Terms of Use, Service and Consent

Effective Date: September 1, 2023

Section 1: General

The website located at www.bigfootbiomedical.com (the “Site”) belongs to Bigfoot Biomedical, Inc. (“Bigfoot“, “we”, “our” or “us”). As provided below, Bigfoot grants you the right to use the Site, our software applications, including without limitation the Bigfoot Unity® Mobile Application (collectively “Software,” or “App”), and services provided through the Site or Software, including the Bigfoot Unity® CGM+™ Diabetes Management Program (See Section 2) and the Bigfoot Unity® RPM Support Program (See Section 3) (together with the Site and Software, the “Bigfoot Services”), subject to these terms and conditions of use (“Terms of Use”, “Terms of Service” or “Terms”) set forth below. Please read these terms carefully before using the Bigfoot Services.

UNLESS YOU ARE A CONSUMER LOCATED IN A JURISDICTION THAT PROHIBITS THE EXCLUSIVE USE OF ARBITRATION FOR DISPUTE RESOLUTION, THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND BIGFOOT WILL BE RESOLVED BY BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY, AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. PLEASE REVIEW SECTION 5(D) (“DISPUTE RESOLUTION AND ARBITRATION”) FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH BIGFOOT.

Bigfoot reserves the right to revise these Terms from time to time in our sole discretion. If we make material changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Bigfoot Services or updating the “Effective Date” date at the beginning of these Terms. You are responsible for periodically reviewing these Terms for applicable changes. The term “you” refers to the person visiting the Site or using the Bigfoot Services. BY ACCESSING OR USING THE BIGFOOT SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND TO THESE TERMS, AS THEY MAY BE AMENDED FROM TIME TO TIME. If you do not agree to these Terms, including the mandatory arbitration and class action waiver in Section 5(D), you may not access or use the Bigfoot Services.

License. Bigfoot owns and operates the Bigfoot Services. The documents and other information and content available on the Bigfoot Services (the “Site Content“) are protected by copyright and other intellectual property laws throughout the world. All copyright and other proprietary notices on any Site Content must be retained on any copies made thereof. Any unauthorized reproduction, modification, distribution, public display or public performance of any Site Content is strictly prohibited. Bigfoot and its suppliers reserve all rights not granted in these Terms.

Subject to the restrictions set forth in these Terms, Bigfoot grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the App in object code format on devices that you own or control, solely for use with the Bigfoot Services. By downloading or using our App(s), you:

a		Acknowledge that the App is licensed, not sold to you; and
b		Acknowledge that third party terms and fees may apply to the use and operation of your device in connection with your use of the App, such as your carrier’s terms of services, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for payment of any and all such fees.

Software Updates. Bigfoot may from time to time, in its sole discretion (without obligation), develop and provide updates for our Services, which may include upgrades, bug fixes, patches and other error corrections and/or new features ("Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Bigfoot has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

Portions of the software may not properly operate if you do not install all Updates, so we encourage you to promptly install all Updates. To that end, based on your mobile device settings, with respect to the App, when your mobile device is connected to the Internet, either (i) the Updates will automatically download and install or (ii) you may receive notice of or be prompted to download and install available Updates. For clarity, all Updates are part of the Services and subject to these Terms.

User Representations and Warranties.

a		You represent, warrant and covenant to Bigfoot that (1) these Terms have been executed and delivered by you and constitute a valid and binding agreement with you, enforceable against you in accordance with their terms; (2) if you are using the Bigfoot Services on behalf of another person or entity, you are a legally authorized representative of the entity or person, and have the authority and agree to bind the entity or person to these Terms; (3) you will not access or use the Bigfoot Services except as expressly permitted by these Terms and any additional instructions, guidelines or policies issued by Bigfoot, including those posted in the Bigfoot Services; (4) you will access and use the Bigfoot Services in full compliance with applicable law; and (5) all of the information, data and other User Content provided by you are accurate and truthful in all respects and you have all rights, licenses, consents, authorizations, and permissions necessary to provide such information for use as contemplated in connection with the Bigfoot Services.
b		You represent, warrant and covenant to Bigfoot that you are at least 18 years of age and live in the United States. If the participant is under the age of 18, a parent or guardian must agree to these Terms.

User Content.

a		User Content Generally. Certain features of the Bigfoot Services may permit you, your healthcare provider (hereinafter “HCP”), your participating pharmacy, or other users to upload content to the Bigfoot Services, including therapy settings, messages, images, data, text, location information, and other types of information (“User Content”) and to publish User Content on the Bigfoot Services. You retain the copyrights, including any moral rights, and any other proprietary rights that you may hold in the User Content that you post to the Bigfoot Services; provided that you understand and agree any data provided by you, your participating pharmacy, or your HCP may become part of your health record, and that copy of such data may be owned and/or controlled by Bigfoot, your participating pharmacy, or your HCP under applicable law.

b		Limited License Grant to Bigfoot. By posting or publishing User Content, you grant Bigfoot a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid, transferable right and license (with the right to sublicense) to use, host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute your User Content, in whole or in part, for any purpose, in any media formats and through any media channels now known or hereafter developed. We may also create data and images that are de-identified or anonymized in accordance with applicable law from your User Content, and such de-identified or anonymized data and images will no longer be your User Content. You irrevocably and forever waive any rights you may have regarding your User Content being altered or manipulated in any way that may be objectionable to you. Bigfoot reserves the right to refuse to accept, post, display, or transmit any of your User Content in its sole discretion.

c		Limited License Grant to Other Users. By using the Bigfoot Unity® System or sharing any User Content with your HCP, either under the Bigfoot Unity® CGM+™ Diabetes Management Program (see Section 2) or the Bigfoot Unity® RPM Support Program (see Section 3), you grant your HCP a non-exclusive license to access and use that Diabetes Data and other User Content as permitted by these Terms and the functionality of the Bigfoot Services.

d		If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Bigfoot Services (“Feedback”), then you hereby grant Bigfoot an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Bigfoot Services and create other products and services.

