- General. This Service is owned and operated by Masimo Corp. and/or its affiliates (“Masimo” or “we” or“us”). We reserve the right to revise any of these Terms in our sole discretion at any time by updating this posting, such changes to be effective prospectively. We will notify you of any changes to these Terms by posting them to this page. Your continued use of the Service after a change has been posted constitutes your acceptance of the change. If you disagree with any of these Terms, your sole optionis to discontinue your use of this Service.
- Permitted Users. By accessing or using the Service, 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 these Terms, and that you are not barred from setting up an account, using the Service, or receiving the Service 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 these Terms on the minor’s behalf and are responsible for all use of the account and the Service, including any purchases. No one under the age of 13 is permitted to use the Service. You can create anaccount for others only where you are the authorized individual-representative (a parent, guardian or legal representative establishing an account for the Service). 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 anaccount for them. We reserve the right to restrict in our sole discretion who is eligible to use the Service, or set up an account, and to reject a request to create an account or close an account at any time without liability.
- Copyright. This Service, and all content available hereon, is protected by copyright. Except for the Materials (subject to the license set forth in the next section of these Terms), no portion of this Service may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without Masimo’s prior written consent. Any such modification or use of the Service’s content for any purpose not authorized under these Terms is a violation of the copyrights and other proprietary rights of Masimo (or other entities where so indicated). Permission for all uses of the Service other than as expressly authorized under these Terms, including reproducing and distributing multiple copies, or linking to any page at this Service except the “home page” (https://doctella.com ), must be obtained from Masimo in advance. Any such request should be submitted via an email to email@example.com . The use of this Service, or any content available hereon, on any other website or networked computer environment is prohibited. All design rights, compilation rights, and other intellectual property rights in and to this Service, in each case whether registered or unregistered, and related goodwill are proprietary to Masimo.
- Materials; Restrictions. The information and content, including without limitation, questions, notes and other medical procedure-related materials, specified as available to be downloaded from orotherwise accessed on this Service are collectively referred to as the “Materials”. Materials do not include your data. The Materials, as well as the infrastructure used to provide such content and information, is proprietary to Masimo. Except as permitted in the Terms, you agree not to otherwise modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, sell, or re-sell any Materials obtained from or through this Service. Masimo grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use and copy solely for your personal and non-commercial purposes any of the Materials that you download from or otherwise access on this Service. Additionally, you agree not to use this Service or the Materials other than on the technology platform maintained by Masimo. Except as expressly authorized in the previous sentence, you shall not, directly or indirectly, in whole or in part: (i) copy any of the Materials without Masimo’s prior written consent; (ii) sell, rent, sublicense, distribute, publish, assign or otherwise transfer any rights in any of the Materials without Masimo’s prior written consent; (iii) permit any third party to benefit from the use of any of the Materials via a timesharing, service bureau, or similar arrangement; (iv) use any of the Materials in any unlawful manner or for any unlawful purpose; (v) remove or destroy any copyright notices or other proprietary markings on any of the Materials; (vi) do anything which adversely affects Masimo’s right, title, or interest in or to the Materials; or (vii) provide your login credentials and password to any other person.
- No Provision of Medical Care. The Service 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 on this Service, including the Materials and all other text, graphics, images, and other content, is provided for informational purposes only. The tools and information that the Service provides 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 this Service, the Materials, or anyinformation thatMasimo 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 this Service. Masimo does not recommend or endorse any specific tests, products, procedures, opinions, or other information that may be described on this Service.
- How You Should Use the Information from this Service. You should never disregard professional medical advice or delay seeking professional medical advice, diagnosis, or treatment based on anything you read or obtain on this Service. 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 this Service.
- Accuracy, Completeness, Timeliness. 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 thisService 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 this Service. The use of any content that Masimo provides is at your own risk. Masimo shall not be liable for your reliance on any incorrect or outdated information on this Service or in the Materials. Masimo further assumes no liability or responsibility for any errors or omissions in any of the content of this Service, the Materials, or the information provided to you.
- Prohibited Activities. In using this Service, you must not:
- Send or otherwise transmit to or through this Service any unlawful, infringing, harmful, harassing, defamatory, threatening, vulgar or otherwise objectionable material of any kind.
- Misrepresent your identity or affiliation in any way.
- Violate any applicable laws or regulations or
- Assist or permit any persons in engaging in any of the activities described above.
