IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS END-USER LICENSE AGREEMENT (“AGREEMENT”).
Beta Bionics, Inc. (“we,” “our,” “Beta Bionics”) hereby grants You a personal, non-exclusive, non-transferable, and non-sublicensable license to use the “iLet” insulin pump smartphone app (the “App”) on a single mobile device owned or controlled by You (the “Device”) in accordance with the terms and conditions set forth in this Agreement.
BY CLICKING THE “AGREE” BUTTON, REGISTERING, AND USING THE APP YOU AGREE THAT (1) YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH BETA BIONICS, INC., (2) YOU ALSO AGREE TO THESE TERMS OF USE (“TERMS”) GOVERN YOUR ACCESS TO AND USE OF THE APP AND ANY INFORMATION APPEARING ON THE APP, (3) THE INDIVIDUAL AGREEING TO THESE TERMS HAS THE POWER, AUTHORITY, AND LEGAL RIGHT TO ENTER TO THIS AGREEMENT (AS AN INDIVIDUAL IF ON YOUR OWN BEHALF, OR AS A PARENT OR GUARDIAN FOR A MINOR (“YOU” OR “YOUR”)), AND (4) YOUR ACCESS TO AND USE OF THE APP IS CONTINGENT ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
YOUR PRIVACY AND YOUR ABILITY TO CONTROL YOUR DATA ARE VERY IMPORTANT TO US. ANY INFORMATION THAT YOU PROVIDE TO US IS SUBJECT TO OUR PRIVACY POLICY, WHICH GOVERNS OUR COLLECTION AND USE OF YOUR INFORMATION. YOU UNDERSTAND THAT THROUGH YOUR USE OF THE APP, YOU CONSENT TO THE COLLECTION AND USE OF THIS INFORMATION (AS SET FORTH IN THE PRIVACY POLICY)
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE APP.
The App is provided for informational purposes only and is not intended to diagnose, treat, or cure any medical condition. The information provided on the App is not a substitute for professional medical advice, diagnosis, or treatment.
1. App License
1.1. Ownership. The App is licensed, not sold, to You. Beta Bionics retains all rights, title, and interests in and to the App, including all intellectual property rights therein. You acknowledge and agree that the App, and all copyrights, patents, trademarks, trade secrets, and other proprietary rights associated with the App, are the sole and exclusive property of Beta Bionics or its licensors. You shall not acquire any ownership interest in the App under this Agreement or by virtue of Your use of the App.
1.2. Limited License & Restrictions.
1.2.1. You are granted a limited, revocable, non-exclusive right to use the App solely for Your personal use in connection with Your iLet Device. You may not use the App for any commercial purpose or for the benefit of any third party. You may not modify, adapt, translate, reverse engineer, decompile, or disassemble the App in whole or in part, or create any derivative works based on the App. You may not remove, alter, or obscure any proprietary notices or labels on or in the App.
1.2.2. You are required to use Your smartphone or other smart devices such as a tablet, 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 that You will not use a Jailbroken Smart Device in connection with the App.
1.2.3. You may not remove, alter, or obscure any trademark or any copyright, trademark, patent, or other intellectual property, or proprietary rights notices from the App, including any copy thereof.
1.3. No Support. You are solely responsible for the use and operation of the App on Your Device. Beta Bionics makes no representation or warranty that the App will be compatible with or operate on Your Device, or that the App will be free from errors, defects, viruses, or other harmful elements. Beta Bionics shall have no liability for any damages or losses arising from Your use or inability to use the App, or any errors, defects, viruses, or other harmful elements in the App. The App may be interrupted, unavailable, or even terminated, and You must not rely upon direct use of the App for the User’s health monitoring.
1.4. Apple App Store. If You are using the App from the Apple App Store to the extent the other terms and conditions of the Terms of Use are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms, and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that these Terms of Use are solely between You and Beta Bionics, and not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and/or to support the App with respect to the App. You acknowledge that Beta Bionics, not Apple, is responsible for addressing any claims of You or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation. You acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes on that third party’s intellectual property rights, Beta Bionics not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Use as they relate to your license of the App, and that, upon your acceptance of the Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary thereof.
1.5. Google Play Store. If You acquire the App from Google, Inc. or one of its affiliates (“Google“) via Google Play or its successor(s), then to the extent of any conflict between the Google Play Terms of Service and the Google Play Business and Services Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms“), and the other terms and conditions in these Agreements, the Google Play Terms shall apply with respect to Your use of any App that You acquire from Google Play. You acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Beta Bionics or You (or any other user) under these Agreements or the Google Play Terms.
2. Development, Modification, and Improvement of the App
Beta Bionics may from time-to-time update or modify the App to add new features, fix errors, or address security issues. You may be required to accept such updates or modifications as a condition of Your continued use of the App. Beta Bionics shall have no obligation to provide support or maintenance for the App.
