Effective Date: July 1, 2017
You must accept these Terms prior to your use of the AirMini App. You agree when you tick the relevant box to accept the Terms when downloading the AirMini App that you consent to the Terms.
In these Terms “we,” “our,” “us” and “ResMed” refer to:
- ResMed Corp., a company incorporated in the United States at 9001 Spectrum Center Blvd. San Diego, CA 92123 United States, if your usual place of residence when you installed the AirMini App is North, South or Central America;
- ResMed SAS, a company incorporated in France (company registration number 407775170) whose registered office is at Parc Technologique de Lyon, 292 allée Jacques Monod, 69791 Saint Priest Cedex, France, if your usual place of residence when you installed the AirMini App is in France;
- ResMed Deutschland GmbH at Haferwende 40, 28357 Bremen, Deutschland, if your usual place of residence when you installed the AirMini App is in Germany;
- ResMed (UK) Ltd., a company incorporated in England (company registration number 02863553), whose registered address is 8 Wimpole Street, London W1G 9SP, United Kingdom, if your usual place of residence when you installed the AirMini App is anywhere in Europe other than France or Germany; and
- ResMed Holdings Limited, a company incorporated in Australia (company registration number 28 003 765 133), at 1 Elizabeth Macarthur Drive, Bella Vista, NSW 2153, Australia, if your usual place of residence when you installed the AirMini App is in the Asia-Pacific region or the Middle East.
1. Scope of these Terms
The AirMini App is licensed, not sold, to you for use only under these Terms. These Terms grant you the right to use the AirMini App solely in conjunction with the Machine in accordance with the instructions provided by ResMed. These Terms grant you a non-exclusive, worldwide and perpetual license to perform, display and use the AirMini App on a smart device.
You may not rent, lease, lend, sell, redistribute or sublicense the AirMini App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the AirMini App, any updates to the AirMini App or any part of it.
If you are the user of the Machine but not a qualified healthcare professional or a home equipment provider, you may only change the comfort settings (i.e. Ramp Time and Pressure Relief settings) on the AirMini App. You acknowledge that you are responsible for all changes to your Machine settings not done by a qualified healthcare professional or home equipment provider and that ResMed has no liability whatsoever for any other changes to the Machine settings not done by a qualified healthcare professional or home equipment provider. These Terms will govern any upgrades of the AirMini App that replace or supplement the original product, unless such an upgrade is accompanied by a separate license where the terms of that license will govern.
For details about data processing performed on the AirMini App, please refer to our Privacy Notice, which is incorporated into these Terms by reference and constitutes a part of these Terms.
All content, text, images, data, information and other material displayed, available or present on the AirMini App (Content), including any intellectual property rights in such Content including without limitation trademarks and copyrights (referred to as Intellectual Property Rights), 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 everything you see or read with respect to the AirMini App is copyrighted unless otherwise noted and may not be used without our written permission, except as otherwise provided in these Terms.
You may download, capture and print copies of the Content 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 these Terms, you may not otherwise reproduce, sell, publish, distribute, modify, display or use any Content without our prior written permission. You agree not to infringe any Intellectual Property Rights or remove or modify related proprietary notices contained in the AirMini App or the Content.
ResMed respects the rights of all copyright holders and in this regard we have adopted and implemented a statement that provides for the termination (in appropriate circumstances) of users of this AirMini App who infringe the rights of copyright holders.
For copyright inquiries, please contact ResMed’s Copyright Agent at:
Vice President and General Counsel-Americas
ResMed Corp. Legal Department
9001 Spectrum Center Blvd.
San Diego, CA 92123
Phone: +1 (877) 389-8868
Please refer to our Privacy Notice for details about data management.
DO NOT USE THE AIRMINI APP FOR MEDICAL EMERGENCY SERVICES. IN AN EMERGENCY, IF WITHIN THE UNITED STATES CALL 911, OR IF WITHIN THE EU CALL 112, OR CALL YOUR LOCAL EMERGENCY ASSISTANCE NUMBER.
