Acceptable Use of Site. You are responsible for the accuracy of any information, including emails that you provide through the Site to Roche. If an email sent by you includes possible adverse events or side effects with a medical device, Roche may be required to contact you for further information. By submitting content, you agree that you: (i) represent and warrant that you have obtained all necessary licenses, waivers, authorizations, permissions to transfer such content; (ii) grant us a license to use, reproduce, modify, transmit, or publicly display the content subject to the terms (if any) displayed on the section of the Site at which the content was submitted or otherwise provided to you in connection with the submission of such content; and (iii) grant us a license to use the personal or business name submitted in connection with that content. Except as expressly set forth in this Site, the content you provide to Roche through this Site is provided by you at no cost and is not confidential. Roche is free to reproduce, use, disclose, and transfer the information to others for any reason without your permission or payment to you. Roche may use any ideas, concepts, know-how or other techniques contained in the information provided by you for any purpose. By providing us with such content, you give us a worldwide, perpetual, irrevocable, fully-paid and royalty-free license to use and exploit in any manner any and all content. Roche does not waive any rights it may have to similar or related ideas previously known to it or developed by its employees and representatives, or obtained from sources other than you.
You are prohibited from using our Site to transmit or share content that:
- Contains illegal content or promotes illegal activities with the intent to commit such activities.
- Contains credible threats or organizes acts of real-world violence.
- Contains anything that is obscene, defamatory, harassing, offensive or malicious.
- Stalks, harasses or harms another individual.
- Promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group.
- Violates intellectual property, privacy, or other rights of third parties.
- Spams others. Do not share irrelevant or inappropriate advertising, promotional, or solicitation content.
You also are not allowed to:
- Do anything that violates local, state, national or international law or breaches any of your contractual obligations or fiduciary duties.
- Reproduce, transfer, sell, resell, or otherwise misuse any content from our Site, unless specifically authorized to do so.
- Access, tamper with, or use non-public areas of our systems, or the technical delivery systems of our providers, unless specifically authorized to do so.
- Break or circumvent our authentication or security measures or otherwise test the vulnerability of our systems or networks, unless specifically authorized to do so.
- Impersonate or misrepresent your affiliation with any person or entity.
- Encourage or help anyone do any of the things prohibited under this Acceptable Use Section.
- Use the Site in a way that would interfere with any other party’s use and enjoyment of the Site.
- Obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.
- Decompile, disassemble or reverse engineer the Site or any portion thereof.
- Use any automatic device, program, algorithm or methodology, or engage in harvesting of email addresses or other personal information, unsolicited emailing, telephone calls or mailings, spoofing, flooding, overloading, spidering, screen scraping, database scraping, or any similar or equivalent manual process to access, acquire, copy or monitor any portion of the Site or any content on the Site.
- Reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site to its source.
You may not copy, reproduce, distribute, transmit, display, perform, publish, license, modify, translate, adapt, create derivative works from, transfer, sell or otherwise exploit the Site or any content, information, software, products or services obtained from the Site, for any commercial purpose or enterprise, without our prior written permission.
Notwithstanding the preceding paragraph, you may display the pages of the website and, subject to any expressly stated restrictions or limitations relating to specific material on the Site, electronically copy, download onto your personal computer, mobile device or other technology used to access the Site, and print single hard copy portions of the pages from the Site solely for your own personal, noncommercial, lawful use. If you make other use of the intellectual property on the Site, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use, including as set forth in Section 10 below.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ROCHE, ITS SUBSIDIARIES AND AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, PARTNERS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) SHALL BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION:
- INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
- PERSONAL INJURY, WRONGFUL DEATH, OR LOST PROFITS,
- DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THIS SITE OR THE CONTENT,
- DAMAGES RESULTING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, EFFECT, DELAY OR DEFECT IN OPERATION OR TRANSMISSION OF THE SITE OR ITS CONTENT,
- DAMAGES RESULTING FROM ANY COMPUTER VIRUS, LINE SYSTEM FAILURE, OR LOSS OF USE RELATED TO THIS SITE OR THE CONTENT,
WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ROCHE IS ADVISED OF SUCH DAMAGES. IF YOU ARE NOT SATISFIED WITH THIS SITE OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THIS SITE.
FOR PURPOSES OF THIS LIMITATION OF LIABILITY PROVISION, "ROCHE" INCLUDES NOT ONLY ROCHE DIABETES CARE, INC. BUT ALSO ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, PREDECESSORS, SUCCESSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS.
Because some jurisdictions do not allow certain limitations on warranties, or the exclusion or limitation of liability for consequential or incidental damages, the above disclaimer and limitations may not apply to you. The above disclaimer and limitations apply in New Jersey, among other jurisdictions.
In the interest of resolving disputes between you and Roche in the most expedient and cost effective manner, you and Roche agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Roche are each waiving the right to a trial by jury or to participate in a class action.
Notwithstanding subsection (A), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and Roche will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Roche.
- Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Roche’s address for Notice is: Roche Diabetes Care, Inc. Attn: Legal Department. , Diabetes Care , 9115 Hague Rd. , PO Box 50416, Indianapolis, IN 46250-0416.
The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Roche may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Roche shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Roche shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Roche in settlement of the dispute prior to the arbitrator’s award.
In the event that you commence arbitration in accordance with these Terms, Roche will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Roche for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Indianapolis, Indiana, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- NO CLASS ACTIONS.
YOU AND ROCHE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Roche agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
In the event that Roche makes any future change to this arbitration provision (other than a change to Roche’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Roche’s address for Notice, in which case your account with Roche (as applicable) shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
If Subsection F of this Section 19 is null and void, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in these Terms shall govern any action arising out of or related to these Terms.