TERMS AND CONDITIONS AGREEMENT BETWEEN USER AND ACON LABORATORIES, INC.

The ACON Laboratories, Inc. (“ACON Labs”)  On Call Care Alliance is comprised of various Web pages, software, and applications (including without limitation mobile applications) operated by ACON Labs. Please read the following Terms and Conditions carefully before using the Services offered by ACON Labs. This agreement sets forth the legally binding terms and conditions for each user’s use of the ACON Labs Services including, without limitation, any other software, services, features, content, websites (or other linked pages) or applications (including without limitation mobile applications) offered, from time to time, by ACON Labs in connection therewith (collectively “Services”).

The On Call Care Alliance Services are offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the On Call Care Alliance Services constitutes your agreement to all such terms, conditions, and notices.

By agreeing to these Terms and Conditions you are also representing that you are of the appropriate legal age to enter into such an agreement.

MODIFICATION OF THESE TERMS AND CONDITIONS

ACON Labs reserves the right to change the terms, conditions, and notices under which the On Call Care Alliance Services are offered.

SERVICES AND REGISTRATION PROCESS

The Services are designed to assist you, the user, in monitoring your blood glucose levels and sharing your glucose levels with select individuals who you have chosen to share this information with. You may choose to use the Services in connection with the On Call AppLink Bluetooth Adapter or you may use the Services with a supported On Call Data Transfer Cable. You may choose to use the Services in connection with your healthcare provider’s use of the Services as made available to you in your Healthcare Provider’s office.

Whether you purchase the Adapter and/or Data Transfer Cable from ACON Labs or receive it from a third-party Sponsor, such as a health-care provider, employer or an insurance company, the terms of this Agreement will apply to the use of the Services.

ACON Labs reserves the right, in its sole discretion, to modify or replace all or any part of the Terms and Conditions (including, without limitation, pricing and payment terms set forth in “Fees and Payment”), or change, suspend, or discontinue all or any part of the Services at any time by posting a notice on the Services or by sending you an email. It is your responsibility to check the Terms and Conditions periodically for changes. Your continued use of the Services following the posting of any changes to the Terms and Conditions constitutes acceptance of those changes.

Any information you provide ACON Labs shall be accurate, complete and updated. You are solely responsible for the activity that occurs on your account and for maintaining the security of the Application and any information you input to the Application. You shall not use or access another user’s account without such other user’s express permission. You will immediately notify ACON Labs in writing of any unauthorized use of your account, or any other account-related security breach of which you are aware.

LINKS TO THIRD PARTY SITES

The On Call Care Alliance Services may contain links to other Web Sites ("Linked Sites"). The Linked Sites are not under the control of ACON Labs and ACON Labs is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. ACON Labs is not responsible for webcasting or any other form of transmission received from any Linked Site. ACON Labs is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by ACON Labs of the site or any association with its operators.

REGISTRATION AND ACCOUNT INTEGRITY

  1. a) As part of the registration process you will need to create an account, including a username and password. It is your responsibility to ensure that the information you provide is accurate and secure, not misleading. You cannot create an account or username and password using the names and information of another person or using words that are the trademarks or the property of another party (including ours), or vulgar, obscene or in any other way inappropriate. We reserve the right with or without notice to suspend or terminate any account in breach.
  2. b) User licenses cannot be shared between users. A breach of this clause may result in termination of the abused accounts and/or all accounts provided to the organization.
  3. c) If for any reason you suspect that your username and password has been disclosed to or obtained by another party you should contact us immediately. Please note that we never contact users requesting them to confirm their username and password or other details.
  4. d) If you initially and or only use the On Call Care Alliance via your Healthcare Provider at the office of your Healthcare Provider all terms of this agreement apply.

NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the ACON Labs Web Site, you warrant to ACON Laboratories, Inc. that you will not use the ACON Laboratories, Inc. Web Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the On Call Care Alliance Services in any manner which could damage, disable, overburden, or impair the On Call Care Alliance Services or interfere with any other party's use and enjoyment of the On Call Care Alliance Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the On Call Care Alliance Services.

