Terms of Use
Masimo Radius Tº™ Continuous Thermometer System
IMPORTANT – PLEASE READ CAREFULLY
These Terms of Use are a legally enforceable contract between you and Masimo Americas, Inc. (“Masimo” or “we”). They govern your use of the Masimo Radius Tº Continuous Thermometer system which consists of a continuous temperature monitoring wearable sensor (the “Device”) and the Masimo Radius Tº Continuous Thermometer mobile application (the “App”) (the Device and the App collectively, the “System”) used in conjunction with your supported mobile device. It is important that you read these Terms of Use. They give you the right to use the System subject to certain conditions set forth in them.
When you, the user of the System, click the “ACCEPT” or “AGREE” button or when you download, install, or use the App, or when you use the System, or any part of the System or service on yourself or on others, you are agreeing on your own behalf and anyone you monitor with the System, to be legally bound by these Terms of Use. If you are under 18 years of age or do not agree to any of these Terms of Use, you do not have permission to use the System.
We reserve the right to make changes to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the “Last Updated” date of these Terms of Use, and you waive any right to receive specific notice of each change. It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the App after the date the revised Terms are posted. If you do not agree with any change, your only option is to stop using the System.
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.
IMPORTANT
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.
The Device and the App are designed to work together as a system. Using any device or software from another manufacturer or supplier (except for your supported mobile device) with any component of the System that is not specifically identified in the directions for use to be compatible with the System, or using an unsupported mobile device, voids any warranty and may cause significant bodily injury or death. Except as provided in these Terms of Use, you do not have permission or a license to use the System with any third party device or software.
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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.
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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.
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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.
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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.
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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.
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Disclaimer of Warranties. Except as expressly provided in these Terms of Use or where prohibited by law, the System is provided “as is” and for the avoidance of doubt, this disclaimer applies to any software embedded, or provided or used with the System (including without limitation the App) and any network on which the user operates the System. There is no other warranty provided for the System of any kind, whether express, implied, or statutory. This includes, without limitation, any implied warranties of non-infringement, merchantability, fitness for a particular purpose, satisfactory quality, or reasonable care. Neither Masimo nor its licensors represent or warrant that the System (i) will satisfy your requirements or achieve your intended purpose, (ii) is without defect or error, or (iii) will operate timely, uninterrupted or error free. Masimo does not warrant the accuracy of any results obtained from the use of the System. You understand and agree that any use or download of the App for use on your mobile device is at your own discretion and risk and that you will be solely responsible for any damages to your mobile device or loss of data that may result. Under no circumstances will Masimo be liable to any user on account of (a) disruption or delays to the user’s Internet or other network connection; (b) compatibility of the App with the user’s mobile device; or (c) that user’s use or misuse or reliance on the System. Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of these disclaimers may not apply to you.
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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
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(b) 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 the System, exceed the amount actually paid or payable by you for the use of the System.
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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 assignment and allocation of risk.
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Limited License. Subject to your compliance with these Terms of Use, Masimo grants you a personal, non-exclusive, non-transferable, non-sublicensable, and limited license (i) to install and use the App, in object code version, on your supported mobile device for your personal use solely in accordance with its user manual, product inserts, and other documentation included with it and (ii) to use Masimo’s and its affiliates’ intellectual property embodied in the System components solely for your personal use in accordance with its user manual, product inserts, and other documentation included with it.
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Ownership. You acknowledge that the components of the System embody and are the intellectual property of, and are owned by, Masimo and its licensors. The structure, sequence and organization of the App are the valuable trade secrets and confidential information of Masimo and its licensors. The 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, or its licensors, retain the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the System (including, without limitation, the App). You will take no actions which adversely affect Masimo’s intellectual property rights in the System. These Terms of Use are a license and not an agreement for sale. No title to, or ownership of, the System, the App, or any intellectual property rights subsisting therein, is transferred to you. Masimo and its licensors reserve all rights not expressly granted to you in these Terms of Use.
