Effective date: October 12, 2023

PLEASE READ THIS AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE EMBECTA DIABETES CARE SOFTWARE APPLICATION (“APP”) OFFERED BY EMBECTA (REFERRED TO AS “EMBECTA”, “WE”, “US”, or “OUR” AS APPLICABLE) FOR USE IN THE THE UNITED STATES, CANADA, GERMANY, SWITZERLAND, JAPAN, ITALY, FRANCE, INDIA, UNITED KINGDOM ONLY. THIS AGREEMENT DESCRIBES THE TERMS AND CONDITIONS APPLICABLE TO YOUR USE OF THE APP. THE APP IS OWNED AND OPERATED BY EMBECTA CORP. AND IT IS AFFILIATES AND SUBSIDIARIES. 

BY DOWNLOADING THE APP OR USING THE APP IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND BE A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE PRIVACY NOTICE (available at https://www.embecta.com/en-us/about/policies/privacy), WHICH IS INCORPORATED BY REFERENCE. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU HAVE NO RIGHT TO USE THE APP.

Section 23 of these terms include a binding arbitration clause and class action waiver, which means you agree to submit any dispute related to the Terms, the App, and your relationship with us to binding arbitration rather than proceeding in court.  You may opt-out of this mandatory arbitration agreement only by following the procedures below.  

UNLESS YOU OPT OUT: (i) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (ii) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND WAIVING YOUR RIGHT TO HAVE A JURY TRIAL.

YOU ALSO ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF SECTION 17 (WHICH REQUIRES YOU TO INDEMNIFY EMBECTA AND OTHERS UNDER CERTAIN CIRCUMSTANCES), SECTION 18 (WHICH DISCLAIMS THAT ANY WARRANTIES ARE PROVIDED TO YOU), AND SECTION 19 (WHICH LIMITS THE LIABILITY OF EMBECTA AND OTHERS TO YOU).

YOU ACKNOWLEDGE THAT (I) THESE TERMS ARE CONCLUDED BETWEEN EMBECTA AND YOU, AND NOT WITH either APPLE, IN. (“APPLE”) or GOOGLE LLC (“GOOGLE”)]; AND (II) EMBECTA, NOT, APPLE or GOOGLE, IS SOLELY RESPONSIBLE FOR THE APP.

1. Acceptance of this Agreement. In entering into this Agreement, you represent and warrant to embecta that: (i) you are an individual (i.e., not a corporation) and you either are of legal age to form a binding contract or have your parent's permission to do so; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. This Agreement is void where prohibited by law and your right to access the App is revoked in such jurisdictions.

Notwithstanding anything to the contrary in this Agreement, embecta may, with or without notice, temporarily suspend access to the App provided to you and any other third-party for security purposes, to prevent illegal or fraudulent activity, to comply with the requests of any legal agency or government entity, if you violate this Agreement, or as otherwise reasonably necessary for embecta to protect the App, App users, our partners or affiliates, or other embecta interests. 

You represent that you are (i) at least 18 years old or have obtained your parent's or legal guardian's consent to use the App; and (ii) your registration and use of the App is in compliance with any and all applicable laws and regulations. embecta does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register for the App. In the event that we learn that we have collected personal information from a child under age 13 without verification of parental consent, we will delete that information as quickly as practicable. If you believe that we might have any information from or about a child under 13, please contact us at privacy-embecta@embecta.com 

2. Protection of Login Credentials. As a condition to using the App, you will be required to register with embecta and select a password and nickname (“User ID”). You shall provide embecta with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a embecta User ID a name of another person with the intent to impersonate that person; or (ii) use as a embecta User ID a name subject to any rights of a person other than you without appropriate authorization. embecta reserves the right to refuse registration of or cancel a embecta User ID in its sole discretion. You are responsible for safeguarding your User ID and password and agree to indemnify and hold embecta and its officers, directors, parents, subsidiaries, affiliates, employees, and agents (collectively, “embecta Parties”) harmless from any claims, demands, losses, or damages resulting from improper use, loss or theft of your User ID and password. You agree to treat such information as confidential and to not to give or make available your password or allow other means of access to your account by anyone other than yourself. You should reject any unsolicited requests for your User ID or password. If you believe that your password has been compromised, lost or stolen, or that someone may attempt to use your account without your consent, you shall notify embecta immediately of any unauthorized access to or use of your credentials or any other breach of security. embecta has the right to disable any username, password, credentials file, or other identifier at any time, whether chosen by you or provided by us.

