END-USER LICENSE AGREEMENT (UNITED STATES)
Effective Date: May 2018
Last Updated: September 22, 2022
IMPORTANT – PLEASE READ THE TERMS OF THIS END-USER LICENSE AGREEMENT (THE “EULA”) CAREFULLY. THIS EULA IS A BINDING, CONTRACTUAL AGREEMENT BETWEEN YOU AND SENSEONICS, INCORPORATED (“SENSEONICS”) AND APPLIES TO YOUR USE, AS APPLICABLE, OF SENSEONICS’ EVERSENSE® MOBILE APPLICATION, EVERSENSE® DATA MANAGEMENT SYSTEM (DMS), EVERSENSE® DMS PRO SOFTWARE, EVERSENSE® “NOW” MOBILE APPLICATION, AND/OR ANY OTHER SENSEONICS SOFTWARE OR APPLICATIONS, INCLUDING ALL ENHANCEMENTS, VERSIONS, AND MODIFICATIONS TO THE FOREGOING (EACH AND COLLECTIVELY, THE “SENSEONICS PRODUCTS AND SERVICES”). THIS EULA APPLIES TO YOUR USE OF THE SENSEONICS PRODUCTS AND SERVICES UNDER APPLICABLE UNITED STATES LAWS AND REGULATIONS. THIS EULA DOES NOT APPLY TO YOUR USE OF ANY OTHER PRODUCTS AND SERVICES PROVIDED BY SENSEONICS.
THE PROCESSING OF YOUR PERSONAL AND/OR HEALTH-RELATED DATA IN THE CONTEXT OF YOUR USE OF SENSEONICS PRODUTS AND SERVICES, INCLUDING OUR DEVICES, IS GOVERNED BY SENSEONICS’ ‘EVERSENSE® CONTINUOUS GLUCOSE MONITORING SYSTEM PRVACY NOTICE” HYPERLINKED TO https://www.eversensediabetes.com/privacy-policy, WHICH IS HEREBY INCORPORATED INTO THIS EULA.
BY ACCEPTING THE EULA AS DESCRIBED ABOVE, YOU (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS EULA (AND THE DOCUMENTS INCORPORATED BY REFERENCE SUCH AS THE PRIVACY NOTICE); (2) REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT; AND (3) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS EULA PERSONALLY. ONLY INDIVIDUALS MAY ENTER INTO THIS EULA. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS EULA, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS EULA OR ACCESS, INSTALL, OR USE SENSEONICS PRODUCTS AND SERVICES.
PLEASE NOTE THAT THIS EULA MAY APPLY TO EITHER (1) PATIENTS OF “SENSEONICS PRODUCTS AND SERVICES” WHO WILL USE THE SENSEONICS PRODUCTS AND SERVICES FOR THEIR OWN INFORMATION AND DIABETES MANAGEMENT, OR (2) NON-PATIENT USERS (SUCH AS HEALTHCARE PROVIDERS, FAMILY MEMBERS, OR CAREGIVERS OF PATIENTS) OF SENSEONICS PRODUCTS AND SERVICES, WHO HAVE BEEN GIVEN AUTHORIZATION BY THE PATIENT TO ACCESS THE PATIENT’S DATA THROUGH THE USE OF SENSEONICS PRODUCTS AND SERVICES. WHERE ANY TERMS AND CONDITIONS OF THIS EULA APPLY TO ONE TYPE OF USER BUT NOT THE OTHER, THIS EULA WILL INDICATE SO THROUGH LABELS, TITLES, OR PREFACES.
Please note that this EULA is subject to change by Senseonics in its sole discretion at any time. When changes are made, Senseonics will provide an updated version of the EULA available in the Senseonics Products and Services. We will also update the “Last Updated” date at the top of this EULA. Depending on the nature of the update and the applicable data privacy and security laws, Senseonics may require you to provide an additional consent to the updated EULA in a specified manner before further use of the Senseonics Products and Services is permitted.
