Terms of Service

THESE TERMS OF SERVICE OF COMPANION MEDICAL, INC. ARE EFFECTIVE AS OF SEPTEMBER 1, 2017 AND REPLACE ANY PRIOR TERMS OF SERVICE.

PLEASE NOTE THAT SECTION 8 CONTAINS A REQUIREMENT THAT CERTAIN DISPUTES WILL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION AND A CLASS ACTION WAIVER.

These Terms of Service (“Terms of Service”) are an agreement between Companion Medical, Inc., a

Delaware corporation (“Companion Medical” or the “Company”) and each visitor to the Companion Medical website located at www.companionmedical.com (our “Website”), including any subpages or microsites of the Company which are connected to the Website, and each user of the software or mobile applications we make available for download or access at our Website, at the Apple® App Store or through any other cell phone service provider locations or other locations we indicate (“Software Apps”), or our data services available through the internet (“Data Services”) to users of our products or Software Apps, or any other product or service of the Company offered from time to time hereafter. We refer to each visitor to our Website or user of a Companion Medical Product, our Data Services or Software Apps as “you” or as a “User.” We refer to our Website and our Data Services as the “Companion Medical Services.” We refer to Companion Medical products purchased from Companion Medical directly or through a distributor or any other intermediary as the “Companion Medical Products.” Certain Companion Medical Products require a prescription, and such Companion Medical Products may only be used by the person for whom the prescription was issued (that person is referred to as the “Prescription

Device User”). These Terms of Service set forth the rights and obligations of you and Companion

Medical regarding your use of and access to the Companion Medical Services, Software Apps and Companion Medical Products. Please note that Apple is a registered mark of Apple Inc. and the App Store is a service mark of Apple Inc.

By using any Companion Medical Service, Software App or Companion Medical Product, you agree with these Terms of Service.

For your convenience, we have phrased some of the provisions of these Terms of Service in a question and answer format. Regardless of the format, all of the following terms together create a single legal agreement between you and Companion Medical. If a word or phrase is framed in these Terms of Service by “Quotation Marks” and marked in bold and italicized text, it means that we may use that word or phrase again, and it will have the same meaning as set forth in the sentence which first defines the word or phrase in quotation marks.

  1. Scope of Terms of Service and Agreement
    1. What products and services are covered by these Terms of Service? These Terms of Service apply to your use of any Companion Medical Services, Software Apps and Companion Medical Products. When using a Companion Medical Service, Software App or Companion Medical Product, you must comply with these Terms of Service.
    2. Are there additional terms that apply to your use of Companion Medical Services or Companion Medical Products? Yes, in addition to the terms set forth in these Terms of Service (including the End User License Agreement applicable to specific Software Apps which is attached as Exhibit A), the following additional documents apply to your use of Companion Medical Services and Companion Medical Products (and collectively form what we refer to in these Terms of Services as this “Agreement”):
  1. Any Description located at www.companionmedical.com/inpen.
  2. Documentation provided by Companion Medical in the manual or packaging for a Companion Medical Product, or otherwise provided to you by Companion Medical, including any Instructions for Use, Indications for Use, Contraindications and Product Warnings and Safety Statements (“Companion Medical Product Labeling”); and
  3. The Companion Medical Notice of Privacy Practices and Privacy Shield Notice located at www.companionmedical.com/privacy-notice.
    1. How do you accept this Agreement? Your use of any Companion Medical Service or Companion Medical Product or your download or use of any Software App is conditioned on your acceptance of the terms of this Agreement, and by accessing or using a Companion Medical Service or Companion Medical Product, by downloading or using a Software App, or by agreeing to this Agreement when the option is made available to you, such as by clicking “accept” when downloading a Software App, you are agreeing to the terms of this Agreement.
    2. Who can use Companion Medical Services and Software Apps? Anyone may visit our Website, but by doing so they are agreeing to be subject to the laws of the State of California and the laws of the United States as described in this Agreement. Except as we may expressly provide otherwise in connection with each, the Companion Medical Store, Data Services and Software Apps are provided from the United States and subject to the laws of the United States. We sell Companion Medical Products from the United States. If you have purchased a Companion Medical Product from a distributor located outside the United States, you should contact your distributor if you have any questions or need any support. Any warranty or other rights that may be provided with your Companion Medical Product purchased from a distributor located outside the United States will be provided by that distributor and not by Companion Medical. Companion Medical is not a party to the agreement between you and your distributor.
  1. Using our Website
    1. What is our Website? Our Website describes Companion Medical and our products and services and is available for public viewing in accordance with the terms of this Agreement.
    2. What is required for you to use our Website? Our Website is accessible through the internet by any computer with a compatible browser or a smart phone or other smart device such as a tablet (we refer to each as a “Smart Device”) connection with a compatible mobile browser. You are responsible for each computer or Smart Device you use to access our Website, including providing and maintaining properly running compatible updated software, a suitable internet connection, an appropriate firewall and virus scanning software.
  2. Using Our Data Services and Software Apps
    1. What are our Software Apps? Software Apps may be available for download at www.companionmedical.com. In addition, mobile applications may be downloaded at the Apple App Store and other download locations. We may provide Software Apps for your use on your computing devices or Smart Devices in connection with your use of Companion Medical Products. Software Apps may provide stand-alone functionality, or may be used in connection with our Data Services, or both.

3.2    What are our Data Services? Our Data Services permit an individual to access, display or analyze the data generated by the Prescription Device User’s Companion Medical InPen System or other Companion Medical device for which the Data Service is compatible (“User Device”) to help the