3. License. You are granted a non-exclusive, non-transferable, non-sublicensable, revocable license during the term of this Agreement to use the App for your own personal, non-commercial use, and not for the use or benefit of any third party. Embecta and the embecta Parties retain ownership of the App, including all software, data, services, and other content subsisting in or used in connection with the App, and all rights therein. 

4. Restrictions. You shall not link to the App without embecta’s prior written consent. You are responsible for all of your activity in connection with the App. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the App. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any users of the App (“Users”). Use of the App to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the App, or any processes that run or are activated while you are not logged on to the App, or that otherwise interfere with the proper working of or place an unreasonable load on the App’s infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the App is strictly prohibited. You shall not use the App for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any third-party to: decompile, reverse engineer, or otherwise attempt to obtain the source code of the App, nor rent, lease, loan, sublicense, distribute, copy, modify, translate, post, publish or create derivative works of the App or use the App  in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or that otherwise violates any law, regulation, or other legal requirement.

5. App Content. You acknowledge and agree that we are not responsible in any manner (including without limitation with respect to any loss or injury you may suffer) for any third-party materials displayed or performed on the App (including, but not limited to text, graphics, articles, photographs, images, illustrations, and third-party submissions). Any other content not owned by us is owned by its respective owner. You acknowledge and agree that such content is provided by its owner and does not reflect any endorsement, affiliation, relationship, or sponsorship by embecta with respect to the provider of such content. You acknowledge that your use of the App and access to the materials displayed or performed on the App (including, but not limited to text, graphics, articles, photographs, images, illustrations, and third-party submissions) (collectively, the “Content”) is at your own risk. embecta reserves the right to remove any Content from the App at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if the Content is in breach of this Agreement, or for no reason at all). You, not  embecta, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the App, and you warrant that you possess all rights necessary to provide such content to embecta and to grant embecta and the embecta Parties the rights to use such information in connection with the App and as otherwise provided herein. 

6. User-Generated Content. In the course of using the App, you and other Users may provide information which is visible to other Users, and which may be used by embecta in connection with the App. You hereby grant  embecta, the embecta Parties, and all other Users of the App a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, and transferable right to create derivative works based on, distribute, perform, display, use, or in any way exploit any, content, suggestions, materials or information you provide in connection with the App (collectively, “User Submissions”), subject to our Privacy Notice discussed below. You understand that all information publicly posted or privately transmitted through the App is the sole responsibility of the person from which such content originated and that embecta and the embecta Parties will not be liable for any errors or omissions in any such content. Additionally, embecta and the embecta Parties cannot guarantee the authenticity of any data which Users may provide about themselves. If you provide any communications or materials to embecta by mail, email, telephone, or otherwise, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like, embecta is free to use such information without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the information for any purpose whatsoever, although embecta is not required to use any User Submissions or related information.

7. Your Responsibilities. You are solely responsible for maintaining, installing and operating your mobile device, computer, software, and internet connection in using the App. embecta and the embecta Parties are not responsible for errors or failures related to the malfunction of your mobile device, computer, software, or internet connection, and you are responsible for ensuring their compatibility with the App. You are solely responsible for maintaining adequate security, protection and backup for the App, the device(s) on which the App is installed, and your use of the App. You are responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the App.

8. Monitoring of App Usage. You acknowledge that the App includes features to enable embecta to remotely monitor your use of the App including, but not limited to, your interaction with the App, your answers and inputs in the App, the links you go to, the information you input into the App, and you consent to all such monitoring.

9. Your Warranties. You warrant, represent and agree that you will not contribute any Content or otherwise use the App in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities, sales, contests, sweepstakes, barter, advertising, or pyramid schemes, without embecta’s prior written consent; (v) impersonates any person or entity, including without limitation any employee or representative of embecta or the embecta Parties; or (vi) contains or distributes a virus, Trojan horse, worm, time bomb, ransomware, malware, or other harmful computer code, file, or program.

