DOCTELLA END USER LICENSE AGREEMENT

IMPORTANT – PLEASE READ CAREFULLY: This Doctella End User License Agreement (this “Agreement”) is a legally enforceable contract between you (either an individual or an entity) and Masimo Corporation, a Delaware corporation (“Masimo”), regarding your use of Masimo’s proprietary Doctella application(the “App”) and Materials on an Apple device, Mac product, Android Device, or via the Doctella website.  “Materials” means all of the information and content made available through the App, including without limitation, all of the questions, notes, other medical procedure-related materials and questions about personal preferences and personal health information. Materials do not include Your Data (defined below).

iOS and Mac ApplicationUsers(“Apple Users”): You and Masimo acknowledge that this Agreement is between you and Masimo only, and not Apple, Inc. or any of its affiliates (“Apple”). Certain provisions of this Agreement 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 the App, the Materials, and the content therein. Notwithstanding the foregoing, upon your acceptance of the terms and conditions in this Agreement, Apple has the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary. To the extent that any usage restrictionsfor the App and Materials are less restrictive or are otherwise in conflict with the “Usage Rules” under the terms of service of the Apple App Store,as of theireffective date, Apple’s “Usage Rules” are incorporated by reference into this Agreement and shall control solely to the extent of such deficiency or conflict.

Google Play Store Users: To the extent that this Agreement conflicts 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 this Agreement and will supersede this Agreement solely to the extent that they conflict.

In addition, certain open source or third party programs or code (“Third Party Software”) are being provided to you under the terms and conditions of separate and distinct license agreements, and those license agreements (“Thirty Party Licenses”) govern your use of the Third Party Software and you agree to abide by the terms and conditions of such Third Party Licenses.You may find the names of the Third Party Software used in the App at https://www.doctella.com, or other locations that may be specified to you by Masimo.Masimo will have no liability to you or any other person or entity in connection with your use of Third Party Software.

BY CLICKING “I ACCEPT” BUTTON BELOW OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE APP, YOU CONSENT TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THIRD PARTY LICENSES.IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE AGREEMENT AND THIRD PARTY LICENSES, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THE AGREEMENT OR THIRD PARTY LICENSES, YOU MUST NOT ACCEPT THE AGREEMENT AND MAY NOT USE THE APP.

By DOWNLOADING, INSTALLING, accessing or OTHERWISE using the App, you represent that you have either reached the age of “majority” where you live or have valid parent or legal guardian consent to be bound by this agreement, and that you are not barred from setting up an account, using the app, or receiving the materials under applicable laws. If you do not know whether you have reached the age of majority where you live or do not understand this section, please ask your parent or legal guardian for help before you set up an account. If you as a parent or guardian set up an account for a minor or you are the parent or guardian of a minor who sets up an account, you accept the Terms in this agreement on the minor’s behalf and are responsible for all use of the account and the app, including any purchases. No one under the age of 13 is permitted to use the app. You can create an account for others only where you are the authorized individual-representative (a parent, guardian or legal representative establishing an account for the app). By setting up such an account you automatically certify and agree that (i) you have this authority, (ii) we are entitled to rely of your certification as true, and (iii) you will hold us harmless from any claim by such others that you did not have authority to create an account for them. We reserve the right to restrict in our sole discretion who is eligible to use the app, or set up an account, and to reject a request to create an account or close an account at any time without liability.

The following additional terms and conditions apply to your use of the App and Materials:

  1. Limited License to the App.Subject to the terms and conditions of this Agreement, Masimo grants you a non-exclusive, non-transferable, non-sublicensable, limited license, during the Term (as defined in Section 3 below), to install and use the App, in object code version,on a single devicesolely for your personaland non-commercial purposes(and for Apple Users, 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).
  2. Limited License to the Materials.Subject to the terms and conditions of this Agreement, Masimo grants you a non-exclusive, non-transferable, non-sublicensable, limited license, during the Term, to use and copythe Materials that you download or otherwise access via the App solely for your personal and non-commercial purposes (and for Apple Users, 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)..
  3. Term.  The “Term” of this Agreement and the licenses granted hereunder continues until this Agreement is terminated as set forth herein. Unless you have paid to access theApp or any functionality in the App, Masimo may terminate this Agreement and the licenses granted hereunder for any or no reason. You may terminate this Agreement at any time by discontinuing use of the App. This Agreement terminates automatically if you fail to comply with any of the terms of this Agreement.  Upon any termination of this Agreement, you must cease use of the App and delete all copies of the App.
  4. Ownership.You acknowledge that the App, the Materials, and any copies that you are authorized by Masimo to make are the intellectual property of, and are owned by, Masimo and its licensors.The source code, 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 App and Materials.You will take no actions which adversely affect Masimo’s intellectual property rights in the App or Materials.This Agreement is a license and not an agreement for sale.No title to, or ownership of, the App, the Materials, or any intellectual property rights subsisting therein, is transferred to you.
  5. Restrictions.The Appand Materials arelicensed solely for internal use within your organization or your personal use and any other use including for third parties is expressly prohibited.Masimo and its licensors reserve all rights not expressly granted to you in this Agreement.Without limiting the generality of the foregoing, you shall not nor shall you permit any other party to: (i) make copies of the App or Materials except as expressly set forth in this Agreement, (ii) disassemble, decompile, reverse engineer, modify, or translate any part of the App, or otherwise attempt to reconstruct or discover the source code of the App, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, (iii) modify or create derivative works based upon the App or Materials, (iv) externally distribute, sublicense, resell, publish, encumber, assign or otherwise transfer the App or Materials, (v) rent, lease, lend, or use the App or Materials, or any part thereof, for timesharing, bureau, or other similar use, (vi) allow a third party to copy, access, or use the Software (except as expressly provided in this Agreement), (vi) alter or remove any copyright, trademark or other proprietary notice which may appear on the App, (vii) take any action that would cause the App to be placed in the public domain or become subject to open source license agreement, or (viii) use the App in any manner that violates any statute, law, rule, regulation, directive, guideline, bylaw whether presently in force or may be implemented by federal, state or local authorities.
  6. Updates.Except as otherwise expressly provided herein, this Agreement will govern any updates and upgrades to the App 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 license agreement.You may use such updates or upgrades only in conjunction with your then-existing App licensed under this Agreement.The App and all updates and upgrades are licensed as a single product and such updates and upgrades may not be separated from the App to exceed the scope of your original license. Masimo may make changes to the App or Materials at any time without notice, including without limitation by disabling certain features or functionalities in the App. If you elect to receive automatic updates of the App, Masimo may deliver such updates (if any) directly to your devices; provided, however, that nothing in this Agreement obligates Masimo to support or provide you with any updates or error corrections to the App or Materials.
  7. No Support.Except as expressly required by applicable law, nothing in this Agreement entitles you to any support, maintenance or new versions of the App.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 the App.
  8. Your Responsibility. You are solely responsible for (i) maintaining the confidentiality of yourcredentials and passwords associated with youraccount, (ii) taking your own steps to maintain appropriate security and protection of credentials and passwords, (iii) all activities that occur with respect to youraccount, regardless of whether the activities are undertaken by you, your employees, or a third party (including your contractors or agents), (iv) your access and use of the App and Materials, and compliance with this Agreement, (v) all content of Your Data and (vi) all Appsettingsthat you change or input, if applicable. Masimo is not responsible for any alteration, compromise, corruption, or loss of Your Data or any loss that arises from any access to, sharing, or use of your accounts, credentials, or passwords.