THE CONTENT AVAILABLE THROUGH THE AIRMINI APP IS FOR INFORMATIONAL, PERSONAL AND EDUCATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF A QUALIFIED HEALTHCARE PROFESSIONAL IN DIAGNOSING AND TREATING PATIENTS. RESMED DOES NOT, THROUGH THE AIRMINI APP OR ITS AVAILABLE FUNCTIONS, PROVIDE MEDICAL ADVICE, NOR DOES IT PROVIDE MEDICAL PRESCRIPTIONS, TREATMENTS, OR DIAGNOSTIC SERVICES. ADDITIONALLY, THE USE OF THE CONTENT OBTAINED THROUGH THE AIRMINI APP, AND INFORMATION PROVIDED BY RESMED IN CONNECTION WITH YOUR USE OF THE AIRMINI APP OR RESMED PRODUCTS, DOES NOT ESTABLISH A PHYSICIAN-PATIENT RELATIONSHIP.
Your reliance on information and Content obtained by you from ResMed at or through the AirMini App 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 healthcare professional 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 on the AirMini App. We are not medical professionals and will not discuss or advise you on any issues relating to medical treatment or diagnosis.
We may, at our sole discretion, change, add or remove any of the functionalities of the AirMini App. If we do, these Terms will govern any such change unless we notify you of replacement terms.
Your use of the AirMini App will be in accordance with any and all procedures, forms, formats, displays and operating times, which may be determined, specified or modified by ResMed at its discretion. You are responsible for all software, hardware, interconnections, fees, expenses, costs and taxes for you to access or use the AirMini App. Currently, the use of the AirMini App is included with the purchase of the AirMini. ResMed reserves the right, upon reasonable notice to you, to charge a separate fee for use of the AirMini App or its features.
While it is ResMed’s objective to make the AirMini App accessible 24 hours per day, 7 days per week, the AirMini App 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 the control of ResMed, access to the AirMini App may be interrupted, suspended or terminated from time to time. ResMed will have the right at any time to change or discontinue any aspect or feature of the AirMini App, including, but not limited to, Content, hours of availability and equipment needed for access or use.
If the AirMini App detects that your smart device is jailbroken or rooted, you will be notified. Using the AirMini App on a smart device that is jailbroken or rooted may put your data at risk. Contact your cellular service provider for more information on how to unjailbreak or unroot your smart device.
The AirMini App relies on certain third-party products and services. For example, we rely on mobile operating system vendors. These third-party products and services are beyond our control, and their services may not operate in a reliable manner or be available 100% of the time. ResMed is not responsible for any damages or losses due to the operation of these third-party products and services.
You acknowledge and agree that the availability of the AirMini App is dependent on the third-party web services from which you download the AirMini App – for example, the Android app market from Google and the app store from Apple (each an App Store). You acknowledge that these Terms are between you and ResMed and not with an App Store. You also acknowledge that each App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the AirMini App. Each App Store may have its own terms and conditions to which you must agree before downloading the AirMini App from that App Store. You agree to comply with, and your license to use the AirMini App is conditioned upon your compliance and agreement with such App Store terms and conditions.
You agree to comply with all applicable laws in connection with your use of the AirMini App.
You represent and warrant that you are not located in a country that is subject to an embargo, or that has been designated by the US Government as a “terrorist-supporting” country; and (ii) you are not listed on any US Government list of prohibited or restricted parties.
Functional compatibility and system abuse
You will not attempt to and will not damage, corrupt, tamper with or infect the AirMini App, the Content or any information of ResMed with a virus or other malicious computer program. You will only use the AirMini App for the permitted purposes stated in the E-Help guide and will not engage in abusive activity with respect to the AirMini App or undertake any other activity that may adversely affect the use or enjoyment of the AirMini App by any person. You are prohibited from using any services or facilities provided in connection with the AirMini App to compromise security.
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 AirMini App.
THE AIRMINI APP, ITS CONTENT AND ITS LINKS 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 AIRMINI APP (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 VIRUSES. IF THE 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 THE APPLICABLE LAW.