Indemnity. To the fullest extent permitted under applicable law, you are responsible for your use of the Bigfoot Services, and you will indemnify, hold harmless, and, if so directed by Bigfoot, defend Bigfoot and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Bigfoot Entities”) from and against any and all claims, actions, suits, or proceedings and any liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Bigfoot Services; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.

NOTICE REGARDING APPLE, INC. You acknowledge that these Terms are between you and Bigfoot only, not with Apple, Inc. (“Apple”), and Apple is not responsible for the App and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the App to you, if any; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by 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 or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the App. Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary of the Terms. You hereby represent and warrant that (x) you are not located in 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 (y) you are not listed on any U.S. Government list of prohibited or restricted parties.

Disclaimers; No Warranties; Release; Limitation of Liability. To the fullest extent permitted by applicable law, you release Bigfoot and the other Bigfoot Entities from any and all responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE § 1542 AS WELL AS ANY OTHER STATUTE OR COMMON LAW PRINCIPLES THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.

THE BIGFOOT SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE BIGFOOT SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. BIGFOOT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE BIGFOOT SERVICES, ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE BIGFOOT SERVICES, AND ANY SOFTWARE OR HARDWARE ASSOCIATED OR USED WITH THE BIGFOOT SERVICES, OR THE AVAILABILITY OF ANY OF THE FOREGOING, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE DIABETES DATA, USER CONTENT, OR OTHER INFORMATION AVAILABLE ON, COLLECTED THROUGH, OR TRANSMITTED BY THE BIGFOOT SERVICES IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT BIGFOOT IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HCP BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE BIGFOOT SERVICES, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. THE BIGFOOT ENTITIES DO NOT WARRANT THAT THE BIGFOOT SERVICES OR ANY PORTION OF THE BIGFOOT SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE BIGFOOT SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE BIGFOOT SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE BIGFOOT SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE BIGFOOT ENTITIES OR THE BIGFOOT SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE BIGFOOT SERVICES, YOUR DEALING WITH ANY OTHER BIGFOOT SERVICES USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE BIGFOOT SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE BIGFOOT SERVICES, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE BIGFOOT SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE BIGFOOT SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE BIGFOOT SERVICES OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.

THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES.

IN NO EVENT WILL THE BIGFOOT ENTITIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE BIGFOOT SERVICES OR CONTENT ON THE BIGFOOT SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY BIGFOOT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH, THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES.

IF BIGFOOT CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN THE AGGREGATE LIABILITY OF THE BIGFOOT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE BIGFOOT SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE PAID TO USE THE BIGFOOT SERVICES IN THE PREVIOUS SIX (6) MONTHS OR $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU TO THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THESE TERMS. NOTHING IN THESE TERMS AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Consent to Contact. By providing Bigfoot or your participating pharmacy with a valid email address and phone number, or your consent to be contacted, you authorize and give consent to Bigfoot Biomedical, Inc., its distributors and its affiliates and wholly-owned subsidiaries (collectively referred to as “Bigfoot and/or its Affiliates”) to contact you in order to collect relevant information, to coordinate or arrange delivery of medical devices and/or supplies, and to schedule patient training. Any contact with you pursuant to this authorization may be made by Bigfoot and/or its Affiliates by telephone, text message, mail, e-mail (including unencrypted e-mail), or by other means of communications. You understand that Bigfoot and/or its Affiliates may use an automatic telephone dialing system to initiate phone calls and/or send text messages.‌ You may unsubscribe from these messages by texting STOP in reply to the messages or contacting Bigfoot with your request to unsubscribe.‌ Please note that standard message and data rates may apply and that Bigfoot and/or its Affiliates are not responsible for any charges that you may incur for these messages. Bigfoot and/or its Affiliates are not responsible for the timeliness or final delivery of the text message, as this is the responsibility of the cellular telephone operator or other networks. You understand and acknowledge that such text messages may be sent without regard to any time-of-day limitations, and even if your telephone number is registered on any state or federal Do Not Call list. You further understand and acknowledge that there is some level of risk that the information included in a text message or unencrypted email could be read by a third party. Bigfoot and/or its Affiliates cannot guarantee the security and confidentiality of a text message or unencrypted email and are not responsible for any unauthorized access that occurs during or after the transmission of the communication or once it is delivered to you.

You agree that Bigfoot may also send push notifications to your mobile device for Bigfoot Services-related or marketing purposes. You may turn off push notifications through your device settings, but you should keep your notifications on to ensure the most effective use of the Bigfoot Unity® Program. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.

Privacy. Federal and State law govern the confidentiality of personal information. Please read our privacy policy, available at bigfootbiomedical.com/help/privacy-policy, for information about how Bigfoot collects, uses, and discloses personal information through the Bigfoot Services.