Patients of Senseonics Products and Services. If you are a patient utilizing Senseonics Products and Services, please note that you must obtain certain Senseonics continuous glucose monitoring (CGM) equipment (“Equipment”) from a healthcare provider or supplier pursuant to a valid prescription. The Senseonics Products and Services you are using (for example, the Eversense Mobile App or Eversense DMS) may not be fully functional without such Equipment. The Senseonics Products and Services enable health information collected by the Equipment to be displayed and transmitted through the Senseonics Products and Services, and conveniently shared with your healthcare provider, family member, and/or caregiver (“Designated Recipients”). You agree that we have no control over your Designated Recipients. We do not verify the contact information you provide for each Designated Recipient. Once you provide such contact information, until you terminate the designation, we will send your data to the contact information you have authorized, and you are responsible for the accuracy of that information. Therefore, please take appropriate care and thought in deciding who will be Designated Recipients of your data.
If the Senseonics Products and Services are installed on your mobile device, your device may need to be physically near the Equipment to enable full functionality. In addition, the maintenance and security of this Equipment may influence the performance of the Senseonics Products and Services. Under this EULA, it is your responsibility to ensure the Equipment’s maintenance and functionality.
Non-Patients of Senseonics Products and Services. As an individual given authorization to access the personal and health information of a patient, your use of the Senseonics Products and Services (for example, DMS Pro or the Eversense NOW Mobile App) will not require obtaining or purchasing the Equipment. You understand and agree that your access to a patient’s data through these Senseonics Products and Services shall be permitted and determined only by the patient’s express authorization (which the patient may arrange for through the Senseonics Products and Services). By utilizing these Senseonics Products and Services, you agree that your access and use of the patient data shall solely be for purposes defined by the patient, and consistent with monitoring and/or analyzing glucose levels and trends experienced by the patient. You agree not to share the patient data with any third parties without the appropriate consent of the patient. The patient, in his/her sole discretion, may choose to limit or terminate your access to their data through the Senseonics Products and Services at any time.
Our goal is to provide helpful and accurate information through the Senseonics Products and Services, but we make no endorsement, representation or warranty of any kind about any information displayed therein. We are not responsible for the correct use of information you receive through the Senseonics Products and Services. If you rely on any such information, you do so solely at your own risk. Senseonics Products and Services are not intended to diagnose, treat, cure, or prevent any disease. If you are a patient, you must consult with a healthcare professional regarding your use of the Equipment. We are not responsible for any health problems that may result from information obtained through the Senseonics Products and Services.
1. SENSEONICS PRODUCTS AND SERVICES
1.1 License. Subject to your compliance with this EULA, Senseonics grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Senseonics Products and Services on a mobile device, tablet, and/or computer that you own or control, and to run such copy of the Senseonics Products and Services solely for your personal, non-commercial use.
1.2 Apple® and Android® App Stores. You acknowledge and agree that the availability of the Senseonics Products and Services is dependent on the third party from whom you received / downloaded the Senseonics Products and Services, i.e., the Apple App Store or Google® Play Store (“App Store”). With respect to any Senseonics Products and Services accessed through or downloaded from the Apple App Store (an “Apple-Sourced Application”), you will only use the Apple-Sourced Application (i) on an Apple-branded product that runs iOS® (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. (See also Section 1.3 below regarding additional terms for Senseonics Products and Services obtained through Apple iTunes.) Similarly, with respect to any Senseonics Products and Services accessed through or downloaded from a Google Play Store, you will only use the Senseonics Products and Services (i) on a compatible Android device and (ii) as permitted by the applicable terms and conditions of the Google Play Store.
You acknowledge that this EULA is between you and Senseonics, and not with the App Store. Senseonics, not the App Store, is solely responsible for the Senseonics Products and Services, the content thereof, maintenance, support services, warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). In order to use the Senseonics Products and Services with full functionality, you must have access to a wireless network or internet access, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by an App Store in connection with the Senseonics Products and Services. You agree to comply with, and your license to use the Senseonics Products and Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Senseonics Products and Services. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this EULA and will have the right to enforce it.
1.3 Additional Terms for Senseonics Products and Services from Apple App Store (or iTunes). The following applies to any Senseonics Products and Services accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) this EULA is between you and Senseonics only, and not Apple, and (ii) Senseonics, not Apple, is solely responsible for the Apple-Sourced Application and content thereof. Notwithstanding this, your use of the Apple-Sourced Application must comply with the applicable Apple App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Application.
(c) In the event of any failure of the Apple-Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Application to you and to the maximum extent permitted by applicable law, but Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Application. As between Senseonics and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Senseonics.
