Last updated on December 23, 2021
These Terms of Use apply unless you are in the following regions: U.S., European Economic Area, the United Kingdom, Switzerland or Turkey. For these regions, please refer to their corresponding Terms of Use available here.
You accept these Masimo SafetyNet™ Terms of Use (“Terms”) and form a legally enforceable contract with Masimo Americas, Inc., 52 Discovery. Irvine, CA 92618 (“Masimo”) on behalf of the company or other legal entity you represent, or you personally (collectively hereinafter, “you”) by clicking “Agree” or by downloading, installing, accessing or using the SafetyNet mobile application or related remote software-as-a-service or “cloud services” offering (collectively, “SafetyNet”). Any reference to “SafetyNet” herein includes any component of SafetyNet. If we provide these Terms in the local language of your jurisdiction and English is not an official language of your jurisdiction, the version of the Terms in the local language of your jurisdiction is the one that applies to you.
Do not click “Agree” or download, install, access or use SafetyNet if you are not at least 18 years old, if you do not have authority to bind the entity you represent, or if you do not wish to consent to the Terms; under such circumstances, Masimo does not permit you to download, install, access or use SafetyNet. Use without permission may constitute intellectual property infringement, computer abuse and a violation of criminal laws.
Masimo reserves the right to modify, discontinue, or restrict or terminate access to SafetyNet in Masimo’s sole discretion. You may stop using SafetyNet at any time. Masimo also reserves the right to change these Terms at any time. Each change will be effective when Masimo makes the change available by reasonable means, including through SafetyNet. 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.
1. Accessories. 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 these Terms apply to your use of such Accessories as well. Please ensure that you have the latest version of SafetyNet and read the user manual and other instructions included in SafetyNet, 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.
2. Limited Functionality. Masimo makes SafetyNet available as a tool for individuals who want to track and share with others their health information, including with healthcare providers that can access SafetyNet to monitor patient health remotely by connecting to prescription Accessories. Any content that Masimo provides through SafetyNet, including all text, graphics, images, and other content, is provided for informational purposes only and not intended to be, or substitute for, professional medical advice, diagnosis, treatment, cure, or prevention of any health condition, and you should not rely on them for these. No doctor-patient relationship is formed by your use of SafetyNet, 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 through SafetyNet. You should never disregard professional medical advice or delay seeking professional medical advice, diagnosis, or treatment based on anything you read or obtain through SafetyNet. 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 through SafetyNet.
3. Disclaimer of Warranties. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW AND EXCEPT FOR ANY STANDARD LIMITED WARRANTY GIVEN BY MASIMO, SAFETYNET 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 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 SAFETYNET 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 SAFETYNET, 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.
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 INTENDED 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.
SAFETYNET 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.
4. 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 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 countries and jurisdictions do not allow the exclusion or limitation of liability, the above limitations may not apply to you. In these countries 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.
5. Limited Rights. On the condition that you accept and comply with these Terms, Masimo grants you a non-exclusive, non-transferable, non-assignable, revocable, royalty-free and limited right to (i) install and use SafetyNet, in object code version, on your smart phone or mobile device; (ii) access SafetyNet 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 (iii) 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 grant above, SafetyNet may be accessed and used by other accounts associated with you via Apple Family Sharing or volume purchasing.
6. Restrictions. Masimo reserves ownership and all other rights not expressly granted in these Terms. Without limiting the generality of the foregoing, you may not nor may you permit any other party to: (i) make copies of SafetyNet, (ii) disassemble, decompile, reverse engineer, or translate any part of SafetyNet, or otherwise attempt to reconstruct or discover the source code of SafetyNet, except and only to the extent that such activity is expressly permitted by applicable law, (iii) modify or create derivative works based upon SafetyNet, (iv) externally distribute, resell, encumber or otherwise transfer SafetyNet, (v) rent, lease, lend, or use SafetyNet, or any part thereof, for timesharing or bureau use, (vi) allow a third party to copy, access, or use SafetyNet (except as expressly provided in these Terms), (vii) alter or remove any copyright, trademark or other proprietary notice which may appear on or in SafetyNet, (viii) take any action that would cause SafetyNet to be placed in the public domain or become subject to open source license agreements, or (ix) use SafetyNet in any manner that violates any statute, law, rule, regulation, directive, guideline, bylaw whether presently in force or that may be implemented by governmental authorities.