Section 2: Bigfoot Unity® CGM+™ Diabetes Management Program Terms of Use

Section 2 applies to you if you are accessing Bigfoot Services by participating in the Bigfoot Unity® CGM+™ Diabetes Management Program (the “CGM+™ Program”). All programs providing access to the Bigfoot Unity® Diabetes Management System through a pharmacy qualify as being part of the CGM+™ Program. The CGM+™ Program is an insulin dosing support program and service, accessed via participating pharmacies, designed to support individuals with insulin-requiring diabetes using multiple daily injections (“MDI”) therapy. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS IN SECTION 2, YOU MAY NOT ACCESS OR USE THE BIGFOOT SERVICES VIA THE CGM+™ PROGRAM.

If you received access to the Bigfoot Unity® System through your HCP, you ‌are enrolled ‌in a ‌separate program, the Bigfoot Unity® ‌RPM Support Program, ‌as set forth in more detail in Section 3. The terms of use for the CGM+™ Program set forth in this Section 2 do not apply to your use of the Services through the Bigfoot Unity® RPM Support Program.

Bigfoot Services Under the CGM+™ Program. THE BIGFOOT SERVICES ARE INTENDED ONLY TO RECORD, DISPLAY, STORE, AND TRANSMIT GLUCOSE DATA, INJECTION TIMING DATA, AND OTHER RELATED DIABETES DATA (COLLECTIVELY “DIABETES DATA”). IN CONSULTATION WITH THE HEALTHCARE PROVIDER OF THE PATIENT, YOU, AS THE PATIENT OR THE PATIENT GUARDIAN, ARE RESPONSIBLE FOR MAKING ALL INSULIN DOSING AND OTHER DIABETES TREATMENT DECISIONS. ADDITIONALLY, YOU HAVE THE RESPONSIBILITY TO PROACTIVELY MONITOR THE GLUCOSE DATA IN DIABETES DATA AND TO CONTACT A HEALTHCARE PROVIDER OR EMERGENCY SERVICES (E.G., CALL 911) IF YOU SUSPECT AN EMERGENCY HEALTH CONDITION, SUCH AS, BUT NOT LIMITED TO, A SEVERE HYPOGLYCEMIA OR A SEVERE HYPERGLYCEMIA. THE BIGFOOT SERVICES ARE NOT INTENDED FOR CONTINUOUS OR REAL-TIME MONITORING, AND WE DO NOT GUARANTEE A RESPONSE BY ANY HEALTHCARE PROFESSIONAL TO DIABETES DATA OR ANY OTHER INFORMATION RECORDED THROUGH THE BIGFOOT SERVICES. ALTHOUGH BIGFOOT MAY ACCESS YOUR DIABETES DATA TO PROVIDE CERTAIN SERVICES TO YOU OR YOUR HEALTHCARE PROVIDER OR ENABLE YOU TO CONNECT YOUR ACCOUNT TO YOUR HEALTHCARE PROVIDER, BIGFOOT DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE, OR ANALYZE ANY INFORMATION GENERATED FROM THE BIGFOOT SERVICES. IT IS YOUR RESPONSIBILITY TO PRESENT YOUR DIABETES DATA AND/OR OTHER MEDICAL DATA TO YOUR PHYSICIAN FOR PROPER ANALYSIS AND DIAGNOSIS. IF YOU GIVE YOUR HCP ACCESS TO ‌USER CONTENT, YOU SHOULD TALK TO YOUR HCP PRIOR TO ENROLLMENT IN THE CGM+™ PROGRAM IN ORDER TO UNDERSTAND HOW YOUR HCP INTENDS TO USE THE ‌‌USER CONTENT AND ANY ASSOCIATED SERVICES THAT YOUR HCP INTENDS TO PROVIDE TO YOU RELATED TO YOUR USE OF THE CGM+™ PROGRAM.

YOU, AS THE USER OF THE BIGFOOT SERVICES, ARE RESPONSIBLE FOR THE DIABETES DATA RECORDED AND STORED BY THE BIGFOOT SERVICES. THE BIGFOOT SERVICES ARE NOT INTENDED TO DIAGNOSE ANY CONDITION OR AUTOMATICALLY ALERT ANY HEALTHCARE PROFESSIONAL OR THE PATIENT TO POTENTIALLY SERIOUS GLYCEMIC CONDITIONS OR OTHER HEALTH CONDITIONS.

Bigfoot Unity® CGM+™ Program, Supplies, and Limitations.

a		With a valid prescription, you can enroll in the Bigfoot Unity® CGM+™ Diabetes Management Program, bigfootbiomedical.com/CGMPlus, via a participating pharmacy. The CGM+™ Program gives you access to the Bigfoot Unity® Diabetes Management System, devices and consumables as specified below, access to training and coaching services by Bigfoot Certified Trainers, and, if you consent, gives your HCP access to your data and reports. CGM+™ Program Access occurs in 90-day increments when you purchase the Bigfoot Unity® CGM+™ Program Kit from ‌a participating pharmacy.

b		Pen Caps. The CGM+™ Program includes the Bigfoot Unity® smart pen caps (“Pen Caps”), which replace the disposable caps that come on your disposable insulin pens, and which you will need in order to use the Bigfoot Unity® System during your enrollment in the CGM+™ Program. This includes both a Pen Cap for your rapid-acting insulin pen and a Pen Cap for your long-acting insulin pen. Click here for compatible insulin pens: www.bigfootbiomedical.com/compatible. The CGM+™ Program allows enrollees to switch insulin brands and continue enrollment in the CGM+™ Program. As such, for each 90-day Program Access period your participating pharmacy will be permitted to dispense the prescribed pen caps necessary for you to make use of the Bigfoot Unity System, provided that there is no indication of Prohibited Conduct (See Section 4). If you change insulin brands during a 90-day enrollment period, your participating pharmacy will provide you with a compatible Pen Cap. Bigfoot may also replace malfunctioning Pen Caps while you remain enrolled in the CGM+™ Program, provided that there is no indication of Prohibited Conduct (See Section 4). If you need additional Pen Caps for any reason, please contact your pharmacy or Bigfoot at 551-BIGFOOT.

