Alpha Pharma Service TERMS OF USE

Alpha Pharma Service TERMS OF USE

THESE Alpha Pharma Service TERMS OF USE ARE EFFECTIVE AS OF Aug 1, 2019.

This Agreement is between ALPHA PHARMA SERVICE S.R.L. (Alpha Pharma Service) and you, concerning your use of Alpha Pharma Service’s APS FGM system, including sensors, transmitter, APP, software and data services(APS FGMS).

By using (including accessing) any APS FGMS or by clicking “accept” to this Agreement, you are agreeing to this Agreement.

All of the following terms are a single legal agreement between you and Alpha Pharma Service.

1. APS FGMS Indication and limitation

The APS FGMS is indicated for measuring interstitial fluid glucose levels in adult people (age 18 and older) with diabetes mellitus.

This APP is exclusively for users of APS FGM System and their relatives. By using this APP, you agree that you are over 18 years of age and have read, understood and agree to all of the above.

Health care professionals and consumers should be aware about this limitation of indicated patients who require diabetes management. Always read the label and use as directed.

1. APS FGMS is not medical or healthcare service.

You understand that APS FGMS is not a healthcare professional and does not provide medical, health or other professional services or advice, nor do we verify the accuracy of User Data . APS FGMS is not replacement for proper medical care, and you agree that the user is solely responsible for obtaining proper treatment for his or her conditions.

• Do NOT use or rely on APS FGMS or any associated materials for any medical purpose or decision.
• Do NOT rely on APS FGMS for any real-time alarms or time critical data.
• Do NOT use or rely on APS FGMS for treatment decisions or use as a substitute for professional healthcare judgement.
• Any part of the system can fail at any time. Always seek the advice of a qualified healthcare professional for any medical questions.

You may provide the information and reports received from APS FGMS to certain third parties selected by you at your own responsibility.

1. Data Services

Our Data Service is intended to allow a user to use the data generated by, or created in connection with the use of APS FGMS to help the user to manage his or her diabetes in accordance with the applicable APS FGMS Labeling.

Each Data Service or Software App may require the creation of an Alpha Pharma Service user account on the software APP. If so, you are required to accurately complete and maintain the User Account and to provide us with all required information. You are responsible for obtaining, maintaining and paying for all hardware, software and telecommunications and other services necessary for the use of the Data Services.

Use of our Data Services requires an internet-enabled Smart Device or computer. Each Data Service receives User Data from a Software App that is downloaded to your Smart Device or computer.

Our Data Services may also permit Users to share User Data, reports and other information relating to the User to certain third parties selected by the user. By selecting the third party (which may be a person, a software app, or another business), you are authorizing us to send your User Data to each party you select. Alpha Pharma Service 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 designated by you, Alpha Pharma Service has no further control or responsibility regarding that information.

Our collection, storage and transmission of User Data and any other information that you provide to Alpha Pharma Service through APS FGMS is governed by thePrivacy Policy.

1. Privacy policy

The personal data we receive about you (which we refer to collectively as your “Personal Information”) includes but not limited to Registration and Ordering Information, Feedback Information, Data Services Information, User Information and Derived Information, such as glucose readings, information associated with each glucose reading, date, time, and device identifier; Thresholds input into Data Services or Software Apps and notifications arising from those thresholds;

In general, you are entitled to at any time access your Personal Information. You have the right to request rectifying, erasing, transferring some of this information to other organizations or restricting its processing. You may also have rights to object to some processing and, where we have asked for your consent to process your data, to withdraw this consent.

By clicking “accept” to this Agreement, you agreed that Alpha Pharma Service have the right to collect and use Data Services Information, store it on our servers, process it using Data Services, and transmit it to the User and each Designated Recipient and Designated Third Party Service, where applicable for APS FGMS that are requested by you.

By clicking “accept” to this Agreement, you agreed that Alpha Pharma Service have the right to use Data Services Information in connection with our provision of Data Services and for our operations, administration and product development, maintenance and support in line with applicable data protection laws.

We need to hold, process and transfer your Personal Information but solely for legitimate business purposes in accordance with applicable laws, ordinances and guidelines, and it is only disclosed on a need-to-know basis to those who are authorized to use it for these purposes.

