MYFREESTYLE LIBRE PROGRAM
TERMS AND CONDITIONS
THESE TERMS REQUIRE THE USE OF BINDING ARBITRATION TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS. PLEASE SEE BINDING ARBITRATION/CLASS WAIVER (SECTION 17) FOR DETAILS, INCLUDING INSTRUCTIONS TO FOLLOW IN ORDER TO OPT OUT OF BINDING ARBITRATION AND THE CLASS ACTION WAIVER. IN ADDITION, THESE TERMS CONTAIN THE FOLLOWING SECTIONS: NO MEDICAL ADVICE (SECTION 3), WARRANTY DISCLAIMERS (SECTION 4), LIMITATION OF LIABILITY (SECTION 9), AND INDEMNIFICATION (SECTION 10) THAT AFFECT YOUR RIGHTS.
BY ACCESSING AND USING THE PROGRAM, OR CLICKING “I ACCEPT” YOU AFFIRM THAT YOU: (1) (2) ARE OF LEGAL AGE TO ENTER INTO THESE TERMS; (3) ARE AGREEING TO THESE TERMS ON YOUR OWN BEHALF ONLY; AND (4) ACKNOWLEDGE THAT YOUR ACT OF CLICKING “I ACCEPT” TO THESE TERMS SHALL HAVE THE SAME FORCE AND EFFECT AS THE USE OF A MANUAL SIGNATURE.
2. Background of the Program.
Abbott provides the Program to facilitate a diabetes education and support program that will teach You how to use Your CGM system to manage Your diabetes. The Program provides access to educational resources and assists users in tracking their glucose readings. If You disagree with these Terms (as they may be amended from time to time), or are dissatisfied with this Program, Your sole and exclusive remedy is to discontinue using this Program. More information about the Program is below:
- There is no fee for use of the Program.
- As a result of Your access to the Program, You will be eligible to receive diabetes education and support benefits, personalized discounts, product vouchers, promotional opportunities, and/or other benefits that we extend to Program members (collectively, the “Program Benefits”). Your use of Program Benefits may be subject to additional terms and conditions and limitations, and exclusions may apply.
- Program Benefits have no cash value and are non-transferrable.
- You are responsible for taxes, charges, or other liabilities (if any) related to or resulting from Your participation in the Program.
- Use of the Program is open to legal residents of the 50 United States and the District of Columbia who are 18 years of age or older; or if I am a caregiver, I confirm that I am legally authorized to provide information for the patient or minor under the age of 18.
- You may ask questions or cancel Your access to the Program at any time by calling 844-330-5535.
- Log in or attempt to log in to access the Program through any unauthorized third party application(s) or client(s).
3. No Medical Advice.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PROGRAM DOES NOT CONSTITUTE AND DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR RECOMMENDATIONS ABOUT MEDICAL TREATMENT NOR SHOULD IT BE REGARDED AS COMPRISING MEDICAL ADVICE, DIAGNOSIS, OR RECOMMENDATIONS ABOUT MEDICAL TREATMENT OF ANY NATURE. ANY CONTENT OR DATA ACCESSED THROUGH THE PROGRAM IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF HEALTHCARE PROVIDERS FOR THE DIAGNOSIS, CURE, MITIGATION, TREATMENT, OR PREVENTION OF ANY DISEASE, INJURY, OR OTHER CONDITION. THE PROGRAM DOES NOT CONSTITUTE THE PRACTICE OF MEDICINE OR ANY MEDICAL OR PROFESSIONAL HEALTH CARE ADVICE, DIAGNOSIS OR TREATMENT. THE CONTENT IN THE PROGRAM IS MEANT TO SUPPLEMENT THE INFORMATION THAT YOU OBTAIN FROM YOUR DOCTOR. IF THERE IS A DISAGREEMENT BETWEEN THE CONTENT PRESENTED HERE AND WHAT YOUR DOCTOR HAS TOLD YOU, IT