    1. Prescription Device User manage his or her diabetes in accordance with the applicable Companion Medical Product Labeling. Use of our Data Services requires an internet-enabled Smart Device. Each Data Service uses a Software App to upload data from User Devices (“User Data”), process User Data applying its proprietary methodologies, and provide data and where applicable, reports, to Prescription Device Users, and may also permit Prescription Device Users to share or direct the Data Service to share Prescription Device User information including processed User Data, reports and other information relating to the Prescription Device User. Prescription Device Users are entitled to provide or direct the Data Service to provide such data and reports to others as they determine, and at their own responsibility.
    2. What is required for you to use our Data Services? If registration is required, then you are required to accurately complete and maintain the required registration process and to provide all required information. You are responsible for providing and maintaining all items required to use each Data Service as they change from time to time, including for each computer or Smart Device you use to access a Data Service, properly running compatible updated software (new versions), a suitable internet connection, an appropriate firewall and virus scanning software, a proper cable to connect your User Device to your computer or to a wireless or cell phone connection, and a properly maintained User Device. Although we may post information about the compatibility of particular Smart Devices with our Data Services on our Website, you are responsible for determining the compatibility for your particular Smart Device and you assume all risk associated with using Smart Devices that are not compatible with our Data Services.
    3. How do you use our Data Services? Data Services may directly interface and interoperate with your Companion Medical Product, or may require the download of a Software App. Where a Software App is required, the Software App extracts the data from your User Device and sends it via the internet to Companion Medical for processing of User Data and optionally returns it to you, and for sending to others if that is a feature of the Data Service, according to the functionality of the particular Data Service. If the Data Service sends User Data or other of your information to third parties, you select those third parties and their email, or other information used by the Data Service to send your information to such third parties, and Companion Medical does not verify or validate any information regarding such third parties or the information you have provided regarding them. Once your information has been provided to a third party you designate, Companion Medical has no further control or responsibility regarding that User Data or other information. You are responsible for connecting the computer or Smart Device running the Software App with the internet.
    4. Third Party Software Updates. Software Apps run on specific versions of third party operating system and browser software for your computer or Smart Device (“Platform Software”). When the third party provider issues an update to Platform Software, we will require additional time to provide a compatible update to the Software App. If you update Platform Software prior to our making available an appropriate update to a Software App, you may no longer be able to use the Software App(s) you have been using, or the Software App may not properly function. We may determine not to provide a compatible update to the Software App, and before you update Platform Software, you should check the applicable download site to determine if we have made available an appropriate update.
    5. Registration Process and Consistent Use. The use of certain Companion Medical Products, Companion Medical Services and Software Apps may require the creation and use of a Companion Medical account (“Registration Process“). As part of the Registration Process, you may be required to provide the serial number of the User Device for you or the person on whose behalf you are completing the Registration Process. Certain Companion Medical Products, Companion Medical Services and Software Apps will archive and store the data generated by the applicable User Device. As a result, such Companion Medical Products, Companion Medical Services and Software Apps must be used only with the applicable User Device. Failure to do so may, among other matters, (a) cause the applicable Companion Medical Product, Companion Medical Service or Software App to perform improperly, or not to perform at all, (b) corrupt the User Data, or (c) cause inaccurate User Data to be associated with the User or cause the User Data to be inaccurately displayed or analyzed.
    6. What rights do you have to the Companion Medical Services and the Software Apps? Upon your acceptance of this Agreement, and so long as you comply with the terms of this Agreement, until either party terminates this Agreement, Companion Medical grants you the personal, limited and nonexclusive right to use (a) our Website for your personal noncommercial use, (b) Data Services as they are intended to be used as described at the relevant page of our Website or in materials provided through the Data Services, and (c) Software Apps as they are intended to be used as described at the relevant page of our Website, in the Software App or in materials provided by Companion Medical with or for the Software App, all in accordance with the terms of this Agreement. Companion Medical and its licensors own all right, title and interest to the Companion Medical Services and the Software Apps, and the information, artwork and other content available through or at Companion Medical Services and Software Apps and the processes, methodologies, documents and other materials we use to provide the Companion Medical Services and Software Apps or that we provide to you in connection with your use of Companion Medical Products, Companion Medical Services, or Software Apps, and all patent, copyright, trademark, trade secret, and other rights of any nature arising from or relating in any way to Companion Medical Products, Companion Medical Services, and Software Apps (collectively the “Intellectual Property Rights“). Companion Medical Products, Companion Medical Services and Software Apps are subject to the patent, copyright and other notices of Intellectual Property Rights provided by Companion Medical in connection with each, and you must abide by the requirements in all of such notices. All Intellectual Property Rights are reserved by Companion Medical and its licensors, and no Intellectual Property Rights are granted to you except as set forth in this Section 3.7. Software Apps may be subject to terms required by third party vendors, and you will be notified of those terms in the applicable End User License Agreement, Description of the Service, through your account or by other notice from Companion Medical. Trademarks, servicemarks, trade dress, logos, names and other symbols identifying Companion Medical, Companion Medical Services, Companion Medical Products, and Software Apps, and the goodwill relating thereto, including “Companion Medical” and “InPen,” are owned by Companion Medical and its licensors. You may not remove or alter any notice provided by Companion Medical on or in connection with Companion Medical Products, Companion Medical Services or Software Apps.
    7. What third party requirements do you have to comply with? Companion Medical Products, Companion Medical Services and Software Apps may include software, data or other items licensed to us by third parties. Your use of such third party items is subject to the provisions of this Agreement, except as required otherwise by the vendor. You will comply with the additional license provisions required by vendors of such third party items posted by us at our Website or otherwise provided to you or made available to you by us, as they are amended by us from time to time, and the most current version of such license provisions are incorporated into and made a part of this Agreement.
    8. What age do you have to be to use Companion Medical Services or Software Apps? Only an adult or a minor with the legal right to bind himself or herself to contract terms under applicable law can agree to the terms of this Agreement and use Companion Medical Services or Software Apps. By agreeing to this Agreement, you are representing that you are an individual at least 18 years old or that you have the legal right to bind yourself to contract terms under applicable law, and you are using the Companion Medical Services or Software Apps for yourself, you are the parent or legal guardian of a minor on whose behalf you are using the Companion Medical Services or Software Apps, or you have the legal right to act on behalf of another adult on whose behalf you are using the Companion Medical Services or Software Apps.
    9. What other restrictions apply to your use of Companion Medical Services and Software Apps? You will not, and you will not permit anyone under your control to, do or attempt to do any of the following except as expressly permitted by this Agreement:
  1. use Companion Medical Services or Software Apps to harm, threaten, or harass any person or organization;
  2. use Companion Medical Products, Companion Medical Services or Software Apps for commercial purposes or to benefit any third party;
  3. use or attempt to use any unauthorized means to modify, reroute, or gain access to Companion Medical Services;
  4. damage, disable, overburden, interfere with or impair Companion Medical Services (or any network or device connected to a Companion Medical Service);
  5. enable unauthorized third party applications to access Companion Medical Products or

Companion Medical Services or interface with any Software App;

  1. share your account password or otherwise authorize a third party to access or use Companion Medical Services or Software Apps on your behalf unless we provide an approved mechanism;
  2. sublicense or transfer any of your rights under this Agreement;
  3. modify, copy or make derivative works based on any Companion Medical Service or Software App;
  4. reverse engineer or derive the source code for any Companion Medical Product, Companion Medical Service or Software App not provided to you in source code form;
  5. create Internet “links” to or from any Companion Medical Service, or “frame” or “mirror” any content which forms part of any Companion Medical Service or Software App;
  6. use any automated process or service (such as a bot, a spider, or periodic caching of information) to access or use any Companion Medical Service or Software App, or to copy or scrape data from any Companion Medical Product, Companion Medical Service or Software App;
  7. otherwise use any Companion Medical Product, Companion Medical Service or Software App in any manner that exceeds the scope of use granted to you in this Agreement or set forth in any Companion Medical Product Labeling; or
  8. use unauthorized software or hardware to access any Companion Medical Product, Companion Medical Service or Software App or modify any Companion Medical Product, Companion Medical Service, Software App in any unauthorized way (e.g., through unauthorized repairs, unauthorized upgrades, or unauthorized downloads).