3. By using the App, You acknowledge and agree that:
3.1. Medical Treatment. You are responsible for Your own medical treatment and decisions, and that You will consult with a healthcare professional before making any changes to Your iLet settings or treatment regimen.
3.2. No Warranties. The App is provided “as is” without any warranties of any kind, either express or implied. Beta Bionics does not guarantee the accuracy, completeness, or usefulness of the information provided on the App, and will not be liable for any errors or omissions in the information or for any loss or damage of any kind arising from Your use of the App. Without limiting the foregoing, BETA BIONICS AND ITS PARTNERS DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGMENT. We will not be responsible or liable for any harm to Your Device, loss of data, or other harm that results from Your access to or use of the Service.
3.3. Compliance. You will not use the App for any illegal or unauthorized purpose and will comply with all applicable laws and regulations in Your use of the App.
3.4. App Discontinuation. Beta Bionics may change, suspend, or discontinue the App at any time without notice, and will not be liable for any disruption or interruption of the App.
3.5. Terms Update. Beta Bionics may update these Terms at any time, and Your continued use of the App after such updates will constitute Your acceptance of the updated Terms.
3.6. Privacy. In order to operate and provide the App, Beta Bionics may collect certain information about You, including but not limited to insulin use, glucose levels, technical and telemetry data related to Your use of the App. You may also be required to provide certain information about You as a condition to downloading, installing, or using the App. Beta Bionics uses and protects information in accordance with the Beta Bionics Privacy Policy (a current version of which can be found at https://www.betabionics.com/privacy-policy). By downloading, installing, using, and providing information through this App, you consent to all actions taken by Beta Bionics with respect to your information in compliance with the Privacy Policy.
4. Term. The term of this Agreement commences when you download the App and acknowledge your acceptance and will continue in effect until terminated as forth in this Section 4.
4.1. You may terminate this Agreement by deleting the App and all copies thereof from your Device. Data collected during Your use of the App, may be retained and used by Beta Bionics post termination.
4.2. Beta Bionics reserves the right to terminate this Agreement and Your license to use the App at any time, for any reason or no reason, with or without notice.
4.3. Upon termination:
4.3.1. All rights granted to you under this Agreement will also terminate; and
4.3.2. You must cease all use of the App and delete all copies of the App from Your Device and account.
4.4. Termination will not limit any of Beta Bionics’ rights or remedies at law or in equity.
5. Waiver and Severability
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term, and all other provisions of this Agreement will continue in full force and effect.
6. Entire Agreement
This Agreement, Term of Use, and our Privacy Policy set forth the entire agreement between You and Beta Bionics with respect to the App and supersede all prior or contemporaneous communication and proposals, whether oral or written.
7. Governing Law and Dispute Resolution
7.1. Informal Process First. You agree that in the event of any dispute between You and Beta Bionics, You will first contact Beta Bionics and make a good-faith effort to resolve the dispute before resorting to more formal means of resolution, including any court action.
7.2. Governing Law. These Terms, or any claim, cause of action, or dispute (“Claim”) arising out of or related to this Agreement shall be governed by the laws of the State of California.
7.3. Arbitration Agreement. Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Orange County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or alternative arbitration provider selected by Beta Bionics. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration will be conducted in the English language.
Notwithstanding the above, You agree that Beta Bionics shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
7.3.1. Waiver of Jury Trial. By agreeing to arbitration, You and Beta Bionics are waiving all rights to a trial by jury. If for any reason a Claim proceeds in court rather than in arbitration, You and Beta Bionics also each waive any right to a jury trial.
7.3.2. Opt Out Procedure. You may reject this arbitration agreement by mailing us a written opt-out notice (“Opt-Out Notice“) in accordance with the terms of this Section. The Opt-Out Notice must be postmarked no later than 30 days after the date You use our App for the first time. You must mail the Opt-Out Notice to Beta Bionics’ Attn: Legal Department, at the address at the end of these Terms of Use. The Opt-Out Notice must state that You do not agree to the arbitration agreement and must include Your name, address, phone number, and email address used to log in to Your User Account. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way You can opt out of the arbitration agreement. If You opt out of the arbitration agreement, Beta Bionics will also not be bound by these arbitration provisions. All other terms of these Terms of Use will continue to apply.
7.4. Class Action Waiver. Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action“). You and Beta Bionics each waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have the authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. If this Class Action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void.
8. Indemnification
8.1. You shall indemnify, defend, and hold harmless Beta Bionics and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the App or your breach of this Agreement, including but not limited to the content you submit or make available through this App.
9. No Assignment
You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Beta Bionics. Any purported assignment, transfer or delegation by You will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
10. Intended Uses.
10.1. Data aggregation and reporting – The App may be used for data collection, sharing and reporting purposes.
10.2. Device firmware/software update – The App may be used to initiate firmware or software updates to the iLet.
11. Contact Us. You may contact us regarding the App or these Terms by notice:
Beta Bionics, Inc.
Attn: Legal Department
11 Hughes
Irvine, CA 92618
Or by email to privacy@betabionics.com
