Masimo SafetyNet™

 

Last updated on May 1, 2020

IMPORTANT – PLEASE READ CAREFULLY

These Masimo SafetyNet™ (the “SafetyNet”) Terms of Use are a legally enforceable contract between you and Masimo Americas, Inc. (“Masimo”). If you are entering into these Terms of Use on behalf of a company, nonprofit organization, or other legal entity, you represent that you have the authority to bind that entity and its affiliates to these Terms of Use, in which case the terms “you” or “your” will refer to that entity and its affiliates and in which case such entity shall be responsible for compliance with these Terms of Use by its affiliates.

It is important that you read these Terms of Use and understand how SafetyNet works, its limitations, and the risks you assume by using it. Your privacy rights are also affected as explained further below. You must be at least 18 years old to use SafetyNet, whether you are a patient or healthcare provider.

By clicking “Agree” or by downloading, installing, or using the SafetyNet App (defined below), or using SafetyNet, or any part of the SafetyNet system, you agree to be legally bound by these terms and any other terms and conditions that may be applicable to your use of the Masimo SafetyNet, in full, including any applicable third party licenses.

You also represent that you have either reached the age of “majority” where you live or have valid parent or legal guardian consent to be bound by these Terms of Use, and that you are not barred from setting up an account, using the SafetyNet App, or accessing its content under applicable laws. If you as a parent or guardian set up an account for a minor or you are the parent or guardian of a minor who sets up an account, you accept these Terms of Use on the minor’s behalf and are responsible for all use of the account and the SafetyNet App. No one under the age of 18 is permitted to use the SafetyNet App. You can create an account for others only where you are the authorized individual-representative (a parent, guardian or legal representative establishing an account for the app). By setting up such an account you automatically certify and agree that (i) you have this authority, (ii) Masimo is entitled to rely on your certification as true, and (iii) you will hold Masimo harmless from any claim by any other person that you did not have authority to create an account for them.

Masimo reserves the right to restrict in its sole discretion who is eligible to use the SafetyNet App, or set up an account, and to reject a request to create an account or close an account at any time without liability. 
 

MASIMO SAFETYNET

SafetyNet consists of the SafetyNet mobile application installed on your smart phone or mobile device, the SafetyNet web portal accessed through a web browser (the “SafetyNet App”) and a network that stores your information, receives and processes user data, and allows your healthcare provider to monitor your condition. SafetyNet can be set up to receive and store data from accessories, devices, and other health applications that may be manufactured or provided by Masimo or another company (each of these, an “Accessory”). Some of these Accessories may be prescription medical devices provided to you on the order of your healthcare practitioner, such as Masimo’s Radius PPG™, in which case the defined term “SafetyNet” used in these Terms of Use includes these Masimo Accessories and these Terms of Use apply to this system as a whole.

Please ensure that you have the latest version of the SafetyNet App, read the user manual and other instructions included in the SafetyNet App, or provided with any Accessory, for a full description of SafetyNet’s features, safety information, directions for use, its limitations, and other important information. You should also read the user manuals, product inserts, and any other documents provided by any non-Masimo Accessory manufacturer.

CAUTION

SafetyNet can receive health data from various sources chosen by you and your healthcare provider. This data is collected by your compatible smart phone or mobile device that, when connected to the Internet by Wi-Fi or a cellular connection and if you have provided the necessary permissions in the SafetyNet App and on your smart phone or mobile device, will transmit your data to the SafetyNet App. This data can be accessed by your healthcare provider to monitor your health. This intended operation depends on Accessories and each of these connections operating reliably. Data will not be collected by SafetyNet if, for example, the source of the data, like a fingertip sensor, is removed from your body or is applied incorrectly, the Bluetooth connection on your smart phone is turned off or otherwise stops working, you close the SafetyNet App, or your smart phone does not have an active connection to the Internet. SafetyNet does not have a local alarm, meaning you will not be notified by SafetyNet if any of your health data indicates that your health or your life is in danger.