(d) You and Senseonics acknowledge that, as between Senseonics and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple-Sourced Application or your possession and use of the Apple-Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Senseonics acknowledge that, in the event of any third party claim that the Apple-Sourced Application, or your possession and use of that Apple-Sourced Application, infringes that third party’s intellectual property rights, as between Senseonics and Apple, Senseonics, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this EULA.
(f) You and Senseonics acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this EULA as related to your license of the Apple-Sourced Application, and that, upon your acceptance of this EULA and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA as related to your license of the Apple-Sourced Application against you as a third party beneficiary thereof.
(g) Without limiting any other terms of this EULA, you must comply with all applicable third-party terms of agreement when using the Apple-Sourced Application.
1.4 Open-Source Products and Services. Certain software code incorporated into or distributed with the Senseonics Products and Services may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this EULA, the Open Source Software is not licensed under Section 1.1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
1.5 Data and Privacy. In all cases, all patient and non-patient data that is collected, transmitted, and stored through the Senseonics Products and Services and Senseonics devices is governed by and subject to Senseonics’ Eversense® Continuous Glucose Monitoring System Privacy Notice (the “Privacy Notice”).
The following data and privacy provisions in this Section 1.5 are relevant for users in the United States.
As stated in the introduction above, the Privacy Notice is incorporated into this EULA. By agreeing to this EULA and using the Senseonics Products and Services, you acknowledge that you have read and agree to the Privacy Notice. This includes Senseonics’ use of your Personal Information (information that can be used to identify you personally, as defined in more detail in the Privacy Notice), non-personal information, device/computer technical data, and other information as described herein.
While Senseonics is not a “Covered Entity” under the Health Information Portability and Accountability Act of 1996, as amended and as implemented by the associated regulations (“HIPAA”) and therefore not subject to HIPAA Standards, Senseonics takes data privacy and security very seriously and follows industry standards for data protection and safeguards when it comes to the collection, storage, handling, and transmission of patient data.
By using the Senseonics Products and Services, you agree to allow the Senseonics Products and Services to store relevant personal and (if you are a patient) health data on your mobile device, computer, tablet, or other similar device, including your email address, login information, and certain health information. This information shall be transmitted to Senseonics’ database/server through your smartphone’s mobile data service, Wi-Fi, or internet access. Your data stored in and collected through the Senseonics Products and Services will be saved based on regulatory requirements, legal requirements and other factors set out in the Privacy Notice, with appropriate, industry-standard levels of data security and protection, on a Senseonics server in The Dalles, Oregon.
Usage Data. In addition to the data displayed through the Senseonics Products and Services, the Senseonics Products and Services may, from time to time, automatically report back information to Senseonics’ servers related to usage of the Senseonics Products and Services without notice to you (“Usage Data”). Usage Data by itself does not include Personal Information (defined below) and may be used by Senseonics as it deems appropriate in compliance with all applicable laws, including helping diagnose and resolve technical and performance issues in relation to the Senseonics Products and Services. By using the Senseonics Products and Services, you hereby consent and agree to such collection, transmission, and use of Usage Data and agree to get all necessary consent(s) from any authorized user and/or patient for such contemplated usage.
Personal Information. Any Personal Information collected through your use of the Senseonics Products and Services may be utilized to contact you by phone, email, and/or text for various appropriate reasons (as outlined in the Privacy Notice). As an example, Senseonics may contact you to ensure that you are properly using the Equipment and Senseonics Products and Services (if you are a patient), to offer assistance and guidance as appropriate, to provide technical or important updates, and/or to offer promotions, programs, and educational information. To accomplish these efforts and services, Senseonics may share or transmit your Personal Information to third parties, in accordance with the Privacy Notice. Except in cases where Senseonics may be required to disclose Personal Information (for example, to the FDA or other government agencies), any data transfer to third parties in most situations shall be accomplished through an appropriate written agreement, with clear requirements for data protection and confidentiality.
Technical Data. In addition, the Senseonics Products and Services will save and transmit to Senseonics certain information regarding your mobile device, tablet, and/or computer, such as the specific model, operating system, issues with installation and operation, and other technical information that will be used to maintain and improve the Senseonics Products and Services for all users as well as your own experience.
De-identified Information. Also in accordance with the Privacy Notice, Senseonics may utilize any of your de-identified data (which cannot be used to identify you personally) for any legitimate purpose, including towards improving Senseonics Products and Services, customer service enhancement, new product development, research, training and education, and/or data analytics. By agreeing to this EULA, you are giving Senseonics consent to use your de-identified data as described herein and in the Privacy Notice.