7. Ownership. You acknowledge that SafetyNet constitutes the intellectual property of, and is owned by, Masimo. The structure, sequence and organization of SafetyNet constitute valuable trade secrets and confidential information of Masimo. SafetyNet is protected by copyright, including, without limitation, by United States copyright law, international treaty provisions and/or 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. You will take no actions that adversely affect Masimo’s intellectual property rights in SafetyNet. These Terms are not an agreement for sale. No title to, or ownership of SafetyNet or any intellectual property rights subsisting therein, is transferred to you.
8. Termination. Masimo may terminate these Terms and discontinue SafetyNet at any time. In addition, the rights granted under these Terms will automatically terminate without notice if you fail to comply with any material provision of these Terms. In such event, you must immediately stop using SafetyNet and/or uninstall SafetyNet from your smart phone or mobile device. This will not limit or affect any remedy available to Masimo for your breach of these Terms.
9. Choice of Law and Venue. These Terms and any disputes arising out of or related to these Terms or your use of SafetyNet (“Dispute”) shall be governed by California law and the U.S. federal laws that apply therein, without regard to their conflict of law principles. Any Dispute shall be resolved exclusively in the U.S. District Court for the Southern District of California or a state court located in Orange County. You also agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such Dispute. Notwithstanding the foregoing, Masimo may institute proceedings in any court of competent jurisdiction for equitable or similar relief, such as to apply for injunctions to prevent the unauthorized use of Masimo’s intellectual property.
10. No Support. Except as expressly required by applicable law, nothing in these Terms entitles you to any support, maintenance or new versions of SafetyNet. 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 SafetyNet.
11. Updates. These Terms will govern any updates and upgrades to SafetyNet 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 agreement. You may use the updates or upgrades only in conjunction with your then-existing grant of rights under these Terms. SafetyNet and all updates and upgrades thereto are made available as a single product and the updates and upgrades may not be separated so as to exceed the scope of your original grant of rights.
12. Data Protection. Masimo processes your personal data in accordance with the Masimo SafetyNet Privacy Notice [insert link]. Please review the Masimo SafetyNet Privacy Notice for information about how Masimo collects, uses and discloses your personal data and rights you may have under applicable data protection laws.
13. Miscellaneous.
(a) 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.
(b) You may not assign or transfer these Terms, SafetyNet, or any rights or obligations hereunder without prior written consent of Masimo. Any such attempted assignment or transfer without Masimo’s consent will be null and void. Masimo may terminate these Terms in the event of any such attempted assignment or transfer without Masimo’s consent.
(c) These Terms constitute the final and complete understanding between you and Masimo with respect to the subject matter of these Terms.
(d) If any provision in these Terms 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 shall remain in effect.
(e) 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.
(f) Whenever required by the context, a singular term shall include the plural, and a plural term shall include the singular. No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of these Terms.
14. 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 are between you and Masimo only, and not Apple, Inc. or any of its affiliates (“Apple”). Certain provisions of these Terms 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 SafetyNet and the content therein. Notwithstanding the foregoing, upon your acceptance of these Terms, Apple has the right (and will be deemed to have accepted the right) to enforce these Terms against you as an intended third party beneficiary. To the extent that any usage restrictions for SafetyNet 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 these Terms and shall control solely to the extent of such deficiency or conflict.
(b) Google Play Store Users: To the extent that these Terms 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 these Terms and will supersede these Terms solely to the extent that they conflict.
15. Updates. These Terms will govern any updates and upgrades to SafetyNet 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 agreement. You may use the updates or upgrades only in conjunction with your then-existing grant of rights under these Terms. SafetyNet and all updates and upgrades thereto are made available as a single product and the updates and upgrades may not be separated so as to exceed the scope of your original grant of rights.
16. 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 (i) be aware of each patient’s unique medical history, (ii) have an appropriate discussion with your patients to account for the risks and benefits of outpatient monitoring, and (iii) choose the best course of action given the patient’s unique medical history. Accordingly, you agree that (i) you are solely responsible for ensuring that SafetyNet is appropriate for the patient, (ii) you will provide adequate training to patients who use SafetyNet to ensure that it is used correctly, and (iii) 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-006304/PLMM-12359A-0922