Resmed SMS Message and Alerts

Effective Date: August 2, 2018

Terms and Conditions

Your use of Resmed services that involve short text messages (“SMS”) and alerts (the “Service”) is governed by this SMS Message and Alerts Agreement (“Terms”) which incorporates the terms of the Resmed service(s) agreement as if restated herein.

Please read the terms and conditions contained in these Terms carefully. Your use and continued access of the Service will constitute your ongoing agreement to the Terms. For purposes of these Terms, ‘we’, ‘our’, ‘us’ and ‘Resmed’ collectively refer to Resmed Corp., a Minnesota corporation, headquartered in California, its parent Resmed Inc., a Delaware corporation, headquartered in California, and Resmed Corp.’s affiliates, organized under the laws of various states and countries and operating in California, the United States or in other jurisdictions, including but not limited to those Resmed affiliates offering SMS message communications as part of Resmed services.

“You” and “yours” shall mean the owner or authorized user of the mobile device whose telephone number is submitted to subscribe to the Service. You further represent that you are authorized to accept these Terms. If you cannot accept these Terms, do not use the Service. Your failure to abide by these Terms or any other terms or conditions posted anywhere within the Service may result in suspension or termination of your access to the Service, without notice.

The servers that host the Service are located in the United States, and personal data will be processed by Resmed in the United States and Canada. For information about the way in which we use, process and share personal data that we may obtain about you, please refer to our Privacy Notice and Cookie Notice available here (the “Privacy Notice”).

1. The Service
i. Subscription to the Service:

The Service includes sending subscribers SMS messages to assist with Resmed product usage, reminders, and other information (“Content”) as related to Resmed products. SMS messages may be auto-dialed or prerecorded, including via Automatic Telephone Dialing System and/or artificial or pre-recorded voice. Your consent to receive these text messages is not a condition of any other good or service.

To participate in this Service, you must confirm acceptance to the Service as per instructions by the Resmed service and provide your mobile telephone number. Resmed will send you a confirmation SMS message when you opt in or out to the Service. You may opt out of the Service at any time by responding “STOP” to any text message.

By subscribing to the Service, you represent and warrant that you are the registered owner or authorized user of the mobile phone or wireless device (“Device”) whose telephone number is submitted. You agree and represent that the Device phone number registered for the Service is accurate and up-to-date. If your number changes, you must immediately update it and subscribe to the Service with your new number.

ii. Functionality; Security; Mobile Use Precautions

This Service is offered on an “as is” and “as available” basis without warranties of any kind, except as otherwise expressly stated in these Terms. The Service may not be available at all times and in all areas; certain variables could affect delivery of the messages, including but not limited to the functionality of your carrier’s network and SMS messaging platform and restrictions set by your carrier to your account. Resmed or its SMS messaging provider does not guarantee message delivery, timeliness, or that messaging services will be available at all times. Resmed is not responsible for messages that are lost or misdirected.

If you have reason to believe that access to your Device is no longer secure (e.g., loss, theft or unauthorized disclosure or use of your Device used to access the Service), you must promptly change your contact information in the Resmed platform that delivers the Service or call the contact center listed under the Service you opted in to.

You or someone you authorize are solely responsible for keeping the Service updated with your current phone number. Blocking messages will disable the ability to send or receive SMS messages. If you install any software or enable any service that stores information from the Service on any Device or computer, it is your responsibility, prior to transfer of such Device, to remove your information or otherwise disable access to such software or service, in order to prevent unauthorized access to your information or account.

iii. Third Party Charges and Mobile Alerts

Resmed’s Service relies on third party products and services. A mobile phone or wireless device is required to use the Service. The Service may not be available on all rate plans. Your carrier may charge you for each SMS message sent and received. Higher rates may apply to messages received when travelling internationally. Contact your carrier for SMS messaging rates and terms applicable to your plan. You are solely responsible for any fees or charges incurred from participating in the Service. Under no circumstances will Resmed, its selected third party service provider, any of its agents or respective corporate affiliates be responsible or liable for any SMS messaging or wireless service charges incurred by you or a person that had access to your mobile phone or wireless device, or for any overcharge or billing error by or any billing dispute with your participating carrier.

Third-party products and services, including your phone or wireless carrier, are beyond our control and they may not operate in a reliable manner, be available 100% of the time, or become obsolete due to newer technology. Resmed is not responsible for any damages or losses, whether foreseeable or remote, due to the operation of third-party products.

iv. How to Cancel the Service.