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Restrictions. The System is licensed solely for your personal use and any other use is expressly prohibited. Without limiting the generality of the foregoing, you may not nor may you permit any other party to: (i) make copies of any software (including the App) used in or with the System, (ii) disassemble, decompile, reverse engineer, or translate any part of the System, or otherwise attempt to reconstruct or discover the source code of any software used in or with the System, except and only to the extent that such activity is expressly permitted by applicable law, (iii) modify or create derivative works based upon the System or any software used in or with the System, (iv) externally distribute, sublicense, resell, encumber or otherwise transfer any software used in or with the System, (v) rent, lease, lend, or use any software used in or with the System, or any part thereof, for timesharing or bureau use, (vi) allow a third party to copy, access, or use any software used in or with the System (except as expressly provided in these Terms of Use), (vii) alter or remove any copyright, trademark or other proprietary notice which may appear in the App or on the Device, (viii) take any action that would cause any software used in or with the System to be placed in the public domain or become subject to open source license agreements, or (ix) use the System in any manner that violates any statute, law, rule, regulation, directive, guideline, or bylaw whether presently in force or that may be implemented by federal, state or local authorities.
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Updates. Masimo may modify or discontinue any feature or content of the System at any time without notice. Masimo is not liable to you or to any third party for any modification or discontinuance of any feature or content of the System. Except as otherwise expressly provided herein, these Terms of Use will govern any updates to the App that Masimo makes available, unless such updates are provided under a separate license agreement. You may use the updates only in conjunction with your then-existing App licensed under these Terms of Use. The App and all updates are licensed as a single product and the updates may not be separated from the App to exceed the scope of your original license. Masimo reserves the right to determine the timing and content of any updates to the App.
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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 System. You may contact Masimo to determine the availability of support, maintenance, and new versions, and the fees, terms and conditions that would apply.
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Indemnification. You agree to fully defend, indemnify, and completely 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 or relating to (i) the use of the System or any of its components or parts (including software), (ii) your failure to comply with any applicable laws, (iii) 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 (iv) your violation of any rights of any other person or entity.
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Third Party Licenses. You understand and agree that, although provided to you by Masimo with the App, your use of third-party software will be and is governed by the relevant terms of the third-party licenses set forth 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 and acknowledge 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. If there is a conflict between these Terms of Use and Schedule A with respect to third-party software, the provisions of Schedule A will prevail.
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Use Restrictions. You agree to only use the System in the United States and other supported regions as specified in the packaging or user manual. Your breach of this clause is cause for immediate termination of these Terms of Use and your right to use the System.
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Termination. Masimo may terminate these Terms of Use and discontinue the System or any component or part thereof (including the App) at any time at our sole discretion and without notice or liability to you. 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 the System and uninstall the App from your mobile device. This will not limit or affect any remedy available to Masimo for your breach of these Terms of Use. You may also choose to terminate your access and use of the System at any time by deleting the App from your mobile device.
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Resolution of Disputes
- (a) You agree that all disputes between you and Masimo arising out of or relating to these Terms of Use or the System (“Disputes”) will be governed by the procedure outlined below. Before filing a claim against Masimo, you agree to try to resolve the Dispute informally by contacting Masimo. All negotiations under this Section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws. You further agree that if the Dispute is not resolved within 60 days after submission, you or Masimo may bring a formal arbitration proceeding administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, Masimo may seek injunctive relief in any court of competent jurisdiction to stop the unauthorized use or abuse of the System or the infringement of Masimo’s intellectual property rights without first engaging in arbitration or the informal Dispute-resolution process described above.
- (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.
- (c) Except as required by law, neither party nor any arbitrator may 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.
- (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.
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Miscellaneous
- (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.
- (b) You may not assign, sublicense, or transfer these Terms of Use 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. Masimo may assign or transfer these Terms of Use without restriction.
- (c) These Terms of Use are in the English language only, and will only be provided in the English language. Any version 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.
- (d) These Terms of Use constitute the final and complete understanding between you and Masimo with respect to the subject matter.
- (e) 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. All other provisions of these Terms of Use shall remain in effect.
- (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.
- (g) No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of these Terms of Use.
