted by this limited license;
b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Services;
c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof;
d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof;
e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features and functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time; or
f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services; or
g) use the Services in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
2. RESERVATION OF RIGHTS.
You acknowledge and agree that the Services is provided under license, and not sold, to you. You do not acquire any ownership interest in the Services under this EULA, or any other rights thereto other than to use the Services in accordance with the limited license granted, and subject to all terms and conditions of this EULA. We reserve and shall retain our entire right, title, and interest in and to the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this EULA.
3. COLLECTION AND USE OF YOUR INFORMATION.
You acknowledge that when you use the Services, we may use automatic means (including, for example, “cookies” and other tools) to collect information about your use of, access to and download from the Services (including, for example, Controller data such as model and name, operating system and version and usage data such as frequency and duration of use). For certain features and functionality of the Services, you also may be required to provide certain information about yourself as a condition to using such features and functionality (for example, your online Omnipod account).
4. OPEN SOURCE SOFTWARE.
Notwithstanding anything herein to the contrary, Open Source Software (“OSS”) as defined in our Open Source Notice is licensed to you under such OSS’s own applicable license terms, which can be found at Insulet’s Open Source Notice (Open Source Notice). These OSS license terms are consistent with the license granted in Section 1, and may contain additional rights for you. The OSS license terms shall take precedence over this EULA to the extent that this EULA imposes greater restrictions on you than the applicable OSS license terms, solely with respect to the portions of the features and functionality subject to such OSS license terms.
5. GEOGRAPHIC RESTRICTIONS.
The Services is intended for use, access and/or download only by persons located outside of the United States of America. You acknowledge that you may not be able to use, access and/or download the Services outside of the country you purchased or received the product and that use, access and download thereto may not be legal by certain persons or in certain countries. If you use, access and/or download the Services from outside the of the country you purchased or received the product, you are responsible for compliance with local laws.
We may, from time-to-time and in our sole discretion, develop and provide updates to the Services, which may include, but are not limited to, upgrades, bug fixes, patches, other error corrections, and/or the removal or introduction of features and functionality (collectively, including related documentation, “Updates"). You acknowledge and agree that we have no obligation to provide any Updates or to continue to provide or enable any particular feature or functionality.
We may make Updates to the Services automatically or prompt you to make them manually, depending on the means by which you use, access or download it. For the Services this may depend, in part, on the settings you have selected for your Controller. When your internet connection permits: (a) the Services will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Services and be subject to all terms and conditions of this EULA.
7. THIRD PARTY CONTENT.
The Services may display, include, or make available third party content (including text, graphics, images, logos, photographs, videos, sounds, music, voiceovers, source and object code, algorithms, software, data, messages, posts, information and/or other materials appearing on or in the Services, including applications and other products and services) or provide links to third party websites, products or services ("Third Party Content"). You acknowledge and agree that we are not responsible for Third Party Content, including its accuracy, completeness, timeliness, validity, legality, decency, quality, or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Content. Third Party Content and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
8. TERM AND TERMINATION.
The term of this EULA commences on the earlier of when you acknowledge your acceptance hereto and will continue in effect until terminated by us or by you or as set forth herein.
(a) By Us. We may suspend or terminate this EULA and your access to all or any part of the Services at any time and for any reason with or without prior notice or liability, in particular if you withdraw your consent related to the processing of your personal data, which is necessary for the use of the Omnipod 5 Automated Insulin Delivery System or Application (product use consent). We may also change, suspend, or discontinue all or any part of the Services, including certain features and functionality, at any time and for any reason with or without prior notice or liability. In addition, we may terminate this EULA immediately and automatically without any notice if you violate any of the terms and conditions of this EULA
(b) By You. You may terminate this EULA by discontinuing your use of the Services.
(c) Survival. Upon partial or full termination: (i) all rights granted to you under this EULA will also terminate, except for the rights granted to you under this EULA, including, but not limited to, the license rights granted under sections 1 and 4 which will in any case cease upon termination; and (ii) you must cease all use of the Services and the Controller. If this EULA is terminated by us or by you, all sections shall survive the termination. Termination will not limit any of our rights or remedies at law or in equity. If you continue using these Services upon termination of this EULA, we exclude any liability with regard to such continued use to the extent allowed under the internal laws of the country in which you received our products and Services. In case of a partial termination, the EULA will remain in full force and effect for those Services for which the EULA is not terminated.
9. DISCLAIMER OF WARRANTIES AND LIMITATIONS ON LIABILITY.
THE SERVICES ARE PROVIDED TO YOU "AS IS" AND “AS AVAILABLE” WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, AGREEMENTS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO UNDERTAKING, AGREEMENT, OR WARRANTY, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, SERVICES, SYSTEMS, MOBILE DEVICES, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY AVAILABILITY, RELIABILITY, TIMELINESS, SECURITY, PERFORMANCE, OR ANY OTHER STANDARDS, BE ERROR OR DEFECT FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. EXPORT REGULATION AND GOVERNMENT RIGHTS.
The Services may be subject to applicable export control laws, including the Canadian and European Union export control regime. You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the country that you received our product.
If any provision of this EULA is found to be invalid, illegal or unenforceable by any court, such finding shall not affect the validity of the remaining provisions of this EULA which shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA will continue in full force and effect. No waiver shall be effective against us unless we make it in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Headings are for convenience only and have no legal import. In the event of a conflict between this EULA and any applicable purchase or other terms, the terms of this EULA shall govern.
This EULA will be governed by and construed in accordance with the internal laws of the country in which you received this product applicable to contracts entered into and performed exclusively in such country without giving effect to any choice or conflict of law provision or rule. Any court of competent jurisdiction sitting within the country in which you received this product will have exclusive jurisdiction and venue for any dispute, legal suit, action or proceeding arising out of or relating to the Services or this EULA, and you hereby waive any argument or objection that any such court does not have jurisdiction over you or such dispute or that venue is not appropriate or convenient. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS EULA OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
A listing of patents that cover the Omnipod System may be found at https://www.insulet.com/patents/.
Effective Date: January 2022