USE OF YOUR INFORMATION

If you create, transmit, submit, display or otherwise make available information (including, without limitation, information you have made available automatically through connection of the Adapter and/or Data Transfer Cable to the Application) while using the Services, you may provide only information that you own or have the right to use. When you provide access to any such information through the Service, you give ACON Labs a license to fully use and exploit that information in connection with providing you the Service. However, ACON Labs may only use the information you provide as permitted by the On Call Care Alliance Privacy Policy, and applicable law. For example, ACON Labs will never share your personally identifiable information without your prior permission. If you use the Service in connection with your Healthcare Provider, you agree to allow your Healthcare Provider to access and review your data and to transfer that data to your file on their Electronic Health Record “EHR.”  Your consent to share your data with your Healthcare Provider is in no way a condition of your continuing to receive treatment from that Healthcare Provider. Please closely review our Privacy Policy for more information regarding how we use and disclose your personal information. Our Privacy Policy is hereby incorporated into these Terms and Conditions by this reference.

USE OF COMMUNICATION SERVICES

The On Call Care Alliance Services contain message or communication facilities designed to enable you to communicate with select individuals. You agree to use the Communication Services only to send and receive messages and material that are proper and related to the particular Communication Services. By way of example, and not as a limitation, you agree that when using a Communication Services, you will not:

  • Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others
  • Restrict or inhibit any other user from using and enjoying the Communication Services.
  • Violate any code of conduct or other guidelines which may be applicable for any particular Communication Services.
  • Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
  • Violate any applicable laws or regulations.

ACON Labs has no obligation to monitor the Communication Services. However, ACON Labs reserves the right to review materials posted to a Communication Services and to remove any materials in its sole discretion. ACON Labs reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.

ACON Labs reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in ACON Labs' sole discretion.

Always use caution when giving out any personally identifying information about yourself or others in any Communication Services. ACON Labs does not control or endorse the content, messages or information found in any Communication Services and, therefore, ACON Labs specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Services.

EMAIL COMMUNICATIONS

By using the On Call Care Alliance Services, you hereby agree to accept and receive automated email communications as a part of the included Services. Email communications may be sent when:

  • An On Call Care Alliance user invites another user or nonuser to become a member of their support team and view their glucose data
  • A Healthcare Provider invites an On Call Care Alliance user or nonuser to become a user and share their glucose data as a part of their patient network within the On Call Care Alliance
  • A Patient invites a Healthcare Provider to connect via the On Call Care Alliance and view their data
  • A Patient, Support Team Member, or Healthcare Provider accepts an invitation from another Patient, Support Team Member, or Healthcare Provider
  • A Patient removes a Healthcare Provider from their list of “People who support me”
  • A user that registers for an account on the On Call Care Alliance will be sent a verification email. Clicking the link in the verification email completed the registration process

Receipt of email communications can only be cancelled by cancelling your On Call Care Alliance account and forfeiting access to all features and services included. ACON Labs reserves the right to immediately and without notification terminate any users who have been reported to ACON Labs as a result of misuse of email communications. If your email address changes, you the user are responsible for updating your information within the “My Account” portion of the On Call Care Alliance web portal or mobile application. ACON Labs is not responsible for any communications that are not received due to an incorrect email address you have entered in the “My Account” area of the On Call Care Alliance Services.

You understand and agree that any alerts provided to you through the Services may be delayed or prevented by a variety of factors. ACON Labs will do its best to provide alerts in a timely manner with accurate information. However, we neither guarantee the delivery nor the accuracy of the content of any alert. You also agree that ACON Labs shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.

Because alerts are not encrypted, we will never include your password, blood glucose levels, number of times you tested your blood glucose, or other sensitive information. However some information including your name, names of users who have requested to share their account information with you, and the names of users who you have requested to share your account information with may be included. Anyone with access to your email will be able to view the content of these alerts.

NOT MEDICAL ADVICE

ACON Labs does not offer medical advice or diagnoses, or engage in the practice of medicine. Our Services are not intended to be a substitute for professional medical advice, diagnosis, or treatment and is offered for informational purposes only. Always seek the advice of your physician or other qualified health provider with any questions regarding your medical condition or the use (or frequency) of any medication or medical device. Never disregard professional medical advice or delay in seeking it because of something you have read in connection with our Services.

You are solely responsible for any decisions or actions you take based on the information and materials available through the Services. Reliance on any information provided by ACON Labs or in connection with the Services is solely at your own risk.

