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Effective date: 4/26/2019
PLEASE READ THIS AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE BD DIABETES CARE SOFTWARE APPLICATION (“APP”) OFFERED BY BECTON, DICKINSON AND COMPANY (REFERRED TO AS “BD”, “WE”, “US”, or “OUR” AS APPLICABLE) FOR USE IN THE USA ONLY. BY DOWNLOADING THE APP OR USING THE APP IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND BE A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU HAVE NO RIGHT TO USE THE APP.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT, ESPECIALLY SECTION 16 (WHICH REQUIRES YOU TO INDEMNIFY BD AND OTHERS UNDER CERTAIN CIRCUMSTANCES), SECTION 17 (WHICH DISCLAIMS THAT ANY WARRANTIES ARE PROVIDED TO YOU), SECTION 18 (WHICH LIMITS THE LIABILITY OF BD AND OTHERS TO YOU), AND SECTION 23(WHEREBY YOU AGREE TO RESOLVE DISPUTES THROUGH ARBITRATION RATHER THAN IN COURT, UNLESS YOU OPT OUT).
TO REJECT THESE TERMS, YOU MUST DELETE THE APP FROM YOUR MOBILE DEVICE IMMEDIATELY.
1. Acceptance of this Agreement. In entering into this Agreement, you represent and warrant to BD that: (i) you are an individual(i.e., not a corporation) and you either are of legal age to form a binding contract or have your parent's permission to do so, and you are at least 13 years or age or older; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. This Agreement is void where prohibited by law and your right to access the App is revoked in such jurisdictions.
If you are under 13, do not attempt to register for the App or send any information about yourself to us, including your name, address, telephone number, or email address without parental consent. BD does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register for the App. No one under age 13 may provide any personal information to BD without parental consent. In the event that we learn that we have collected personal information from a child under age 13 without verification of parental consent, we will delete that information as quickly as practicable. If you believe that we might have any information from or about a child under 13, please contact us at firstname.lastname@example.org.
2. Protection of Login Credentials. As a condition to using the App, you will be required to register with BD and select a password and user name (“User ID”). You shall provide BD with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a BD User ID a name of another person with the intent to impersonate that person; or (ii) use as a BD User ID a name subject to any rights of a person other than you without appropriate authorization. BD reserves the right to refuse registration of or cancel a BD User ID in its sole discretion. You are responsible for safeguarding your User ID and password and agree to indemnify and hold BD and its officers, directors, parents, subsidiaries, affiliates, employees, and agents (collectively, “BD Parties”) harmless from any claims, demands, losses, or damages resulting from improper use, loss or theft of your User ID and password. You agree not to give or make available your password or allow other means of access to your account by anyone other than yourself. You should reject any unsolicited requests for your User ID or password. If you believe that your password has been compromised, lost or stolen, or that someone may attempt to use your account without your consent, promptly notify BD.
3. License. You are granted a non-exclusive, non-transferable, non-sublicensable, revocable license during the term of this Agreement to use the App for your own personal, non-commercial use, and not for the use or benefit of any third party. BD retains ownership of the App and all rights therein.
4. Restrictions. You shall not link to the App without BD’s prior written consent. You are responsible for all of your activity in connection with the App. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the App. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any users of the App (“Users”). Use of the App to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the App, or any processes that run or are activated while you are not logged on to the App, or that otherwise interfere with the proper working of or place an unreasonable load on the App’s infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the App is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the App, nor rent, lease, loan, sublicense, distribute, copy, modify, translate, post, publish or create derivative works of the App.
5. App Content. You acknowledge that all materials displayed or performed on the App (including, but not limited to text, graphics, articles, photographs, images, illustrations, and third party submissions) (collectively, the “Content”) accessed by you using the App is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. BD reserves the right to remove any Content from the App at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if the Content is in breach of this Agreement, or for no reason at all). You, not BD, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the App, and you warrant that you possess all rights necessary to provide such content to BD and to grant BD and the BD Parties the rights to use such information in connection with the App and as otherwise provided herein. Under no circumstances will BD or the BD Parties be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the App.
7. Your Responsibilities. You are solely responsible for maintaining, installing and operating your mobile device, computer, software, and internet connection in using the App. BD and the BD Parties are not responsible for errors or failures related to the malfunction of your mobile device, computer, software, or internet connection, and you are responsible for ensuring their compatibility with the App. You are solely responsible for maintaining adequate security, protection and backup for the App, the device(s) on which the App is installed, and your use of the App. You are responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the App.
8. Monitoring of App Usage. You acknowledge that the App includes features to enable BD to remotely monitor your use of the App including, but not limited to, your interaction with the App, your answers and inputs in the App, the links you go to, the information you input into the App, and you consent to all such monitoring.