Your healthcare provider must also access the SafetyNet App to view your data or otherwise communicate with you through it. Even if your health data is successfully sent to the SafetyNet App, your healthcare provider will not be able to access your data if you have not properly established a connection with your healthcare provider through the SafetyNet App by, for example, clicking on the link provided to you by your healthcare provider, and your healthcare provider may not access the web portal in time to save your health or life. Do not depend on SafetyNet to notify you or anyone else, including your healthcare provider, that your health or your life is in danger. You should immediately call your healthcare provider or local emergency services if you are experiencing any adverse health conditions or if you think your health or life is in danger.

SafetyNet is designed to be a supplemental means of monitoring the health data collected by it. It is intended to be used in addition to, and not as a replacement for, the other precautions and instructions given to you by your healthcare provider. Follow your healthcare provider’s instructions. Failure to follow healthcare provider’s instructions or the failure to use SafetyNet as directed or the failure to understand its features and limitations may result in serious injury or death.

Masimo does not guarantee that SafetyNet will operate error-free, that you will be able to use it properly, that the Accessories from which is collects health data are fail-safe, or that the wireless and internet connections it depends on will not fail in some way. It is important that you understand that no system or device is foolproof, and you must take reasonable precautions in addition to using SafetyNet.

SafetyNet can be loaded with various “CarePrograms,” which are programs that may help your healthcare provider collect and monitor certain of your health data, sometimes at set intervals, to help your healthcare provider determine whether to provide you additional treatment or to change your current treatment. These CarePrograms should only be used by you as directed by your healthcare provider. Masimo makes no representations that these CarePrograms are appropriate for you, are sufficient or reasonable to use for any health condition, or will help treat your condition or save your life. Masimo does not offer any medical, clinical or diagnostic information, advice, or opinions as part of SafetyNet. You and your healthcare provider use any CareProgram at your own risk.

Before using SafetyNet, you must acknowledge and agree to all of the following:

  • Privacy. SafetyNet requires your personal information to work as intended and for you to use all of its features. As further detailed in Section 5 below (Privacy Notice), SafetyNet will store your personal information, including your name, phone number, email, user name, password, address, events detected by SafetyNet, the health monitoring data (such as your oxygen saturation level) measured by SafetyNet, and other information. This information will be stored on a cloud-based storage system hosted by Masimo, an affiliate, or a service provider. The health data is encrypted in transit and while stored. Masimo will not have access to any of this information, except as specifically detailed in these Terms of Use or the Privacy Notice (as defined in Section 5 below) (Privacy Notice). SafetyNet will provide your information, including your health data, to your healthcare provider if you choose to allow it. Though your personal health information and other personal information will be encrypted and/or guarded by other controls for protecting this kind of information, there is no guarantee that your information will not be “hacked” or otherwise breached. By using SafetyNet, you agree to assume these risks.

  • Risk of System Failure. Depending on the Accessory, SafetyNet may require the Accessory to be connected wirelessly to your smart phone or mobile device using Bluetooth. Your smart phone or mobile device needs to be functioning, charged, and actively connected to Wi-Fi or a cellular network with working Internet access. If your smart phone or mobile device is not working properly or if the connection is lost between the Accessory and your smart phone or other mobile device, or there is a loss of the Wi-Fi or cellular connection or Internet access, SafetyNet will not operate reliably. These possible failures (among others) are why you should not rely on SafetyNet alone to monitor your health. As further detailed in Section 6 below (Disclaimer of Warranties), by using SafetyNet, you agree not to rely solely on SafetyNet to monitor your health and assume the risk that SafetyNet may fail.

  • Actions of Healthcare Providers. Masimo does not assume responsibility for any action or failure to act by your healthcare provider in the course of monitoring you through SafetyNet and Masimo expressly disclaims this responsibility. Additionally, your healthcare provider must access the SafetyNet web portal to view your data. Masimo is not responsible if your healthcare provider fails to do this.

  • No Medical Advice. As further detailed in Section 6 below (Disclaimer of Warranties), Masimo does not offer any medical advice or other opinions as part of SafetyNet. SafetyNet is not a substitute for medical care from an appropriate healthcare professional. Before using SafetyNet, you should consult with your healthcare provider and make sure you understand how SafetyNet works, its limitations, and what other procedures and precautions you should take in addition to using SafetyNet.

