Masimo - Masimo SafetyNet Alert

Masimo SafetyNet Alert™ Terms of Use

Last updated: April 26, 2023

IMPORTANT – PLEASE READ CAREFULLY

These Terms of Use (“Terms”) govern use of the Masimo SafetyNet Alert™ system which consists of a wrist-strapped Bluetooth^® chip (“Chip”), a fingertip sensor (“Sensor”), a base station that captures oxygen saturation (“O₂”) levels and pulse rate and perfusion index from the sensor (the “Bedside Station”) and the mobile application (the “App”). The Chip, Sensor and Bedside Station are collectively referred to in these Terms as the “Device”, and the Device and App, and any part of the Device and App, shall be collectively referred to in these Terms as the “System”.

You accept these Terms and form a legally enforceable contract with us, Masimo Österreich GmbH, Mariahilfer Straße 136, 1150 Wien, Austria (“Masimo”), when you click the “I ACCEPT” button below or when you download, install, or use the App, or when you use the System. You understand and agree that the App includes third-party software, and your use of third-party software will be and is governed by the relevant terms of the third-party licenses set forth in Schedule A. The third-party software provider grants the third-party licenses directly to you, and such licenses are not a part of these Terms. Do not click “I ACCEPT” or use the System if you are under 18 years of age or do not agree to any of these Terms; under such circumstances, Masimo does not permit you to use the System. Use without permission may constitute intellectual property infringement, computer abuse and a violation of criminal laws.

How the System Works

The System can detect if your O₂ levels drop below certain limits. Low O₂ levels for too long a period may be a serious risk to individuals. The System can be set up to notify you and people that you designate when your O₂ levels drop below these limits (“Emergency Contacts”). Emergency Contacts might include your family members, friends, or caregivers. The System can also monitor pulse rate and perfusion index.

The System is used in conjunction with your supported mobile device to communicate with a network of servers that stores and analyzes your data, and triggers notifications based on how you set up the System. Please read all the information that comes with the Device packaging and inside the App. This includes the user manual and all product inserts. These materials contain instructions on how to use the System, its limitations, and important safety information.

CAUTION

The System is a medical device and monitoring system. It is meant to be used in addition to, and not as a replacement for, other steps and safety measures to consider depending on your situation. These include following the directions of your health care professional. Not using the System correctly could result in the System not providing accurate measurements or any measurement at all. It could also mean you and your Emergency Contacts may not be notified as to your condition. This could result in severe bodily injury or death.

Masimo does not guarantee that Wi-Fi and Internet connections are always available and working. It is important to understand there are limitations with using any medical device. You must take reasonable precautions in addition to using the System.

Before using the System, you must read and agree to all of the following:

 Privacy. The System will store your personal information. This includes your name, phone number, email address, password, physical address, contact information of your Emergency Contacts, and health data measured by the System. This information will be stored on a cloud-based storage and computing system hosted by Masimo, or a company we choose. Masimo will not have access to this information, except as detailed in these Terms. If you choose to allow it, the System will send your information to a third party (Emergency Contacts) when it detects certain events. For more information about how Masimo uses your personal data when you use the System and your rights, please see below. We may also collect your personal information if you access our website or other services. The collection, storage, and sharing of your personal information through our website and other services will be in accordance with Masimo’s Privacy Notice located at https://www.masimo.com/company/masimo/privacy.

 Risk of System Failure. The System requires the Sensor and Chip to be connected wirelessly to the Bedside Station using Bluetooth^®. The Bedside Station needs to be connected to a power outlet and be actively connected to Wi-Fi with working Internet access. If there is a loss of power to the Bedside Station, or if the wireless connection between the Sensor/Chip to the Bedside Station or Bedside Station to the Internet is lost, the System will not operate properly. These possible failures (among others) are why you should not rely solely on the System and have other ways of monitoring and reacting to changes in your O₂ levels, pulse rate and perfusion index.