9. Your Warranties. You warrant, represent and agree that you will not contribute any Content or otherwise use the App in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities, sales, contests, sweepstakes, barter, advertising, or pyramid schemes, without BD's prior written consent; (v) impersonates any person or entity, including without limitation any employee or representative of BD or the BD Parties; or (vi) contains or distributes a virus, Trojan horse, worm, time bomb, ransomware, malware, or other harmful computer code, file, or program.
10. Updates, Support and Feedback. BD may in its sole discretion and without notice deliver to your device updates, upgrades, modifications, enhancements, bug fixes and/or patches to the App to address issues such as security vulnerabilities, interoperability or performance. Your continued use of the App indicates your consent to receiving such updates. You are not entitled to any support under this Agreement. However, we encourage your questions, comments and suggestions, because it is extremely important that BD receive your feedback on the App to help improve our products and services. Please provide feedback to email@example.com. In addition, you agree that we may contact you from time to time to ask for feedback concerning your experiences using the App. Please notify us as soon as practicable of any perceived defect in the App.
11. Termination or Suspension of App. BD may change, suspend or discontinue the App at any time, including the availability of any feature, database, or content. BD may also impose limits on certain features or restrict your access to parts or all of the App without notice or liability.
12. Intellectual Property. All Content created by BD is protected by copyright. Other Content may also be protected as copyrights, trademarks, service marks, trade secrets or other intellectual property or proprietary rights. You shall abide by all copyright notices, trademark rules, and restrictions contained in any Content accessed through the App. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, in whole or in part, except that you may download or copy the Content (and other items displayed on the App for download) for your personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Content.
13. Privacy Notice. BD will only share your personally identifiable information in accordance with BD’s privacy notice (“Privacy Notice”) in effect from time-to-time and located at https://bd.com/dcapp-privacy/ which is incorporated herein by reference; your acceptance of this Agreement constitutes your acceptance and agreement to be bound by the Privacy Notice. NOTWITHSTANDING THE FOREGOING, YOU AFFIRM THAT YOU UNDERSTAND THAT SOME OF THE INFORMATION YOU INPUT INTO THE APP MAY BE PROTECTED HEALTH INFORMATION (“PHI”) OR PERSONALLY IDENTIFIABLE INFORMATION (“PII”) (COLLECTIVELY “PERSONAL INFORMATION”) AS THOSE TERMS ARE DEFINED UNDER APPLICABLE LAWS SUCH AS HIPAA, HITECH, CMIA AND SIMILAR STATE LAWS. SUCH INFORMATION MAY INCLUDE, BUT IS NOT LIMITED TO, YOUR DIAGNOSIS, MEDICATIONS, MEDICAL HISTORY, AND TREATMENT RECEIVED. YOU CONSENT TO BD USING ANY AND ALL OF YOUR PERSONAL INFORMATION FOR PURPOSES OF DEVELOPING THE APP AND THE WEBSITE AS WELL AS DEVELOPING FUTURE PRODUCTS AND SERVICES RELATED TO IMPROVING DIABETES CARE.
BD WILL NOT DISCLOSE YOUR INFORMATION DESCRIBED IN THIS SECTION TO ANY THIRD PARTY EXCEPT AS DESCRIBED IN THE PRIVACYNOTICE. TO THE EXTENT THAT YOUR IDENTIFIABLE HEALTH INFORMATION IS IMPERMISSIBLY DISCLOSED TO SUCH THIRD PARTY, BD MAY BE REQUIRED TO PROVIDE YOU WITH NOTICE OF SUCH DISCLOSURE.
14. Third Party Websites. The App may contain links to third party websites that are not owned or controlled by BD. When you access third party websites, you do so at your own risk. You hereby represent and warrant that you have read and agreed to be bound by all applicable policies of any third party websites or services relating to your use of the App and that you will act in accordance with those policies, in addition to your obligations under this Agreement. BD and the BD Parties have no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites. In addition, BD and the BD Parties will not and cannot monitor, verify, censor or edit the content of any third party site. Your interactions with organizations and/or individuals found on or through the App, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that BD and the BD Parties shall not be responsible or liable for any loss, damage or harm of any sort incurred as the result of any such dealings with any third parties or third party sites.
15. Connected Devices. If you use any sensors, wearable devices and similar technology (such as activity or fitness trackers, sleep monitoring devices, weight scales, and smartwatches), glucose meters or any other devices, medical or otherwise, in connection with the App (collectively, “Connected Devices”), you do so at your own risk. BD is not responsible for and does not have control over any Connected Devices, and makes no warranties regarding any Connected Devices or their interaction with the App. You agree that BD and the BD Parties shall not be responsible or liable for any loss, damage, or harm of any sort incurred as the result of your use of any Connected Devices.