  • Risk of Use. You acknowledge that Masimo does not endorse, represent, warrant, or guarantee the truthfulness, accuracy, completeness, or reliability of any of the content in the SafetyNet App. You acknowledge that any reliance on any of this content is at your own risk.

  • No Provision of Medical Care. The SafetyNet App provides tools and information that are intended to help patients participate with their healthcare providers in the management of their care. All content that Masimo provides through the SafetyNet App, including all text, graphics, images, and other content, is provided for informational purposes only. The tools and information that the SafetyNet App provide are not intended to be, and are not, professional medical advice or a substitute for such advice, or for diagnosis, treatment, cure, or prevention of any health condition, and you should not rely on them as such. No doctor-patient relationship is formed by your use of the SafetyNet App, its contents, or any information that Masimo provides. You should always seek the advice of a physician or other qualified healthcare provider if you have questions about any physical or mental health condition or any of the information you receive from the SafetyNet App. You should never disregard professional medical advice or delay seeking professional medical advice, diagnosis, or treatment based on anything you read or obtain through the SafetyNet App. You should consult your doctor or other qualified healthcare provider if you have any questions about a medical condition, and before taking any drug, changing your diet, or commencing or discontinuing any course of medical or other healthcare treatment. Do not ignore or delay obtaining professional medical advice because of any information or other content you obtain from the SafetyNet App.

  • Non-Masimo Accessories. You acknowledge that Masimo does not endorse, represent, warrant, or guarantee the proper operation or reliability of any Accessory made by anyone other than Masimo. You acknowledge and agree that reliance on any non-Masimo Accessory is at your own risk. Masimo assumes no liability or responsibility for any errors or omissions in any non-Masimo Accessory or any of its contents or information provided to you through that Accessory.

 

Masimo reserves the right to change these Terms of Use at any time. Each change will be effective when Masimo makes the change available by reasonable means, including through the SafetyNet App. The changes will apply only going forward after they are posted. Your continued use of SafetyNet after the changes will be your agreement to the changed terms. If you don’t agree with any change, your only option is to stop using SafetyNet.

TERMS OF USE

1. SafetyNet. SafetyNet can receive and stores a user’s health data. This data can be displayed to the user and accessed and monitored remotely by the user’s healthcare provider or, if the user chooses, others, like family members or friends.

2. User Requirements. To effectively use and benefit from the SafetyNet, you must (i) download the SafetyNet App to your compatible smart phone or mobile device or access it through a web browser (if you are a healthcare provider), (ii) set up an account, (iii) agree to these Terms of Use, (iv) connect your smart phone or mobile device to reliable Wi-Fi, cellular data network, and have an Internet connection, and (vi) depending on your intended use of SafetyNet, set up all of these things correctly. Using SafetyNet may use data from your Wi-Fi or cellular provider, Masimo is not responsible for any data or internet charges that you incur through using SafetyNet. When you input information into the SafetyNet App, you must: (a) provide true, accurate, current, and complete information; and (b) update the information as necessary. If you provide any personal information of someone else into the SafetyNet App, you are representing that you have that person’s permission to provide the information. You are responsible for maintaining the confidentiality of your account user name, email, and password and agree to immediately notify Masimo of any unauthorized use of your password or account, or any other security breach.

3. Accessories. SafetyNet can be paired with a supported Accessory. In addition to the above requirements, to use SafetyNet with an Accessory, you must (i) set up the Accessory (including applying it to your body, if applicable), (ii) connect it via Bluetooth to the smart phone or mobile device, and (iii) depending on the particular Accessory or if you intend to use a CareProgram, establish a connection with your healthcare provider, for example, by clicking on the link provided by your healthcare provider and following the directions. You acknowledge the importance of ensuring that you are only providing your health data to your healthcare provider under your user account and assume the risk to yourself or any other person of providing another’s health information, such as, by permitting another person to use your Accessory or use your account.

4. Changes. From time to time, Masimo may make changes to SafetyNet or to its features or operation. If any change is not acceptable to you, your only option is to stop using SafetyNet. Your continued use of SafetyNet after the changes are posted means that you accept the changes and any contract terms related to them.

