Terms and Conditions of Service

 

1. Applicability

  1. These Terms and Conditions of Service (“Terms”) apply to any services (“Services”) specified in any quote, quotation, agreement, or other contract (“Quote”), which references these Terms, provided to the party identified on the Quote (“Customer”) by the Masimo entity identified in the quote (“Masimo”). The Quote is an offer to Customer to provide the Services, subject to any terms in the Quote and these Terms (Terms, together with the Quote, the “Agreement”) and Masimo’s performance of Services is expressly contingent on Customer’s acceptance of all the terms specified in the Agreement. If any of the Services require the use of any software, whether Masimo’s or a third party’s, the definition of “Agreement” includes the licensing terms of the software, including, without limitation, any end user license agreements included with the software.
  2. By signing the Quote, providing a purchase order referencing the Quote or the Services, or permitting the Services to be performed by Masimo without Masimo expressly agreeing to separate terms and conditions in writing, Customer accepts all the terms specified in the Agreement. Regardless of whether Masimo requires Customer to submit a purchase order or other document to initiate the Services, any conflicting or inconsistent terms on Customer’s purchase order or any other document provided by Customer relating to the Services are hereby rejected and will have no legal effect. The Agreement is the entire agreement between the parties, superseding all prior and current agreements and arrangements, oral or written, relating to the Services.
  3. Despite anything to the contrary in these Terms, if a signed, written contract expressly applying to the Services has been entered into by the parties, the terms and conditions of that written contract will prevail over these Terms to the extent they conflict or are inconsistent with these Terms. If there is a conflict between the Terms, the Quote, and the Service Descriptions (see below), the conflicts will be resolved in the following order of precedence: (1) the Quote; (2) the Service Descriptions; and then (3) these Terms.