Third Parties: In the ordinary course of our business, Alpha Pharma Service will collect and use providers to perform services or functions on our behalf. We will not authorize those third parties to keep, use or disclose your Personal Information except for providing the services we have asked them to provide.

When you elect to share your protected health information with a Designated Third-Party Service, such as through the Apple Health app, you are electing to provide your data to a third party, and your authorization continues until you revoke it.

Your Designated Recipients may share your Personal Information with Alpha Pharma Service for purposes relating to their use of APS FGMS.

Once you share any Personal Information with a third party, including Designated Third-Party Services, we have no control over that Personal Information and how it is used by any such third party. You should refer to the terms of service, privacy policy and other provisions of the websites for each third party to which you provide any Personal Information yourself, and for any Designated Third-Party Service you authorize.

For Personal Information that Alpha Pharma Service receives from users, affiliates and companies in the European Union, the European Economic Area, and Switzerland, Alpha Pharma Service will commit to handling such personal information in accordance with the European law principles for international transfers such as EU Standard Contractual Clauses or Privacy Shield.

Where Alpha Pharma Service requires your Personal Information to comply with legal or contractual obligations, then provision of such data is mandatory: if such data is not provided, then we will not be able to manage the relationship, or to meet obligations placed on us. In all other cases, provision of requested Personal Information is optional.

1. Changes of APS FGMS Software Apps

Alpha Pharma Service has the right to change the APS FGMS Software Apps, for example, add new App features, develop additional services to support new functionality, and offer new integrations, as determined from time to time by Alpha Pharma Service in its discretion by notifying you of such changes by any reasonable means, including our posting of a notice on our Website or Software App.

Subject to applicable law, your continued use of the applicable Alpha Pharma Service Service or Software App, for seven (7) days without objecting the change, after any such change is acceptance of the change. We reserve the right to introduce new features or functionality for which the payment of fees may be required. If you do not agree with the changes, you have the right to discontinue your use of the APS FGMS.

1. Changes of terms

Alpha Pharma Service has the right to change the terms of this Agreement by notifying you of such changes by any reasonable means, including by posting a notice of new terms to our Website. Your clicking “accept” to the new terms or your continued use of APS FGMS, for seven (7) days without objecting to the new terms, after any such change is acceptance of the new terms. Any such changes will not apply to any dispute between you and us arising prior to the date on which we notified you of the revised Agreement incorporating such changes. If you do not agree with the new terms, you have the right to discontinue your use of the APS FGMS.

1. Other restrictions 

You will not, and you will not permit anyone under your control to, do or attempt to do any of the following:

• Use APS FGMS to harm, threaten, or harass any person or organization;
• Use APS FGMS for commercial purposes or to benefit any third party;
• Use or attempt to use any unauthorized means to modify, reroute, or gain access to APS FGMS;
• Damage, disable, overburden, interfere with or impair APS FGMS (or any network or device connected to APS FGMS);
• Enable unauthorized third-party applications to access APS FGMS or interface with any Software App;
• Share your account password or otherwise authorize a third party to access or use APS FGMS on your behalf unless we provide an approved mechanism;
• Sublicense or transfer any of your rights under this Agreement;
• Modify, copy or make derivative works based on any APS FGMS;
• Reverse engineer or derive the source code for any components of APS FGMS, except to the extent such restriction is expressly prohibited by applicable law;
• Create Internet “links” to or from any Alpha Pharma Service Service or “frame” or “mirror” any content which forms part of any components of APS FGMS;
• Use any automated process or service (such as a bot, a spider, or periodic caching of information) to access or use any components of APS FGMS, or to copy or scrape data from any components of APS FGMS;
• Use unauthorized software or hardware to access any components of APS FGMS or to modify any components of APS FGMS in any unauthorized way (e.g., through unauthorized repairs, unauthorized upgrades or unauthorized downloads).

1. Suspension and Termination 

To the extent permitted by applicable law, Alpha Pharma Service can suspend or terminate APS FGMS, or suspend or terminate your right to use any APS FGMS, as it determines for any valid reason. To the extent reasonable, we will notify you at least twenty-four (24) hours in advance of any such suspension or termination.