5. Privacy Notice. By providing your personal information to Masimo or allowing the SafetyNet App to use the location services feature of your phone or mobile device, you are giving Masimo and its service providers permission to collect and use the information in connection with your use of SafetyNet. You are also agreeing that Masimo may collect, store, and share your personal information in accordance with Masimo’s Privacy Notice located at https://www.masimo.com/company/masimo/privacy (the “Privacy Notice”). Further, if you enroll in a CareProgram, you are agreeing that Masimo may provide your healthcare provider the information and data collected from or about you through SafetyNet.

6. Disclaimer of Warranties. Except where prohibited by applicable law and except for any standard limited warranty given by Masimo, SafetyNet, including the SafetyNet App, is provided “as is,” without warranty or representation of any kind, whether express, implied, or statutory, including, without limitation, any implied warranties of non-infringement, merchantability, fitness for a particular purpose, satisfactory quality, or reasonable care. Masimo does not represent or warrant that SafetyNet, including the SafetyNet App, will satisfy your requirements or that it is without defect or error or that its operation will be timely, uninterrupted or error free. Masimo does not warrant the accuracy of any results obtained from any Accessory not obtained from Masimo or an Accessory from Masimo that is not used in accordance with its instructions for use. You understand and agree that any download and use of the SafetyNet App is at your own discretion and risk and that you will be solely responsible for any damages that may result from the download or use of the SafetyNet App, including (without limitation) damage to your phone or mobile device or any loss of data. Under no circumstances will Masimo be liable to any user on account of that user’s use or misuse of SafetyNet. Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of these may not apply to you. For Apple users in such jurisdictions, in the event of any failure of the SafetyNet App to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for the SafetyNet App (if any) to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the SafetyNet App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the SafetyNet App to conform to any warranty will be Masimo’s sole responsibility.

You understand that Masimo does not provide medical or healthcare advice or services. SafetyNet is not a replacement for medical care, and you agree that you are solely responsible for obtaining proper treatment for your conditions. You should not stop any procedures for prevention or monitoring of your health condition that you were following before using SafetyNet, unless directed by your healthcare provider. SafetyNet is not meant to replace any of these procedures. You specifically acknowledge and agree that you have been informed not to rely on SafetyNet as your sole means of monitoring your health and that you will continue to use any and all monitoring procedures, precautions, and instructions given to you by your healthcare provider.

Masimo does not warrant and is not responsible for the actions or inactions of your healthcare provider, including, without limitation, a failure to respond to your health data transmitted through SafetyNet, any medical intervention that a healthcare provider may provide, or any other malpractice or negligence that may result from their actions or failures to act.

Masimo does not warrant and is not responsible for the operation or reliability of any non-Masimo Accessory and disclaims any liability for failure or errors by any non-Masimo Accessory.

The SafetyNet App is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of direct life support machines, in which the failure of the software could lead directly to death, personal injury, or severe physical or environmental damage. Masimo specifically disclaims any express or implied warranty of fitness for this purpose.

7. Limitation of Liability. To the maximum extent permitted by law, even if a remedy fails its essential purpose, (i) in no event will Masimo or its affiliates be liable for any special, incidental, indirect or consequential damages whatsoever, whether the claim or damages are based on warranty, contract, tort (including negligence), extra-contractual liability, strict liability or any other legal theory, even if a party has been advised of the possibility of such damages, and (ii) in no event will Masimo’s entire liability to you or any other party for any loss or damage resulting from any claims, demands or actions arising out of these Terms of Use or from your use of or inability to use SafetyNet exceed the amount actually paid or payable by you for the use of SafetyNet. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitations may not apply to you. In these states and jurisdictions, the liability of Masimo and its affiliates will be limited to the greatest extent permitted by law. This section will survive the termination of these Terms of Use.

8. Sole Remedy and Allocation of Risk. Your sole and exclusive remedy and Masimo’s sole and exclusive liability are set forth in these Terms of Use. You acknowledge and agree that these Terms of Use define a mutually agreed-upon allocation of risk.