10. Updates, Support and Feedback. embecta may in its sole discretion and without notice deliver to your device updates, upgrades, modifications, enhancements, bug fixes and/or patches to the App to address issues such as security vulnerabilities, interoperability or performance. Your continued use of the App indicates your consent to receiving such updates. You are not entitled to any support under this Agreement. However, we encourage your questions, comments and suggestions, because it is important that embecta receive your feedback on the App to help improve our products and services. Please provide feedback to embassador@embecta.com In addition, you agree that we may contact you from time to time to ask for feedback concerning your experiences using the App. Please notify us as soon as practicable of any perceived defect in the App.

11. Termination or Suspension of App. Where permissible based on applicable law, you acknowledge and agree that at times the Content may be inaccessible for any reason whatsoever, including, without limitation: (i) malfunction, (ii) periodic maintenance, or (iii) causes which are beyond our control or which are not reasonably foreseeable. embecta may change, suspend or discontinue the App at any time, including the availability of any feature, database, or content. embecta may also impose limits on certain features or restrict your access to parts or all of the App without notice or liability.

12. Intellectual Property. All Content created by embecta is protected by copyright. Other Content may also be protected as copyrights, trademarks, service marks, trade secrets or other intellectual property or proprietary rights. You shall abide by all copyright notices, trademark rules, and restrictions contained in any Content accessed through the App. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, in whole or in part, except that you may download or copy the Content (and other items displayed on the App for download) for your personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. Except for the above identified limited license to access and use the App and Content, you acknowledge that nothing contained in this Agreement shall be construed as granting or conferring, by implication, estoppel, or otherwise, any right, title, or interest to any intellectual property, including any (i) inventions (whether patentable or not in any country), patents, patent applications, invention disclosures, improvements, trade secrets, proprietary information, know how, information, or technical data; (ii) copyright protected works, copyright registrations, mask works, mask work registrations, or applications in the United States or any foreign country; (iii) trademarks, trademark registrations, service marks, logos, or applications therefor in the United States or any foreign country; (iv) trade secrets; or (v) any other tangible or intangible proprietary rights anywhere in the world.

13. Information and Privacy Notice. embecta may collect and process information regarding your usage of the App. Where allowed based on the jurisdiction, you consent to embecta’s collection and use of such information. All personal information collected by embecta is treated in accordance with embecta’s privacy notice (“Privacy Notice”). Your acceptance of this Agreement constitutes your acceptance and agreement to be bound by the Privacy Notice. NOTWITHSTANDING THE FOREGOING, YOU AFFIRM THAT YOU UNDERSTAND THAT SOME OF THE INFORMATION YOU INPUT INTO THE APP MAY BE PROTECTED HEALTH INFORMATION (“PHI”) OR PERSONALLY IDENTIFIABLE INFORMATION (“PII”) (COLLECTIVELY “PERSONAL INFORMATION”) AS THOSE TERMS ARE DEFINED UNDER APPLICABLE LAWS SUCH AS HIPAA, HITECH, CMIA AND SIMILAR STATE OR PROVINCIAL LAWS. SUCH INFORMATION MAY INCLUDE, BUT IS NOT LIMITED TO, YOUR DIAGNOSIS, MEDICATIONS, MEDICAL HISTORY, AND TREATMENT RECEIVED. IF PERMITTED IN YOUR JURISDICTION, YOU CONSENT TO EMBECTA USING ANY AND ALL OF YOUR PERSONAL INFORMATION FOR PURPOSES OF DEVELOPING THE APP AND THE WEBSITE AS WELL AS DEVELOPING FUTURE PRODUCTS AND SERVICES RELATED TO IMPROVING DIABETES CARE.

EMBECTA WILL NOT DISCLOSE YOUR INFORMATION DESCRIBED IN THIS SECTION TO ANY THIRD PARTY EXCEPT AS DESCRIBED IN THE PRIVACY NOTICE. TO THE EXTENT THAT YOUR IDENTIFIABLE HEALTH INFORMATION IS IMPERMISSIBLY DISCLOSED TO SUCH THIRD PARTY, EMBECTA MAY BE REQUIRED TO PROVIDE YOU WITH NOTICE OF SUCH DISCLOSURE.