However, if you materially violate this Agreement (including any use of Alpha Pharma Service’s resources that exceeds or circumvents Alpha Pharma Service’s reasonable restrictions, such as accesses, calls or other uses of any application programming interface or server resources that Alpha Pharma Service makes available), we can immediately suspend or terminate your right to use APS FGMS. In addition, we have no obligation to support any version of Software App once a new version released.

1. Disputes and Governing Law

To the extent permitted by applicable law, and subject to the country-specific provisions below, except for disputes that qualify for small claims court, all disputes arising out of or related to this agreement or any aspect of the relationship between you and Alpha Pharma Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory (each, a “dispute”), will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury, and you agree that Alpha Pharma Service and you are each waiving the right to trial by a jury. You agree that any arbitration under this agreement will take place on an individual basis. You further agree that class arbitrations and class actions are not permitted, and that you are agreeing to give up the ability to participate in a class action. The arbitration will be administered by the China International Economic and Trade Arbitration Commission (CIETAC) under its consumer arbitration rules, as amended by this agreement.

Except to the extent prohibited by applicable law, the terms of this Agreement are governed by the laws of People’s republic of China, without regard to its principles of conflicts of law and regardless of your location.

1. No Warranties

10.1 Except to the extent required by applicable law, and except for any limited warranty included in the applicable Alpha Pharma Service product’s labeling, Alpha Pharma Service products, Alpha Pharma Service services and software apps are provided “as-is” and on an “as available” basis without any warranty, express or implied, and you use Alpha Pharma Service products, Alpha Pharma Service services and software apps at your own risk.

10.2Except to the extent that such limitation is prohibited under applicable law, Alpha Pharma Service disclaims all implied warranties or conditions, including any implied warranties of merchantability, fitness for a specific purpose or use, quiet enjoyment, accuracy, operation, compliance with documentation and non-infringement. Alpha Pharma Service disclaims, and this agreement does not include, the provisions of the uniform computer information transactions act, the uniform commercial code, the un convention on contracts for the international sale of goods, and any other provisions implied into this agreement if not disclaimed.

10.3Alpha Pharma Service does not make any warranties that Alpha Pharma Service products, Alpha Pharma Service services, software apps, or any data or reports provided by Alpha Pharma Service, will meet your requirements, be retrievable, uninterrupted, timely, secure, or error-free or that all errors will be corrected.

10.4Alpha Pharma Service does not make any warranty as to the results that may be obtained from the use of Alpha Pharma Service products, Alpha Pharma Service services or software apps.

10.5Alpha Pharma Service does not warrant any third-party device, smart device, software, service or data that you may use in connection with any Alpha Pharma Service product, software app or Alpha Pharma Service service, whether or not such third party item is described in, or available or can be connected to through, any Alpha Pharma Service product, software app or Alpha Pharma Service service.

10.6No information or communications, whether oral or written, obtained by you from or through Alpha Pharma Service, Alpha Pharma Service products, Alpha Pharma Service services or software apps will create any warranty, except for any limited warranty included in the applicable Alpha Pharma Service product’s labeling. This does not apply to your rights with respect to defective or faulty Alpha Pharma Service products.

10.7Alpha Pharma Service does not warrant the accuracy of any user device, and the user data uploaded from any user device and received by Alpha Pharma Service is provided to the user “as-is.” Alpha Pharma Service does not assume any obligation to, and does not warrant that it will, create or include additional features or functionality for Alpha Pharma Service products, Alpha Pharma Service services or software apps.

10.8Except as included in any Alpha Pharma Service product labeling, and without limiting your rights under applicable law, if you are dissatisfied with any portion of Alpha Pharma Service products, Alpha Pharma Service services or software apps, your sole and exclusive remedy is to discontinue their use.

1. Liability limitations and your responsibility

11.1Subject to paragraph 11.7, to the maximum extent permitted under applicable law, in no event will Alpha Pharma Service’s affiliates, licensors, suppliers and other third parties with which Alpha Pharma Service has a contractual relationship (including its and their officers, directors, employees, consultants, and agents) have any liability whatsoever arising from or relating to Alpha Pharma Service products, Alpha Pharma Service services, software apps, or this agreement, whether for direct or any other type of damages whatsoever.