16. User Disputes. If there is a dispute between Users of the App, or between Users and any third party, you understand and agree that BD and the BD Parties are under no obligation to become involved. In the event that you have a dispute with one or more other Users, you hereby release BD and BD Parties from claims, demands, and damages (whether actual, direct, incidental, special, consequential, exemplary, punitive or otherwise) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or the App. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
17. Indemnity. To the fullest extent allowed by law, you will indemnify and hold BD and BD Parties harmless from all damages, liabilities, settlements, expenses, fines, penalties, expenses, costs and attorneys’ fees arising from or related to any claim or demand made by any third party due to or arising out of your access to or use of the App, your access to, creation of, or transmittal of any of the Content, your violation of this Agreement, or the infringement by you (or any third party using your account) of any intellectual property or other right of any person or entity. Such indemnity obligation shall apply to all claims or demands of any kind unless (and only to the extent) directly arising from the sole active negligence or willful misconduct of BD or the BD Parties.
18. Disclaimers of Warranties and Liabilities.
a. Content. UNDER NO CIRCUMSTANCES WILL BD OR THE BD PARTIES BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APP OR WEBSITE. YOU ACKNOWLEDGE THAT BD AND THE BD PARTIES HAVE NO CONTROL OVER, AND NO DUTY TO TAKE ANY ACTION REGARDING: WHICH USERS GAIN ACCESS TO THE APP; WHAT CONTENT YOU ACCESS VIA THE APP; WHAT EFFECTS THE CONTENT MAY HAVE ON YOU; HOW YOU MAY INTERPRET OR USE THE CONTENT; OR WHAT ACTIONS YOU MAY TAKE AS A RESULT OF HAVING BEEN EXPOSED TO THE CONTENT. YOU RELEASE BD AND THE BD PARTIES FROM ALL LIABILITY RESULTING FROM OR IN ANY WAY RELATED TO YOU HAVING ACQUIRED OR NOT ACQUIRED CONTENT THROUGH THE APP. THE APP OR WEBSITE MAY CONTAIN, OR DIRECT YOU TO WEBSITES CONTAINING, INFORMATION THAT SOME PEOPLE MAY FIND OFFENSIVE OR INAPPROPRIATE. BD AND THE BD PARTIES MAKE NO REPRESENTATIONS CONCERNING ANY CONTENT, MATERIALS, OR INFORMATION CONTAINED IN OR ACCESSED THROUGH THE APP OR WEBSITE, AND BD AND THE BD PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF CONTENT, MATERIALS, OR INFORMATION CONTAINED IN OR ACCESSED THROUGH THE APP OR WEBSITE.
b. Not Medical Advice. NOTHING IN THE APP OR WEBSITE, NOR THEIR USE WITH ANY CONNECTED DEVICE, IS INTENDED TO BE MEDICAL ADVICE OR A SUBSTITUTE FOR MEDICAL ADVICE. YOU SHOULD CONSULT YOUR HEALTHCARE PROVIDER ABOUT ANY MEDICAL QUESTIONS OR CONCERNS YOU HAVE. YOU SHOULD ALSO CONSULT YOUR HEALTHCARE PROVIDER BEFORE USING THE APP OR WEBSITE. BD AND THE BD PARTIES SHALL HAVE NO LIABILITY FOR ANY ADVERSE EFFECTS ON YOUR HEALTH, OR ANY INJURY OR PERSONAL HARM, THAT RESULTS FROM OR IS RELATED TO YOUR USE OF THE APP OR THE WEBSITE, OR FROM YOUR ACCESS TO, USE OF, OR ACTIONS TAKEN IN RESPONSE TO, THE CONTENTS OR THEIR INTERACTION WITH ANY CONNECTED DEVICE.
c. Unavailability. BD AND THE BD PARTIES SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF DATA OR PROFITS) OR ANY OTHER CONSEQUENCES (INCLUDING PERSONAL INJURY OR DEATH) THAT LICENSEE MAY INCUR AS A RESULT OF ANY UNAVAILABILITY, SUSPENSION, OR TERMINATION OF THE APP OR WEBSITE.
d. Provided “As-Is,” Warranties Disclaimed. THE APP, WEBSITE, AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR FREEDOM AND SECURITY FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT USE OF THE APP OR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. ALL WARRANTIES ARE DISCLAIMED. SOME STATES DO NOT ALLOW DISCLAIMERS OR LIMITATIONS OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. ANY SURVIVING IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE YOU FIRST DOWNLOAD OF THE APP.