  9. Your Data. With the App, including our web-based application, you can collect, upload, submit, store, track, display, analyze, send, receive, or print content and data. This data includes personally identifiable information such as your name, address, email address, telephone number, and payment information, and your personal health information such as any information about a medical condition or other information obtained from your doctor or health records, submitted by you, persons authorized by you and/or from third party data sources approved by you in the App (“Your Data”). You must exercise caution, good sense, and sound judgment in using the App. You are responsible for Your Data and any information that you transmit to or through the App (or to us through email). You agree, represent, and warrant that Your Data and any information you transmit to or through the App (or to us through email) is truthful, accurate, not misleading and offered in good faith, and that you have the right to transmit Your Data and such information. Certain information collected from you on the App is subject to our Privacy Policy available at https://www.doctella.com/privacy-policy.html, which is incorporated by reference into this Agreement. You hereby (A) grant Masimo and its contractors and agents a non-exclusive license and permission to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, reformatting, or other changes we make so that Your Data works better with the Service) Your Data, and to share or disclose Your Data as you have permitted or agreed under this Agreement and (B) give Masimo consent to use and processYour Data to the extent that it is “personally identifiable information”, “personal health information” or “personal data” (as those terms are defined or contemplated in applicable privacy laws), in each case for the purpose of providing you the services through the App and as otherwise required for Masimo to perform under this Agreement, subject to our Privacy Policy.
  10. Anonymized and Aggregated Data. We may collect certain user information such as (i) profile data, (ii) technology data (e.g. device & browser type), (iii) user behavior data like how often do users log in and for how long, what features are used and how often, etc. (“User Information”). We use User Information for internal purposes only to improve our product, services, and overall user experience. User Information may include Your Data that has been de-identified and aggregated with other users and, in some cases, non-user data. We use anonymized and aggregated data for internal purposes only to, among other things, learn more about our users’ needs and interests and how we can improve the App to better serve our users. We will retain and use User Information for our internal purposes in an anonymized and aggregated mannerwhile your account is active and after you close your account.
  11. Disclaimer of Warranties.THE APP AND MATERIALS ARE 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, AND FITNESS FOR A PARTICULAR PURPOSE.NEITHER MASIMO NOR ITS LICENSORS REPRESENT OR WARRANT THAT THE APP OR MATERIALS WILL SATISFY YOUR REQUIREMENTS OR THAT THEY ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. MASIMO DOES NOT WARRANT THAT THE APP OR ANY PART THEREOF, OR USE THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, UNBREACHABLE OR VIRUS FREE, OR THAT THE APP WILL MEET YOUR QUALITY AND PERFORMANCE REQUIREMENTS. YOUASSUME THE ENTIRE RISK OF, AND SHALL NOT HOLD MASIMO RESPONSIBLE FOR, ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF YOUR DATA, NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE IMPLEMENTED BY MASIMO.
    Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of the above disclaimers may not apply to you.For Apple Users in such jurisdictions, in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty will be Masimo’s sole responsibility. In any event, Masimo is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the App or any upgrade or update is procured, nor is Masimo responsible for problems which occur as a result of the use of the App in conjunction with software of third parties or with hardware.
  1. Risk of Use.  You acknowledge that Masimo does not endorse, represent, warrant, or guarantee the truthfulness, accuracy, completeness, or reliability of any of the Materials. You acknowledge that any reliance on any of the Materials will be at your own risk.Masimo believes the information provided through the App to be accurate at the time it is first posted. However, given the complexity of health care conditions and the specific health, history, needs, and circumstances of each individual, Masimo cannot provide information that covers all possible cases, uses, directions, precautions, drug interactions, adverse effects, or other matters that may be relevant to you or your particular health care condition. Some of the information that Masimo provides may become outdated, making it incorrect, and will only be updated periodically, if at all. Health care knowledge and practice can evolve rapidly, and therefore Masimo makes no representation or warranty, either express or implied, as to the accuracy, completeness, adequacy, currency or timeliness, of the information and tools provided on the App. The use of any Materials and other content that Masimoprovides is at your own risk. Masimo shall not be liable for your reliance on any incorrect or outdated information on the App or in the Materials. Masimo further assumes no liability or responsibility for any errors or omissions in any of the content of the App, the Materials, or the information provided to you.
  2. Risk of Transmissions. The App is designed to communicate via the Internet and over Wi-Fi networks. You acknowledge that transmitting data via the Internet or over any Wi-Fi network is not 100% secure or free from risk of compromise.