You agree that we have the right, but not the obligation, to send data, applications or other content to any software or hardware that you are using to access a Companion Medical Service or use a Software App for the purpose of detecting an unauthorized modification and/or disabling the modified device.

    1. What can happen if you misuse your Companion Medical Product? Misusing a Companion Medical Product, improperly accessing it or the information it processes and transmits, “jailbreaking” your Companion Medical Product (improperly accessing the hardware or software comprising the Companion Medical Product), and taking other unauthorized actions may put the User at risk, cause the Companion Medical Product to malfunction, is not permitted and voids any warranty that may be provided with your Companion Medical Product.
    2. Can you use third party software or equipment with Companion Medical Products, Companion Medical Services or Software Apps? Companion Medical does not endorse, recommend or validate any third party software or equipment for use with Companion Medical Products, Companion Medical Services or Software Apps. Any use by you of any such third party software or equipment is at your sole risk. Companion Medical has no responsibility or liability arising from your use of such third party software or equipment, such as damage to your Companion Medical Products or problems, inaccuracies or malfunctions in Companion Medical Products, Companion Medical Services or Software Apps arising from such use.
    3. Can you use Jailbroken Smart Devices? You are required to use Smart Devices in the condition provided by the manufacturer. “Jailbroken” Smart Devices are those Smart Devices that have been modified in an unauthorized manner to permit the loading of unauthorized software or the unauthorized pulling of data from the Companion Medical Product, Software App, Data Service or Smart Device to another Smart Device, software application, data service or other means to store or process such data. Jailbroken Smart Devices create unacceptable security risks, and you agree you will not use a Jailbroken Smart Device in connection with Companion Medical Services or Software Apps.
    4. What happens if Companion Medical Services or Software Apps are unavailable? Companion Medical Services and Software Apps may be interrupted or unavailable, and if they are, you must rely upon direct use of the User Device for the Prescription Device User’s health monitoring.
    5. What happens if you provide feedback to Companion Medical? You are not required to, but you may in your discretion choose to provide written or verbal feedback, suggestions, comments, or input to Companion Medical relating to Companion Medical Services, Software Apps, User Devices, or other opportunities for Companion Medical’s existing or future activities (“Feedback“). By providing Feedback to Companion Medical, you grant to Companion Medical the worldwide, nonexclusive, unrestricted, perpetual, irrevocable (on any basis whatsoever), royalty free right for Companion Medical to use such Feedback in any way it determines, including through third parties, without any obligation to you for compensation, attribution, accounting or otherwise. You will only provide to Companion Medical Feedback for which you have the right to grant to Companion Medical the rights in the preceding sentence.
    6. Companion Medical Services are not medical or healthcare services. You understand that Companion Medical is not a health care professional and does not provide medical, health or other professional services or advice, nor does Companion Medical perform any verification of the accuracy of User Data. Companion Medical Services and Software Apps are not replacements for proper medical care, and you agree that you are solely responsible to obtain proper treatment for your conditions. You are permitted to provide the information and reports received from Data Services to your healthcare providers at your own risk and responsibility, understanding that Data Services are provided without warranty except as required by law, as set forth in this Agreement. By purchasing, registering or using Companion Medical Products, Companion Medical Services or Software Apps, you are making certain assurances to Companion Medical. You represent, warrant and agree that all information you provide to us will be true, accurate, current and complete, and you will only use Data Services and Software Apps for the personal benefit of the Prescription Device User in accordance with this Agreement. Data Services are not a substitute for regular monitoring and medical care, and you will ensure that all appropriate treatment, attention and efforts are made by and for the benefit of the Prescription Device User to maintain his or her health and wellness.
    7. Your responsibility for third party actions. You are responsible for any act or omission by any person that access or uses any Companion Medical Product, Companion Medical Service, or Software App under your account, using your password or from your computer or Smart Device.
    8. Companion Medical is not responsible for third party matters. Without limiting the provisions of this Agreement or expanding the scope of Companion Medical’s responsibilities, Companion Medical is not responsible for outages or defects in power, telecommunications, computers, Smart Devices, third party software and any other impact outside of Companion Medical’s direct control.
  1. Personal Data
    1. Who owns the User Data uploaded from your User Device and the other information you provide to Companion Medical through Companion Medical Services and Software Apps? You own your User Data and the other information you provide to Companion Medical through Companion Medical Services and Software Apps (we refer to all of that information as “Personal Data”). By using any Companion Medical Services or Software Apps, you hereby grant to us the right to use your Personal Data as set forth in the Companion Medical Privacy Policy.
    2. What can you do with the User Data received from a Data Service? You can use the User Data received from a Data Service as information to help you better control your diabetes. It is your data and you are permitted to provide your User Data to any person or entity you determine, and your decision whether and to whom to provide such data is your responsibility and you do so at your own risk.
  2. Suspension and Termination of Companion Medical Services
    1. Can Companion Medical suspend Companion Medical Services? Companion Medical can suspend Companion Medical Services from time to time as it determines, for all Users or for any User.
    2. Can Companion Medical terminate Companion Medical Services or your right to use Software Apps? Companion Medical may terminate any Companion Medical Service or your right to use any Software App at any time, and may discontinue supporting any version of a Companion Medical Product, Companion Medical Service or Software App when a new version is released. Companion Medical has no obligation to support any discontinued Companion Medical Product, Companion Medical Service or Software App. Companion Medical may also terminate your access if you breach the terms of this Agreement.
    3. Can you terminate Data Services or your use of Software Apps? You may terminate any Data Service at any time by notice through your account, if you have one, and if not, then by ceasing your use of the Data Service. You may terminate your use of any Software App as you determine, and you may delete it from your Smart Device, and you may remove it from your computer using your operating system removal procedures if you use a Windows® based computer, or by downloading an uninstall program from our Website if you use an Apple® based computer. You are not obligated to continue using any Data Service or Software App whether you terminate or not.
    4. What happens if a Companion Medical Service is terminated? If a Companion Medical Service is terminated for any reason, (a) we will retain all Personal Information (as defined in the Companion Medical Privacy Policy) of yours associated with your use of a Companion Medical Service for which you are registered, subject to your right to request deletion of such Personal Information as set forth in the Companion Medical Privacy Policy, (b) your rights to the Companion Medical Service and any associated Software App terminate, and (c) all provisions of this Agreement which by their nature continue to apply after termination will survive such termination and continue to apply to the parties. If you later re-activate your account and we then have retained your Personal Information, we would reassociate it with your new account if you provide us with appropriate information enabling us to make the proper association and we are then able to do so.
  3. Privacy
    1. How does Companion Medical protect the privacy of your Personally Identifiable Information? Companion Medical protects your privacy according to the Companion Medical Privacy Notice which describes how we may use your Personally Identifiable Information. If there is an actual or suspected breach of the security of your Personally Identifiable Information provided to Companion Medical in connection with Companion Medical Services, or any unpermitted disclosure or use of such personal information, and we are required to provide notice of such actual or suspected breach or unpermitted disclosure or use to you under applicable law, you agree that such notice may be provided by Companion Medical by email to your email address registered with us at the time of such notice.
  4. Changes
