Masimo Radius Tº™ Continuous Thermometer System
IMPORTANT – PLEASE READ CAREFULLY
Unless you are in a jurisdiction where prohibited, binding arbitration is the only means of dispute resolution between you and Masimo relating to the use of the System.
How the System Works
The System is a continuous temperature monitoring wearable system that uses a combination of the Device and the App with your supported mobile device to wirelessly transmit and display temperature measurements and show trends in body temperature. Its measurements approximate your oral temperature.
The System should not be solely relied upon to diagnose, treat, cure, or prevent any disease or medical condition. You are encouraged to consult your doctor if you have any doubts about use of the System or the measurements it is displaying. Always follow the recommendations of your healthcare provider to treat, monitor, or manage any disease, or medical condition.
Radius Tº Continuous Thermometer System. The System consists of hardware and software that is intended to work together to measure and display body temperature. All the components are designed to work together as a system. It is your responsibility to only use Masimo-supplied components and software and your supported mobile device with the System. From time to time, Masimo may approve the use of third-party manufactured or supplied components, software, and/or accessories. You should only use the System with Masimo-manufactured or supplied components, software, and/or accessories or other items that are specifically approved by Masimo to be used with the System. Using any unapproved components (including unsupported mobile devices), software, and/or accessories will void the limited warranty and may cause the System to fail, work improperly, measure body temperature inaccurately, or cause serious bodily injury or death. You assume the risk of using the System with unapproved components, software, and/or accessories.
Use at Your Own Risk. If you rely solely on the System or any of the information, guidance, or other content made available through the System, you do so at your own risk. We make no endorsement, representation, or warranty of any kind about any information, guidance, or other content in the System. It is there for your information purposes only and does not replace your common sense, good judgment, and the advice of your healthcare provider. Please read and comply with all safety notices and other directions for use that accompany the System, including any safety information about prolonged wearing of the sensor, any interactions it may have with other devices, or existing medical conditions.
Consult Your Healthcare Provider. If you have any doubt about using the System or any of the information, including the displayed body temperature, consult your healthcare provider before using or continuing to use the System. You should only follow any guidance given in the System after consultation with your healthcare provider. Do not disregard professional medical advice or delay in seeking it because of something you see or access through the System. If you follow any of the guidance given in the System, you do so at your own risk. We are not responsible for any health problems that may result from your use of the System. It is important to use your common sense and to be sensitive to the other physiological signs of sickness. The information and guidance in the System may be misleading if your physiological functions and responses differ significantly from population averages due to medical conditions or rare natural differences.
Privacy Notice. Masimo does not collect any personal data through the System. However, if you access our website or other services, we may collect your personal information. The collection, storage, and sharing of your personal information will be in accordance with Masimo’s Privacy Notice located at https://www.masimo.com/company/masimo/privacy.
Limited Warranty. Masimo warrants to the original purchaser that the Device (properly identified by Masimo’s trademark and trade dress) will be free from defects in material and workmanship as long as used in accordance with its directions for use and subject to the limitations below. The warranty period begins on the purchase date and continues until the end of the specified battery life or the expiration date, both as listed on the packaging, whichever occurs first. To the extent permitted by law, Masimo’s sole obligation under this limited warranty is the repair or replacement, at its option, of the defective component. Any replacement component will be warranted for the remainder of the original warranty period or 30 days from the date of replacement, whichever is longer, or for any additional period of time that may be required by applicable law. To request a replacement under warranty, the original purchaser must contact Masimo and obtain a Return Merchandise Authorization number so that Masimo can track the component. Masimo may require an original purchase receipt. If Masimo determines that a component must be replaced under warranty, it will be replaced and the cost of return shipment to the purchaser covered. All other shipping costs must be paid by purchaser unless prohibited by law.
This warranty is in addition to any statutory rights provided to the purchaser under applicable laws and regulations of the region in which the product was sold to the extent that those rights cannot be disclaimed or superseded by the above described warranty under applicable laws and regulations of the region in which the product was sold. The limited warranty above does not apply to: (a) any software that is embedded or provided or used with the Device (including without limitation the App) or any component of the Device that was: (i) not new or in its original packaging when supplied to purchaser; (ii) modified; (iii) used with non-Masimo supplied or approved components (including unsupported mobile devices), accessories, or software; (iv) disassembled or repaired by anyone other than a person authorized by Masimo; (b) normal wear and tear; or (c) damage resulting from accident, misuse, abuse, negligence, or failure to use the System in accordance with the instructions; or (d) any non-Masimo product even if included or sold with the System.
Limitation of Liability. To the maximum extent permitted by law, even if a remedy fails its essential purpose:
- (a) in no event will Masimo, its licensors, or affiliates be liable for any special, incidental, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss or corruption of data, data breach, business interruption, loss of information, or any other pecuniary loss, 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
Resolution of Disputes
- (b) Claims will be heard by a single arbitrator. The place of arbitration will be Orange County, California. The arbitration will be governed by the laws of the State of California.
- (d) The arbitrators will award to the prevailing party if any, as determined by the arbitrators, all reasonable Costs and Fees. "Costs and Fees" means all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys' fees. 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 by filing a Notice of Appeal with any AAA office. Following the appeal process, the decision rendered by the appeal tribunal will be deemed final and binding and may be entered in any court having jurisdiction thereof.
- (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.
- (a) If you are a unit or agency of the United States Government, the following applies: The 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.
- (f) Failure or delay on the part of Masimo 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 Masimo.