1.6 Ownership. You agree that Senseonics and its suppliers own all rights, title and interest in the Senseonics Products and Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Senseonics Products and Services.
1.7 No Medical Services. You understand and agree that Senseonics does not provide any licensed health care services, nor does Senseonics provide medical, health, or other professional advice or decision-making, through the Senseonics Products and Services or otherwise. In addition, Senseonics does not monitor or verify the accuracy of your use of the Senseonics Products and Services. Notwithstanding this, if you are a patient, you may authorize your physician other healthcare provider to access your data through the Senseonics Products and Services for consultation, analysis, therapy decisions, and/or adjustments to your care.
1.8 In Case of Medical Emergency. If you think you may have a medical emergency, call your doctor or 911 (in the United States) immediately. The content provided on or through the Senseonics Products and Services does not offer medical advice, decision making, or opinion, is for your general education and information only, and cannot replace your relationship with your healthcare provider. Accordingly, you should always talk to your healthcare provider for diagnosis, therapy, and treatment decisions.
2. USE OF THE SENSEONICS PRODUCTS AND SERVICES
2.1 Updates. Senseonics may require you to accept updates to the Senseonics Products and Services that you have installed on your mobile device, tablet, and/or computer. You acknowledge and agree that Senseonics may update the Senseonics Products and Services with or without notifying you. You may need to update third-party software from time to time in order to use the Senseonics Products and Services.
2.2 Certain Restrictions. As a condition of use, you agree not to use the Senseonics Products and Services for any purpose that is prohibited by the EULA or by applicable law. You shall not (and shall not permit any third party to): (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Senseonics Products and Services, (b) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Senseonics Products and Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) interfere with or attempt to interfere with the proper functioning of the Senseonics Products and Services; (d) attempt to engage in or engage in, any potentially harmful acts that are directed against the Senseonics Products and Services or Senseonics, including but not limited to violating or attempting to violate any security features of the Senseonics Products and Services; or (e) access the Senseonics Products and Services in order to build a similar or competitive website, application or service. Any future release, update or other addition to the Senseonics Products and Services shall be subject to this EULA. Senseonics, its suppliers and service providers reserve all rights not granted in this EULA. Any unauthorized use of the Senseonics Products and Services terminates the licenses granted by Senseonics pursuant to this EULA.
2.3 User Content. The Senseonics Products and Services may contain features or methods that allow users to submit and share texts, feedback, suggestions, ideas, commentary, messages, information, documents, images, questions, links, and other material through the Senseonics Products and Services or directly to Senseonics (all together, “User Content”).
You take sole responsibility for all User Content you submit, and all User Content you submit must be your own. You grant Senseonics and its affiliates a non-exclusive, worldwide, royalty-free license (with the right to sublicense) to reproduce, distribute, publicly display and perform, transmit, adapt, and translate any User Content you submit, in whole or in part and in any medium now known or later developed, for any purpose (with the exception of any User Content that consists of Personal Information). You represent and warrant that the User Content you submit does not (i) defame any party; (ii) violate any party’s copyright, trademark, patent, trade secret, right to privacy or publicity, or any other proprietary or personal right; (iii) contain any material or information furnished to you in confidence or with the understanding that it would not be disclosed or published (including, but not limited to, any confidential information related to the business of your employer, colleagues, or clients); or (iv) otherwise violate any applicable law or regulation. You additionally represent, warrant and covenant that you are under no obligation that would in any way interfere with the disclosure or use of any User Content you submit.
3. ACCOUNT REGISTRATION AND SECURITY.
You may be required to register and create an account in order to use the Senseonics Products and Services. The Senseonics Privacy Notice describe the registration process and the Personal Information collected. To access your account in the Senseonics Products and Services, you will typically need to log in using your e-mail address and password. You are responsible for keeping this password confidential, and we recommend that you do not share your password with anyone. If you feel that your interactions, communications, or data sharing with Senseoncis or through Senseonics Products and Services are no longer secure, have been inappropriately handled, or may be subject to a security breach, please immediately notify us by e-mailing firstname.lastname@example.org.