    1. Can Companion Medical change the terms of this Agreement? Yes, Companion Medical can change the terms of this Agreement by posting an update to the Companion Medical site where this document is posted. Your continued use of any Companion Medical Product, Companion Medical Service or Software App is acceptance of the new terms.
    2. Can Companion Medical change Companion Medical Services or Software Apps? Companion Medical Services and Software Apps, and the business, development and activities of Companion Medical, are subject to change as determined from time to time by Companion Medical in its discretion.
  5. Disputes, Binding Arbitration and Class Action Waiver
    1. How are dispute resolved under this Agreement? Disputes regarding the validity or enforcement of Intellectual Property Rights will be resolved exclusively in the courts located in San Diego, California. You and Companion Medical each irrevocably consent to the personal and subject matter jurisdiction and venue of the courts located in San Diego, California for any such dispute. Any other dispute will be resolved exclusively by final and binding arbitration as described below.
    2. What laws govern this Agreement? You are contracting with Companion Medical, Inc., a Delaware corporation headquartered in San Diego, California. Performance of this Agreement will occur in San Diego, California. This Agreement is governed by and will be construed in accordance with the internal laws of the state of California applicable to contracts entered into and performed within California, excluding choice of law or conflict of principles.
    3. Notice of Dispute. In the event of a dispute arising under or relating to this Agreement, the disputing party must provide the other party with written notice of the dispute, including the facts giving rise to the dispute and the relief sought by the disputing party. We will provide such notice by email to your email address. You will provide such notice to Companion Medical by mail or overnight delivery at the following address: General Counsel, Companion Medical, Inc., 16486 Bernardo Center Dr. #300, San Diego, CA 92128. For any dispute subject to arbitration, you and Companion Medical will attempt to resolve the dispute through negotiation for 60 days from the date such notice is sent. After 60 days, either party may initiate arbitration if the dispute is not resolved.
    4. How long does a party have to bring a claim? You and Companion Medical each agree that any claim arising under or relating to this Agreement will be brought within one year of when the party first has notice of the facts providing the basis for the claim.
    5. Litigation. Any violation of a party’s intellectual or industrial property rights will cause the nonviolating party irreparable harm for which monetary damages are an inadequate remedy, and the nonviolating party is entitled to temporary, preliminary and permanent injunctive relief and specific performance without the posting of bond or other security, or if required, the minimum bond or security required.
    6. Final and Binding Arbitration. A dispute subject to arbitration that is not informally resolved the parties will be resolved exclusively by final and binding arbitration under the Federal Arbitration Act. You are giving up your right to litigate or participate as a party or class member before a judge or jury for any such dispute. The decision of the arbitrator will be final and binding on the parties except for a limited right of appeal that is available under the Federal Arbitration Act. Any court with jurisdiction may enforce the arbitrator’s award, and the parties agree to the nonexclusive jurisdiction of the state and federal courts in San Diego, California, for such purposes.
    7. Class Action Waiver. ANY PROCEEDING TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR COMPANION MEDICAL WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR LITIGATION WILL BE COMBINED OR CONSOLIDATED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR LITIGATIONS INCLUDING THE CONSENT OF COMPANION MEDICAL.
    8. Arbitration Procedure. Any arbitration under this Agreement will be conducted by the American Arbitration Association under its Supplementary Procedures for Consumer-Related Disputes. You may commence arbitration in your county of residence within the United States or in San Diego, California. Companion Medical will only commence arbitration in your county of residence if you reside within the United States or in San Diego, California if you do not. The arbitrator may award damages to each party individually to the same extent a court could. The arbitrator may award injunctive relief and specific performance only to you or Companion Medical individually and only to the extent required to satisfy the individual claim.
  6. No Warranties
    1. EXCEPT AS REQUIRED BY APPLICABLE LAW, COMPANION MEDICAL SERVICES AND SOFTWARE APPS, AND EXCEPT FOR ANY LIMITED WARRANTY INCLUDED IN COMPANION MEDICAL PRODUCT LABELING, COMPANION MEDICAL PRODUCTS, ARE PROVIDED “AS-IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, AND YOU USE COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES AND SOFTWARE APPS AT YOUR OWN RISK. COMPANION MEDICAL DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR USE, QUIET ENJOYMENT, ACCURACY, OPERATION, COMPLIANCE WITH DOCUMENTATION, OR NON-INFRINGEMENT. COMPANION MEDICAL DISCLAIMS, AND THIS AGREEMENT DOES NOT INCLUDE, THE PROVISIONS OF THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, THE UNIFORM COMMERCIAL CODE, AND ANY OTHER PROVISIONS IMPLIED INTO THIS AGREEMENT IF NOT DISCLAIMED. COMPANION MEDICAL DOES NOT WARRANT THAT COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES OR SOFTWARE APPS, OR ANY DATA OR REPORTS PROVIDED BY COMPANION MEDICAL, WILL MEET YOUR REQUIREMENTS, BE RETRIEVABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. COMPANION MEDICAL DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES OR SOFTWARE APPS. COMPANION MEDICAL DOES NOT WARRANT ANY THIRD PARTY DEVICE, SOFTWARE, SERVICE OR DATA
    2. THAT YOU MAY USE IN CONNECTION WITH ANY COMPANION MEDICAL PRODUCT, SOFTWARE APP OR COMPANION MEDICAL SERVICE, WHETHER OR NOT SUCH THIRD PARTY ITEM IS DESCRIBED AT, OR AVAILABLE OR CAN BE CONNECTED TO THROUGH ANY COMPANION MEDICAL PRODUCT, SOFTWARE APP OR COMPANION MEDICAL SERVICE. NO INFORMATION OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH COMPANION MEDICAL OR COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES OR SOFTWARE APPS WILL CREATE ANY WARRANTY, EXCEPT FOR ANY LIMITED WARRANTY INCLUDED IN COMPANION MEDICAL PRODUCT LABELING.
    3. COMPANION MEDICAL DOES NOT WARRANT THE ACCURACY OF ANY USER DEVICE, AND THE USER DATA UPLOADED FROM ANY USER DEVICE IS RECEIVED BY COMPANION MEDICAL AND PROVIDED TO THE USER “AS-IS.” COMPANION MEDICAL DOES NOT ASSUME ANY OBLIGATION TO, AND DOES NOT WARRANT THAT IT WILL, CREATE OR INCLUDE ADDITIONAL FEATURES OR FUNCTIONALITY FOR COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES OR SOFTWARE APPS.
    4. EXCEPT AS INCLUDED IN ANY COMPANION MEDICAL PRODUCT LABELING, IF YOU ARE DISSATISFIED WITH ANY PORTION OF COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES, OR SOFTWARE APPS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE THEIR USE.
  7. Liability Limitations and Your Responsibility
    1. YOU AGREE THAT COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES AND SOFTWARE APPS ARE PROVIDED BY COMPANION MEDICAL, AND ONLY COMPANION MEDICAL WILL HAVE ANY LIABILITY ARISING FROM OR RELATING TO COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES, SOFTWARE APPS, OR THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANION MEDICAL’S AFFILIATES, LICENSORS, SUPPLIERS AND OTHER CONTRACT RELATIONSHIPS, AND THE OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AND AGENTS OF COMPANION MEDICAL AND EACH OF THOSE OTHER ENTITIES HAVE ANY LIABILITY WHATSOEVER ARISING FROM OR RELATING TO COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES, SOFTWARE APPS, OR THIS AGREEMENT, WHETHER FOR DIRECT OR ANY OTHER TYPE OF DAMAGES WHATSOEVER.
    2. NEITHER COMPANION MEDICAL NOR ITS AFFILIATES, NOR ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, SUPPLIER OR OTHER PERSON OR ENTITY ASSOCIATED WITH ANY OF THEM WILL BE LIABLE FOR (A) ANY DAMAGES ARISING FROM THE USE OF OR INABILITY TO USE COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES OR SOFTWARE APPS, (B) ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, DAMAGES RESULTING FROM LOSS OF DATA OR BUSINESS INTERRUPTION OR FOR TOTAL DAMAGES FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, COMPANION MEDICAL PRODUCTS, COMPANION MEDICAL SERVICES AND SOFTWARE APPS IN AN AMOUNT GREATER THAN $500, OR (C) THE ACTIONS OR OMISSIONS OF USER OR ANY THIRD PARTY. THE PROVISIONS OF THIS SECTION APPLY WHETHER THE CLAIM OR DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF COMPANION MEDICAL OR ITS AFFILIATES OR A PERSON AFFILIATED WITH EITHER OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES EXCLUDED IN THIS SECTION AND EVEN IF SUCH EXCLUSIONS CAUSE THIS AGREEMENT OR ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
    3. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT OUR LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW, AND THIS AGREEMENT WILL BE DEEMED MODIFIED TO THE MINIMUM EXTENT NECESSARY TO COMPLY WITH SUCH APPLICABLE LAW.
    4. Your Responsibility. You agree to indemnify, defend and hold harmless Companion Medical, our affiliates, licensors, suppliers and other contract relationships, and the officers, directors, employees, consultants, and agents of each, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from (a) any information you submit, post or transmit through Companion Medical Services or Software Apps, (b) your use of Companion Medical Products, Companion Medical Services or Software Apps, (c) your violation of this Agreement, or (d) your violation of any rights of any other person or entity.
  8. Notices