You may cancel this Service at any time, for example, by texting the keyword “STOP”. The STOP request includes your agreement that Resmed may send to your Device a single confirmation message within 24 hours of receipt of your STOP request.

v. Use of the Service

The Service is intended for your personal, noncommercial use only. You are solely responsible for maintaining confidentiality of your contact information and information received on your Device, and for failure to do so. You are solely responsible for all use of the Service by you and anyone you allow access to the Service on your Device.

2. Disclaimer on emergency medical conditions
DO NOT USE THIS SERVICE FOR MEDICAL EMERGENCY SERVICES. IN AN EMERGENCY, CALL 911 OR YOUR LOCAL EMERGENCY ASSISTANCE NUMBER.

THE CONTENT AVAILABLE THROUGH THE SERVICE IS FOR PURPOSES SPECIFIED FOR THE APPLICABLE RESMED SERVICE ONLY AND IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF A HEALTH CARE PROFESSIONAL IN DIAGNOSING AND TREATING PATIENTS. RESMED DOES NOT, THROUGH THE SERVICE, OR ITS FUNCTIONS, PROVIDE MEDICAL ADVICE, NOR DOES IT PROVIDE MEDICAL PRESCRIPTIONS, TREATMENTS, OR DIAGNOSTIC SERVICES. ADDITIONALLY, THE USE OF THE CONTENT OBTAINED THROUGH THIS SERVICE, AND COMMUNICATIONS FROM RESMED IN CONNECTION WITH YOUR USE OF THE SERVICE OR RESMED PRODUCTS, DOES NOT ESTABLISH A PHYSICIAN-PATIENT RELATIONSHIP.

Your reliance upon information and content obtained by you from Resmed, including this Service is solely at your own risk. We do not assume any liability or responsibility for damage or injury (including death) to you, other persons or property arising from any use of any product, information, idea or instruction contained in the content.

We do not provide advice to you on any issues relating to medical treatment or diagnosis and the Content is intended solely as a resource and informational tool. Always seek the advice of a physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have seen or read as a result of the Service or through any communications. We are not medical professionals and will not discuss or advise you on any issues relating to medical treatment or diagnosis.

3. Intellectual property rights
i. Ownership

All content, text, images, data, information and other material displayed, available or present on this Service or made available to you through the Service, including any accompanying intellectual property rights in the messages (including without limitation trademarks and copyrights) are the property of Resmed, its affiliates, its licensors or the designated owners, and are protected by applicable intellectual property laws. You should assume that messages you see or read on the Service is copyrighted unless otherwise noted and may not be used without our written permission, except as otherwise provided in these Terms.

i. Subscription to the Service:

ii. Authorized and prohibited uses

You may download and print copies of the messages only for non-commercial, informational, personal use, without modification or alteration in any way, and only so long as you comply with these Terms and applicable laws. Except as may otherwise be expressly authorized by the Terms, you may not otherwise reproduce, sell, publish, distribute, modify, display, or use any of the Service content without our prior written permission. You agree not to infringe upon Resmed’s intellectual property rights or remove or modify related proprietary notices contained in the Service.

4. Registration and passwords
At times, we may or may not require you to have a password and provide registration details to access the Service. To the extent that we do require a password and registration details, the details you provide must be correct, current and complete. If we reasonably believe that the details are not correct, current and complete, or that your use of the Service is inconsistent with these Terms, we have the right to refuse you access to the Service, and to suspend or terminate the Service. You are responsible for maintaining the confidentiality of any password(s) you are given to access the Service, and you are fully responsible for all activities that occur under your password(s). Resmed shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by Resmed, its affiliates, officers, directors, employees, consultants, agents and representatives due to someone else’s use of your account or password. You agree to notify us immediately of any unauthorized use of your password(s).