- Submissions.By submitting content to this Service by postings on this Service or otherwise, including any list of questions, checklists, comments, suggestions, ideas or the like contained in any submissions (collectively, “Submissions”), you grant Masimo and its affiliates a nonexclusive, royalty-free, perpetual, transferable, irrevocable, and fully sublicensable right to (a) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such Submissions throughout the world in any media, now known or hereafter devised, for any purpose; and (b) use the name that you submit in connection with such Submission. You acknowledge and agree that the Submissions are not being made on behalf of any institution or your employer, and that you are acting only on behalf of yourself as an individual. You acknowledge that Masimo may choose to provide attribution of your Submissions at our discretion. You further grant Masimo the right to pursue at law or equity any person or entity that violates your or Masimo's rights in the Submissions. You acknowledge and agree that Submissions are non-confidential and non-proprietary.
By providing Submissions to the Service, you expressly agree not to post, upload to, transmit, distribute, store, create or otherwise publish through this Service any of the following:
- Any message, data, information, text, music, sound, photos, graphics, code or any other material (“Content”) that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable.
- Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law.
- Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party.
- Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including Masimo.
- Personalor medical information of any third party, including, without limitation, surname (family name) addresses, phone numbers, email addresses, Social Security numbers and credit card numbers.
- Content or links to content that, in the sole judgment of Masimo, (a) violates the previous subsections herein, (b) is objectionable, (c) which restricts or inhibits any other person from using or enjoying this Service, or (d) which may expose Masimo or its affiliates or its users to any harm or liability of any type.
- Content or links to content that contain software viruses or other harmful or deleterious computer code, files, or programs, such as trojan horses, worms, time bombs, or cancelbots.
- Content that interferes with this Service or interferes with or disrupts servers, systems, or networks connected to this Service, or violates the regulations, policies, or procedures of such servers, systems or networks.
- Content that harasses or interferes with another customer’s use and enjoyment of this Service.
- Content that in Masimo’s sole discretion, inordinately burdens the resources of Masimo or its affiliates that are providing thisService.
Masimo takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Masimo liable to you or any third party for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, Masimo is not liable for any statements, representations or Content provided by its users in any public forum, personal home page or other interactive area. Although Masimo has no obligation to screen, edit or monitor any of the Content contained in the Submissions, Masimo reserves the right, and has absolute discretion, to remove, screen, translate or edit without notice any Content posted or stored on this Service at any time and for any reason, or to have such actions performed by third parties on its behalf, and you are solely responsible for creating backup copies of and replacing any Content you post or store on this Service at your sole cost and expense.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the Content, you represent, warrant, and/or covenant that (a) you do not require that any personally identifying information be used in connection with the Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the Content by Masimo or its licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights in any of the Content; and (d) you forever release Masimo, and its licensees, successors and assigns, from any claims that you could otherwise assert against Masimo by virtue of any such moral rights.
Any use of this Service in violation of the foregoing violates the Terms and may result in, among other things, termination or suspension of your rights to use the Service.
- Masimo DMCA Policy. Masimo respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Masimo will endeavor to respond expeditiously to claims of copyright infringement committed using the Service if such claims are reported to Masimo’s Designated Copyright Agent identified in the sample notice below.
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Service by completing the following DMCA Notice of Alleged Infringement and delivering it to Masimo’s Designated Copyright Agent. Upon receipt of Notice as described below, Masimo will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Service.
DMCA Notice of Alleged Infringement (“Notice”)
- Identify the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by this Notice, you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Service or the exact location where such material may be found.
- Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice:
- I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
- I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Masimo’s Designated Copyright Agent:
Irvine, CA 92618
- Trademarks. All trademarks, service marks, logos and trade names on this Service, whether registered or unregistered, including but not limited to “DOCTELLA”, “MASIMO”, and “PATIENT DOCTOR TECHNOLOGIES, INC.” are proprietary to Masimo or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.
- Links to Other Websites. For your convenience, this Service may contain links to other websites. If you use these links, you will leave this Service. Certain of these linked websites may make use of Masimo’s intellectual property rights (such as copyrights, trademarks, service marks, logos and trade names) under license from Masimo. We are not responsible for the availability or content of these other websites or for any viruses or other damaging elements encountered in linking to a third-party website, whether or not Masimo is affiliated with the owners of such websites. In addition, providing links to these websites should not be interpreted as endorsement or approval by Masimo of the organizations sponsoring such third-party websites or their products or services. These Terms do not apply to any other website.