We will provide any notice under this Agreement by email to your email address. You will provide such notice to Companion Medical by mail or overnight delivery at the following address: General Counsel, Companion Medical, Inc., 16486 Bernardo Center Dr. #300, San Diego, CA 92128.

  1. Severability

Any provision of this Agreement determined to be void, invalid or unenforceable will be deemed modified to the minimum extent necessary to be effective, valid and enforceable, and the other provisions of this Agreement will remain in full force and effect and enforceable according to their terms.

  1. Assignment

We may assign this Agreement in whole or in part at any time without any notice to you. You may not assign this Agreement or transfer any rights to use Companion Medical Services or Software Apps.

  1. Export Restrictions

Software Apps are subject to United States export control laws, and you will comply with those laws.

  1. Relationship; No Third Party Beneficiaries

We are acting as an independent contractor, and nothing in this Agreement creates an agency or partnership. Except for Companion Medical’s licensors, there are no third party beneficiaries to this Agreement.

  1. Complete Agreement

This Agreement is the complete and final agreement between the parties relating to Companion Medical Products, Companion Medical Services and Software Apps, supersedes any prior agreements or communications between the parties, and may only be modified by a new version or amendment posted by Companion Medical at its website or otherwise provided by Companion Medical to you. Failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.

  1. Copyright Infringement Claims

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Companion Medical Services infringe your copyright, you (or your agent) may send to Companion Medical a written notice by mail or by e-mail requesting that Companion Medical remove such material or block access to it. If you believe in good faith that someone has wrongly submitted to us a notice of copyright infringement involving content that you made available through any Companion Medical Service, the DMCA permits you to send to Companion Medical a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices must be sent in writing to Companion Medical’s DMCA agent as follows: By mail to General Counsel, Companion Medical, Inc., 16486 Bernardo Center Dr. #300, San Diego, CA 92128, or by e-mail to legal@companionmedical.com. You can also reach Companion Medical’s DMCA agent at the following phone number: (1-858-522-0252). We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice. You may have equivalent rights under other applicable laws.

 

In accordance with the DMCA and other applicable law, Companion Medical has adopted a policy of terminating, in appropriate circumstances, Companion Medical Service users who are deemed by Companion Medical to be repeat infringers. Companion Medical may also at its sole discretion limit access to the Companion Medical Service and/or terminate the accounts of any Companion Medical Service users who infringe any intellectual property rights of others, whether or not such users are deemed to be repeat infringers.

 

Exhibit A

 

End User License Agreement

This End User License Agreement (“EULA”) sets forth additional terms applicable to your use of the Companion Medical InPen System and any other product or service we provide (we refer to these and the Software Apps we provide for you to use these Data Services collectively as the “Licensed Services”). By downloading or using the Licensed Services in any way, you agree with the terms of this EULA and the “Agreement” (as that term is defined in the Companion Medical Terms of Service (“Terms of Service”) posted on the Companion Medical website located at (www.companionmedical.com), and this

EULA and the Agreement together form the exclusive and binding contract between you and Companion Medical regarding your use of the Licensed Services, and you and Companion Medical each agree to comply with all of the provisions of this EULA and the Agreement. This EULA is also posted at www.companionmedical/terms-of-service. (Exhibit A)

  1. Definitions. Any capitalized terms used in this EULA have the definitions for such terms set forth in the Terms of Service. In addition, we use the following terms in this EULA:
    1. Companion Medical Data Services” means the transmission of User Data from Companion Medical InPen Systems and the provision of notifications through any Companion Medical InPen System.
    2. Companion Medical InPen System” means our Companion Medical InPen Smart Insulin Pen, including a the pen and any accessories approved by Companion Medical for use with any of the foregoing and any future versions or enhancements.
    3. Documentation” means any paper or electronic documentation (including

without limitation, this EULA) included with the Companion Medical InPen System or provided, or made available, by Companion Medical in connection with the use of the Companion Medical InPen System.