11.2Subject to paragraph 11.7, except to the extent that such limitation is prohibited under applicable law, neither Alpha Pharma Service, its affiliates, nor its or their officers, directors, employees, agents, or suppliers (collectively, “Alpha Pharma Service parties”) shall be liable for any damages arising from the use of or inability to use Alpha Pharma Service products, Alpha Pharma Service services or software apps.

11.3Subject to paragraph 11.7, except to the extent that such limitation is prohibited under applicable law, none of the Alpha Pharma Service parties shall be liable for any consequential, unforeseeable, indirect, incidental, special, punitive or exemplary damages or damages resulting from loss of data or business interruption whether the claim of damages are based on warranty, contract, tort (including negligence), extra-contractual liability, strict liability or any other legal theory, even if Alpha Pharma Service, its affiliates or a person affiliated with either of them has been advised of the possibility of damages excluded in this section 11, and even if such exclusions cause this agreement or any remedy to fail of its essential purpose.

11.4Subject to paragraph 11.7, except to the extent that such limitation is prohibited under applicable law, none of the Alpha Pharma Service parties shall be liable for total damages for all claims arising from or relating to this agreement, Alpha Pharma Service products, Alpha Pharma Service services and/or software apps in an aggregate amount greater than $500.

11.5Subject to paragraph 11.7, except to the extent that such exclusion or limitation is prohibited under applicable law, none of the Alpha Pharma Service parties shall be liable for the actions or omissions of a user or any third party.

11.6Subject to paragraph 11.7, 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 (including, without limitation, those set out in section 8) may not apply to you, and you may have certain additional rights. 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.

11.7Nothing in this section 11 is intended to limit or exclude liability where such liability is mandatory under applicable law and arises from the following: (a) death or personal injury resulting directly from willful or negligent act(s) or omission by Alpha Pharma Service or any of its employees or agents; (b) any fraudulent misrepresentation on the part of Alpha Pharma Service; (c) any breach of an essential contractual duty; (d) any willful misconduct on the part of Alpha Pharma Service; (e) for UK residents, section 12 of the sale of goods act 1979; or (f) any term which cannot be excluded by virtue of sections 31, 47 and 57 of the consumer rights act 2015.

11.8 Your responsibility.Except to the extent prohibited under applicable law, you agree to indemnify, defend and hold harmless Alpha Pharma Service, our affiliates, licensors, suppliers and other contract relationships (including 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 Alpha Pharma Service services or software apps, (2) your use of Alpha Pharma Service products, Alpha Pharma Service services or software apps, (3) your violation of this agreement, or (4) your violation of any rights of any other person or entity.

1. notices; questions or complaints.

Except as expressly provided elsewhere in this agreement, we will provide any notice under this agreement by email to your email address. You will provide any notice under this agreement to Alpha Pharma Service (or contact us regarding any question or complaint) by mail. If you have a question or complaint regarding the service, and you are in a jurisdiction where you have purchased an Alpha Pharma Service product through a third-party distributor, please contact the third-party distributor from whom you purchased your Alpha Pharma Service product.

In the event that any court holds any provision of this agreement to be void, invalid or unenforceable, such provision will be modified to the minimum extent necessary to be effective, valid and enforceable while preserving the original intentions of the parties to the greatest extent possible, and the other provisions of this Agreement will remain in full force and effect and enforceable according to their terms.

We may assign this Agreement in whole or in part at any time without notice (except to the extent such notice is mandatory under applicable law, in which case such notice may be made via email, APP or Website). You may not assign this Agreement or transfer any rights to use Alpha Pharma Service products.

1. Apple-Specific Terms (if applicable).

In addition to the foregoing, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of any Software App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for any Software App. Apple is not providing any warranty for any Software App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for any Software App and will not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to any Software App, including any third-party product liability claims, claims that any Software App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of any Software App, including those pertaining to intellectual property rights, must be directed to Alpha Pharma Service. The license you have been granted herein is limited to a non-transferable license to use a Software App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Use. In addition, you must comply with the terms of any third-party agreement applicable to you when using any Software App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, our right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.

1. Relationship; No Third-Party Beneficiaries.

Our relationship with you is as an independent contractor, and nothing in this Agreement creates an agency or partnership. Except for Alpha Pharma Service’s licensors, Apple and Apple’s subsidiaries(if applicable), there are no third-party beneficiaries to this Agreement.

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