Senseonics complies with its labeling and regulatory approvals in all applicable countries and territories, and will only market and promote the Senseonics Products and Services to approved age groups. Currently, Senseonics Products and Services is not marketed or intended for use by individuals under 18 years of age in any jurisdiction. Further, and taking into account all applicable laws, under no circumstances will Senseonics knowingly market, promote, or recommend Senseonics Products and Services to any persons under the age of 13, nor will we knowingly collect any data from persons under 13. It is possible that a parent or legal guardian may subscribe to Senseonics Products and Services to assist in the provision of care for a patient who is under 13 (a decision to be made solely by the parent/guardian and the patient’s physician, without promotion or recommendation by Senseonics), but no person under 13 is permitted to directly use Senseonics Products and Services.
5. ADULTS WITH GUARDIANS, CONSERVATORS OR OTHER LEGAL SUPERVISION.
No person who lacks the legal competence to enter into a contract may directly use Senseonics Products and Services. A legal guardian, conservator or other person with the legal right to do so may subscribe to Senseonics Products and Services to assist in the provision of care for such a person. Such legal guardian, conservator or other person with legal right shall be responsible for ensuring that the decision to use Senseonics Products and Services is by such legal guardian, conservator or other person with legal right (along with the applicable healthcare professional), and not by the patient who lacks legal competence.
6. YOUR IDEAS, COMMENTS, AND FEEDBACK.
While Senseonics welcomes your comments, suggestions, feedback and/or ideas submitted on or through our sites or Products and Services, please note that any such information will be considered non-personal, non-confidential, and non-proprietary. By providing any ideas, information, concepts, know-how, techniques or materials to us through our sites or Products and Services, you grant Senseonics an unrestricted, royalty-free, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute them in any medium, and agree that Senseonics is free to use them for any purpose.
7. Copyrights, Trademarks, and Use.
The content on Senseonics Products and Services belong to us, and are protected by United States and foreign copyright laws. You may e-mail, download, or print copies of the materials on Senseonics Products and Services, but only for your personal, noncommercial use. When you e-mail, download, or print a copy of the content from Senseonics Products and Services, you must also include all applicable copyright and other notices. We also own the names we use for Senseonics Products and Services, and these names are protected by United States and foreign trademark laws. An ® following a name indicates that the trademark has been registered in the United States; a ™ following a name indicates that it is an unregistered trademark. All trademarks are the property of Senseonics, and any violation of copyright, trademark, and other laws will automatically result in a revocation of your permission to use Senseonics Products and Services. At all times, we shall possess title to all of our content and materials. All rights not expressly granted are reserved.
As a user of Senseonics Products and Services, you agree not to present a link to Senseonics Products and Services in any way that is associated with advertising or appears to be an endorsement of any organization, product, or service. You agree that the link will not appear elsewhere in a manner that may be considered offensive, defamatory, harassing, obscene, or malicious.
To the extent permitted by applicable laws, you agree to indemnify and hold Senseonics and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Senseonics Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) any data or Personal Information (as such term is defined in the Privacy Notice) you submit to or through the Senseonics Products and Services; (b) your use of, or inability to use, the Senseonics Products and Services; (c) your violation of this EULA; (d) your violation of any rights of another party, or (e) your violation of any applicable laws, rules or regulations. Senseonics reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Senseonics in asserting any available defenses. You agree that the provisions in this section will survive any termination of this EULA.
9. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SENSEONICS PRODUCTS AND SERVICES IS AT YOUR SOLE RISK, AND THE SENSEONICS PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE SENSEONICS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE SENSEONICS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SENSEONICS PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE SENSEONICS PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SENSEONICS PRODUCTS AND SERVICES AND THE SENSEONICS PRODUCTS AND SERVICES THEMSELVES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SENSEONICS PRODUCTS AND SERVICES WILL BE CORRECTED. THE SENSEONICS PRODUCTS AND SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE SENSEONICS PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY DATA THROUGH THE SENSEONICS PRODUCTS AND SERVICES. THE SENSEONICS PARTIES HAVE NO CONTROL OVER AND ASSUME NO RESPONSIBILITY FOR ANY PERSONAL INFORMATION THAT IS SHARED BY YOU WITH ANY THIRD PARTIES.