Limitations on liability and remedies for users outside Europe
RESMED’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH RESMED (INCLUDING WITHOUT LIMITATION YOUR USE OF THE AIRMINI APP) IS TO DISCONTINUE YOUR USE OF THE AIRMINI APP WITHIN THE LIMITATIONS SET OUT BY STATUTORY LAW. RESMED AND ITS VENDORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE AIRMINI APP OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OR REGISTRATION WITH RESMED. 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 OF THEM 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 WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. RESMED DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH THE AIRMINI APP 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, AT THE SOLE DISCRETION OF RESMED, EITHER THE (1) CORRECTION OR DELETION OF ANY INACCURATE CONTENT OR LINK; OR (2) REFUND OF ANY FEES FOR THE AIRMINI APP RECEIVED BY RESMED FROM YOU.
You expressly understand and agree that ResMed and its Content Providers WILL NOT BE LIABLE to you for:
- any loss or damage which may arise from your use of the AirMini App, including without limitation as a result of any reliance placed by you on the accuracy, completeness or suitability of the Content;
- to the full extent permitted by law, any damages whatsoever, including without limitation direct, indirect, special, incidental or consequential damages arising out of or in connection with your use of, your inability to use, or results of the use of the AirMini App and any linked websites (including without limitation for loss of or damage to business, revenues, goodwill or data) even if ResMed had previously been advised of, or reasonably could have foreseen, the possibility of such loss or damages, however they arise, whether in breach of contract, negligence or other tortious action.
Nothing in these Terms will exclude or limit liability to a greater extent than is permitted by applicable law and nothing in these Terms will exclude or limit liability for fraud, fraudulent misrepresentation, or for death or personal injury caused by negligence.
Limitations on liability and remedies for users in Europe apart from Germany
To the extent permitted by applicable laws, ResMed will not be liable for any (i) loss of profits, revenue, contracts or anticipated savings; or (ii) indirect or consequential losses that were not foreseeable (losses or damages are foreseeable if either it is obvious that it will happen or if, at the time you consented to these Terms, both you and we knew it might happen); or (iii) losses caused by events outside our reasonable control.
If, notwithstanding the other provisions of these Terms, ResMed is found to be liable to you for any damage or loss which arises out of, or is in any way connected with, these Terms or your use of the AirMini App, to the extent permitted by applicable laws, ResMed’s liability will in no event exceed an amount equal to the total of any fees for the services received by ResMed from you.
Nothing in these Terms limits or excludes our responsibility for fraudulent representations made by us or for death or personal injury caused by our negligence or willful misconduct, or any other liability that cannot be excluded or limited under applicable laws.
Limitations on liability and remedies for users in Germany
The following shall apply if you are located in Germany:
ResMed’s liability shall be excluded in case of a slightly negligent (leichte Fahrlässigkeit) breach of duty by ResMed, unless a duty is breached which is a cardinal obligation, in which case ResMed’s liability shall be limited to damages which are typical and foreseeable for this kind of Service.
A cardinal breach of obligations will mean a breach of obligations which endangers the achievement of the objective of these Terms or has been caused due to failure to comply with obligations, the very fulfillment of which is an essential prerequisite for the proper performance of these Terms and on the observance of which you may rely.
However, no exclusion or limitation of liability will apply in case of (i) damage to life, body or health; or (ii) other damages due to an intentional or grossly negligent breach of duty by ResMed, or (iii); claims due to the explicit assumption of a guarantee of quality, fraudulently concealed defects or claims under the German Product Liability Act.
If the AirMini App is provided by ResMed free of charge, the following will apply: ResMed’s liability is limited to damages caused by ResMed’s intent and gross negligence; liability for damages caused by slight negligence is excluded, as set out in section 521 of the German Civil Code. You have no right to damage claims due to defects of the AirMini App, except if ResMed has fraudulently concealed the defect (see sections 523 and 524 of the German Civil Code).
The following provisions apply only for users in Australia
ResMed goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damages.
Where a Mobile App has been purchased from an App Store from Apple Inc. or its affiliates (“Apple”), the following terms will apply to you:
- If any warranty is imposed by applicable law in respect of the Mobile App and not effectively disclaimed by this section or any other section in these Terms, then in the event of any failure of the Mobile App to conform to such warranty, you may notify Apple, and Apple will refund you the purchase price (if any) for the Mobile App, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with regard to the Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to such warranty will be ResMed’s sole responsibility.