9. Limited License. Subject to your compliance with these Terms of Use, Masimo grants you a non-exclusive, non-transferable, non-sublicensable, and limited license, (i) to (A) install and use the SafetyNet App, in object code version, on your smart phone or mobile device and (B) access the SafetyNet App through a web browser for your personal or professional (if you are a healthcare provider) use, solely in connection with your use of SafetyNet in accordance with its user manual, product inserts, and other documentation included with it (and for Apple Users (defined below), on an Apple or Mac device that you own or control and as permitted by the “Usage Rules” set forth in the terms of service for the Apple App Store which are available at https://www.apple.com/legal/internet-services/itunes/us/terms.html) and (ii) to use Masimo’s and its affiliates’ intellectual property embodied in SafetyNet solely for your personal or professional (if you are a healthcare provider) use of SafetyNet in accordance with its user manual, product inserts, and other documentation included with it. Notwithstanding the non-transferable license above, SafetyNet may be accessed and used by other accounts associated with you via Apple Family Sharing or volume purchasing.

10. Ownership. You acknowledge that SafetyNet (including, without limitation, the SafetyNet App) are the intellectual property of, and are owned by, Masimo . The structure, sequence and organization of the SafetyNet App are the valuable trade secrets and confidential information of Masimo. The SafetyNet App is protected by copyright, including, without limitation, by United States copyright law, international treaty provisions and applicable laws in the country in which it is used. You acknowledge that Masimo retains the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to SafetyNet (including, without limitation, the SafetyNet App). You will take no actions which adversely affect Masimo’s intellectual property rights in SafetyNet. These Terms of Use are a license and not an agreement for sale. No title to, or ownership of, SafetyNet, the SafetyNet App, or any intellectual property rights subsisting therein, is transferred to you.

11. Restrictions. SafetyNet and SafetyNet App are licensed solely for your internal use within your organization or your personal use in connection with SafetyNet and any other use including for third parties is expressly prohibited. Masimo reserves all rights not expressly granted to you in these Terms of Use. Without limiting the generality of the foregoing, you may not nor may you permit any other party to: (i) make copies of the SafetyNet App, (ii) disassemble, decompile, reverse engineer, or translate any part of SafetyNet or SafetyNet App, or otherwise attempt to reconstruct or discover the source code of the SafetyNet App, except and only to the extent that such activity is expressly permitted by applicable law, (iii) modify or create derivative works based upon SafetyNet or SafetyNet App, (iv) externally distribute, sublicense, resell, encumber or otherwise transfer the SafetyNet App, (v) rent, lease, lend, or use the SafetyNet App, or any part thereof, for timesharing or bureau use, (vi) allow a third party to copy, access, or use the SafetyNet App (except as expressly provided in these Terms of Use), (vi) alter or remove any copyright, trademark or other proprietary notice which may appear on the SafetyNet App, (vii) take any action that would cause the SafetyNet App to be placed in the public domain or become subject to open source license agreements, or (viii) use SafetyNet or SafetyNet App in any manner that violates any statute, law, rule, regulation, directive, guideline, bylaw whether presently in force or that may be implemented by federal, state or local authorities.

12. Updates. Except as otherwise expressly provided herein, these Terms of Use will govern any updates and upgrades to the SafetyNet App that may be provided to you in accordance with Masimo’s then-current maintenance and support policies, unless such updates and upgrades are provided under a separate license agreement. You may use the updates or upgrades only in conjunction with your then-existing SafetyNet App licensed under these Terms of Use. The SafetyNet App and all updates and upgrades are licensed as a single product and the updates and upgrades may not be separated from the SafetyNet App to exceed the scope of your original license.

13. No Support. Except as expressly required by applicable law, nothing in these Terms of Use entitles you to any support, maintenance or new versions of the SafetyNet App. You may contact Masimo to determine the availability of support, maintenance, and new versions, and the fees, terms and conditions that would apply. Apple Users and Masimo acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the SafetyNet App.

14. Your Indemnification. You agree to fully indemnify and hold harmless Masimo, its affiliates, licensors, suppliers and other contract relationships, and the officers, directors, employees, consultants, and agents of each, from any and all liabilities, claims, expenses, damages, including reasonable legal fees and disbursements, arising out of any third-party claims or suits for damage or injury to person in connection with, directly or indirectly, in whole or in part, (i) any information you submit or transmit through SafetyNet, (ii) your use of SafetyNet or any of its components or parts, (iii) your failure to comply with any applicable laws, (iv) any act or omission which is, or can be determined to be, a breach of any term or condition in these Terms of Use, or (v) your violation of any rights of any other person or entity.