c		Bigfoot Meter, System Accessories, and Miscellaneous Supplies. The CGM+™ Program includes the delivery of a Bigfoot Meter Kit, lancets, and other Bigfoot Unity® System accessories/miscellaneous supplies (e.g., charging cords, etc.) when you are first enrolled in the CGM+™ Program. The Bigfoot Meter Kit includes a blood glucose meter (hereinafter the “Bigfoot Meter” or “BGM”) that is compatible with the Bigfoot Unity® System, a lancing device, control solution, and certain quantities of test strips and lancets. For each 90-day enrollment period, you are permitted to receive accessories/miscellaneous supplies necessary for you to make use of the Bigfoot Unity System, provided that there is no indication of Prohibited Conduct (See Section 4).

The Program Kit and Resupplies. In addition to extending your enrollment in the CGM+™ Program for 90 days, the Bigfoot Unity® CGM+™ Program Kit includes an expected 90-day supply of FreeStyle Libre 2 sensors, test strips, pen needles, and alcohol prep pads. If you require additional test strips, pen needles, or alcohol prep pads for your use during each 90-day enrollment period, Bigfoot or your participating pharmacy will provide such items that may be necessary for your use during the remainder of the 90-day enrollment period, at no additional cost, provided that there is no indication of Prohibited Conduct (See Section 4). Furthermore, if you have any issue with your supply of sensors, please contact Bigfoot at 551-BIGFOOT to help resolve the issue and potentially receive replacement sensors. You may be contacted by the Bigfoot’s Customer Care team or your participating pharmacy from time-to-time about your usage of consumable resupply items and to determine if additional resupply items should be provided to you prior to the end of each 90-day enrollment period, which may be by means of a manual or automated text message, telephone call, electronic mail, or post. If you are low on sensors, test strips, alcohol prep pads, or pen needles at any time prior to the end of a 90-day enrollment period, you should contact Bigfoot at 551-BIGFOOT.

CGM+™ Program Fees. The fees for the Bigfoot Unity® CGM+™ Diabetes Management Program are paid to your participating pharmacy by you and/or your insurance company when you purchase your Bigfoot Unity Pen Caps and/or quarterly Bigfoot Unity® CGM+™ Program Kit. If you have any questions about the dollar amounts you are responsible for, you should contact your participating pharmacy and/or insurance company.

CGM+^TM Program Consent to Share Data with Bigfoot and your HCP. When you agree to participate in the CGM+^TM Program, you ‌may be asked to ‌consent to share your personally identifiable information with Bigfoot‌, such as your name, email address, mobile number, telephone number, mailing address, and birthdate, if such consent is required by applicable law or other requirements. If you do not provide the necessary consent for your pharmacy to share data with Bigfoot‌ that Bigfoot needs to create your account and provide the Bigfoot Services specified herein, then you cannot participate in the CGM+^TM Program. If you later decide to withdraw your consent to share your data with Bigfoot, you must immediately stop using the Bigfoot Unity® Diabetes Management System and immediately call Bigfoot Customer Care at 551-BIGFOOT to withdraw your consent.

When you enroll in the CGM+^TM Program, you may also be asked to allow Bigfoot to share your User Data with your health care professionals. If you later change your mind and wish to ‌withdraw any consent you provided to share your personally identifiable information or ‌User Content with your HCP, or wish to enable sharing your data with other HCPs who are not your prescribing HCP, you must contact Bigfoot Customer Care at 551-BIGFOOT. Giving your HCP consent to receive your data does not mean that your HCP will access your ‌User Content; please consult with your HCP to understand whether and how your HCP will access and use your ‌User Content.

CGM+™ Program Eligibility and Enrollment.

Eligibility. The CGM+™ Program is currently only available to people who receive a valid prescription from a ‌HCP. The person must use compatible insulin pens and have a compatible smartphone device.
Enrollment by HCP. Only participating pharmacies can enroll you into the CGM+™ Program. By enrolling in the CGM+™ Program, you agree with the following statement:
1. You understand and agree that you are being enrolled in the CGM+™ Program in 90-day increments by purchasing each CGM+ Program Kit and that your continued enrollment is conditioned on you purchasing a new CGM+ Program Kit every 90 days. You understand that a valid prescription is necessary for enrollment into the CGM+^TM Program, that a renewal prescription may be required from time-to-time (e.g., yearly) as specified under state pharmacy laws or by your insurance company, and that additional prescriptions from your HCP may be needed for distribution of certain devices or supplies available to you under the CGM+ Program (e.g., additional pen caps, pen needles in certain jurisdictions, etc.)

CGM+™ Program Bigfoot Account. To participate in the CGM+™ Program and to access most features of the Bigfoot Services, you must register for an account. To register for an account, you or your participating pharmacy may be required to provide us with some information about yourself‌, as discussed above in Section 2.F. You agree that the information you provide to us and your participating pharmacy is accurate and that you will ‌provide us with any necessary updates to keep ‌your information accurate and up-to-date at all times.