- You acknowledge that ResMed, not Apple, is responsible for addressing any claim you or any third party may have relating to the Mobile App or your possession and/or use of the Mobile App, including but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable law; and (iii) claims arising under consumer protection or similar legislation.
- You acknowledge that in the event of any third-party claim that the Mobile App or your possession and use of the Mobile App infringes the intellectual property rights of a third party, ResMed, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You acknowledge and agree that Apple is a third-party beneficiary of these Terms and upon your acceptance of these Terms, Apple will have the right (and is deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary.
You agree to defend, indemnify and hold harmless ResMed and its affiliates, officers, directors, employees and contractors from any demands, claims, damages, liabilities, expenses or harms, including attorney’s fees, arising in connection with your use of the AirMini App, online conduct, breach of these Terms, or dealings or transactions with other persons resulting from use of the AirMini App.
This Section does not apply to users located in Germany.
ResMed may terminate the license granted by these Terms immediately if you breach any of these Terms. In the event of such a termination, you agree to stop all use of the AirMini App.
Dispute resolution; applicable law and forum
With respect to any and all disputes arising out of or in connection with this Service or these Terms, 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 users in North, South and Central America
ResMed has no obligation to become involved in any dispute between a user and any other person. Any dispute arising in connection with the AirMini App or Terms (including the Privacy Notice) will be exclusively governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. ResMed and you agree that all disputes arising under these Terms will be brought by you in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and will be resolved by confidential binding arbitration administered by the American Arbitration Association (AAA) in San Diego, California, or another forum mutually agreed upon by you and ResMed, pursuant to the Commercial Arbitration Rules of the AAA by a sole arbitrator nominated by agreement of you and ResMed and confirmed in accordance with the Rules. If AAA is not hearing consumer commercial disputes at the time, ResMed may select another arbitral body at its sole discretion. The arbitrator’s award will be binding and may be entered as a judgment in a court of competent jurisdiction. You agree that ResMed is entitled to obtain preliminary injunctive relief to the extent allowed by law to enforce any of the terms of these Terms pending a final arbitral decision.
For users in Europe, apart from Germany
These Terms and any non-contractual obligations arising out of or in connection with it are governed by laws of the country of the ResMed entity contracted with you. You and ResMed agree to submit to the non-exclusive jurisdiction of the courts of England, which means that you may bring a claim to enforce your consumer protection rights in connection with these Terms in England or in any country in Europe in which you live.
For users in Germany
These Terms are exclusively governed by and construed in accordance with the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG). The previous choice of law clause, however, only applies to the extent that it does not deprive you of applicable mandatory consumer protection laws of the country in which you ordinarily reside.
For users anywhere, apart from North, South and Central America, and Europe
The law of New South Wales, Australia without regard to its conflict of laws principles, will govern all matters between you and ResMed with respect to your use of the AirMini App and you agree to submit to the exclusive jurisdiction of the New South Wales courts.
Modification of these Terms
These Terms constitute the complete agreement between you and ResMed with respect to their subject matter and supersede any prior agreement or communication. These Terms are subject to change from time to time. ResMed will endeavor to post a notice of any changes to these Terms for a period of 30 days following any such modifications. Therefore, you are advised to review these Terms occasionally, or at least every 30 days. Your continued use of the AirMini App subsequent to ResMed’s notice of modification of these Terms will constitute your acceptance of the modified Terms.
For users in Germany
The previous clause on the modification of these Terms does not apply to users located in Germany.
If any term or provision of these Terms is found to be invalid, illegal or otherwise unenforceable, such a finding will not affect the other terms or provisions of these Terms, or the whole Terms, but such a term or provision will be deemed modified to the extent necessary to render such a term or provision enforceable, and the rights and obligations of you and ResMed will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements set forth in these Terms. Your obligations pursuant to these Terms will survive termination of any use by you of the AirMini App, any Content on the AirMini App, or these Terms.
If you have any questions, complaints or claims with respect to the AirMini App or regarding these Terms or this Service, please contact us by email at firstname.lastname@example.org.