    1. InPen App” means a Software App included in the Licensed Services that is

installed on a User’s Smart Device to receive InPen pen user information and threshold notifications.

    1. Marks” means names, logos, designs and other materials displayed in

connection with the Companion Medical InPen System or Support Services that constitute trademarks, tradenames, service marks, trade dress or logos of Companion Medical or other entities.

    1. Our Content” means the information, artwork and other content in the Companion Medical InPen System or our Website.
    2. Our Technology” means the software, code, proprietary methods, technology

and systems used to provide the Companion Medical InPen System and Support Services, including the InPen App.

    1. Service Description” means the most current description of the Companion Medical InPen System posted on the Website, and when we post a new description, it replaces the prior version.
    2. Support Services” means the technical and customer support services that Companion Medical may offer from time to time to assist you with your use of Licensed Services and includes any information and materials we may provide in connection with these support services or make available in the Documentation.
    3. Third Party Items” means software, data or other items licensed to us by third

parties.

    1. We”, “our”, and “us” means Companion Medical.
    2. You” and “your” refers to each User of the Companion Medical InPen System.
  1. Companion Medical InPen System. The Companion Medical InPen System is made available to Users who have validly purchased and use the Companion Medical InPen System to monitor their insulin therapy. The Companion Medical InPen administers insulin and the InPen App installed on a User’s Smart Device tracks doses, displays the last dose, calculates the next dose and reminds the User when to take it. Using the InPen App, each User can receive notifications and configure settings, including notification thresholds. All features of the Companion Medical InPen System are subject to the Service Description, and any conflict between this EULA and the Service Description is governed by the Service Description. Use of the Companion Medical InPen System is subject to the Documentation. The Documentation is incorporated into and made a part of this EULA, and you agree to comply with the requirements of the Documentation.
  2. Companion Medical InPen Components.
  1. Companion Medical InPen Software” means the software components set forth below (additional detail may be included in the Service Description) and any other software necessary for the operation of the Companion Medical InPen System. References to the Companion Medical InPen System include the Companion Medical InPen Software as applicable, but we may refer separately to the Companion Medical InPen Software for emphasis.
  2. Companion Medical InPen App” means the Companion Medical InPen Software installed on a User’s Smart Device that uploads the insulin dosage readings from the User’s Companion Medical InPen System and sends those readings to the Companion Medical InPen Server, and receives information from the Companion Medical InPen Server.
  3. Companion Medical InPen Server” means the Companion Medical InPen Software hosted and operated by Companion Medical that receives information from the Companion Medical InPen App, stores that information for a limited period of time determined by Companion Medical and triggers notifications that are sent to the User’s Companion Medical InPen App.
  1. Companion Medical InPen System User Subscriptions. A Companion Medical InPen System User may be asked to subscribe to or register for certain Companion Medical Services by submitting required information and accepting the terms of this EULA, all at the relevant portion of the Website or download site for the InPen App. To the extent any services offered as part of the Companion Medical InPen System require subscription or payment, use of the Companion Medical InPen System by the User is subject to subscription by the User and payment by the User of the required payments. A Companion Medical InPen System User may terminate any such subscription by following the instructions in the Companion Medical InPen App or at the Website.
  2. Companion Medical Support. Companion Medical may make available the Support Services, and if offered will be subject to the applicable terms posted by Companion Medical at our Website. In connection with our provision of Support Services, you may provide us directly or through another person with information or access to information on your Smart Device or otherwise that relates to you, and you hereby authorize Companion Medical to use such information and access for the purposes of assisting you to use the Companion Medical InPen System, and as otherwise permitted by our Privacy Policy.
  3. Users Not Legally Competent. A Companion Medical InPen System User who is not legally competent to make decisions may not directly sign up for the Companion Medical InPen System.

The appropriate parent or legal guardian, conservator or other person with the legal right to act on behalf of such a User must complete all registration or subscription processes for the Companion Medical InPen System. The parent or legal guardian, conservator or other person with the legal right to act on behalf of a Companion Medical InPen System User not legally competent to make decisions represents, warrants and agrees that he or she (a) has the lawful authority to act on behalf of such Companion Medical InPen System User, and (b) will, and will ensure that the Companion Medical InPen System User does, comply with the requirements of this EULA and the Agreement.