 Emergency Contact Permission and Failure to Designate Emergency Contacts. You have the option in the App to provide contact information for Emergency Contacts to be sent notifications if your O₂ levels fall too low for too long. As further detailed in Section 2 below (User Requirements), you agree that, (i) you have permission from the Emergency Contact to use this information, (ii) the Emergency Contact has agreed to receive the notifications and to respond to them, (iii) the contact information for the Emergency Contact is accurate and up to date, and (iv) you trust the Emergency Contact with the information contained in the notifications. Masimo is not responsible for any action or failure to act by any Emergency Contact you choose to notify. Further, the System features that send notifications to your Emergency Contacts require you to actively opt in to these features and take steps to set them up in the App. If you do not opt in to these features and take these steps, no one will be contacted to come to your aid if your O₂ levels drop too low for too long and only you will be responsible for seeking help.

 Responder Mistakes. The System only contacts your Emergency Contacts based on how you set up the System. Masimo cannot control and is not responsible for their actions or failures to act. Masimo cannot and does not guarantee that they will respond in a timely manner or at all.

 No Medical Advice. Masimo does not offer any medical, clinical or diagnostic information, advice, or opinions as part of the System. The System will not remind you to take any medication, and it is not a substitute for medical care from a health care professional. Before using the System, you should consult with your health care professional. Make sure you understand how the System works, its limitations, and what other procedures and precautions you should take in addition to the System.

We may terminate the Terms at any time if you violate the Terms and after we have given you any prior notice that may be required by applicable law. We may also terminate the Terms, subject to giving a minimum of six months’ prior notice, where it is no longer economically feasible for us to operate the System. You may terminate these Terms at any time by no longer using the System.

TERMS OF USE

1. The System. The System monitors a user’s oxygen saturation (“O₂”) levels, pulse rate, and perfusion index O₂ levels that are too low for too long a period of time may be a serious risk to individuals. When O₂levels reach this point, the System can be used as an escalating notification system to first notify the user, and then notify the user’s Emergency Contacts for possible intervention. While the O₂thresholds that trigger a notification cannot be changed, the user decides in advance whether to include Emergency Contacts as part of their notification escalation. A System user may also choose not to notify anyone other than themselves when an event occurs. When a user has included Emergency Contacts as part of their notification escalation, they will still have the opportunity to resolve the situation on their own and bring their O₂ levels back up to the normal range. If the user is unable to do so or does not turn the alarm off within a set period of time, the System is designed to automatically notify the user’s Emergency Contacts.

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, software, and/or accessories (including unsupported mobile devices) may cause the System to fail, work improperly, measure O₂ levels, pulse rate, and perfusion index inaccurately, or cause serious bodily injury or death.

You understand that Masimo is only providing a monitoring device and system. Masimo is not a health care professional nor does it provide medical or health care advice or services. The System is not a replacement for proper medical care, and you agree that you are solely responsible for obtaining proper treatment for your conditions. You acknowledge and agree that you will continue to use any and all monitoring procedures and other precautions you used or would use if the System was not available.

2. User Requirements. To effectively use and benefit from all of the features of the System, you must (i) obtain the Sensor, Chip and Bedside Station, (ii) download the App to your supported mobile device, (iii) follow the instructions to set up a user account, (iv) decide to include and then input the contact information of Emergency Contacts to receive notifications from the System, and (v) connect the Bedside Station to a reliable Wi-Fi network with a working Internet connection. You must set up all these things correctly for all of the System features to work. Masimo is not responsible for any data charges you incur through your cellular or Internet service provider. When you input information into the App, it is critical that you (a) provide accurate, current, and complete information; and (b) update information as needed to keep it accurate, current, and complete at all times. In the absence of any negligence or other breach of duty by Masimo, you assume any risk for failing to comply with these critical requirements. You are responsible for maintaining the confidentiality of your account user name, email address, and password while this information is under your control, and agree to immediately notify Masimo of any unauthorized use of your account, or any other breach of security that you become aware of.

Before you enter the contact information of your Emergency Contacts in the App, you agree to obtain their permission to give Masimo access to their name, email address, phone numbers, and any other user-created descriptions for them. You also agree to obtain their permission to receive notifications from the System. This is critical to make sure that (i) they agree to be notified if the System alarm is triggered and they agree to help you as they are able, (ii) they understand you are providing their personal information to Masimo, and (iii) they may be charged by their phone service carrier for any text message notifications sent to them by the System. Masimo is not responsible for these data charges.