IS MORE LIKELY THAT YOUR PHYSICIAN IS CORRECT. S/HE HAS THE BENEFIT OF KNOWING YOUR MEDICAL PROBLEMS. ABBOTT, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS ARE NOT ENGAGED IN RENDERING MEDICAL, CLINICAL, OR OTHER HEALTH-RELATED ADVICE AND ARE NOT RESPONSIBLE FOR NOTIFYING YOUR MEDICAL PROVIDER OR ANY OTHER HEALTHCARE PROFESSIONAL OF YOUR RESULTS OR ANY INFORMATION YOU PROVIDE THROUGH THE PROGRAM. ABBOTT IS NOT RESPONSIBLE FOR THE ACCURACY, TIMELINESS, OR COMPLETENESS OF ANY INFORMATION YOU PROVIDE, OR FOR ANY RELIANCE BY YOU OR ANY MEDICAL PROFESSIONAL ON THE INFORMATION YOU PROVIDE THROUGH THE PROGRAM. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER BEFORE FOLLOWING OR CHANGING ANY TREATMENT OR REGIMEN. ONLY YOUR DOCTOR CAN PROVIDE YOU WITH ADVICE ON WHAT IS SAFE, APPROPRIATE AND EFFECTIVE FOR YOU. IF YOU HAVE ANY QUESTIONS REGARDING YOUR PROCEDURE, TREATMENT, RECOVERY OR HEALTHCARE, PLEASE CONTACT YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER. DO NOT DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF CONTENT ON THE PROGRAM. THE PROGRAM AND CONTENT PROVIDED THROUGH THE PROGRAM SHOULD BE USED IN CONCERT WITH YOUR PHYSICIAN OR HEALTHCARE PROVIDER. USE OF THE PROGRAM IS SOLELY AT YOUR OWN RISK AND ABBOTT IS NOT RESPONSIBLE OR LIABLE FOR ANY CLAIMS, INJURY, LOSS OR DAMAGE OF ANY KIND ARISING OUT OR RELATED TO YOUR USE OF THE PROGRAM OR RELIANCE ON ANY CONTENT MADE AVAILABLE TO YOU THROUGH THE PROGRAM.
THE CONTENT AND OTHER INFORMATION AVAILABLE ON OR THROUGH THE PROGRAM ARE FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. YOU SHOULD ALWAYS CONSULT WITH YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER REGARDING QUESTIONS YOU HAVE ABOUT ANY MEDICAL CONDITION, BEFORE MAKING HEALTH CARE DECISIONS. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. THIS PROGRAM IS NOT DESIGNED TO FACILITATE MEDICAL EMERGENCIES.
4. Warranty Disclaimers.
YOU ACKNOWLEDGE AND AGREE THAT:
ALTHOUGH WE STRIVE TO PROVIDE THROUGH THIS PROGRAM THE LATEST DEVELOPMENTS RELATING TO OUR PRODUCTS AND SERVICES, AND OTHER INFORMATION ABOUT OUR COMPANY, WE DO NOT WARRANT THE ACCURACY, EFFECTIVENESS, AND SUITABILITY OF ANY CONTENT CONTAINED IN THE PROGRAM. YOU ASSUME FULL RESPONSIBILITY AND ALL RISKS ARISING FROM PARTICIPATING IN THE PROGRAM. THE PROGRAM AND ANY CONTENT PROVIDED THROUGH THE PROGRAM IS PRESENTED “AS IS” AND ON AN “AS AVAILABLE BASIS”. AND MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. ABBOTT RESERVES THE RIGHT TO MAKE ADDITIONS, DELETIONS, OR MODIFICATIONS TO THE PROGRAM AND/OR THE CONTENT PROVIDED THROUGH THE PROGRAM AT ANY TIME WITHOUT ANY PRIOR NOTIFICATION.
ABBOTT MAKES NO REPRESENTATIONS, WARRANTIES, OR COVENANTS, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO THE PROGRAM OR CONTENT PROVIDED THROUGH THE PROGRAM. UNLESS OTHERWISE STATED VIA THE PROGRAM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ABBOTT, ITS AFFILIATES, ITS LICENSORS AND ITS SERVICES PROVIDERS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, CREATED BY LAW, CONTRACT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WORKMANLIKE EFFORT, QUIET ENJOYMENT, OR LACK OF VIRUSES. WE EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, STATUTORY, AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF ADEQUACY, ACCURACY, TIMELINESS, AND COMPLETENESS OF THE PROGRAM, CONTENT, OR RESULTS OR WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE.