  1. Website. Use of the Website is subject to the Terms of Service and any other policies posted on the Website, and you agree to comply with the provisions of those Terms of Service and policies.
  2. Limited License.
  1. We hereby grant to you a limited, non-exclusive, nontransferable access right to use the Companion Medical InPen System and the Support Services during the term of your subscription as follows, so long as you comply with the terms of this EULA and the Agreement:
  2. The Companion Medical InPen System User is granted the right to download the Companion Medical InPen App onto his or her Smart Device and to use the InPen App solely as described in the Service Description and Documentation in connection with his or her use of the Companion Medical InPen System as a User.
  3. You may use information received from the Companion Medical InPen System solely for the purposes of the User’s personal health.
  4. You may use Support Services solely to support the use of the Companion Medical InPen System by you and your associated Users. You agree not to use or disclose Support Services for any other reason.
  1. Exclusions. You agree that you will not, and will not attempt to or permit anyone else to: (a) interfere in any manner with the operation of the Companion Medical InPen System, or the communications, network, systems, software and data used to operate and provide the Companion Medical InPen System; (b) distribute, sell, lease, rent, sublicense, assign, export, or transfer in any other manner any Companion Medical InPen Software or any other portion of the Companion Medical InPen System or otherwise use the Companion Medical InPen System for the benefit of a third party (other than a Companion Medical InPen System User); (c) modify, copy or make derivative works of any part of the Companion Medical InPen Software or any other component of the Companion Medical InPen System, or reverse engineer, disassemble, decompile, or translate any components of the Companion Medical InPen System, or otherwise attempt to derive the source code of any components of the Companion Medical InPen System; (d) create Internet “links” to or from the Companion Medical InPen System, or “frame” or “mirror” any content which forms part of the Companion Medical InPen System; or (e) otherwise use any portion of the Companion Medical InPen System in any manner that exceeds the scope of the limited license right granted above.
  2. Smart Devices. You are required to use Smart Devices in the condition provided by the manufacturer. “Jailbroken” Smart Devices are those Smart Devices that have been modified in an unauthorized manner to permit the loading of unauthorized software. Jailbroken Smart Devices create unacceptable security risks, and you agree you will not use a Jailbroken Smart Device in connection with the Companion Medical InPen System.
  3. Third Party Items. The Companion Medical InPen System and Support Services may include Third Party Items. Your use of Third Party Items is subject to the provisions of this EULA, except as required otherwise by the vendor. You will comply with the additional license provisions required by vendors of Third Party Items posted at www.companionmedical.com/inpen as they are amended by us from time to time, and the most current version of such license provisions are incorporated into and made a part of this EULA.
  4. Responsibility for Others. You agree to be responsible for any act or omission of any person that accesses any portion of the Companion Medical InPen System under your account, using your password or from your computer or Smart Device.
  5. Required Items and Actions. You are required to provide and maintain all items necessary for your proper operation of the Companion Medical InPen System. This includes a User’s Smart Device with appropriate access to download the InPen App. You are required to properly set up the Companion Medical InPen System and ensure the proper performance of your Smart Device.
  6. Your Assurances. You represent, warrant and agree that all information you provide to us will be true, accurate, current and complete, and you will only use the Companion Medical InPen System for the personal benefit of the User in accordance with the Service Description and Documentation (including without limitation, this EULA). You will promptly inform us of any problems with Companion Medical InPen that you believe are resulting in inaccurate information or preventing you from using the Companion Medical InPen System. The Companion Medical InPen System Companion Medical InPen is not a substitute for regular monitoring and medical care, and you will ensure that all appropriate treatment, attention and efforts are made by the User to maintain the health and wellness of the User.
  7. Suggestions. You may in your discretion provide suggestions to us for changes to the Companion Medical InPen System or to our other products and services, new products or services, or other ideas for our business (“Suggestions”), and we welcome Suggestions. By submitting a Suggestion, you hereby grant to us a worldwide, non-exclusive, royalty-free, fully paid-up, unrestricted, sublicenseable, transferable and irrevocable (on any basis whatsoever) license to use the Suggestion in any way we determine without any compensation, attribution, accounting or other obligation to you.
  8. Privacy Policy. You will comply with the Companion Medical Privacy Policy located at www.companionmedical.com/privacypolicy, as it is amended by us from time to time, and the provisions of the most current version of the Companion Medical Privacy Policy are incorporated into and made a part of this EULA.
  9. Companion Medical Terms of Service. You will comply with the Terms of Service located at www.companionmedical.com/terms-of-service, as such terms are amended by us from time to time, and the provisions of the most current Terms of Service are incorporated into and made a part of this EULA.
  10. Changes to this EULA. We may change this EULA from time to time by posting a new version at www.companionmedical.com/terms-of-service (Exhibit A) which is effective upon after posting or upon our sending you notice by email or through the Companion Medical InPen System or by changing the EULA set forth as Exhibit A to the Terms of Service. If you object to any such change, you can terminate your subscription and your use of the Companion Medical InPen System. Continued use of the Companion Medical InPen System following notice or posting of any such changes will indicate your acknowledgement of such changes and will be your agreement to be bound by the revised EULA.
  11. Discontinuation of or Modifications to Companion Medical InPen System. We reserve the right to modify or discontinue the Companion Medical InPen System and/or Support Services at any time with or without notice to you. If you object to any such change, you can terminate your subscription and your use of the Companion Medical InPen System. Continued use of the Companion Medical InPen System following notice of any such change will indicate your agreement with such change.
  12. Third Party Offerings. We may provide to you in connection with the Companion Medical InPen System the opportunity for you to receive products and services provided by third parties. We are not responsible for any such products and services, and those products and services are subject only to the terms offered by the third party provider. We provide no services, warranties or support for any such third party products and services, and you will hold only the provider and not Companion Medical or any of our affiliates or any personnel of any of them responsible in connection with such third party products and services. You should carefully review their privacy statements and other conditions of use.
  13. Links. Our provision of a link to any other website or location is for your convenience and does not signify our endorsement of such other site or location or its contents. We have no control over, do not review, and are not responsible for, these outside websites or their content. Access to any other websites linked to the Companion Medical InPen System or our Website is at your own risk. You should carefully review the applicable terms and policies, including privacy and data gathering practices, of any such third-party website. WE WILL NOT BE LIABLE FOR ANY INFORMATION, SOFTWARE, OR LINKS FOUND AT ANY OTHER WEBSITE, INTERNET LOCATION, OR SOURCE OF INFORMATION, NOR FOR YOUR USE OF SUCH INFORMATION, SOFTWARE OR LINKS, NOR FOR THE ACTS OR OMISSIONS OF ANY SUCH WEBSITES OR THEIR RESPECTIVE OPERATORS.
  14. Ownership. Our Content and Technology are (a) copyrighted by Companion Medical and/or its licensors under United States and international copyright laws, and all rights are reserved to Companion Medical and its licensors, (b) subject to other intellectual property and proprietary rights and laws, and (c) owned by Companion Medical or its licensors. Neither Our Content nor Our Technology may be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Content or Our Technology and you may not remove or alter any such notice, information or restriction. Your use of our Content and Technology must at all times comply with this EULA.