3. Changes. From time to time, Masimo may make changes to the System or to its features and operation. These changes may include adding new features and functions that may include additional fees to use them, if so agreed with you separately in advance. Masimo will give you reasonable advance notice of any changes, where that notice may be through the App. If we wish to make any changes that include additional fees, we will not implement such changes unless you have specifically consented to them.

4. Limitation of Liability. Nothing in these Terms is intended to exclude or limit the liability of Masimo for death or personal injury, fraud, fraudulent misrepresentation, gross negligence, willful misconduct or any liability that cannot be excluded by law. Masimo is not responsible for losses that were not caused by Masimo’s breach of these Terms. Masimo is not responsible for the actions or inactions of anyone you designate to receive notices from the System. This would include, without limitation, a failure to respond in a timely manner, any medical intervention that the person may or may not provide, or any other malpractice or negligence that may result from their actions or failures to act. Further, Masimo will not be liable for any property damage caused by the person when they respond to a notification from the System. Masimo shall also not be held liable for delay or failure in performance resulting from causes beyond Masimo’s reasonable control.

5. Limited Rights. On the condition that you accept and comply with these Terms, Masimo grants you a personal, worldwide, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free and limited right to (i) install and use the App, in object code version, on your supported mobile device for your personal use solely in accordance with its operator’s manual, product inserts, and other documentation included with it and (ii) use Masimo’s and its affiliates’ intellectual property embodied in the System solely for your personal use in accordance with its user manual, product inserts, and other documentation included with it. Masimo reserves ownership and all other rights not expressly granted in these Terms.

6. Termination. We may terminate the Terms at any time if you violate the Terms and after we have given you any prior notice that may be required by applicable law. We may also terminate the Terms, subject to giving a minimum of six months’ prior notice, where it is no longer economically feasible or aligned with our business objectives for us to operate the System. You may terminate these Terms at any time by no longer using the System.

7. 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. If there is a conflict between these Terms and the provisions of such licenses with respect to third-party software, the provisions of such licenses will prevail to the extent of the conflict. The third-party software provider grants the third-party licenses directly to you, and such licenses are not a part of these Terms.

8. Choice of Law. These Terms and any disputes arising out of or related to these Terms or the System (“Dispute”) shall be governed by the mandatory provisions of the law of your country of residence or domicile. Individuals who use the System for personal, family or household purposes or as consumers are entitled to bring proceedings before the courts or consumer boards of their place of residence or domicile. Masimo does not and is not obligated to participate in alternative dispute resolution procedures before an alternative dispute resolution entity for consumers, other than those to which consumers are legally entitled to apply. For consumers in the European Economic Area, the European Commission provides a website for online dispute resolution, dedicated to helping consumers and traders resolve their disputes out-of-court, available at http://ec.europa.eu/consumers/odr/.

Our information:

Company Name: Masimo Österreich GmbH

Registered Address: Mariahilfer Straße 36, 1150 Wien

Registered Seat in: Vienna, Austria

Registered Under Registration Number: 330266 k

Registered in the Commercial Register of the Commercial Court of: Vienna, Austria

Tax Number: ATU65378977

Tel: +43 (0)1 533 7361

Fax: +43 (0)1 533 7152

Email: [email protected]

SCHEDULE A

THIRD PARTY SOFTWARE

This Schedule A contains hyperlinks to information about third-party licenses for the App. These licenses apply only with respect to the software supplied by the named third party. 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. The third-party software provider grants the third-party licenses directly to you, and such licenses are not a part of these Terms.

Bedside Station

https://github.com/espressif/esp-idf

Android

Apache Commons:

https://mvnrepository.com/artifact/commons-io/commons-io/2.5

https://mvnrepository.com/artifact/commons-codec/commons-codec/

Retrofit: https://square.github.io/retrofit/

Okhttp: https://square.github.io/okhttp/

Fusesource Mqtt: https://github.com/fusesource/mqtt-client

Project Lombok: https://projectlombok.org/setup/gradle

RxJava2 + Android: https://github.com/ReactiveX/RxAndroid/tree/2.x

SLF4J Log: https://mvnrepository.com/artifact/org.slf4j/slf4j-android/1.7.7