Abbott is not responsible, and provides no warranty whatsoever, for the accuracy, effectiveness, timeliness and suitability of any information or content obtained from third parties, including any hyperlinks to or from third-party sites.
Abbott will endeavor to keep the Program available for use however, we cannot guarantee this and take no responsibility for any loss or damage that occurs due to an interruption of access to the Program. Abbott may interrupt access to this Website for maintenance reasons or for any other reason, at Abbott’s sole discretion.
5. Permitted Use.
The Program is licensed, not sold, to You by Abbott. Subject to Your compliance with these Terms, and solely for so long as You are permitted by Abbott to use the Program, we hereby grant You, on a limited, non-exclusive, revocable, non-transferable, non-assignable, non-sublicensable basis, the right to access and use the Program on a device that You own, control or have otherwise been granted legitimate access to; solely for Your personal, non-commercial use (referred to as the “License”). If You fail to comply with any of the terms or conditions of these Terms, You must immediately cease using the Program. Your right to use the Program will terminate immediately in the event that You are in breach of these Terms.
You do NOT have the right to:
(a) use the Program on any device You do not own, control, or have otherwise been granted legitimate access to;
(b) copy, reproduce, republish, upload, post, or otherwise make available the Program or Documentation, or any portion thereof, in any form, on the Internet or in any other way to any other person without obtaining the prior written consent of Abbott and/or its licensors;
(c) sell, rent, lease, lend, assign, license, sub-license, distribute, or otherwise transfer rights to the Program or Documentation except as expressly provided in these Terms. The Program may not be transferred to another end user. The data You transmit using the Program is specific to You, unless You are a person using the Program for the intent of facilitating its use for another person (“Caregiver”). If another end user desires to utilize the Program, s/he should sign up for the Program directly from his/ her device and create a new account;
(d) use the Program for any commercial purpose, including for commercial timesharing or otherwise in providing services to third parties; or
(e) receive, distribute, use, or examine any source code or design documentation relating to the Program, except and then solely to the extent required to be permitted by applicable law.
You agree to only use the Program as expressly permitted herein.
6. Prohibited Use.
(a) You agree to use the Program only for purposes permitted by these Terms, and only to the extent permitted by any applicable law, regulation, or generally accepted practice in the applicable jurisdiction.
(b) In connection with the Program, You must NOT:
- post, transmit, or otherwise make available through or in connection with the Program any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;
- use the Program for any purpose that is fraudulent or otherwise tortious or unlawful;
- interfere with or disrupt the operation of the Program or the servers or networks used to make the Program available, including by hacking or defacing any portion of the Program; or violate any requirement, procedure or policy of such servers or networks;
- reproduce, modify, duplicate, adapt, translate, create derivative works of, sell, rent, lease, sublicense, loan, timeshare, distribute, or otherwise exploit any portion of (or any use of) the Program except as expressly authorized herein, without Abbott’s express prior written consent;
- reverse engineer, decompile or disassemble, decode, translate, modify, create derivative works of, gain access to the source code, reduce non-human readable elements to human-readable form, modify, or adapt (or permit or facilitate third parties in any of the foregoing activities) the Program, any updates to same, or any part thereof, except and then solely to the extent required to be permitted under applicable law;
- remove any copyright, trademark or other proprietary rights notice from the Program;
- frame or mirror any portion of the Program, or otherwise incorporate any portion of the Program into any product or service, without Abbott’s express prior written consent;
- attempt in any way to remove or circumvent any technical protection measures protecting the integrity of the Program and the Intellectual Property Rights (defined below) of the Program from misappropriation, nor apply or manufacture for sale or hire, distribute, sell or let for hire, offer or expose for sale or hire, advertise for sale, or hire, or have in Your possession for private or commercial purposes any means the sole intended purpose of which is to facilitate the unauthorized removal or circumvention of such technical protection measures; or
- use any robot, data mining, screen scraping, spider, website search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Program or the Content (defined below).