15. Third Party Licenses. You understand and agree that, although provided to you by Masimo with the SafetyNet App, your use of third-party software will be and is governed by the relevant terms of the third-party licenses of the software identified on Schedule A. The ownership terms in Section 9 (Limited License) and the restrictions in Section 10 (Ownership) do not apply to third-party software. You understand, acknowledge and agree that under the third-party licenses, third-party software is being provided “as is” without any warranty, including, but not limited to, the implied warranties of non-infringement, merchantability, satisfactory quality, reasonable care, or fitness for a particular purpose. With respect to such third party software, if there is a conflict between these Terms of Use and the terms of licenses for such third-party software, the terms of such licenses will prevail.

16. Use Restrictions. You agree to only use SafetyNet in compliance with these Terms of Use and all applicable laws. Your breach of this clause is cause for immediate termination of these Terms of Use and your right to use SafetyNet.

17. Termination. Masimo may terminate these Terms of Use and discontinue SafetyNet at any time. In addition, the rights granted under these Terms of Use will automatically terminate without notice if you fail to comply with any material provision of these Terms of Use. In such event, you must immediately stop using SafetyNet and/or uninstall the SafetyNet App from your smart phone or mobile device. This will not limit or affect any remedy available to Masimo for your breach of these Terms of Use.

18. Resolution of Disputes.

(a)  If any dispute arises between the parties relating to these Terms of Use, one party will provide written notice of the dispute to the other party describing the dispute in reasonable detail. The parties must attempt to negotiate a resolution of the dispute. During the negotiation, each party will provide to the other party all information reasonably requested by the other party. The parties will take any actions necessary to toll any applicable statutes of limitation and defenses based on the passage of time during this period of notice and negotiation. All negotiations under this section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws. If the dispute is not resolved within 60 days after the written notice is delivered, either party may initiate arbitration under the conditions below.

(b)  Each party will choose one arbitrator. The parties will attempt to agree on the third arbitrator. If the parties fail to agree on the third arbitrator within 20 days of the parties choosing their arbitrators, the American Arbitration Association (the “AAA”) will choose the third arbitrator. If the dispute involves patent law, despite anything to the contrary, every arbitrator will be an attorney that specializes in patent law.

(c)  The arbitrators may grant any remedy or relief that does not conflict with any term in these Terms of Use, including, but not limited to, specific performance or injunctive relief. Any award granted by the arbitrators will be final and binding on the parties unless appealed in accordance with the AAA’s Optional Appellate Arbitration Rules within 30 days following the award. If appealed as provided above, the decision rendered in the appeal will then be deemed final and binding on the parties. The final judgment resulting from the arbitration may be entered in any court having jurisdiction.

(d)  Except as required by law, the parties (including counsel and other representatives), the witnesses, and the arbitrators may not disclose the existence, contents, or results of any dispute or arbitration under these Terms of Use without the prior written consent of both parties. Any documentary or other evidence produced in any arbitration will be treated as confidential and will not be disclosed to any third party (other than a witness or expert used during the arbitration), except as required by law.

(e)  The United States Arbitration Act, as amended to date (the “Federal Arbitration Act”), will govern the interpretation, enforcement and all proceedings of the arbitration. To the extent that the Federal Arbitration Act is inapplicable, or held not to require arbitration of a particular claim or claims, the arbitration law of California will apply.

(f)The prevailing party in any dispute related to these Terms of Use will receive from the other party all reasonable costs incurred by the prevailing party, including reasonable attorneys’ fees.

(g)  These Terms of Use are governed by the laws of the state where you live or the state that is your principal place of business, exclusive of its choice of law rules.

(h)  If you are an Apple User, you and Masimo acknowledge that, in the event of any third-party claim that the SafetyNet App or your possession and use of the SafetyNet App infringes that third party’s intellectual property rights, Masimo, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. This section does not confer any rights of indemnity or make any remedy available to you, nor does it enlarge or expand the scope of any remedy or limitation thereof under these Terms of Use, at law, or in equity.