When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at security@bigfootbiomedical.com or call 551-BIGFOOT. Your account may expire following any period of prolonged inactivity.

Bigfoot Unity® System Training under the CGM+™ Program.

a		Pre-Use System Training. In order to participate in the CGM+™ Program, you are required to participate in a training session regarding how to use the Bigfoot Unity® Diabetes Management System before you start using the Bigfoot Unity® System. During the patient training sessions, you may also learn about other aspects of the CGM+™ Program. You understand that failure to fully set up your Bigfoot Account or to schedule your patient training may prevent you from participating in the CGM+™ Program. You agree that you will not start using the Bigfoot Unity® System prior to your patient training session.

b		Utilization-based Outreach and Coaching. Bigfoot will from time-to-time reach out to you to support product utilization, training and education. Bigfoot may contact you regarding your use of the Bigfoot Unity® Diabetes Management System based on data received to provide product coaching services or ensure that you have the appropriate supplies. These coaching services do not include clinical coaching services, and Bigfoot will not contact you based on your glycemic state. For all support on setting changes, glycemic control, or general health questions please contact your prescribing ‌HCP. You understand and agree that Bigfoot may from time-to-time review your ‌User Content to determine if a utilization-based outreach to provide product coaching services is appropriate.

CGM+™ Program: Termination of Use; Discontinuation and Modification of the Service.

a		Termination by You. Your participation in the CGM+™ Program will ‌terminate at the end of the 90-day enrollment period if you decide to not obtain an additional Bigfoot Unity® CGM+™ Program Kit. If you fail to obtain a Program Kit, you will be provided with continued access to the Services consistent with Bigfoot’s current Patient Transition Plan (which may be revised from time-to-time by Bigfoot without notice to you) to permit you time obtain an additional Program Kit or transition your care to a different therapy modality. If you are having trouble in obtaining a new Program Kit or in transitioning your care, please call Bigfoot at 551-BIGFOOT for assistance. You may terminate your Bigfoot account at any time by contacting Bigfoot Customer Service at 551-BIGFOOT.

b		Valid Prescription Requirement. You may only remain enrolled in the CGM+^TM Program with a valid prescription from your HCP. If your prescription expires and your HCP does not provide you with a prescription renewal, please discuss your HCP’s decision with your HCP.

c		Termination by Bigfoot. In addition, Bigfoot may, in its sole discretion, terminate or suspend your participation in the CGM+™ Program‌, your account, or your access to the Bigfoot Services at any time if you violate any provision of these Terms, if we no longer provide any part of the Bigfoot Services, or for any other reason, with or without notice. We also reserve the right to suspend, modify or discontinue the Bigfoot Services at any time (including by limiting or discontinuing certain features of the Bigfoot Services), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability on account of any change to the Bigfoot Services or any suspension or termination of your access to or use of the Bigfoot Services.

Section 3: Terms of Use for the Bigfoot Unity® RPM Support Program Provided Via Your HCP

Section 3 applies to you if you are accessing the Bigfoot Services by participating in the Bigfoot Unity® ‌RPM Support Program ‌through your HCP (the “‌RPM Support Program”) for supporting management of your diabetes using remote physiological monitoring. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS IN SECTION 3, YOU MAY NOT ACCESS OR USE THE BIGFOOT SERVICES ‌VIA THE BIGFOOT UNITY® RPM SUPPORT PROGRAM.

If you are a healthcare professional using the Bigfoot Services under a Practice Group Agreement, the Provider Terms govern your use of the Bigfoot Services.

If you obtained access to the Bigfoot Unity ® System through a participating pharmacy, you are enrolled in a separate program, the CGM+™ Program, as set forth in more detail in Section 2. The terms of use for the RPM Support Program set forth in this Section 3 do not apply to your use of the Services through the CGM+™ Program.

Bigfoot Services under the RPM Support Program. THE BIGFOOT SERVICES ARE INTENDED ONLY TO RECORD, DISPLAY, STORE, AND TRANSMIT GLUCOSE DATA, INJECTION TIMING DATA, AND OTHER RELATED DIABETES DATA (COLLECTIVELY “DIABETES DATA”). IN CONSULTATION WITH THE HEALTHCARE PROVIDER OF THE PATIENT, YOU, AS THE PATIENT OR THE PATIENT GUARDIAN, ARE RESPONSIBLE FOR MAKING ALL INSULIN DOSING AND OTHER DIABETES TREATMENT DECISIONS. ADDITIONALLY, YOU HAVE THE RESPONSIBILITY TO PROACTIVELY MONITOR THE GLUCOSE DATA IN DIABETES DATA AND TO CONTACT A HEALTHCARE PROVIDER OR EMERGENCY SERVICES (E.G., CALL 911) IF YOU SUSPECT AN EMERGENCY HEALTH CONDITION, SUCH AS, BUT NOT LIMITED TO, A SEVERE HYPOGLYCEMIA OR A SEVERE HYPERGLYCEMIA. THE BIGFOOT SERVICES ARE NOT INTENDED FOR CONTINUOUS OR REAL-TIME MONITORING, AND WE DO NOT GUARANTEE A RESPONSE BY ANY HEALTHCARE PROFESSIONAL TO DIABETES DATA OR ANY OTHER INFORMATION RECORDED THROUGH THE BIGFOOT SERVICES. ALTHOUGH BIGFOOT MAY ACCESS YOUR DIABETES DATA TO PROVIDE CERTAIN SERVICES TO YOU OR YOUR HEALTHCARE PROVIDER OR ENABLE YOU TO CONNECT YOUR ACCOUNT TO YOUR HEALTHCARE PROVIDER, BIGFOOT DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE, OR ANALYZE ANY INFORMATION GENERATED FROM THE BIGFOOT SERVICES. IT IS YOUR RESPONSIBILITY TO PRESENT YOUR DIABETES DATA AND/OR OTHER MEDICAL DATA TO YOUR PHYSICIAN FOR PROPER ANALYSIS AND DIAGNOSIS.