5. Compliance with the Digital Millennium Copyright Act
Resmed respects the rights of all copyright holders and in this regard, we have adopted and implemented a policy that provides for termination of users of this Service who infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information required by the Digital Millennium Copyright Act, 17 U.S.C. Section 512:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
3. Identification of the Content that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and the information reasonably sufficient to permit Resmed to locate the Content;
4. Information reasonably sufficient to permit Resmed to contact the complaining party;
5. A statement that the complaining party has a good faith belief that the use of the Content in the manner complained of is not authorized by the copyright owner, its agent or the law;
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

For copyright inquiries under the Digital Millennium Copyright Act, please contact Resmed’s Copyright Agent at:

Vice President, General Counsel-Americas
Resmed Corp. Legal Department
Copyright Agent
Resmed Corp.
9001 Spectrum Center Blvd.
San Diego, CA 92123
Phone: (877) 389-8868
Email: privacy@resmed.com
Website administration

6. Your obligations
i. Fees.

If applicable, you agree to pay the Service fees(s) for the Service.

ii. Compliance

You agree to comply with all applicable laws in connection with your use of the Service.

iii. Unsuitable content and conduct

You shall not engage in, conduct or submit to the Service any content or other material that is illegal, inaccurate, misleading, misappropriated, infringing, dilutive, defamatory, obscene, offensive or otherwise objectionable. You shall not cause damage, embarrassment or adverse publicity to Resmed.

iv. Functional compatibility and system abuse

You will submit only content that is functionally and technically compatible with the Service. You will not attempt to and will not damage, corrupt, tamper with or infect the Service, content or any information or telecommunication system of Resmed with a virus or other malicious computer program. You will only use the Service for the permitted purposes stated in the Terms, and will not engage in abusive activity with respect to the Service, or undertake any other activity which may adversely affect the use or enjoyment of the Service by any person. You are prohibited from using any services or facilities provided in connection with the Service to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If you become involved in any violation of system security, Resmed reserves the right to release your details to system administrators at other sites and law enforcement authorities in order to assist them in resolving security incidents.

v. Your cooperation and notification

You agree to cooperate with all reasonable requests of Resmed and will notify Resmed promptly upon learning of any actual or suspected breach of these Terms by you or unauthorized use or abuse of the Service.

7. Warranty disclaimers
EXCEPT AS PROVIDED IN THESE TERMS, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SECURITY, FREEDOM FROM COMPUTER VIRUS OR CONTINUED AVAILABILITY, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF RESMED’S HI SERVICES IS WITH YOU. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THEREFORE THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

Resmed does not warrant that the functions contained in the Service will meet your requirements or that its operation will be uninterrupted or error-free or compatible with the other software or hardware of your systems. RESMED’S SOLE OBLIGATION OR LIABILITY UNDER THIS SECTION AND THE FOREGOING LIMITED WARRANTY IS THE REPAIR OR REPLACEMENT OF THE SERVICE, OR AT RESMED’S DISCRETION, REFUND OF UNUSED PORTION OF THE SERVICE FEES PAID BY YOU FOR THE SERVICE IN THE TWELVE MONTHS PRECEDING SUCH AN EVENT.

Resmed will be relieved of its obligations under these Terms for failure to perform any of its obligations under these Terms, if the failure is due to an event outside Resmed’s control.

8. Limitations of Liability
IN NO EVENT WILL RESMED BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF THESE TERMS OR CONNECTED IN ANY WAY WITH THE USE, MISUSE OR INABILITY TO USE THE SERVICES, EVEN IF RESMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. SHOULD WE HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DIRECT LOSS, HARM OR DAMAGE, (EXCEPT INSURED CLAIMS, AND THE PARTIES’ RESPECTIVE EXPRESS INDEMNITY OBLIGATIONS), THE TOTAL LIABILITY OF RESMED FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE ) WILL NOT EXCEED THE LESSER OF THE AGGREGATE AMOUNT OF THE SERVICE FEES YOU HAVE PAID TO US FOR THE SERVICS DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE CLAIM OR USD $3,000.00 (UNITED STATES DOLLARS). YOU UNDERSTAND AND ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE YOU ACCESS TO SERVICE. THE LIMITATIONS PROVIDED IN THIS SECTION WILL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

Your exclusive remedy in the event of the complete and unrecoverable failure of the Service to operate or perform is limited to, at Resmed’s discretion, providing available back-up information, or refunding the unused portion of the Service fees you have paid to Resmed during the 12 months immediately preceding the date of such failure.

9. Indemnity
You, at your own expense, will indemnify and hold harmless Resmed and its assignees, and their directors, officers, employees, agents and representatives, and defend any and all actions brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, experts’ fees, and court costs, to the extent that it arises from or relates to the acts or omissions of you, your users, directors, officers, employees, agents, or representatives, including but not limited to the use of the Service or any patient data stored or transmitted using the Service; or your failure or alleged failure to obtain any or all permissions, authorizations and “opt-in” consents required under applicable Federal, State or local laws and regulations.