7. Intellectual Property.
The Program, any part thereof, or anything associated therewith, including the information, documents, related graphics, text, design, layout, and its content (“Content”), including all Intellectual Property Rights that exist therein, are the sole and exclusive property of Abbott, except for information provided by third-party providers under contract to Abbott, its subsidiaries or affiliates. For the purposes of these Terms, “Intellectual Property Rights” means any copyright, patent, trade secret, trade dress, trade names, service marks, trademark, rights in get-up, goodwill, rights in designs, technology, algorithms, artwork, rights in computer software (including source code and object code), database, moral rights, mask work rights, rights in inventions, and similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any media now known or hereinafter invented, recognized in any jurisdiction anywhere in the world (including applications for, and registrations, extensions, renewals and re-issuances of, the foregoing). You agree to refrain from any action that would diminish such rights or would call them into question. Permission to use the Program and all Content provided through the Program is granted to You, provided that (1) the above copyright notice appears on all copies; (2) the Program or Content is not modified in any way; and (3) no graphics made available through the Program are used separate from accompanying text. Abbott is not responsible for content provided by third-party providers, and You are prohibited from distribution of such material without permission of the owner of the copyright therein. Except as permitted above, no license or right, express or implied, is granted to any person under any patent, trademark or other proprietary right of Abbott. Unauthorized copying of the Program or failure to comply with the restrictions in these Terms (or other breach of the License herein) will result in automatic termination of these Terms and You agree that it will constitute immediate, irreparable harm to Abbott, its affiliates, and/or its licensors for which monetary damages would be an inadequate remedy, and that injunctive relief will be an appropriate remedy for such breach.
No use of any Abbott trademark, trade names, trade dress and products available through the Program (“Abbott Trademarks”) may be made without the prior written authorization of Abbott, except to identify the product or services of Abbott. All goodwill derived through the use of the Abbott Trademarks pursuant to these Terms shall inure solely to the benefit of Abbott. Other trademarks included or accessed during the use of the Program are the trademarks of their respective owners and all goodwill associated with such trademarks shall inure to such respective trademark owners. email@example.com
8. License to Your Data.
9. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL ABBOTT BE LIABLE FOR ANY DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE EXISTENCE OR USE OF THIS PROGRAM AND/OR THE CONTENT OR CONTENT POSTED THROUGH THE PROGRAM, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PROGRAM OR YOUR DATA, LOSS FROM ANY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICE DUE TO YOU ACCESSING THE PROGRAM, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THESE TERMS, EVEN IF ABBOTT, ITS AFFILIATES, ITS LICENSORS, OR ITS SERVICE PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDY FAILS ITS ESSENTIAL PURPOSE. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING BACK-UP PLANS AND SAFEGUARDS NECESSARY TO APPROPRIATELY ADDRESS YOUR NEEDS IN THE EVENT THAT AN ERROR IN THE PROGRAM CAUSES DEVICE PROBLEMS OR DATA LOSSES. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THESE TERMS OR THE PROGRAM WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES. TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW, BOTH OF THESE LIMITATIONS OF LIABILITY APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (A) BREACH OF CONTRACT, (B) BREACH OF WARRANTY, (C) FAULT OR TORT (INCLUDING NEGLIGENCE AND MISREPRESENTATION), (D) STRICT LIABILITY OR (E) ANY OTHER CAUSE OF ACTION UNDER LAW OR EQUITY.