RPM Support Programs, Supplies, and Limitations

a		The ‌RPM Support Program is a bundle of goods and services provided to you and your healthcare provider (“HCP”), typically under an agreement between your HCP and Bigfoot. The ‌RPM Support Program grants you access to the Bigfoot Unity® Diabetes Management System (or the “Bigfoot Unity® System”). Because you are enrolled into the ‌RPM Support Program by your HCP, your HCP may place additional requirements on your enrollment into the ‌RPM Support Program.

b		Pen Caps. The ‌RPM Support Program includes the delivery of two insulin pen caps (“Pen Caps”) for your use while you are enrolled in the Bigfoot Unity® Program by your HCP, which are included in the Bigfoot Unity® Welcome Kit. Bigfoot may, from time-to-time, replace these Pen Caps, due to either changes in your prescribed insulin brand or general improvements to the Pen Caps. Bigfoot may require that you return Pen Caps in exchange for you receiving replacement Pen Caps or may request the return of Pen Caps upon the end of your participation in the Bigfoot Unity® Program.

c		Bigfoot Meter. The Bigfoot Unity® Program includes the delivery of a Bigfoot Meter Kit, which includes a blood glucose meter (hereinafter the “Bigfoot Meter” or “BGM”) that is compatible with the Bigfoot Unity® System, a lancing device, control solution, and certain quantities of test strips and lancets.

d		Resupply. Bigfoot’s Customer Care team will contact you from time-to-time about planned shipments of supplies or to discuss your use of the Bigfoot Unity® System, which may be by means of a manual or automated text message, telephone call, electronic mail, or post. Bigfoot may require you to confirm your mailing address before sending a resupply or replacement package. You understand that the ‌RPM Support Program includes an on-going resupply of test strips usable with the Bigfoot Meter based on an estimate of your usage of test strips. Bigfoot may include other supplies, such as pen needles, alcohol prep pads, and lancets, with each shipment of test strips, and you should inform Bigfoot’s Customer Care team about your need for pen needles, test strips, lancets, and alcohol prep pads included in the Bigfoot Unity® Program to ensure that they are included with your shipment of test strips. If you are low on test strips, alcohol prep pads, or pen needles at any time, and have not received a communication indicating that a shipment is pending, you should contact Bigfoot at 551-BIGFOOT to request a resupply shipment.

e		FREESTYLE LIBRE 2 Sensors. You understand and agree that the ‌RPM Support Program, unlike the CGM+^TM Program, DOES NOT include a continuing resupply of FREESTYLE LIBRE 2 Sensors (“Sensors”). Two (2) Sensors are included in the Bigfoot Unity® Welcome Kit to assist your onboarding onto the Bigfoot Unity® Program, but Sensors are not included in the ‌RPM Support Program resupply service. You understand and agree that the Bigfoot Unity® System is intended for use with Sensors and that you will need to obtain a separate prescription for an ongoing supply of Sensors from your HCP and obtain supplies of Sensors via your pharmacy or durable medical equipment distributor in order to continue using the Bigfoot Unity® System as intended.

f		Resupply Limits. You understand and agree the supplies provided under the ‌RPM Support Program may be limited based on an agreement between Bigfoot and your HCP and subject to our Active Use and Prohibited Conduct policies (See ‌Section 3(C)(h) and Section 4 below). If you require additional supplies for the treatment of your diabetes beyond what Bigfoot provides under the ‌RPM Support Program, you will be responsible to obtain any additional medical devices/supplies through other commercial channels if a supply limit is reached.

g		Replacements: If you have lost, damaged or malfunctioning components of the ‌RPM Support Program, you should immediately contact Bigfoot at 551-BIGFOOT to request replacements. Bigfoot may require you to send back damaged or malfunctioning components. Bigfoot will generally replace lost, damaged, or malfunctioning devices and supplies subjects to our Active Use and Prohibited Conduct policies (See ‌Section 3(C)(h) and Section 4 below).

h		Continued participation in the ‌RPM Support Program is contingent on using the Bigfoot Services to record glucose data at least sixteen (16) days out of every thirty day period (hereinafter “Active Use”). You are encouraged to continue using the Bigfoot Unity® System in order to ensure that you are eligible to continue receiving supplies. Eligibility to continue receiving supplies under the ‌RPM Support Program is governed by the applicable Practice Group Agreement between your HCP and Bigfoot.

‌RPM Support Program Fees. The products and services included in ‌RPM Support Program are paid by your prescribing HCP. Although Bigfoot may assist your HCP in collecting data relevant to your treatment or insurance claims, you understand and agree that Bigfoot is not a party to any agreement that you have with your prescribing HCP regarding any fees charged by your HCP for the products provided under the ‌RPM Support Program or any associated services rendered to you by your HCP, which may or may not be partially covered by your insurance carrier. If you have any questions about the amounts you are responsible for due to your participating in the ‌RPM Support Program or the services provided to you by your HCP, you should contact your HCP or insurance company.

RPM Support Program Eligibility and Enrollment.