14. Third Party Websites. The App may contain links to third party websites that are not owned or controlled by embecta. When you access third party websites, you do so at your own risk. You hereby represent and warrant that you have read and agreed to be bound by all applicable policies of any third-party websites or services relating to your use of the App and that you will act in accordance with those policies, in addition to your obligations under this Agreement. embecta and the embecta Parties have no control over, and assume no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites. In addition, embecta and the embecta Parties will not and cannot monitor, verify, censor or edit the content of any third-party site. Your interactions with organizations and/or individuals found on or through the App, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that embecta and the embecta Parties shall not be responsible or liable for any loss, damage or harm of any sort incurred as the result of any such dealings with any third parties or third party sites.

15. Connected Devices. If you use any sensors, wearable devices and similar technology (such as activity or fitness trackers, sleep monitoring devices, weight scales, and smartwatches), glucose meters or any other devices, medical or otherwise, in connection with the App (collectively, “Connected Devices”), you do so at your own risk. embecta is not responsible for and does not have control over any Connected Devices, and makes no warranties regarding any Connected Devices or their interaction with the App. You agree that embecta and the embecta Parties shall not be responsible or liable for any loss, damage, or harm of any sort incurred as the result of your use of any Connected Devices.

16. User Disputes. If there is a dispute between Users of the App, or between Users and any third party, you understand and agree that embecta and the embecta Parties are under no obligation to become involved in certain jurisdictions. 

17. Indemnity. To the fullest extent allowed by law, you will indemnify and hold embecta and embecta Parties harmless from all damages, liabilities, settlements, expenses, fines, penalties, expenses, costs and attorneys’ fees arising from or related to a claim or demand made by any third party due to or arising out unauthorized use of the App, your violation of this Agreement, or the infringement by you (or any third party using your account) of any intellectual property or other right of any person or entity. Such indemnity obligation shall apply to all claims or demands of this kind unless (and only to the extent) directly arising from the sole active negligence or willful misconduct of embecta or the embecta Parties.

18. Disclaimers of Warranties and Liabilities.

a. Content. YOUR USE OF THE APP IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EMBECTA OR THE EMBECTA PARTIES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE APP OR ANY CONTENT ASSOCIATED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT EMBECTA HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES.  

THE APP OR WEBSITE MAY CONTAIN, OR DIRECT YOU TO WEBSITES CONTAINING, INFORMATION THAT SOME PEOPLE MAY FIND OFFENSIVE OR INAPPROPRIATE. EMBECTA AND THE EMBECTA PARTIES MAKE NO REPRESENTATIONS CONCERNING THE INFORMATION CONTAINED IN OR ACCESSED THROUGH THE APP OR WEBSITE, AND EMBECTA AND THE EMBECTA PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF CONTENT, MATERIALS, OR INFORMATION CONTAINED IN OR ACCESSED THROUGH THE APP.

b. Not Medical Advice. NOTHING IN THE APP OR WEBSITE, NOR THEIR USE WITH ANY CONNECTED DEVICE, IS INTENDED TO BE MEDICAL ADVICE OR A SUBSTITUTE FOR MEDICAL ADVICE. YOU EXPRESSLY AGREE THAT THE APP DOES NOT INVOLVE THE PROVISION OF MEDICAL ADVICE BY EMBECTA. THE APP IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE OR MEDICAL CONDITION. YOU SHOULD CONSULT YOUR HEALTHCARE PROVIDER ABOUT ANY MEDICAL QUESTIONS OR CONCERNS YOU HAVE. YOU SHOULD ALSO CONSULT YOUR HEALTHCARE PROVIDER BEFORE USING THE APP OR WEBSITE. EMBECTA AND THE EMBECTA PARTIES SHALL HAVE NO LIABILITY FOR ANY ADVERSE EFFECTS ON YOUR HEALTH, OR ANY INJURY OR PERSONAL HARM, THAT RESULTS FROM OR IS RELATED TO YOUR USE OF THE APP OR THE WEBSITE, OR FROM YOUR ACCESS TO, USE OF, OR ACTIONS TAKEN IN RESPONSE TO, THE CONTENTS OR THEIR INTERACTION WITH ANY CONNECTED DEVICE.

