Resmed Mask Sizing Tool-Privacy Notice & Terms of Use

Terms of Use

Effective Date: August 14, 2019

These Terms of Use (“Terms”) set forth a legally binding agreement between you and Resmed Corp. (“Resmed”, “we”, “our”, or “us”), and govern your use of our mask sizing tools (the “Service”).

By using the Service, you acknowledge and accept these Terms, and consent to the collection, use, and sharing of your information and other activities as described in our Privacy Notice. Please read these Terms carefully before using the Service. If you do not agree to these Terms, please do not use the Service.

These Terms may change over time, in which case we will post the modified Terms on this page and change the “Effective Date”. Your use of the Service following a change to these Terms signals your acceptance of the modification(s).

1. Medical Disclaimers

DO NOT USE THIS SERVICE FOR MEDICAL EMERGENCY SERVICES. IN AN EMERGENCY, CALL YOUR LOCAL EMERGENCY ASSISTANCE NUMBER.

THE SERVICE IS FOR INFORMATIONAL, EDUCATIONAL, AND RESUPPLY PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF A HEALTH CARE PROFESSIONAL IN DIAGNOSING AND TREATING OR FITTING PATIENTS. RESMED DOES NOT, THROUGH THIS SERVICE OR ITS FUNCTIONS, PROVIDE MEDICAL ADVICE, NOR DOES IT PROVIDE MEDICAL PRESCRIPTIONS, TREATMENTS, OR DIAGNOSTIC SERVICES. ADDITIONALLY, THE USE OF THE 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 through use of the 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 related to your use of the Service.

We do not provide advice to you on any issues relating to medical treatment or diagnosis and the Service 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. We are not medical professionals and will not discuss or advise you on any issues relating to medical treatment or diagnosis.

2. Use of the Service

Content. The Service may contain: (i) materials and other items relating to Resmed and its services including layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Resmed; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All rights, title, and interest in and to the Service and the Content is the property of Resmed, our licensors, or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.

Limited License. Subject to your strict compliance with these Terms, Resmed grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, and use the Service, and to retain one copy of the Content as it is displayed to you, in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, the Service or any Content, and (ii) may be immediately suspended or terminated for any reason, in Resmed’s sole discretion, and without advance notice or liability. Your unauthorized use of the Service or Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.

Restrictions. Persons under the age of 18 are not permitted to use the Service. You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, directives, and agreements that apply to your use of the Service and Content. You further agree that you will not: (i) use the Service or Content for any political or commercial purpose; (ii) engage in any activity in connection with the Service or Content that is unlawful, harmful, offensive, obscene, violent, threatening, harassing, abusive, or otherwise objectionable to Resmed; (iii) harvest any information from the Service or Content; (iv) reverse engineer or modify the Service or Content; (v) interfere with the proper operation of the Service or its security features; (vi) infringe any intellectual property or other right of any third party; (vii) use the Service or Content in a manner that suggests an unauthorized association with Resmed or any other party, or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms.

Availability and Termination. Resmed may immediately suspend or terminate the availability of the Service, in whole or in part, to any individual user or all users, for any reason, in Resmed’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from Resmed, all rights granted to you under these Terms will cease immediately, and you agree that you will immediately discontinue use of the Service.

Reservation of All Rights. All rights not expressly granted to you are reserved by Resmed and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Service or Content for any purpose is prohibited.

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

3. User Content

Except as provided in our Privacy Notice, any content that you submit through the Service or to Resmed, whether directly or through a third-party website or platform (“User Content”) will be deemed to be non-confidential and may be disclosed through the Service to other parties on a worldwide basis, including for browsing, downloading, printing and other uses by such other persons or entities. You agree not to submit User Content through this Service or to Resmed except for User Content that is fully authorized for purposes of the Service and these Terms, and by providing User Content in connection with the Service, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit or otherwise distribute User Content. It is your obligation to determine the extent to which User Content you submit is protected by applicable intellectual property laws. You agree that Resmed shall have, and hereby grant to Resmed, a worldwide, royalty-free, perpetual, irrevocable, sublicenseable, non-exclusive right and license to translate, reproduce, sell, publish, distribute, modify, adapt, display, perform, promote, link to or use, in any form or media, any User Content that you submit to Resmed. Resmed does not endorse any User Content, or third-party product or service that may appear in connection with use of the Service. Nothing in these Terms shall obligate Resmed to use any User Content you submit or permit the posting of such User Content on any website or platform.

