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Masimo does not make any other promises, conditions, or warranties regarding the
Product. No other warranty applies, express or implied, including without limitation, any
implied warranty of merchantability, fitness for a particular purpose, satisfactory quality,
or as to the use of reasonable skill and care. See the licensing terms for the terms and
conditions that apply to any Software accompanying the Product. Additionally, Masimo will
not be liable for any incidental, indirect, special, or consequential loss, damage, or expense
arising from the use or loss of use of any Products or Software. In no event shall Masimo's
liability arising from any Product or Software (under contract, warranty, tort, strict liability, or
otherwise) exceed the amount paid by purchaser for the Product or Software. The above
limitations do not preclude any liability that cannot legally be disclaimed by contract.
End-User License
1.
Grant of License. In consideration of payment of the license fee, which is part of
the price paid for this Product, Masimo grants to Purchaser a nonexclusive,
nontransferable license, without right to sublicense, to use the copy of the
incorporated Software and documentation in connection with Purchaser's use of
the Masimo Products for their labeled purpose. Masimo reserves all rights not
expressly granted to Purchaser.
2.
Ownership of Software/Firmware. Title to, ownership of, and all rights and
interests in, any Masimo software and/or firmware and the documentation, and all
copies thereof, remain at all times vested in Masimo Corporation and they do not
pass to Purchaser.
3.
Assignment. Purchaser shall not assign or transfer this License, in whole or in part,
by operation of law or otherwise, without Masimo's prior written consent; any
attempt without such consent, to assign any rights, duties or obligations arising
under this license is void.
4.
Copyright Restrictions. The Software, mask works, circuit board layouts, and
accompanying written materials are copyrighted. Unauthorized copying of the
Software, including Software that has been modified, merged, or included with
other software, or other written materials is expressly forbidden. You may be held
legally responsible for any copyright infringement that is cause or incurred by your
failure to abide by the terms of this license. Nothing in this license provides any
rights beyond those provided by applicable law.
5.
Use Restriction. As the Purchaser, you may physically transfer the Product from
one location to another provided that the Software is not copied. You may not
electronically transfer the Software from the Product to any other device. You may
not disclose, publish, translate, release, distribute copies of, modify, adapt,
translate, reverse engineer, decompile, disassemble, or create derivative works
based on the Masimo Product, the Software, or the written materials without the
prior written consent of Masimo. Masimo sensors that are designated for single
use are licensed under Masimo patents for use on a single patient only, and are not
sold. Masimo reusable sensors are licensed under Masimo patents for use on more
than a single patient, but are not sold. Possession of any Masimo device does not
convey any express or implied license to use the device with unauthorized sensors
or cables that would, alone, or in combination with this device, fall within the
scope of one or more of the patents relating to this device. There is no license,
implied or otherwise, that would allow use of single use Masimo sensors beyond
their intended single use. After use of single use Masimo sensors, there is no
further license granted by Masimo to use the sensors and they must be discarded.
6.
Non-Authorized Accessories. Masimo technology is designed to operate together
with Masimo cables, sensors and accessories as an integrated system. When any
component of the system is compromised, erroneous measurements can occur.
Accordingly, the use of unauthorized sensors or accessories, such as third-party
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reprocessed or copycat sensors can yield unreliable results when used with a
Masimo device. The performance of Masimo technology is not validated when
used with any unauthorized sensor or accessory.
7.
Transfer Restrictions. The Software is licensed to the Purchaser, and may not be
transferred to anyone, except other end-users, without the prior written consent of
Masimo. In no event may you transfer, assign, rent, lease, sell, or otherwise dispose
of the Software or the Product on a temporary basis. Any attempt to assign any
rights, duties or obligations arising hereunder other than as set forth in this
paragraph shall be void.
8.
Beneficiary. Masimo Corporation is a third-party beneficiary of the above license
and has the right to enforce its provisions.
9.
U.S. Government Rights: If Purchaser is acquiring Software (including the related
documentation) on behalf of any part of the United State Government, the
following provisions apply: the Software is deemed to be "commercial software"
and "commercial computer software documentation," respectively pursuant to
DFAR Section 227.7202 FAR 12.212, as applicable. Any use, modification,
reproduction, release, performance, display or disclosure of the Software (including
the related documentation) by the U.S. Government or any of its agencies shall be
governed solely by the terms of this Agreement and shall be prohibited except to
the extent expressly permitted by the terms of this Agreement.
10. Patents. The Masimo technology in the Masimo product is covered under one or
more patents set forth at www.masimo.com/patents.htm.
No Implied License
Possession or purchase of the Product does not convey any express or implied license to use
the device with unauthorized sensors or cables that would, alone, or in combination with the
device, fall within the scope of one or more of the patents relating thereto.
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