Some states/jurisdictions may prohibit or limit the exclusion or limitation of liability, certain implied warranties, or incidental or consequential damages; solely to the extent that such law applies to You, some or all of the above disclaimers, limitations, or exclusions may not apply to You, and You may have certain additional rights under applicable law. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
To the fullest extent permitted by applicable law, You agree to indemnify, defend, and hold harmless Abbott, its affiliates, its licensors, its service providers, and its and their respective officers, directors, employees, agents, successors, assignees, and licensors from and against any and all actual or alleged claims, demands, liabilities, judgment, awards, losses, costs, and expenses of every kind and nature whatsoever (including, without limitation, attorneys’ and experts’ fees) made by a third party due to or caused by, arising out of, or related to (a) Your use or misuse of, or activities in connection with, the Program; (b) Your Data; and/or (c) any violation or alleged violation of these Terms or laws, regulations or third-party rights including any infringement of their copyright or Intellectual Property Rights of any third party by You or Your Caregiver or otherwise in connection with Your or their use of the Program, including negligent acts, omissions, and/or willful misconduct. You agree to promptly notify Abbott of any claim(s) and shall cooperate fully with Abbott in defending such claims. You further agree that Abbott shall have control of the defense or settlement of any third-party claims.
Any submissions by You (e.g., comments, questions, suggestions, materials – collectively, (the “Feedback”)) through the Program and/or any communication whatsoever (e.g., call, fax, email) will be treated as non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Abbott is free to use, without any notice, attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Abbott shall have no obligation of any kind to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
Abbott has the right to suspend or terminate Your access to the Program and Your Data displayed within the Program immediately and without notice or terminate these Terms at any time if: (a) You breach any provision of these Terms; (b) Abbott elects at its discretion to cease providing access to the Program or Your Data; or (c) in other circumstances and for other reasons determined by Abbott in its sole discretion.
Upon termination of Your access to the Program, all rights granted under these Terms, including, without limitation, any licenses, shall cease, You and/or Your Caregiver must immediately cease all activities authorized by these Terms and You and/or Your Caregiver will no longer be able to use or access the Program or Your Data. Abbott may, without liability to You or any third party, immediately suspend, deactivate, or terminate Your Program Account, including Your access to Your Registration Information, and all associated materials, without any obligation to provide any further access to such materials. All data and materials, including, without limitation, Your Data, may be irretrievably deleted by Abbott.
13. Updates to these Terms.
Abbott may change the terms of these Terms from time to time by notifying You of such changes by any reasonable means, including by displaying revised Terms on-screen when You next use the Program, and requiring You to read, explicitly consent, and agree to them to continue Your use of the Program. In addition, Your continued use of the Program after the date the amended Terms are posted will constitute Your acceptance of the amended Terms. If accepted, such Terms would be effective immediately, but would not apply to any dispute between You and Abbott arising prior to the date on which Abbott posted the revised Terms incorporating such changes, or otherwise notified You of such changes. In the event that You refuse to accept such changes, Abbott shall have the right to terminate these Terms and Your use of the Program and You should not, and You are not granted a right to use the Program. You agree that Abbott shall not be liable to You or any third party for any modification or cessation of the Program.
14. Third-Party Links and Content.
Because Abbott has no control over and does not endorse, adopt, approve of, or recommend any third party, non-Abbott websites or apps, or of any information, graphics, materials, products, or services referred to or contained in such non-Abbott websites or apps to which the content may be linked, You agree that Your access to such other websites or apps is at Your own risk. Any links to these non-Abbott websites or apps are provided for convenience only and may not remain current or be maintained. Unless otherwise stated in these Terms, all ownership and Intellectual Property Rights in and to non-Abbott websites and apps and the use of them is governed by separate third party terms between You and the third party. Abbott accepts no liability for anything associated with third-party websites or apps, the content on any third-party apps or websites, or a third party’s privacy practices.
Portions of the Program may include material provided by third parties, in which Intellectual Property Rights subsist (“Third-Party Materials”). The licensors of such Third-Party Materials retain all of their respective right, title, and interest in and to such Third-Party Materials and all copies thereof, including, but not limited to, any and all Intellectual Property Rights. The use of this Third-Party Material and the associated rights are subject to separate license terms, in which case those license terms will govern the usage of such Third-Party Materials, as applicable and are hereby acknowledged by You, except and then solely to the extent that the foregoing acknowledgment is ineffective in certain countries/states/ provinces/jurisdictions.