Eligibility. The ‌RPM Support Program is only available to ‌individuals who are prescribed the Bigfoot Unity® Diabetes Management System by their HCP and are enrolled by a participating HCP.

Enrollment by HCP. You agree with the following statements:

You understand and agree that you are being enrolled in the RPM Support Program by your prescribing HCP and that your continued enrollment in the RPM Support Program is subject to the continued consent of your HCP. You should talk to your HCP prior to enrollment in the Bigfoot Unity® RPM Support Program in order to understand how your HCP intends to use the data recorded from the Bigfoot Unity® System and any associated services that your HCP intends to provide to you related to your use of the Bigfoot Unity® Program.
1. By participating in the RPM Support Program, you warrant and affirm that you have given consent to your HCP to perform remote physiological monitoring (“RPM”) services using the RPM Support Program, or that you and your HCP have entered into a written agreement regarding your enrollment in the RPM Support Program, and that you have discussed your financial commitments associated with your enrollment into the RPM Support Program by HCP, including any provisioning of RPM services. Additionally, you warrant and affirm that you have not granted any healthcare professional other than your prescribing HCP to provide RPM services to you during any overlapping period. If you are enrolled in the RPM Support Program without consenting to RPM services by your HCP or if you wish to remove your consent, you must immediately contact your HCP and Bigfoot Customer Care at 551-BIGFOOT. You understand and agree that removing your consent may result in the termination of your enrollment in the RPM Support Program.
If you change HCPs, please call Bigfoot Customer Care at 551-BIGFOOT to discuss transition or termination options.

RPM Support Program Bigfoot Account. To participate in the ‌RPM Support Program and to access most features of the Bigfoot Services, you must register for an account. When you register for an account, you or your HCP may be required to provide us with some information about yourself including personal information such as your name, email address, mobile number, telephone number, mailing address, password, gender, height and birthdate. You may choose to provide additional information to us. You agree that the information you provide to us is accurate and that you will provide us with any necessary updates to keep ‌your information accurate and up-to-date at all times.

When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at security@bigfootbiomedical.com or call 551-BIGFOOT. Your account may automatically expire following any period of inactivity associated with your account in excess of twelve (12) consecutive months.

RPM Support Program Bigfoot Unity® Training. In order to participate in the ‌RPM Support Program, you are required to participate in a training session regarding how to use the Bigfoot Unity® System. You understand that a failure to fully set up your Bigfoot Account or to schedule your patient training may prevent you from participating in the ‌RPM Support Program. You agree that you will not start using the Bigfoot Unity® System prior to your patient training session.

RPM Support Program: Termination of Use; Discontinuation and Modification of the Service.

a		Termination by You. You may terminate your Bigfoot account and/or your participation in the Bigfoot Unity® Program at any time by contacting Bigfoot Customer Service at 551-BIGFOOT.

b		Termination by your HCP. Your enrollment in the RPM Support Program is dependent on your continued consent of your prescribing HCP. You understand and agree that your HCP is not under any obligation to continue your enrollment in the RPM Support Program and may terminate your participation at any time for any reason. If your HCP terminates your participation in the RPM Support Program, Bigfoot Customer Care will contact you to discuss your options. If your HCP decides to terminate your participation in the RPM Support Program, Bigfoot may, in Bigfoot’s sole discretion, provide you with a limited time to find a new therapy modality, to discuss your HCP’s decision with your HCP, or to otherwise address your specific situation consistent with Bigfoot’s current Patient Transition Plan, which may be updated from time-to-time at Bigfoot’s sole discretion without notice to you.

c		Termination by Bigfoot. Bigfoot may, in its sole discretion, terminate or suspend your participation in the RPM Support Program, your account, or your access to the Bigfoot Services at any time if you violate any provision of these Terms, if we no longer provide any part of the Bigfoot Services, or for any other reason, with or without notice. We also reserve the right to suspend, modify or discontinue the Bigfoot Services at any time (including by limiting or discontinuing certain features of the Bigfoot Services), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability on account of any change to the Bigfoot Services or any suspension or termination of your access to or use of the Bigfoot Services.

d		Return of Devices and/or Supplies Upon Termination. If your participation in the RPM Support Program is terminated by any party for any reason, your HCP may demand a return of the Pen Caps, the BGM, and any unused consumables. Bigfoot may request that you return the Pen Caps for analysis of whether the Pen Caps were working properly and for appropriate disposal and/or recycling of the Pen Caps. Bigfoot may also request you to return any unused resupply items (test strips, pen needles, lancets, and alcohol prep pads). Bigfoot will send you a prepaid postage box for requested returns. You are not allowed to sell or distribute the Pen Caps, the Bigfoot Meter, any of the resupply items, or any other item distributed to you under the RPM Support Program to any third-party, and you are not permitted to use the Bigfoot Unity® System after termination of your participation in the RPM Support Program (inclusive of any continued period of use permitted under Bigfoot’s Patient Transition Plan).