c. Unavailability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EMBECTA AND THE EMBECTA PARTIES SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF DATA OR PROFITS) OR ANY OTHER CONSEQUENCES (INCLUDING PERSONAL INJURY OR DEATH) THAT LICENSEE MAY INCUR AS A RESULT OF ANY UNAVAILABILITY, SUSPENSION, OR TERMINATION OF THE APP OR WEBSITE.

d. Provided “As-Is,” Warranties Disclaimed. THE APP, WEBSITE, AND CONTENT (AND ALL FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH THIS APP) ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR FREEDOM AND SECURITY FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT USE OF THE APP OR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN EMBECTA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. ALL WARRANTIES ARE DISCLAIMED. SOME STATES DO NOT ALLOW DISCLAIMERS OR LIMITATIONS OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. ANY SURVIVING IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE YOU FIRST DOWNLOAD OF THE APP.

19. Limitation of Liability. SOME CLAUSES IN THIS SECTION MAY NOT BE ENFORCEABLE IN YOUR JURISDICTION ACCORDING TO THE LOCAL LAW. IN NO EVENT SHALL EMBECTA OR THE EMBECTA PARTIES BE LIABLE WITH RESPECT TO THE APP, THE WEBSITE, THE CONTENT, OR THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF THE FEES PAID BY YOU THEREFOR OR $200; (II) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF EMBECTA OR THE EMBECTA PARTIES ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (III) FOR DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY; LOSS, DESTRUCTION, CORRUPTION OR THEFT OF DATA; VIRUSES OR SPYWARE; LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT; OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND EMBECTA’S REASONABLE CONTROL. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. SOME LOCATIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

20. Modification of the Agreement. embecta reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the App, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the App following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.

21. Term and Termination. This Agreement shall remain in full force and effect for as long as you use the App. The term of this Agreement shall commence upon your acceptance, and will remain in effect until and unless sooner terminated pursuant to the terms of this Agreement. You may terminate your use of the App at any time by following the instructions on the App. embecta may terminate this Agreement, or terminate or suspend your access to the App and/or Website, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your use of the App and/or Website. embecta may also terminate or suspend your access to the App and/or Website immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of this Agreement, your right to use the App and your access the App, Website, and any Content, will immediately cease.

22. Survival. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, your licenses granted to embecta and embecta Parties, warranty and liability disclaimers, limitations of liability, and arbitration. The provisions regarding use of your Personal Information shall also survive termination. Use of your Personal Information shall remain subject to our Privacy Notice as amended from time-to-time.

23. Arbitration; Governing Law. Please read this arbitration agreement carefully. It may impact your rights. This agreement stipulates that most disputes shall be resolved through binding arbitration instead of through any legal actions.  If a dispute arises, we will do our best to resolve the dispute informally.  For any unresolved concern, you may pursue a claim against embecta or the embecta Parties as explained in this provision. 

a.  Governing Law and Jurisdiction.  You and we agree that this arbitration agreement is evidence of a transaction in interstate commerce and will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state or provincial law. This arbitration agreement, and these Terms, are made under and will be governed by and construed in accordance with the laws of the State of Delaware, consistent with the Federal Arbitration Act, without regard to the conflict of laws provisions thereof. Any disputes or claims not subject to arbitration, as set forth in this section, will be resolved exclusively in the federal or state courts of Santa Clara County, California, and you and we consent to personal jurisdiction in those courts. If the laws of your jurisdiction require, the court shall be located where you hold domicile. This arbitration agreement is intended to be given the broadest interpretation and application in order to encompass all Claims (as defined below) that may arise between us. By using this application, you agree that any and all Claims arising out of or relating to your use of this application (including the interpretation and scope of this arbitration agreement and the arbitrability of the dispute), or your relationship with us or any subsidiary, parent or affiliate company or companies (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal vehicle) unless expressly excluded from arbitration as set forth below (each a “Claim” and collectively “Claims”), will be resolved via mandatory, binding arbitration, except as set forth in this section, below.