15. Notices; Electronic Communications.
When You sign up for a Program Account or send e-mails to Abbott, You are communicating with Abbott electronically and You consent to receive communications from Abbott electronically. Abbott will communicate with You by e-mail at the address Abbott has on file for You (if any) or by posting notices on the Program’s Website. You agree that all agreements, notices, disclosures and other communications that Abbott provides to You electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by Abbott electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms. All notices required or permitted under these Terms to Abbott will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery, provided that we may provide written notice to You through electronic communications as described in the paragraph immediately above. The notice address for Abbott is Abbott Diabetes Care, Inc. ATTN: Legal Department 1306 South Loop Road, Alameda, CA 94502. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail, and (ii) in the case of overnight courier or hand delivery, upon delivery. Abbott may change its notice address by giving written notice to You by the means specified in this section.
16. Notice of Financial Incentive.
Abbott offers free sensors to eligible individuals as part of certain Program(s) (“Free Sensor Program(s)”). Eligible participants opt in by signing up for the relevant Free Sensor Program on the relevant MyFreeStyle webform. Abbott collects and uses Your personal information, including information You voluntarily provide us and potentially information from other sources to operate the Free Sensor Programs and related services, including to send You promotions, content, special offers, and other personalized benefits. Based on our reasonable and good faith estimate, Abbott receives value from the Free Sensor Programs through increased customer adherence and sales, but we do not assign an independent monetary value to the personal information we collect in connection with the Free Sensor Programs. In general, however, Abbott estimates in good faith that the value provided by the Free Sensor Programs to customers is equal to or greater than the value we receive from the personal information collected through the Free Sensor Programs. Abbott incurs a variety of expenses for providing financial incentives, including administrative and technical expenses associated with maintaining the Free Sensor Programs and costs associated with the provision of free sensors. Participation in our Free Sensor Programs is voluntary. By providing Your personal information when signing up for the Free Sensor Programs, You are affirmatively opting-in. Participation is subject to meeting the relevant eligibility criteria. You may unsubscribe from Free Sensor Program emails You receive any time by clicking the unsubscribe link in the emails. You can also request to opt out any time by calling (844)330-5535. Please mention the name of the Free Sensor Program in Your request to opt-out.
17. BINDING ARBITRATION/CLASS WAIVER.
YOU AND WE EXPRESSLY AGREE THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND US OR OUR CORPORATE PARENT, SUBSIDIARIES, AND AFFILIATES, AND ALL OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “ABBOTT PARTIES”), THE PROGRAM OR THE CONTENT, INCLUDING CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THESE TERMS (COLLECTIVELY “DISPUTES”) SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION, RATHER THAN IN A COURT, AS DESCRIBED HEREIN. YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT, EXCEPT AS EXPRESSLY PROVIDED HEREIN. FOR PURPOSES OF THIS ARBITRATION AGREEMENT, “DISPUTE” WILL ALSO INCLUDE DISPUTES THAT AROSE OR INVOLVE FACTS OCCURRING BEFORE THE EXISTENCE OF THIS OR ANY PRIOR VERSIONS OF THE TERMS AS WELL AS CLAIMS THAT MAY ARISE AFTER THE TERMINATION OF THESE TERMS.
Notwithstanding this Section 17, we may bring a claim for injunctive or other equitable relief in any court of competent jurisdiction as necessary to enforce our Intellectual Property Rights or those of our affiliates, suppliers, or licensors.
To begin the ADR process, a party first must send written notice of the dispute to the other party for attempted resolution by good faith negotiations within twenty-eight (28) days after such notice is received (all references to days in this ADR provision are to calendar days). If the matter has not been resolved within twenty-eight (28) days after the notice of dispute, or if the parties fail to meet within such twenty-eight (28) days, either party may initiate an ADR proceeding as provided herein. The parties shall have the right to be represented by counsel in such a proceeding.
a. To begin an ADR proceeding, a party shall provide written notice to the other party of the issues to be resolved by ADR. Within fourteen (14) days after its receipt of such notice, the other party may, by written notice to the party initiating the ADR, add additional issues to be resolved within the same ADR.