- Use in Certain Locations. This Service is controlled and operated by Masimo from its offices within the State of California. Masimo makes no representation that the Materials or any other content available on this Service are appropriate or available for use in other locations. Those who choose to access this Service do so on their own initiative and are responsible for compliance with alllaws, if and to the extent such laws are applicable. Access to this Service from jurisdictions where the contents of this Service are illegal or penalized is prohibited. No information or software from this Service may be downloaded or otherwise re-exported (i) into or to a national or resident of any country to which the United States embargoes or sanctions goods, services, or technology; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or any other similar list. By using information or software from this Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
- Termination. Masimo may terminate your use of this Service at any time in our sole discretion. Upon any such termination, you must destroy any Materials or any other content obtained from this Service and all copies thereof. The provisions of these Terms concerning Service security, prohibited activities, copyrights, trademarks, user submissions, disclaimer, limitation of liability, indemnity, and jurisdictional issues shall survive any such termination.
- No Guarantee. You acknowledge that Masimo does not endorse, represent, warrant, or guarantee the truthfulness, accuracy, completeness, or reliability of any of the Materials or any other content available on this Service. You acknowledge that any reliance on any of the Materials or any other content available through the Service will be at your own risk.
- Disclaimer of Warranties. THE SERVICE AND ALL OF THE MATERIALS AVAILABLE ON THIS SERVICE, AND ALL OTHER CONTENT HEREON, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MASIMO AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, REASONABLE CARE, AND NON-INFRINGEMENT. Masimo DOES NOT WARRANT THAT THIS SITE OR THE SERVICEOR ANY PART THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, UNBREACHABLE, THAT DEFECTS WILL BE CORRECTED, WILL MEET YOUR QUALITY AND PERFORMANCE REQUIREMENTS, OR THAT THIS SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Masimo DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE, MATERIALS, OR ANY OTHER CONTENT ON THIS SERVICE, INCLUDING WITHOUT LIMITATION, THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL MASIMO BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF BUSINESS, GOODWILL, REVENUE, USE, OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, OR ANY ALTERATION, COMPROMISE, CORRUPTION, OR LOSS OF YOUR DATA)ARISING OUT OF, OR IN ANY WAY CONNTECTED TO, OR RESULTING FROM THE USE OF, OR THE INABILITY TO USE, THIS SERVICE OR MATERIALS, OR THESETERMS, EVEN IF MASIMO OR A MASIMO AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW SOME OR ALL OF THIS LIMITATION OF LIABILITY, SO IT MAY NOT APPLY TO YOU. MASIMO’S AGGREGATE LIABILITY UNDER THESETERMS SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY YOU FOR THE SERVICE FOR THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.No claim against MASIMO may be brought more than one (1) year after the facts giving rise to such claim have arisen. The limitations of liability and exclusions of damages in this Section 17 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in thESETERMS is found to have failed its essential purpose.
- Service Security. You are prohibited from violating, or attempting to violate, the security of this Service. Any such violation may result in criminal and/or civil penalties against you. Masimo will investigate any alleged or suspected violations and if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations.
- Doctella Premium Subscription. This section only applies when you purchase a subscription to view health data shared with you by others.
- By paying the subscription fee, you will get access to view health data shared with you by another user.
- On iOS, payment will be charged to your iTunes Account at confirmation of purchase.
- On Android, payment will be charged to your Google Play Store account.
- To view health data for additional users, you may be required to buy additional subscriptions and/or upgrade your existing subscription.
- Purchasing each subscription will allow you to view health data shared with you by one additional user.
- All subscriptions are paid in advance.
- You may cancel your subscription at anytime.
- On iOS, subscriptions can only be cancelled through iTunes Accounts Settings from the device you made the purchase on.
- Subscriptions may be managed by the user by going to the user's Account Settings after purchase.
- Any unused portion of a free trial period, if offered, will be forfeited when the user purchases a subscription.
- Doctella reserves the right to change subscription fees from time to time.
- Governing Law. These Terms shall be interpreted in accordance with the laws of the state of California without reference to its conflict of law provisions.Any dispute between you and Masimo regarding theseTerms 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.
(a) If any dispute arises between the parties relating to theseTerms, one party will provide written notice of the dispute to the other party describing the dispute in reasonable detail. You or representatives of the parties, who are not directly involved in the administration of these Terms 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 property law.
(c) The arbitrators may grant any remedy or relief that does not conflict with any of these Terms, 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 these Terms 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 these Terms will receive from the other party all reasonable costs incurred by the prevailing party, including reasonable attorneys’ fees.
- Other. If any provision of these Terms is unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the Doctella End User License Agreementarethe entire agreement between the parties relating to the subject matter herein (unless you are a beta customer of Masimo, in which case any conflicting terms of your beta customer agreement with Masimo shall control as long as such agreement is in effect). If there is any conflict between these Terms and the Doctella End User License Agreement, the agreement that is more protective of a party’s rights shall govern and control to the extent of such conflict.
- Questions. If you have any questions regarding these Terms, please submit your questions via an email to firstname.lastname@example.org . We will endeavor to respond to you promptly.