You agree that you not engage in any activity or conduct, or submit as part of the Service any User Content or other material, that is illegal, inaccurate, misleading, misappropriated, infringing, dilutive, defamatory, obscene, offensive, or otherwise objectionable and that you will not cause damage, embarrassment, or adverse publicity to Resmed.

You will submit only User Content that is functionally and technically compatible with this Service. You will not attempt to damage, corrupt, tamper with, or infect the Service, the 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 these 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 this Service to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., 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 of other sites and services and law enforcement authorities in order to assist them in resolving security incidents.

4. Communications

We may communicate with you electronically through the Service, including by text or push notification. You agree that all notices, disclosures, agreements, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that any time you electronically transact, agree, or consent via the Service, including when you provide your consent for Resmed to obtain your facial-scan data, your action is intended as an electronic signature which binds you as if you had signed on paper.

We may collect information related to communications between you and Resmed. You hereby approve our delivery of electronic communications directly to your mobile device through means such as push notifications. Standard message, data, and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Your carrier may prohibit or restrict certain wireless features and certain wireless features may be incompatible with your carrier or wireless device. Contact your carrier with questions regarding these issues.

5. Copyright Infringement and DMCA Policy

Resmed expects users of the Service to respect the intellectual property rights of others. It is our policy to respond appropriately to clear notices of alleged copyright infringement, as set forth more fully below. In Resmed’s sole discretion, we may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer. In accordance with the U.S. Digital Millennium Copyright Act (DMCA) and other applicable law, Resmed has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers.

If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it through the Service, then you may send us a written notice that must include all of the following:

• “DMCA Copyright Infringement Notice” in the heading or subject line.
• A description of the copyrighted work you believe to have been infringed.
• Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material (e.g., a screenshot of the location where the material is located).
• Accurate and adequate information that we can use to contact you (including your full name, postal address, telephone number, and email address).
• A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
• A statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed).
• Your physical or electronic signature.

We will respond to notices of claimed copyright infringement in accordance with the DMCA. Resmed will only respond to DMCA notices that it receives by mail or email at the addresses below:

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

It is often difficult to determine if your copyright has been infringed. Resmed may elect to not respond to DMCA notices that do not substantially comply with all of the foregoing requirements, and we may elect to remove allegedly infringing material that comes to our attention via notices that do not substantially comply with the DMCA.

Please note that the DMCA provides that any person who knowingly materially misrepresents an infringement may be subject to liability.

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA counter-notification.

6. Access and Fees

Your use of the Service must be in accordance with any and all procedures, forms, formats, displays, and operating times which may be determined, specified, or modified by Resmed in its discretion. You are responsible for all software, hardware, interconnections, fees, expenses, costs and taxes for you to access or use the Service, or to receive any communications from Resmed.

At this time, we do not charge a fee to use the Service (not including any data costs incurred by you or your carrier in using the Service), but we reserve the right to impose or modify fees in connection with use of this Service (or portions of this Service) at any time without liability. Resmed shall endeavor to issue a general notice with regard to any imposition of fees or modifications to the Service.

The Service may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of Resmed, access to the Service may be interrupted, suspended, or terminated from time to time. Resmed shall have the right at any time to change or discontinue any aspect or feature of the Service, including, but not limited to, Content, hours of availability, and equipment needed for access or use.

7. Dispute Resolution

If a dispute arises between you and Resmed, you and Resmed agree, as permitted by applicable law, to resolve any claim or controversy at law or equity that arises out of these Terms through binding arbitration or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

Certain portions of this section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Resmed agree that we intend that this section satisfies the “writing” requirement of the Federal Arbitration Act. This section can only be amended by mutual agreement.

Binding Arbitration. If any controversy, allegation, or claim relates in any way to your use of the Service (collectively, “Dispute”), then you agree the Dispute shall be submitted to confidential arbitration in California except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court. You hereby consent to, and waive, all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of California. Arbitration under these Terms shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association; these Terms shall otherwise be construed in accordance with the internal laws of the State of California without regard to California choice of law principles. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.

Exclusions from Arbitration. YOU AND RESMED AGREE THAT ANY CLAIM FILED BY YOU OR BY RESMED IN SMALL CLAIMS COURT OR BY RESMED RELATED TO PROTECTION OF RESMED’S OR ANY RESMED’S LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS.

Limited Time to File Claims. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Service must be filed within one year after such claim or cause of action arose or be forever banned.