b. Within twenty-one (21) days following the initiation of the ADR proceeding, the Parties shall select a mutually acceptable independent, impartial and conflicts-free neutral to preside in the resolution of any disputes in this ADR proceeding. If the Parties are unable to agree on a mutually acceptable neutral within such period, each Party will select one independent, impartial, and conflicts-free neutral and those two neutrals will select a third independent, impartial and conflicts-free neutral within ten (10) days thereafter. None of the neutrals selected may be current or former employees, officers or directors of either party or its affiliates.
c. No earlier than twenty-eight (28) days or later than fifty-six (56) days after selection, the neutral(s) shall hold a hearing to resolve each of the issues identified by the parties. The ADR proceeding shall take place at a location agreed upon by the parties. If the parties cannot agree on a location, the location shall be in Cook County, Illinois, U.S.A.
d. At least seven (7) days prior to the hearing, each party shall submit the following to the other party and the neutral(s):
i. a copy of all exhibits on which such party intends to rely in any oral or written presentation to the neutral;
ii. a list of any witnesses such party intends to call at the hearing, and a short summary of the anticipated testimony of each witness;
iii. a proposed ruling on each issue to be resolved, together with a request for a specific damage award or other remedy for each issue. The proposed rulings and remedies shall not contain any recitation of the facts or any legal arguments and shall not exceed one (1) page per issue. The parties agree that neither side shall seek as part of its remedy any punitive damages.
iv. a brief in support of such party’s proposed rulings and remedies, provided that the brief shall not exceed twenty (20) pages. This page limitation shall apply regardless of the number of issues raised in the ADR proceeding.
e. Except as expressly set forth in subparagraphs (d)(i) - (d)(iv) above, no discovery shall be required or permitted by any means, including depositions, interrogatories, requests for admissions, or production of documents.
f. The hearing shall be conducted on two (2) consecutive days and shall be governed by the following rules:
i. Each party shall be entitled to five (5) hours of hearing time to present its case. The neutral shall determine whether each Party has had the five (5) hours to which it is entitled.
ii. Each party shall be entitled, but not required, to make an opening statement, to present regular and rebuttal testimony, documents or other evidence, to cross-examine witnesses, and to make a closing argument. Cross-examination of witnesses shall occur immediately after their direct testimony, and cross-examination time shall be charged against the Party conducting the cross-examination.
iii. The party initiating the ADR shall begin the hearing and, if it chooses to make an opening statement, shall address not only issues it raised but also any issues raised by the responding party. The responding party, if it chooses to make an opening statement, also shall address all issues raised in the ADR. Thereafter, the presentation of regular and rebuttal testimony and documents, other evidence, and closing arguments shall proceed in the same sequence.
iv. Except when testifying, witnesses shall be excluded from the hearing until closing arguments.
v. Settlement negotiations, including any statements made therein, shall not be admissible under any circumstances. Affidavits prepared for purposes of the ADR hearing also shall not be admissible. As to all other matters, the neutral(s) shall have sole discretion regarding the admissibility of any evidence.
g. Within seven (7) days following completion of the hearing, each party may submit to the other party and the neutral(s) a post-hearing brief in support of its proposed rulings and remedies, provided that such brief shall not contain or discuss any new evidence and shall not exceed ten (10) pages. This page limitation shall apply regardless of the number of issues raised in the ADR proceeding.
h. The neutral(s) shall rule on each disputed issue within fourteen (14) days following completion of the hearing. Such ruling shall adopt in its entirety the proposed ruling and remedy of one of the parties on each disputed issue but may adopt one party’s proposed rulings and remedies on some issues and the other party's proposed rulings and remedies on other issues. The neutral(s) shall not issue any written opinion or otherwise explain the basis of the ruling.
i. The neutral(s) shall be paid a reasonable fee plus expenses. These fees and expenses, along with the reasonable legal fees and expenses of the prevailing party (including all expert witness fees and expenses), the fees and expenses of a court reporter, and any expenses for a hearing room, shall be paid as follows:
i. If the neutral(s) rule(s) in favor of one party on all disputed issues in the ADR, the losing party shall pay 100% of such fees and expenses.