  15. Suspension and Refunds. We may decline to provide the Companion Medical InPen System or Support Services at any time. If your right to use the Companion Medical InPen System or Support Services is terminated by us for any reason other than your failure to comply with this EULA, and you have paid for the use of the Companion Medical InPen System or Support Services for any period of time after such termination, we will refund amounts you have paid for any period of time after such termination. If you terminate your subscription to the Companion Medical InPen System or Support Services, you will not be due a refund of payments made by you prior to termination.
  16. Termination. You may terminate your subscription and end your use of the Companion Medical InPen System and/or Support Services at any time. We may terminate your use of the Companion Medical InPen System and/or Support Services and (if applicable) your subscription at any time. Neither party needs any reason for its termination. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO AND/OR SUBSCRIPTION TO THE COMPANION MEDICAL INPEN SYSTEM OR SUPPORT SERVICES. AFTER TERMINATION, YOU HAVE NO FURTHER RIGHT TO USE ANY PORTION OF THE COMPANION MEDICAL INPEN SYSTEM OR SUPPORT SERVICES, INCLUDING THE COMPANION MEDICAL INPEN APP AND COMPANION MEDICAL INPEN SOFTWARE.
  17. No Medical Services. The Companion Medical InPen System is an information service and not medical services or any other licensed healthcare service. We do not monitor the information received from your Companion Medical InPen System or provided to your Smart Devices, and we will not provide you with notice through your Companion Medical InPen System. It is up to the Companion Medical InPen System User to determine what thresholds to set and how to use the features of the Companion Medical InPen System. The Companion Medical InPen System is not a replacement for the User’s regular healthcare and health monitoring.
  18. Interruptions. The Companion Medical InPen System and Support Services may be interrupted, unavailable, or even terminated, and the User must not rely upon direct use of the Companion Medical InPen System for the User’s health monitoring.
  19. No Responsibilities. Without limiting the provisions of this EULA or expanding the scope of the Companion Medical InPen System, Companion Medical is not responsible for power outages, telecommunications outages or defects, unavailability of the Smart Device service, or any other impact on the Companion Medical InPen System outside the direct control of Companion Medical.
  20. Disclaimer Of Warranties. EXCEPT FOR THE LIMITED WARRANTY THAT IS INCLUDED WITH THE COMPANION MEDICAL INPEN, YOU AGREE THAT USE OF THE COMPANION MEDICAL INPEN SYSTEM AND SUPPORT SERVICES IS AT YOUR SOLE RISK AND THE COMPANION MEDICAL INPEN SYSTEM, SUPPORT SERVICES AND WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANION MEDICAL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, COMPLIANCE WITH DOCUMENTATION, OR OPERATION. COMPANION MEDICAL MAKES NO WARRANTY THAT THE COMPANION MEDICAL INPEN SYSTEM OR SUPPORT SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE COMPANION MEDICAL INPEN SYSTEM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES COMPANION MEDICAL MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE COMPANION MEDICAL INPEN SYSTEM, OR THAT DEFECTS IN THE COMPANION MEDICAL INPEN SYSTEM OR SUPPORT SERVICES WILL BE CORRECTED. YOU AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE COMPANION MEDICAL INPEN SYSTEM OR SUPPORT SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM SUCH MATERIAL AND/OR INFORMATION. NO INFORMATION OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE COMPANION MEDICAL INPEN SYSTEM OR SUPPORT SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE BY COMPANION MEDICAL IN WRITING STATING THAT IT IS INTENDED TO BE A WARRANTY.
  1. Limitation of Liability. YOU AGREE THAT THE COMPANION MEDICAL INPEN SYSTEM AND SUPPORT SERVICES ARE PROVIDED BY COMPANION MEDICAL, AND ONLY COMPANION MEDICAL WILL HAVE ANY LIABILITY ARISING FROM OR RELATING TO THE COMPANION MEDICAL INPEN SYSTEM, SUPPORT SERVICES, THE WEBSITE OR THE DOCUMENTATION INCLUDING THIS EULA. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANION MEDICAL’S AFFILIATES, LICENSORS, SUPPLIERS AND OTHER CONTRACT RELATIONSHIPS, OR THE OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AND AGENTS OF COMPANION MEDICAL AND EACH OF THOSE OTHER ENTITIES HAVE ANY LIABILITY WHATSOEVER ARISING FROM OR RELATING TO THE COMPANION MEDICAL INPEN SYSTEM, SUPPORT SERVICES, WEBSITE, DOCUMENTATION OR THIS EULA, WHETHER FOR DIRECT OR ANY OTHER TYPE OF DAMAGES WHATSOEVER. YOU ALSO AGREE THAT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANION MEDICAL WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF THE COMPANION MEDICAL INPEN SYSTEM, SUPPORT SERVICES OR THE WEBSITE, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE COMPANION MEDICAL INPEN SYSTEM OR SUPPORT SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE COMPANION MEDICAL INPEN SYSTEM OR SUPPORT SERVICES. THE AGGREGATE LIABILITY OF COMPANION MEDICAL TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE COMPANION MEDICAL INPEN SYSTEM, SUPPORT SERVICES OR THE WEBSITE IS LIMITED TO THE LESSER OF (I) THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR USE OF THE COMPANION MEDICAL INPEN SYSTEM OR (II) ONE HUNDRED U.S. DOLLARS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
  1. Indemnification. You agree to indemnify, defend and hold harmless Companion Medical, its affiliates, licensors, suppliers and other contract relationships, and the officers, directors, employees, consultants, and agents of each, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from (1) any information you submit, post or transmit through the Website, the Companion Medical InPen System or Support Services, (2) your use of the Website, the Companion Medical InPen System or Support Services, (3) your violation of the Documentation, including without limitation, this EULA, or (4) your violation of any rights of any other person or entity.
  2. Trademarks. The Marks owned by Companion Medical and other entities used in connection with Companion Medical InPen or Support Services are listed or described in the Companion Medical Terms of Service, which may be amended from time to time. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities.
  3. Geographical Restrictions. The Companion Medical InPen System and Support Services are not available for use by persons located outside the United States, and you represent that you reside within the United States.
  4. Miscellaneous. This EULA and the documents referred to within this EULA constitute the entire and exclusive and final statement of the agreement between you and us with respect to the subject matter hereof, and govern your use of the Companion Medical InPen System and Support Services, superseding any prior agreements or negotiations between you and us regarding the Companion Medical InPen System and Support Services. The validity, interpretation, construction and performance of this EULA will be governed by the laws of the State of California that apply to contracts entered into within the State of California and to be performed within the State of California, without giving effect to the principles of conflict of laws or choice of laws. Any dispute arising under or relating in any way to this EULA, the Companion Medical InPen System or Support Services will be resolved exclusively by final and binding arbitration in San Diego, California under the rules of the American Arbitration Association, except that either party may bring a claim related to intellectual property rights, or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security. The parties agree to the personal and subject matter jurisdiction and venue of the courts located in San Diego, California, for any action related to this EULA, the Website, the Companion Medical InPen System, or the Support Services. Failure to exercise or enforce any right or provision of this EULA will not constitute a waiver of such right or provision. If any provision of this EULA is found by a court of competent jurisdiction to be invalid or unenforceable, it will be deemed modified to the minimum extent necessary to be valid and enforceable, and the remaining provisions will remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website, the Companion Medical InPen System, the Support Services or this EULA must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this EULA are for convenience only and have no legal or contractual effect. We are acting as an independent contractor, and nothing in this EULA creates an agency or partnership. You may not assign your rights under this EULA without our prior written consent, and any attempted assignment will be null and void.
  5. Survival. The terms of Sections 1, 9, 12, 14-18, 20-34 and 36 will survive the expiration or earlier termination of this EULA for any reason.
  6. Contact Us. If you have any questions about this EULA, please: (1) send us an email at customerservice@companionmedical.com  (2) call us at 1-858-522-0252 (Monday through Friday, 9 a.m. to 5 p.m. PST).
  7. Version. This EULA is dated September 1, 2017.