  3. No Provision of Medical Care.  The App provides tools and information that are intended to help you participate with your doctor in the management of your health care. All content that Masimo provides through the App, including the Materials and all other text, graphics, images, and other content, is provided for informational purposes only. The tools and information that the App provide are not intended to be, and are not, professional medical advice or a substitute for such advice, or for diagnosis, treatment, cure, or prevention of any health conditions, and you should not rely on them as such. No doctor-patient relationship is formed by your use of the App, the Materials, or any information that Masimo provides. You should always seek the advice of physicians or other qualified health care providers if you have questions about any physical or mental health condition or any of the information you receive from the App. Masimo does not recommend or endorse any specific tests, products, procedures, opinions, or other information that may be described on the App.You should never disregard professional medical advice or delay seeking professional medical advice, diagnosis, or treatment based on anything you read or obtain through the App. You should consult your doctor or other qualified health care professional 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 health care treatment. Do not ignore or delay obtaining professional medical advice because of any information or other content you obtain from the App.
  4. Compliance with Laws.  You shall only use the App and the Materials in a manner that complies with all applicable laws in the jurisdictions in which you use the App and the Materials.
  5. Limitation of Liability.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, (I) IN NO EVENT SHALL MASIMO OR ITS LICENSORS ORTHEIR AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OR CORRUPTION OF DATA, DATA BREACH, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) UNDER THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) IN NO EVENT SHALL MASIMO’S ENTIRE LIABILITY TO YOU OR ANY OTHER PARTY FOR LOSS OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF THIS AGREEMENT EXCEED THE LICENSE FEE ACTUALLY PAID OR PAYABLE BY YOU FOR THE USE OF THE APP FOR THE MOST RECENT 12 MONTH PERIOD, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.In such states and jurisdictions, Masimo’s liability shall be limited to the greatest extent permitted by law.This section shall survive the termination of this Agreement.
  6. Your Indemnification.You agree to fully indemnify and completely save harmless Masimo and any of its directors, officers, employees, agents, representatives of and from any and all liabilities, claims, expenses, damages including reasonable legal fees and disbursements arising out of any third party claims or suits for damage or injury to person in connection with, directly or indirectly, in whole or in part, (i) any negligent act or omission of you or your employees, agents, contractors, directors, officers or any person for whom you have legal responsibility, (ii) your failure to comply with any applicable laws or (iii) any act or omission which is, or can be determined to be, a breach of any term or condition of this Agreement.
  7. Sole Remedy and Allocation of Risk.YOUR SOLE AND EXCLUSIVE REMEDY AND MASIMO’S SOLE AND EXCLUSIVE LIABILITY ARE SET FORTH IN THIS AGREEMENT.This Agreement defines a mutually agreed-upon allocation of risk.
  8. Third Party Licenses.You understand and agree that, although provided to you by Masimo with the App, your use of Third Party Software shall be and is governed by the relevant terms of Third Party Licenses.The ownership terms in Section 4 and restrictions in Section 5 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 MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.If there is a conflict between this Agreement and Schedule A with respect to Third Party Software, the provisions of Schedule A shall prevail.You may find names of corresponding open source software and Third Party Software used in the the App at https://www.doctella.comor other locations that may be specified to you by Masimo.
  9. Export Restrictions. 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.You agree to comply with all export and re-export restrictions and regulations (“Export Restrictions”) imposed by the United States or any other country in which you conduct business.Without limiting the generality of the foregoing, and regardless of any disclosure made by you to Masimo regarding an ultimate destination of the App, you represent and warrant that you understand the U.S. law currently prohibits the export or re-export, directly or indirectly (including via remote access) of U.S. origin products and technology to certain proscribed countries (including Cuba, Iran, Sudan, North Korea and Syria and/or any other country that may become subject to an embargo by the United States), entities, organizations and individuals, without prior authorization from the U.S. government.You will not commit any act or omission that will result in a breach of any such Export Restrictions.Your breach of this clause shall constitute cause for immediate termination of this Agreement.
  10. High Risk Activities.The App 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 nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”).Masimo specifically disclaims any express or implied warranty of fitness for High Risk Activities.
  11. Modifications to this Agreement.  Masimo reserves the right to update or modify the terms of this Agreement at any time, with any such changes to be effective prospectively. If the modifications constitute a material change, Masimo will announce the change in the App via a hyperlink or other reasonable means.  What constitutes a “material change” will be determined in Masimo’s sole discretion, in good faith and using common sense and reasonable judgment. Your continued use of the App after any such modification will constitute your acceptance of such modification. If the modified Agreement is not acceptable to you, your only recourse is to discontinue use of the App and all Materials.
  12. Termination.The licenses granted herein shall automatically terminate without notice if you fail to comply with any material provision of this Agreement.In such event, you must immediately uninstall and delete the App.This shall not limit or affect any remedy available to Masimo for your breach of this Agreement.
  13. Resolution of Disputes.