Section 4: Prohibited Content

BY USING THE BIGFOOT SERVICES, INCLUDING UNDER EITHER THE CGM+^TM PROGRAM OR THE RPM SUPPORT PROGRAM, YOU AGREE NOT TO:

a		resell, redistribute, or otherwise make available to any third party for their use any supplies, products, applications, or other tools provided to you under the CGM+^TM Program, the ‌RPM Support Program, or as part of any other ‌Bigfoot Services;

b		purposefully or negligently damage devices or supplies provided in connection with any Bigfoot Services;

c		repeatedly and negligently lose supplies or devices provided in connection with any Bigfoot Services;

d		use or access the Bigfoot Services (a) from a jurisdiction where such use or access is not authorized, (b) for any illegal purpose, or (c) in violation of any local, state, national, or international law;

e		conduct activities that may be harmful to others or that could damage Bigfoot’s reputation;

f		violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or disclosing personal information about another person;

g		post, upload, or distribute marketing or advertising links or content, or any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;

h		use scrapers, robots, or other data gathering devices on or through the Bigfoot Services, or frame or otherwise provide the Bigfoot Services to third parties without Bigfoot’s permission;

i		interfere with security-related features of the Bigfoot Services, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering, decompiling, or otherwise attempting to discover the source code of any portion of the Bigfoot Services, including the App(s) or any product or supply provided under the the CGM+TM Program or RPM Support Program, except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction;

j		interfere with the operation of the Bigfoot Services or any user’s enjoyment of the Bigfoot Services, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Bigfoot Services; (c) attempting to collect personal information, including without limitation diabetes data or other health information, about another user or third party without their consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Bigfoot Services, or violating any regulation, policy, or procedure of any such network, equipment, or server;

k		perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Bigfoot Services or account without permission, or falsifying your account registration information;

l		modify, translate, or create derivative works, adaptations or compilations of, or based on, the Bigfoot Services or part thereof, or use, copy or reproduce the Bigfoot Services or any part thereof other than as expressly permitted in these Terms;

m		assign, sublicense, lease, sell, grant a security interest in, or otherwise transfer the access granted under these Terms; or

n		attempt to do any of the acts described in this Section 4, or assist or permit any person in engaging in any of the acts described in this Section 4.

Section 5: Interpretation and Disputes

Governing Law and Competent Courts: You agree that these Terms describe the entire agreement between us with respect to its subject matter. To the fullest extent permitted pursuant to applicable law, the laws of the State of Delaware will control the terms and conditions provided in these Terms, without giving effect to any principles of conflict of laws. If a lawsuit or court proceeding is permitted under these Terms, then you and Bigfoot agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating any dispute. If a court of competent jurisdiction finds that any provision of these Terms is invalid or unenforceable, you agree that the other provisions of these Terms will remain in full force and effect. We operate the Bigfoot Services from our offices in the United States, and we make no representation that anything contained on the Site or otherwise in the Bigfoot Services, including as part of the CGM+^TM Program or ‌RPM Support Program, is appropriate or available for use in other locations.

These Terms are the entire and exclusive understanding and agreement between you and Bigfoot regarding your use of the Bigfoot Services, including the Site and your participation in the CGM+^TM Program or ‌RPM Support Program, unless you have another agreement with Bigfoot that expressly disclaims the applicability of these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent, which may be granted or withheld at Bigfoot’s sole discretion. Any attempted assignment by you without such consent shall be null and void. We may assign these Terms at any time without notice or consent, to the fullest extent permitted under applicable law. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

Force Majeure. Bigfoot will be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of a Force Majeure Event. To the fullest extent permitted under applicable law, for purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (5) telecommunications, network, computer, server or Internet downtime; (6) unauthorized access to Bigfoot’s information technology systems by third parties; or (7) other causes beyond the reasonable control of Bigfoot.

Dispute Resolution and Arbitration

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM US.

a		Generally. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND IN THE INTEREST OF RESOLVING DISPUTES BETWEEN YOU AND BIGFOOT IN THE MOST EXPEDIENT AND COST EFFECTIVE MANNER, YOU AND BIGFOOT AGREE THAT EVERY DISPUTE ARISING IN CONNECTION WITH THESE TERMS WILL BE RESOLVED BY BINDING ARBITRATION, UNLESS YOU ARE A CONSUMER LOCATED IN A JURISDICTION THAT PROHIBITS THE EXCLUSIVE USE OF ARBITRATION FOR DISPUTE RESOLUTION Arbitration is less formal 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. This agreement to arbitrate disputes includes 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 a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BIGFOOT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.

b		Opt-Out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting legal@bigfootbiomedical.com within 30 days of first accepting these Terms and stating that you (include your first and last name, and email address used to register for the Bigfoot Services) decline this arbitration agreement

c		Exceptions. Despite the provisions of Section ‌5(D), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

d		Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and Bigfoot will be settled under the Federal Arbitration Act, and 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 adr.org, by calling the AAA at 1-800-778-7879, or by contacting Bigfoot.

e		Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Bigfoot’s address for Notice is: Bigfoot Biomedical, Inc., Attn: Legal Department, 1820 McCarthy Blvd., Milpitas, CA 95035 USA. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Bigfoot may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Bigfoot must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Bigfoot will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Bigfoot in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

f		Fees. If you commence arbitration in accordance with these Terms, Bigfoot will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location, to be agreed upon, in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. 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 that case, you agree to reimburse Bigfoot for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must 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.

g		No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND BIGFOOT 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 Bigfoot 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, to the fullest extent permissible pursuant to applicable law.

h		Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these Terms shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.

i		Modifications to this Arbitration Provision. If Bigfoot makes any future change to this arbitration provision, other than a change to Bigfoot’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Bigfoot’s address for Notice, in which case your account with Bigfoot will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

j		Enforceability. If Section 5(D) or any portion thereof is found to be unenforceable, then the entirety of this Section 5(D) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 5(A) will govern any action arising out of or related to these Terms.

Terms of Use, Service and Consent

Terms of Use, Service and Consent

Bigfoot Biomedical

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