The System is designed to continuously monitor to help recognize opioid induced respiratory depression (OIRD) while taking opioids. The System uses software that reviews your blood oxygen data to recognize when there may be trouble getting enough oxygen while on opioids.
1. Emergency Contacts and Emergency Response Dispatch Service.In the App, you have the option to configure the System to send alerts to your emergency contacts and/or an emergency response dispatch service. We do not assume responsibility for any action or failure to act by your emergency contacts, the emergency response dispatch service, or any emergency medical service (EMS) provider. Further, if you do not correctly configure these alerts, they will not be triggered, and you will be solely responsible for seeking help. We cannot and do not guarantee that your emergency contacts, the emergency response dispatch service or EMS provider will respond in a timely manner or at all.
You agree that (i) you have permission from your emergency contacts to use their contact information, (ii) they have agreed to receive the alerts and to respond to them, (iii) their contact information is accurate and up to date, and (iv) you trust them with the information contained in the alerts.
You agree that the System may send alerts to an emergency response dispatch service. You authorize the emergency response dispatch service to give you an automated wellness call and request an EMS provider to be dispatched. You are solely responsible for any costs involved with aid from emergency medical services. These costs may be significant and may not be covered by your health insurance plan (if any). You assume these costs even if the emergency situation has been resolved by the time the EMS provider arrives or if the alert is a false alarm.
The System does not track your location, and the address that your emergency contacts and/or the emergency response dispatch service will be provided is the address that you enter into the App. Accordingly, if you are using the System from a different location than the address you enter into the App, your emergency contacts, the emergency response dispatch service and EMS provider will be unable to locate you using the alert from the System.
The emergency response dispatch service is supported only in certain jurisdictions of the United States. The System may not work properly outside of these jurisdictions.
3. Disclaimer of Warranties. Except as expressly provided in the Limited Warranty 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 you operate 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. Masimo, its licensors and affiliates make no representation or warranty 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, its licensors and affiliates do 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, its licensors or affiliates be liable to you on account of (a) disruption or delays to your Internet or other network connection; (b) compatibility of the App with your mobile device; or (c) your 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.
Masimo, its licensors and affiliates, do not warrant and is not responsible for the actions or inactions of any third party, including your emergency contacts, the emergency response dispatch service or EMS providers. These actions or inactions may include, without limitation, any failure to respond in a timely manner, any medical intervention that may be provided, or any other malpractice or negligence that may result from actions or failures to act. Further, Masimo, its licensors and affiliates, will not be liable for any property damage caused by the person responding to an alert from the System.
4. 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
15. Resolution of Disputes.
(b) Exclusions from Arbitration. You and Masimo agree that the following causes of action and/or claims for relief are exceptions to the Disputes covered by the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as outlined in this arbitration agreement): (i) any claim or cause of action alleging actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief, where such remedies are permitted and cannot be waived by applicable law. You or Masimo may alternatively bring Disputes in small claims court, to the extent a dispute meets such requirements.
(d) Notice of Dispute. IF YOU HAVE A DISPUTE WITH MASIMO, YOU MUST SEND WRITTEN NOTICE TO [email protected] TO GIVE MASIMO THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. Your notice must contain the following information: (1) your name, (2) your address, (3) your email address or phone number associated with your account, (4) your online membership ID, if any, (5) a brief description of the nature of the complaint, and (6) the resolution sought (together, the “Required Information”). If your notice does not contain all of the Required Information (or an explanation of why you are unable to include any of the Required Information), then the Notice of Dispute shall be without effect, and must be resent before any arbitration or other legal action may be initiated against Masimo. This requirement is intended to inform Masimo that you have a Dispute to be resolved. You and Masimo agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. All negotiations under this Section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws. If you and Masimo do not resolve the Dispute within 60 days from receipt of your notice of the Dispute, you or Masimo may pursue a claim in arbitration pursuant to the terms in this section.
(c) Class Action Waiver. YOU AND MASIMO AGREE THAT ARBITRATION WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND MASIMO SPECIFICALLY AGREE TO DO SO IN WRITING, EXCEPT AS OTHERWISE DESCRIBED BELOW IN THIS PARAGRAPH AND THIS SECTION 15. IF APPLICABLE LAW PRECLUDES ENFORCEMENT OF THE LIMITATION IS THIS PARAGRAPH AS TO A PARTICULAR REMEDY, THEN A CLAIM SEEKING THAT REMEDY (AND ONLY THAT REMEDY) MUST BE SEVERED FROM THE ARBITRATION AND BROUGHT IN COURT.
If a court or arbitrator determines, in an action between you and Masimo where you purport to bring a class action, that this class action waiver is unenforceable, this arbitration agreement will not apply to you. If you opt out of the arbitration agreement as specified above, this class action waiver will not apply to you. Neither you, nor any other user, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above.
(f) Initiation of Arbitration/Selection of Arbitrator. If you and Masimo are unable to resolve a Dispute through the pre-dispute negotiation process, you or Masimo may then, and only then, initiate an arbitration proceeding with the American Arbitration Association (“AAA”), in accordance with the rules of the AAA (as applicable, and as modified by this Section 15), including the Commercial Arbitration Rules and Consumer Arbitration Rules, as applicable (the “AAA Rules”). The AAA Rules and information about arbitration and fees are available online at www.adr.org or by calling 1-800-778-7879. The terms of this section govern in the event they conflict with the AAA Rules. Should the AAA decline to administer the arbitration or otherwise be unable to administer the arbitration for any reason, you agree that Masimo shall select an alternative arbitration forum, and that you will agree in writing to administration of the arbitration by the alternative arbitration forum selected by Masimo.
Masimo agrees to pay all filing, administration, and arbitrator fees, other than the initial filing fee to be paid by you, and if your Dispute is for less than $1,000, Masimo shall reimburse you for the filing fee upon written request for reimbursement with documentation of insufficient funds to pay the fee. In the event that you agree able to demonstrate that the costs of arbitration would be prohibitive as compared to costs of litigation, Masimo will pay as much of the filing fee in connection with the arbitration as the arbitrator deems necessary in order to prevent the arbitration from being cost-prohibitive as compared to the costs of litigation. In all other cases, Masimo and you will bear the fees and expenses for each party’s own respective attorneys, experts, witnesses, and for preparation and presentation of evidence at the arbitration. The parties agree that the arbitrator shall award arbitrator compensation, administrative fees, and the prevailing party’s reasonable attorney’s fees to the prevailing party in any legal proceeding, regardless of venue, that resolves a Dispute. Any arbitration will be confidential, and you and Masimo agree not to disclose the existence, content, documents, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award.
(h) Arbitration Location. You or Masimo shall initiate arbitration in Orange County, California. In the event any other legal proceeding takes place outside of arbitration, the parties agree to be subject to jurisdiction in and hereby choose Orange County, California as the parties’ exclusive venue.
(j) Severability. If any clause within this arbitration agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this arbitration agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable in its entirety, this entire arbitration agreement will be unenforceable, and the Dispute will be decided by a court.
(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.
(e) 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.
THIRD PARTY SOFTWARE