10. Term
These Terms will commence on the Effective Date and will remain in effect so long as you use the Service or the Terms are otherwise terminated.

We may stop providing the Services on notice to you (a “Termination Notice“) if:

• providing the Service would create a substantial economic or technical burden or material security risk for us, or if it is necessary for us to do so to comply with the law or requests of governmental entities; or
• the use of the Service by you or our provision of any of the Service to you has become impractical or unfeasible for any legal, business or regulatory reason.

On any termination of these Terms:

• all your rights under these Terms will terminate within 15 days from the date of the Termination Notice; and
• you remain responsible for all fees and charges you have incurred through to the date of termination.

11. Relationship of the Parties
Nothing in these Terms will be construed to constitute either party as the partner, employee, or agent of the other, except that if Resmed contacts any patient based on the consent you obtained from the patient as required under these Terms, Resmed will be considered your agent authorized to contact the patient within the scope of consent provided by the patient. Neither party has any authority to bind the other in any respect. Each party will remain an independent contractor, responsible only for its own actions. Each party will conduct all of its business in its own name and in such manner as such party may see fit, at its own expense.

12. Governing Law
These Terms will be governed by and construed in accordance with the laws of the State of California, United States, without regard or giving effect to its conflict of laws principles.

13. Dispute resolution; Binding Arbitration
With respect to any and all disputes arising out of or in connection with the Service, Content, or these Terms (including without limitation the Privacy Notice), Resmed and you agree to negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution for at least thirty (30) days before filing for binding arbitration.

All controversies and claims arising under or relating to these Terms are to be resolved by binding arbitration under the Federal Arbitration Act in accordance with the then-current rules of the American Health Lawyers Association, if you are a resident of the United States before a single arbitrator selected in accordance with those rules. The arbitration is to be conducted in the County of San Diego, California. The arbitrator shall apply California law, without regard to its conflict of laws principles. All proceedings shall be conducted in English. Each party shall submit to any court of competent jurisdiction for purposes of enforcing any award, order or judgment from the arbitrator. Any award, order or judgment pursuant to the arbitration is final and may be entered and enforced in any court of competent jurisdiction. Each party shall bear its own costs, expenses and attorneys’ fees (and all related costs and expenses) incurred in connection with any proceeding arising from or related to any transaction contemplated by this Agreement, the Privacy Notice attached hereto, or in connection with enforcing any judgment or order thereby obtained. You and we further agree to waive any right to pursue a dispute by asserting a disputed claim in a representative capacity, or participating in a class action with respect to any dispute subject to this arbitration provision.

14. Modification of Terms
These Terms and the Privacy Notice referenced herein constitute the complete agreement between you and Resmed with respect to their subject matter and supersede any prior agreement or communication on this topic, except in the limited instance of a separately negotiated written agreement executed by you and Resmed. From time to time in connection with your use of and/or access to the Service, it may be necessary for you to consent to policies or terms and conditions in addition to these Terms. You should read carefully any such additional terms and conditions before making any use of such other Resmed services. Any such terms will not vary or replace this Agreement regarding any use of this Service, unless otherwise expressly stated.

The Terms are subject to change from time to time. We encourage you to review these Terms regularly. If we update the Terms, we will notify you as appropriate. If we make a material change, we will ask you to review and reaccept the Terms. Your continued use of the Service confirms your acceptance of the Terms, as amended. If you do not agree to our amended Terms, you may choose to discontinue using the Service. If any term or provision of the Resmed SMS Message and Alerts Agreement shall be found to be invalid, illegal or otherwise unenforceable, such finding shall not affect the other terms or provisions of our agreement, or the whole of our agreement, but such term or provision shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of you and Resmed shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements set forth in the Terms. Your obligations pursuant to the Terms shall survive termination of any use by you of the Service and its Content.

By subscribing to the Service, I acknowledge that I am electronically signing these Terms and agreeing to be legally bound by all of the terms, conditions and notices contained or referenced in these Terms.

15. Privacy and Contact information
Resmed respects the privacy of our customer’s patients and our Device users and has developed notices to address privacy concerns. You can find the current Privacy Notice relating to your use of this Service here. The Privacy Notice is incorporated into these Terms by reference and constitute part of these Terms.

If you have any questions regarding these Terms, please contact us by email at privacy@resmed.com.