Class Action Waiver. DISPUTES WILL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND WILL NOT BE JOINED OR CONSOLIDATED WITH ANY OTHER ARBITRATIONS OR OTHER PROCEEDINGS THAT INVOLVE ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. YOU AND RESMED 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.

8. Warranty Disclaimer

THE SERVICE, ITS CONTENT, AND ITS LINKS AND COMMUNICATIONS ARE PROVIDED ON AN “AS IS” BASIS AND ARE USED ONLY AT YOUR SOLE RISK, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. RESMED DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS, EXPRESS OR IMPLIED, OF ANY KIND, REGARDING THE SERVICE (INCLUDING ITS CONTENT, HARDWARE, SOFTWARE AND LINKS), INCLUDING ANY IMPLIED WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SECURITY, AND FREEDOM FROM COMPUTER VIRUS. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

9. Limitations on Liability and Remedies

RESMED’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH RESMED (INCLUDING WITHOUT LIMITATION YOUR USE OF THE SERVICE OR RECEIPT OF ANY COMMUNICATIONS) IS TO DISCONTINUE YOUR USE OF THE SERVICE. RESMED AND ITS VENDORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE SERVICE, RECEIPT OF ANY COMMUNICATION, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE. THESE EXCLUSIONS FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF RESMED HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, RESMED AND ITS VENDORS’ LIABILITY IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. RESMED DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH A WEBSITE OR AS PART OF THIS SERVICE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. IN ANY EVENT, IF ANY OF THE ABOVE PROVISIONS IN THIS SECTION ARE NOT ENFORCEABLE IN AN APPLICABLE JURISDICTION, THE MAXIMUM LIABILITY OF RESMED WILL BE LIMITED TO, IN THE SOLE DISCRETION OF RESMED, EITHER THE (1) CORRECTION OR DELETION OF ANY INACCURATE CONTENT OR LINK; OR (2) REFUND OF ANY FEES IMPOSED IN CONNECTION WITH YOUR USE OF THE SERVICE THAT HAVE BEEN RECEIVED BY RESMED FROM YOU.

10. Waiver of Injunctive or Other Equitable Relief

YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY RESMED.

11. Indemnification

You agree to defend, indemnify, and hold harmless Resmed from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your use of the Service; (iii) your User Content; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property, or privacy right; or (vi) any misrepresentation made by you. Resmed reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Resmed’s defense of any claim. You will not in any event settle any claim without the prior written consent of Resmed.

12. Third-Party Interactions

Third-party sites and other information. The Service may contain, as a convenience to you, content, links, and other information submitted by third parties over whom Resmed has no control or responsibility, as well as translations thereof which Resmed may arrange. Resmed has no obligation to monitor, control, or restrict the use of the Service, or third-party websites or services accessible via links available as part of the Service. These other websites or services are not under Resmed’s control, and you acknowledge that (whether or not such websites or services are affiliated in any way with Resmed) Resmed is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such websites or services. The inclusion of such a link does not imply endorsement of any website or service by Resmed or any association with its operators.

Business Transactions. We reserve the right to transfer any information we obtain through the Service in the event of a joint venture, partnership, merger, or other collaboration with another organization, or in the event we sell or transfer all or a portion of our business or assets (e.g., further to a reorganization, liquidation, or any other business transaction, including negotiations of such transactions).

13. General Provisions

Severability; Interpretation; Assignment. If any provision of these Terms is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms. The summaries of provisions and Section headings are provided for convenience only and shall not limit the full Terms. Resmed may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Resmed.

Complete Agreement; No Waiver. These Terms reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances, or discussion related to the Service. Except as expressly set forth in these Terms, (i) no failure or delay by Resmed in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms will be effective unless in writing and signed by Resmed.

Separate terms and conditions. From time to time in connection with your use of the Service, access to Content, or receipt of communications from Resmed, 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. Any such terms will not vary or replace these Terms regarding any use of the Service or Content, unless otherwise expressly stated.

Investigations; Cooperation with Law Enforcement. Resmed reserves the right to investigate and prosecute any suspected or actual violations of these Terms. Resmed may disclose any information as necessary or appropriate to satisfy any law, regulation, legal process, or government request.

International Issues. Resmed controls and operates the Service from its U.S.-based offices in the United States and Resmed makes no representation that the Service is appropriate or available for use beyond the United States. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available through the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.

Contact Information

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