    (a)        If any dispute arises between the parties relating to this Agreement, one party will provide written notice of the dispute to the other party describing the dispute in reasonable detail.You or representativesof the parties, who are not directly involved in the administration of this Agreement and have the authority to resolve the dispute, must attempt to negotiate a resolution of the dispute.During the negotiation, each party will provide to the other party all information reasonably requested by the other party.The parties will take any actions necessary to toll any applicable statutes of limitation and defenses based upon the passage of time during this period of notice and negotiation.All negotiations under this Section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws.If the dispute is not resolved within 60 days after the written notice is delivered, either party may initiate arbitration.

    (b)        Each party will choose one arbitrator.The parties will attempt to agree on the third arbitrator.If the parties fail to agree on the third arbitrator within 20 days of the parties choosing their arbitrators, the American Arbitration Association(the “AAA”) will choose the third arbitrator.If the dispute involves intellectual property law, despite anything to the contrary, every arbitrator will be an attorney that specializes in the relevant intellectual propertylaw.

    (c)        The arbitrators may grant any remedy or relief that does not conflict with any term in this Agreement, including, but not limited, specific performance or injunctive relief.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.If appealed as provided above, the decision rendered in the appeal will then be deemed final and binding on the parties.The final judgment resulting from the arbitration may be entered in any court having jurisdiction.

    (d)        Except as required by law, the parties (including counsel and other representatives), the witnesses, and the arbitrators may not disclose the existence, contents, or results of any dispute or arbitration under this Agreement 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.

    (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.

    (f)        The prevailing party in any dispute related to this Agreement will receive from the other party all reasonable costs incurred by the prevailing party, including reasonable attorneys’ fees.

    (g)        This Agreement shall be governed by the laws of the State of California, exclusive of its choice of law rules.Any dispute between you and Masimo regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts sitting in the County of Orange in the State of California; provided that any arbitration shall be in Orange County in the State of California.

    (h)        If you are an Apple User, you and Masimo acknowledge that Masimo, not Apple, is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

    (i)         If you are an Apple User, you and Masimo acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Masimo, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. This Section does not confer any rights of indemnity or make any remedy available to you, nor does it enlarge or expand the scope of any remedy or limitation thereof under this Agreement, at law, or in equity.

  14. 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 Corp.

    (b)        You may not assign, sublicense, or transfer this Agreement, the App, the Materials, 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 this Agreement in the event of any such attempted assignment, sublicense, or transfer without Masimo’s consent. Without limiting the foregoing, this Agreement is binding upon and is for the benefit of the respective successors and assigns of the parties hereto.

    (c)        This Agreement is in the English language only, and will only be provided in the English language, which language will be controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto.All communications and notices to be made or given pursuant to this Agreement must be in the English language.

    (d)        The Agreement constitutes the final and complete understanding between you and Masimo with respect to the subject matter of this Agreement. Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto.

    (e)        If any provision in this Agreement 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 this Agreement shall remain in effect.

    (f)        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.

    (g)        No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this Agreement.

    (h)        The parties acknowledge and agree that a material breach of this Agreement adversely affecting Masimo’s proprietary rights would cause irreparable harm to Masimo for which a remedy at law would be inadequate and that Masimo shall be entitled to injunctive relief in addition to any remedies it may have hereunder or at law.

  15. Contact. If you have any questions regarding the App or this Agreement, please contact Masimo Corp. at info@doctella.com or at 52 Discovery, Irvine, Calif. 92618 or by phone: 949-297-7000.