b.   Mandatory Pre-Dispute Resolution Notice Obligation.  If a Claim arises, embecta is committed to working with you to reach a reasonable resolution.  Prior to initiating any dispute or Claim, as discussed further below, you must first give us an opportunity to resolve any complaints by submitting them in writing to embassador@embecta.com with the subject line “Terms and Conditions - US Dispute Notice.”  Your Dispute Notice must contain the following information: (1) your name, (2) address, (3) the email address associated with your account, (4) [any other pertinent information], (5) a brief description of the nature of the complaint, and (6) the resolution sought (together, the “Required Information”).

If your message does not contain all of the Required Information (or an explanation of why you are unable to include any of the Required Information), then the Dispute Notice shall be without effect, and must be resubmitted before any arbitration or other legal action against [client] can be initiated. This requirement is intended to inform [client] that you have a dispute to be resolved.  If we do not resolve the complaint within 60 days of the initiation of the Dispute Notice you shall be entitled to seek relief as stipulated in this arbitration agreement.

c.  Arbitration Scope and Procedure.  This arbitration agreement is intended to be given the broadest interpretation and application in order to encompass all Claims (as defined below) that may arise between us. By using the App, you agree that any and all Claims arising out of or relating to your use of the App (including the interpretation and scope of this arbitration agreement and the arbitrability of the dispute), or your relationship with us or any of the embecta Parties (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal vehicle) unless expressly excluded from arbitration as set forth below (each a “Claim” and collectively “Claims”), will be resolved via mandatory, binding arbitration, except as set forth in this Section 24 below.

Any arbitration shall be initiated through and administered by the American Arbitration Association (“AAA”) in the English language. Should the AAA decline to administer the arbitration or otherwise be unable to administer the arbitration for any reason, you agree that embecta shall select an alternative arbitration forum, and that you will agree in writing to administration of the arbitration by the alternative arbitration forum selected by embecta.

Arbitration will be conducted in accordance with the AAA’s rules, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this arbitration agreement. If there is a conflict between the AAA’s rules and this arbitration agreement, the terms of this arbitration agreement shall govern. AAA rules and information about arbitration and fees are available online at www.adr.org or by calling the AAA at 1-800-778-7879.  

Any hearing will be conducted virtually unless the arbitrator determines that a party’s right to a fundamentally fair process would be impaired without an in-person hearing. In the case of an in-person hearing, such hearing will take place in Santa Clara County, California, or the county and state where you live (unless you and we agree differently). You agree that, in the event of an in-person hearing, any [client] employee or affiliate who is based outside of the United States and who is participating in the hearing, may participate by telephone or video conference, and his or her physical presence shall not be required.  

embecta agrees to pay all filing, administration, and arbitrator fees, other than the initial filing fee to be paid by you, and if your Claim is for less than $1,000, embecta shall reimburse you for the filing fee upon written request for reimbursement with documentation of insufficient funds to pay the fee. In the event that you are able to demonstrate that the costs of arbitration would be prohibitive as compared to costs of litigation, embecta will pay as much of the filing fee in connection with the arbitration as the arbitrator deems necessary in order to prevent the arbitration from being cost-prohibitive as compared to the costs of litigation. In all other cases, we will each bear the fees and expenses for our respective attorneys, experts, witnesses, and for preparation and presentation of evidence at the arbitration.

Any arbitration shall be confidential, and neither party may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.

d.  Arbitration Award.  The arbitrator will have the power to grant declaratory or injunctive relief, whether interim or final, only in favor of you individually and only to the extent necessary to provide relief warranted by your individual claim without affecting other embecta customers or App users, and any provisional measures ordered by the arbitrator may be enforced by any court of competent jurisdiction. The arbitrator's award will be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party will have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.  