(i)If you are an Apple User, you and Masimo acknowledge that Masimo, not Apple, is responsible for addressing any claims by you or any third party relating to the SafetyNet App or your possession and/or use of the SafetyNet App, including, but not limited to: (i) product liability claims, (ii) any claim that the SafetyNet App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.

19. Miscellaneous.

(a) If you are a unit or agency of the United States Government, the following applies: The SafetyNet App is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in Subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in Subparagraph 252.227-7013 (c)(1)(ii) of the Rights in Technical Data and Computer Software at DFARS, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Masimo Americas, Inc.

(b) You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

(c) You may not assign, sublicense, or transfer these Terms of Use, the SafetyNet App, or any rights or obligations hereunder without prior written consent of Masimo. Any such attempted assignment, sublicense, or transfer without Masimo’s consent will be null and void. Masimo may terminate these Terms of Use in the event of any such attempted assignment, sublicense, or transfer without Masimo’s consent.

(d) These Terms of Use are in the English language only, and will only be provided in the English language, which language will be controlling in all respects, and all versions of these Terms of Use in any other language will not be binding on the parties to these Terms of Use. All communications and notices to be made or given pursuant to these Terms of Use must be in the English language.

(e) These Terms of Use constitute the final and complete understanding between you and Masimo with respect to the subject matter of these Terms of Use.

(f) If any provision in these Terms of Use is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of these Terms of Use shall remain in effect.

(g) Failure or delay on the part of either party to exercise any right, power, privilege, or remedy will not constitute a waiver of, or bar the later exercise of, that or any other right, power, privilege, or remedy of such party.

(h) No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of these Terms of Use.

20. Additional Terms for Apple App Store and Google Play Store Users

(a) iOS and Mac users (“Apple Users”): You and Masimo acknowledge that these Terms of Use are between you and Masimo only, and not Apple, Inc. or any of its affiliates (“Apple”). Certain provisions of these Terms of Use apply only to Apple Users, and set forth certain rights and obligations as between you, Masimo, and Apple. Masimo, not Apple, is solely responsible for the SafetyNet App and the content therein. Notwithstanding the foregoing, upon your acceptance of these Terms of Use, Apple has the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as an intended third party beneficiary. To the extent that any usage restrictions for the SafetyNet App and its content are less restrictive or are otherwise in conflict with the “Usage Rules” under the terms of service of the Apple App Store, as of their effective date, Apple’s “Usage Rules” are incorporated by reference into this Agreement and shall control solely to the extent of such deficiency or conflict.

(b) Google Play Store Users: To the extent that these Terms of Use conflict with the Google Play Developer Distribution Agreement, available at https://play.google.com/about/developer-distribution-agreement.html (the “Google Play Store Agreement”), the terms and conditions of the Google Play Store Agreement are incorporated by reference into this Agreement and will supersede this Agreement solely to the extent that they conflict.

21. Additional Terms for Healthcare Providers. This section applies only to healthcare providers using SafetyNet to monitor patients. As a healthcare provider, you acknowledge and agree that you are responsible for your patients, including to (a) be aware of each patient’s unique medical history, (b) have an appropriate discussion with your patients to account for the risks and benefits of outpatient monitoring, and (c) choose the best course of action given the patient’s unique medical history. Accordingly, you agree that (1) you are solely responsible for ensuring that SafetyNet is appropriate for the patient, (2) you will provide adequate training to patients who use SafetyNet to ensure that it is used correctly, and (3) you will make the patient aware of the features, limitations, and risks of using SafetyNet. These limitations and risks include, among others, that SafetyNet requires patients to have a reliable smart phone or mobile device and a reliable connection to the Internet (either through Wi-Fi or a cellular data connection), SafetyNet is not fail-safe or error-proof, SafetyNet does not have an alarm, and SafetyNet does not provide data in real-time to a healthcare provider or anyone else, but rather depends on the healthcare provider initiating access to the patient’s data. Further, SafetyNet is a supplemental monitoring system and does not replace other prudent medical practices that you should advise a patient to follow, including, without limitation, advising the patient to call emergency services when warranted. Neither you nor the patient should rely on SafetyNet to contact emergency services.

PLCO-003892/PLMM-11602A-0520