ii. If the neutral(s) rule(s) in favor of one party on some issues and the other party on other issues, the neutral(s) shall issue with the rulings a written determination as to how such fees and expenses shall be allocated between the parties. The neutral(s) shall allocate fees and expenses in a way that bears a reasonable relationship to the outcome of the ADR, with the party prevailing on more issues, or on issues of greater value or gravity, recovering a relatively larger share of its legal fees and expenses.
j. The rulings of the neutral(s) and the allocation of fees and expenses shall be binding, non-reviewable, and non-appealable, and may be entered as a final judgment in any court having jurisdiction.
k. Except as provided in Section(i) or as required by law, the existence of the dispute, any settlement negotiations, the ADR hearing, any submissions (including exhibits, testimony, proposed rulings, and briefs), and the rulings shall be deemed confidential information. The neutral(s) shall have the authority to impose sanctions for unauthorized disclosure of confidential information.
l. All ADR hearings shall be conducted in the English language.
WAIVER OF CLASS ACTIONS: We each agree that any Dispute will be arbitrated or litigated, as the case may be, on an individual basis and shall not be consolidated with any claim of any other party whether through class action proceedings, class arbitration proceedings or otherwise. WE EACH AGREE THAT WE ARE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING ANY RIGHT WE MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THESE TERMS.
You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action You may have must be filed within one (1) calendar year after such claim or cause of action arises, or forever be barred.
Except as provided above, if any part or parts of this Section are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the arbitration agreement shall continue in full force and effect.
(a) These Terms shall be governed and construed in accordance with the law of the state of Illinois.
(b) The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods does not govern these Terms. However, as a consumer, You will benefit from any mandatory provisions of the law of the country in which You are resident and nothing in these Terms affects Your rights as a consumer to rely on such mandatory provisions of local law.
(c) If a court of competent jurisdiction finds that any provision of these Terms is invalid or unenforceable, You agree that the other provisions of these terms and conditions will remain in full force and effect.
(d) No failure or delay by us in exercising any right, power or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms.
(e) Notwithstanding the foregoing, in the event of a breach or threatened breach of Your obligations with respect to our Intellectual Property Rights, Abbott and its affiliates will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction without the need to post bond or other security.
(f) You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action You may have must be filed within one (1) calendar year after such claim or cause of action arises, or forever be barred.
(h) These Terms are binding upon and shall ensure to the benefit of Parties and their respective successors, heirs, executor, administrators, personal representatives and assigns. You shall not assign Your rights or obligations hereunder without our prior written consent and any such assignment shall be void and invalid at the outset.
You do not have to provide Your mobile phone number when You sign up for a Program Account. By providing Abbott with a mobile number and signing up for a Program Account, You are verifying that it is Your mobile number and that You are providing prior written consent to Abbott to receive text and short code (SMS) messaging so Abbott may communicate with You and provide general informational messages and promotional marketing messages to You on Your cell phone. You understand and agree that You may receive these messages through the use of automated technology. Message and data rates may apply. To opt-out of receiving SMS messages, reply “STOP” to any message or text “STOP” to the short code provided. After You send the SMS message “STOP” to us, we will send You an SMS message to confirm that You have been unsubscribed. After this, You will no longer receive SMS messages from us. If You would like to opt back in to receiving SMS messages, please visit the Website, and re-enroll into the program. After we receive Your opt-in request, we will start sending SMS messages to You again. If You are experiencing issues with the messaging program, You can text “HELP” to the short code or reply “HELP” to any message, or You can get help by calling our toll-free number, 855-632-8658. Message frequency may vary. If You change Your mobile phone service provider, the SMS messaging service may be deactivated and You will need to re-enroll in the notification service. Abbott may change or end the messaging program at its discretion, and the content may not be available on all wireless carriers. Abbott may add or remove its capabilities with certain wireless carriers at its sole discretion and at any time without any notification to You. Participating carriers may include, but not be limited to: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, Virgin Mobile, Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless), and usage is subject to their respective terms of service. Your receipt of SMS messages may result in You incurring additional messaging or data fees from Your wireless carrier for which You are solely liable. You can contact Your wireless carrier with any questions about Your text or data plan. Abbott is not liable for delayed or undelivered messages.