19. Limitation of Liability. IN NO EVENT SHALL BD OR THE BD PARTIES BE LIABLE WITH RESPECT TO THE APP, THE WEBSITE, THE CONTENT, OR THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF THE FEES PAID BY YOU THEREFOR OR $200; (II) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF BD OR THE BD PARTIES ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (III) FOR DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY; LOSS, DESTRUCTION, CORRUPTION OR THEFT OF DATA; VIRUSES OR SPYWARE; LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT; OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND BD'S REASONABLE CONTROL. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
20. Modification of the Agreement. BD reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the App, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the App following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
21. Term and Termination. This Agreement shall remain in full force and effect for as long as you use the App. The term of this Agreement shall commence upon your acceptance, and will remain in effect until and unless sooner terminated pursuant to the terms of this Agreement. You may terminate your use of the App at any time by following the instructions on the App. BD may terminate this Agreement, or terminate or suspend your access to the App and/or Website, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your use of the App and/or Website. BD may also terminate or suspend your access to the App and/or Website immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of this Agreement, your right to use the App and your access the App, Website, and any Content, will immediately cease.
23. Arbitration; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement, including any dispute involving BD and/or the BD Parties, shall be finally settled by arbitration in Santa Clara County, California using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND BD AND THE BD PARTIES ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY BD IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT (AS DESCRIBED IN THIS AGREEMENT) BY MAIL TO: Becton, Dickinson and Company, Attn: Legal Dept., 1 Becton Drive, Franklin Lakes, NJ 07417. YOUR WRITTEN NOTIFICATION TO BD MUST INCLUDE YOUR NAME AND ADDRESS AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES UNDER THIS AGREEMENT THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH BD OR YOUR ABILITY TO USE THE APP OR WEBSITE IN CONFORMITY WITH THIS AGREEMENT.
Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, and without waiving the foregoing arbitration clause, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.
24. Copyright Dispute Policy. BD has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at https://www.copyright.gov/legislation/dmca.pdf). The address of BD’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is BD’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or Users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through the App infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
2. Identification of works or materials being infringed;
3. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that BD is capable of finding and verifying its existence;
4. Contact information about the notifier including address, telephone number and, if available, email address;
5. A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is BD's policy:
1. to remove or disable access to the infringing material;
2. to notify the content provider, member or User that it has removed or disabled access to the material; and
3. that repeat offenders will have the infringing material removed from the system and that BD will terminate such content provider's, member's or User's access to the App.
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the content provider, member or User believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member or User believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider, member, or User, must send a counter-notice containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of the content provider, member or User;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
3. A statement that the content provider, member or User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
4. Content provider's, member's or User's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's, member's or User's address is located, or, if the content provider's, member's or User's address is located outside the United States, for any judicial district in which BD is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Designated Agent, BD may send a copy of the counter-notice to the original complaining party informing that person that BD may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or User, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at BD's discretion. Please contact BD's Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent to Receive Notification of Claimed Infringement
Becton, Dickinson and Company.
Attn: Legal Dept.
1 Becton Drive
Franklin Lakes, NJ 07417
25. Compliance with Export Regulations. You agree to comply with all export laws and restrictions and regulations of the United States (including, but not limited to, the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, or other United States agencies or authorities) and of the country in which you reside, are doing business in, are exporting to or the like. You shall not export, or allow the export or re-export of the App or related products and services in violation of any such restrictions, laws or regulations. By installing or using the App, you agree to comply with the above and represent and warrant that you (i) are not located in, under the control of, or a resident of 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) are not listed on any U.S. Government list of prohibited or restricted parties.
26. Contact. If you have any questions, complaints, or claims with respect to the App, you may contact us at firstname.lastname@example.org or:
BD Diabetes Care
Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, NJ 07417
27. Miscellaneous. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. BD shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond BD's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with BD's prior written consent. BD may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind BD in any respect whatsoever.
28. Special Terms When App is Obtained Through Apple. When the App is provided to you through Apple, Inc. or its affiliates (collectively, "Apple"), the following terms apply in addition to all the other terms and conditions of this Agreement:
a. This Agreement concluded between the parties, and not with Apple. Apple is not responsible for the App or its content; the App and its content are solely governed by this Agreement.
b. Notwithstanding anything to the contrary hereunder, you may use the App only on an iPhone or iPod touch that you own or control, subject to Apple's App Store Terms of Service.
c. The parties acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the App.
d. BD makes no warranties regarding the App. But in the event of any failure of the App to conform to any applicable warranty that is not effectively disclaimed, you may notify Apple, and Apple will refund the purchase price for the App (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Agreement.
e. Any (i) product liability claims relating to the App, (ii) claims that the App fails to conform to any applicable legal or regulatory requirement and (iii) claims arising under consumer protection or similar legislation are governed by this Agreement, and Apple is not responsible for such claims.
f. Any third party claim that the App or your possession and use of the App infringes that third party's intellectual property rights will be governed by this Agreement, and Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
g. Apple is a third party beneficiary to this Agreement and may enforce this Agreement against you.