10. LIMITATION OF LIABILITY
10.1 DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SENSEONICS OR ANY PERSON OR COMPANY ASSOCIATED WITH SENSEONICS, INCLUDING WITHOUT LIMITATION THE SENSEONICS PARTIES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SENSEONICS PRODUCTS AND SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT SENSEONICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS EULA, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SENSEONICS PRODUCTS AND SERVICES; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (3) ANY OTHER MATTER RELATED TO THE SENSEONICS PRODUCTS AND SERVICES. THIS PROTECTION COVERS ALL SENSEONICS PARTIES AND APPLIES TO ANY CLAIMS BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY. THIS PROTECTION COVERS ALL LOSSES INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, AND PUNITIVE DAMAGES. SENSEONICS PRODUCTS AND SERVICES ARE EXCLUDED EVEN IF SENSEONCIS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 CAP ON LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, THE TOTAL LIABILITY OF THE SENSEONICS PARTIES FOR DAMAGES SHALL BE LIMITED TO THE AMOUNT OF ACTUAL DAMAGES, IF ANY, NOT TO EXCEED $10.00 AND UNDER NO CIRCUMSTANCES WILL THE SENSEONICS PARTIES BE LIABLE TO YOU IN THE AGGREGATE FOR MORE THAN TEN DOLLARS ($10.00).
10.3 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SENSEONICS AND YOU.
11. TERM AND TERMINATION
11.1 Term. This EULA will commence on the date when you accept it (as described in the preamble above) and remain in full force and effect until terminated in accordance with this Section 7.
11.2 Termination by Senseonics. If you have breached any provision of this EULA, or if the Senseonics is required to do so by law (e.g., where the provision of the Senseonics Products and Services is, or becomes, unlawful), Senseonics has the right to suspend or terminate any services provided to you. You agree that all terminations for cause shall be made in Senseonics’ sole discretion and that Senseonics shall not be liable to you or any third party for any termination of your Account. In addition, the provision of certain functionality provided by Senseonics through the Senseonics Products and Services will automatically terminate if you no longer use or have access to the Equipment.
11.3 Termination by You. If you want to terminate any services provided by Senseonics through the Senseonics Products and Services, you may do so by deleting the Senseonics Products and Services.
11.4 Effect of Termination. To the extent permitted by applicable laws, termination includes deletion of all data on the Senseonics Products and Services (with the understanding that data may remain on any Equipment being used and/or the applicable Senseonics server). Senseonics will not have any liability whatsoever to you for any suspension or termination. All provisions of this EULA which by their nature should survive, shall survive termination of this EULA, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12. GENERAL PROVISIONS
12.1 Electronic Communications. The communications between you and Senseonics use electronic means. For contractual purposes, you (1) consent to receive communications from Senseonics in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Senseonics provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
12.2 Release. You hereby release the Senseonics Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises out of the Senseonics Products and Services or your use thereof. If you are a California resident, you hereby 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.”
12.3 Assignment. This EULA, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Senseonics’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
12.4 Force Majeure. Senseonics shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.5 Dispute Resolution. If you believe that Senseonics has not adhered to this EULA, please contact Senseonics by emailing us at EULA@senseonics.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
12.6 Choice of Law and Venue. This EULA and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflict of laws principles that require the application of the law of a different state. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which Senseonics’ principal place of business is located for any lawsuit filed against you by Senseonics arising from or related to this EULA. The United Nations Convention on Contracts for the International Sale of Good does not apply to this EULA.
12.7 Limitations Period. YOU AND SENSEONICS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS EULA MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
12.8 Notice. Where Senseonics requires that you provide an e-mail address, you are responsible for providing Senseonics with your most current e-mail address. In the event that the last e-mail address you provided to Senseonics is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this EULA, Senseonics’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Senseonics at EULA@senseonics.com
12.9 Waiver. Any waiver or failure to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.10 Severability. If any provision of this EULA is, for any reason, held to be invalid or unenforceable, the other provisions of this EULA will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.11 Export Control. You may not use, export, import, or transfer the Senseonics Products and Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Senseonics Products and Services, and any other applicable laws. In particular, but without limitation, the Senseonics Products and Services may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Software, you represent and warrant that (i) you are not located in a country Senseonics Products and Services 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 also will not use the Senseonics Products and Servicesfor any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Senseonics are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Senseonics products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.12 Entire Agreement. This EULA is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof, and supersedes and merges all prior discussions between the parties with respect to such subject matter.
MKT-5007-01-000 Rev 2 09/22