Nothing in these Terms will prevent you from seeking public injunctive relief separately from arbitration in court, and any such application will not be deemed incompatible with the arbitration agreement to arbitrate or as a waiver of the right to arbitrate your individual claims. You and we agree that any claims for damages must be heard in arbitration first, with any claims seeking a remedy of public injunctive relief in court proceeding only after the arbitration of all arbitrable Disputes, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the Federal Arbitration Act.  If you file a lawsuit in court seeking public injunctive relief before meeting the preconditions of the pre-dispute negotiation process and agreement to arbitrate, you will be waiving your right to seek damages from embecta or the embecta Parties relating to the relationship governed by these Terms and Conditions.

e. Exclusions from Arbitration.  You and we each agree that the following causes of action and/or claims for relief are exceptions to the Disputes covered by the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as outlined in this arbitration agreement): (i) any claim or cause of action alleging actual or threatened regarding the infringement, protection or validity of your, our or our licensors' intellectual property, trade secrets or copyright, trademark or patent rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); and (iii) a request for the remedy of public injunctive relief, where such remedies are permitted and cannot be waived by applicable law. In addition, to the extent your claim or Dispute qualifies under applicable law, you may elect to proceed in small claims court.

f.  Class Action Waiver.  In addition to the above, YOU AND WE EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, EXCEPT FOR ACTIONS FOR INJUNCTIVE RELIEF AS DESCRIBED BELOW IN THIS SECTION.  Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above.

Upon motion of one or more interested parties, and after providing all other interested parties an opportunity to be heard, the arbitrator may, at their discretion, coordinate more than one arbitration proceeding initiated under this arbitration agreement, in order to promote efficiency in discovery and to avoid inconsistent legal rulings. In the interest of clarity, any coordination under the preceding sentence will be limited only to currently-pending arbitrations initiated under this arbitration agreement, and the arbitrator may not preside over any form of a representative or class proceeding. All parties will retain the right to request an individualized hearing.

If a court or arbitrator determines, in an action between you and us, that this class action waiver is unenforceable, this arbitration agreement will not apply to you. If you opt out of the arbitration agreement as specified above, this class action waiver will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above.

G. Opt-Out Procedure.  NOTWITHSTANDING THE ABOVE, IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY EMBECTA IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT (AS DESCRIBED IN THIS AGREEMENT) BY EMAIL TO: embassador@embecta.com WITH THE SUBJECT LINE “Arbitration – Opt-Out Notice”, OR BY MAIL TO:  embecta, Attn: Legal Dept., 1 Becton Drive, Franklin Lakes, NJ 07417. YOUR WRITTEN NOTIFICATION TO EMBECTA MUST INCLUDE YOUR NAME AND ADDRESS AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES UNDER THIS AGREEMENT THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH EMBECTA OR YOUR ABILITY TO USE THE APP OR WEBSITE IN CONFORMITY WITH THIS AGREEMENT.  We must receive your opt-out notice no later than 3 days after the Opt-Out Deadline for it to be valid.  You agree that you must pursue any Claim in arbitration if we do not receive an opt-out notice from you, or if we receive an opt-out notice from you more than 3 days after the Opt-Out Deadline. For all Claims, whether pursued in arbitration or small claims court, it is a condition precedent that you must first send a written description of your Claim to us as set forth above to allow us an opportunity to resolve the dispute.

24.  Jury Waiver.  IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.

25.  Notice for California Users. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” Additionally, under California Civil Code Section 1789.3, California users of the App are entitled to the following specific consumer rights notice:

The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

26. Compliance with Export Regulations. You agree to comply with all export laws and restrictions and regulations of the United States (including, but not limited to, the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, or other United States agencies or authorities) and of the country in which you reside, are doing business in, are exporting to or the like. You shall not export, or allow the export or re-export of the App or related products and services in violation of any such restrictions, laws or regulations. By installing or using the App, you agree to comply with the above and represent and warrant that you (i) are not located in, under the control of, or a resident of a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) are not listed on any U.S. Government list of prohibited or restricted parties.

27. Contact. If you have any questions, complaints, or claims with respect to the App, you may contact us at embassador@embecta.com or:

embecta

300 Kimball Dr

Parsippany-Troy Hills, NJ 07054

28. Miscellaneous. Some clauses in this section may not be enforceable in your jurisdiction. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. embecta shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond embecta’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with embecta’s prior written consent. embecta may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement and the Privacy Notice are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind embecta in any respect whatsoever.