If you think you may have a medical emergency, call your doctor or 911 immediately

COMMERCIAL USE

As noted above, the Services (including without limitation, any Content) is provided to you for your personal, non-commercial use. If you are interested in using the On Call Care Alliance Services in a professional or commercial environment including accessing data from individual On Call Care Alliance users leveraging the On Call Care Alliance CSV or Application Programmer Interfaces (API’s), you must contact ACON Labs to obtain and agree to other written terms and conditions (e.g. a HIPAA Business Associate Agreement/BAA).

LIABILITY DISCLAIMER

THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE ON CALL CARE ALLIANCE SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. ACON LABS AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE ON CALL CARE ALLIANCE SERVICES AT ANY TIME. ADVICE RECEIVED VIA THE ON CALL CARE ALLIANCE SERVICES SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.

ACON LABS AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE ON CALL CARE ALLIANCE SERVICES FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. ACON LABS AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ACON LABS AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE ON CALL CARE ALLIANCE SERVICES, WITH THE DELAY OR INABILITY TO USE THE ON CALL CARE ALLIANCE SERVICES OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE ON CALL CARE ALLIANCE SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE ON CALL CARE ALLIANCE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF ACON LABS OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE ON CALL CARE ALLIANCE SERVICES, OR WITH ANY OF THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE ON CALL CARE ALLIANCE SERVICES.

TERMINATION/ACCESS RESTRICTION

ACON Labs reserves the right, in its sole discretion, to terminate your access to the On Call Care Alliance Services and the related Services or any portion thereof at any time, without notice. GENERAL To the maximum extent permitted by law, this agreement is governed by the laws of the State of California, U.S.A. and you hereby consent to the exclusive jurisdiction and venue of courts in San Diego County, California, U.S.A. in all disputes arising out of or relating to the use of the On Call Care Alliance Services. Use of the On Call Care Alliance Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and ACON Labs as a result of this agreement or use of the On Call Care Alliance Services. ACON Lab’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of ACON Labs' right to comply with governmental, court and law enforcement requests or requirements relating to your use of the On Call Care Alliance Services or information provided to or gathered by ACON Labs with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and ACON Labs with respect to the On Call Care Alliance Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and ACON Labs with respect to the On Call Care Alliance Services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be drawn up in English.

COPYRIGHT AND TRADEMARK NOTICES:

All contents of the On Call Care Alliance Services are: © 2016 ACON Laboratories, Inc. and/or its suppliers. All rights reserved.

TRADEMARKS

The names of actual companies and products mentioned herein may be the trademarks of their respective owners.

The example companies, organizations, products, people and events depicted herein are fictitious. No association with any real company, organization, product, person, or event is intended or should be inferred.

Any rights not expressly granted herein are reserved.

NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Services Provider's Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement.

DISPUTE RESOLUTION

A printed version of the Terms and Conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and ACON Labs agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. The Terms of Use shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Diego County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving commercial contract disputes. The prevailing party in the arbitration (or permissible court action described below) shall be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction. 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, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the Southern District of California.

You also acknowledge and understand that, with respect to any dispute with ACON Labs, its officers, directors, employees, agents or affiliates, arising out of or relating to your use of the Service or this Agreement:

  • YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND
  • YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.

THE APPLICATION

  • In order to use the Service, you must download the Application. The following shall apply to your use of the Service in connection with the Application:

–Both you and ACON Labs acknowledge that this Agreement is concluded between you and ACON Labs only; and not with Apple or Google or any other manufacturer’s products that you might use to access the On Call Care Alliance, and that Apple or Google or any other manufacturer’s products that you might use to access the On Call Care Alliance is not responsible for the Application or the Content;

–The Application is licensed to you on a limited, non-exclusive, non-transferable, non-sub-licensable basis. The Application is solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Service;

–You will only use the Application in connection with an Apple or Android device that you own or control;

–You acknowledge and agree that Apple/Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;

–You acknowledge and agree that ACON Labs, and not Apple or Google, is responsible for addressing any claims you or any third party may have in relation to the Application;

–You acknowledge and agree that in the event of any third party claim that the Application, or your possession and use of the Application, infringes upon that third party’s intellectual property rights, ACON Labs, and not Apple or Google, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

–You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;

–Both you and ACON Labs acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and

–Both you and ACON Labs acknowledge and agree that Apple/Google and Apple’s/Google’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple/Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.

CONTACT

If you have any questions regarding the Service, please contact ACON Labs at 858-875-8027.

ACON Laboratories, Inc. 10125 Mesa Rim Road, San Diego, California USA 92121