2. Services

  1. Masimo will provide the Services, described in the Quote, for the devices, systems, and/or software that are specifically identified in the Quote or other agreement with Customer by serial number or other means (collectively, each a “Covered System”) provided that Customer continues to fulfill all its obligations under the Agreement, including, without limitation, paying any amount due in accordance with the Agreement. All other devices are excluded, including, without limitation, devices, components, parts, software, or any other item manufactured or provided by a party other than Masimo, whether those devices are Masimo original equipment or not. The Services, including any additional exclusions, limitations, and other terms of service, are further described in Masimo’s official service descriptions (“Service Description(s)”). The Service Description is subject to change by Masimo, subject to Masimo providing Customer with at least 90 days’ prior written notice via email or other means and provided that the Services stay substantially equivalent. If the Services are no longer substantially equivalent after the change and if Customer wishes to retain all the features of the previous Services up until expiration of the Agreement or the next renewal period for the Services, whichever is sooner, Customer must provide Masimo with written notice expressing its desire to retain the previous Services within 60 days before the changes are to take effect. Failure to provide Masimo with timely notice will be deemed as Customer’s acceptance of the revised Service Description.
  2. Subject to the provisions of this paragraph, Covered Systems only include those devices, systems, and/or software used at Customer’s facilities that are specifically identified in the Quote and, if none, the specified hospital unit or units located at Customer’s address specified in the Quote, and if none, only those located at the main facility or facilities at Customer’s principal place of business (the hospital units and/or the facilities, as applicable, each a “Covered Site”). A single Covered Site is considered as the building or group of buildings tied to a single physical postal address. In no event will any device, system, software, or other product be a Covered System unless it was obtained directly from Masimo or a Masimo authorized distributor. If a device, system, and/or software was not under warranty from Masimo or under another service agreement with Masimo immediately preceding the effective date of the Agreement, the device, system, and/or software will not be a Covered System until Masimo has confirmed it is fully operational and conforms to Masimo’s applicable specifications, which Masimo will confirm for a mutually agreeable extra charge.
  3. Customer must follow any reasonable instruction, escalation path, or protocol provided by Masimo relating to the Services, including, without limitation, seeking assistance from a trained person on Customer’s staff, if any, before contacting Masimo to resolve a problem, having a qualified staff member, who is trained on the Covered System, if any, make the first contact with Masimo about the problem, performing reasonable remote troubleshooting with Masimo’s trained staff before seeking on-site Services, and reasonably cooperating with Masimo to schedule on-site Services, if determined to be necessary or advisable by Masimo.
  4. Customer must promptly provide all information and assistance as Masimo may reasonably request, including, without limitation, a description of the nature and circumstances creating the need for the Services, information about any connected devices, systems, software or other item or product, information about its IT network configuration, security, or related features, and any other information Masimo may need to facilitate completion of the Services.
  5. If the Services include coverage for any hardware, such as devices, computer hardware, or servers, Masimo will repair or replace the hardware, at its option. Repaired or replaced hardware will have the same warranty, if any, as provided in the agreement under which Customer originally obtained the repaired or replaced hardware. If any hardware is replaced, Customer will return the replaced hardware to Masimo, at its expense, and Masimo will pay for any transportation costs to ship the replacement hardware to Customer. Masimo may replace the hardware with any hardware, new or refurbished, as long the hardware has equivalent features and its performance characteristics are at least as good as the replaced hardware. Post-warranty and extended warranty defect repair or replacement is subject to any disclaimers and exclusions under Masimo’s standard warranty for the device, except to the extent a Services plan specifically states a feature as being included in the plan.
  6. Unless expressly stated otherwise in the Quote or Service Description: (1) on-site Services will only be provided during Masimo’s regular business hours, which are Monday – Friday, 8:00 a.m. to 5:00 p.m. local time, excluding holidays, and only at the Covered Site; (2) for any Services, whether provided remotely or on-site, Customer must provide to Masimo the assistance of a reasonably qualified and knowledgeable representative to assist in troubleshooting any Covered System or IT network related infrastructure (e.g., Wi-Fi) as reasonably necessary for Masimo to complete the Services effectively and efficiently; (3) Customer must clean and de-contaminate the Covered Systems in accordance with the user manual or directions for use before any on-site Services are performed on them; (4) the Services do not include the cost of labor, travel, parts, or software updates or upgrades; (5) same-day on-site Services are subject to the availability of Masimo service personnel; (6) on-site Services will only be provided upon Masimo reasonably determining that providing the Services remotely is or will be inefficient or ineffective; (7) if Masimo replaces any device, system, part, component, or other product as part of the Services, the replacement may be refurbished provided that any warranty that would have been applicable to a new replacement would apply to the refurbished part; (8) if Masimo replaces any part while performing the Services, the replaced part will become the property of Masimo if not already, and Masimo may take and keep possession of that part; (9) if on-site Services are required, the time required for Masimo personnel to travel to Customer’s facility will be deducted from Customer’s allocation of purchased Service hours; (10) if on-site Services must be provided outside normal business hours or during holidays observed by Masimo, the rate for such Services will be higher than Masimo’s typical rate unless otherwise agreed by Masimo in writing; and (11) the number of hours per year of on-site support included under a plan is applicable to only a single Covered Site; additional plans must be purchased for additional facilities.
  7. In no event will Masimo be required to make any structural changes to Customer’s buildings, patient rooms, or facilities, such as drilling or penetrating walls, floors, or ceilings, or otherwise performing any tasks that require training and certification under applicable law.

3. Prices; Payment Terms; Per Unit Charges

  1. The prices for the Services are as specified in the Quote. Any Services provided before the effective date of the Agreement or after the term of the Agreement, or Services that are provided but not specified on the Quote, will be billed by Masimo on a time and materials basis at Masimo’s then-prevailing rates. Unless expressly stated in the Service Description, the prices in the Quote do not include any taxes, fees, or duties of whatever sort due on the Services or parts, and Customer agrees to pay or reimburse Masimo for any of these taxes, fees, or duties (except those imposed on Masimo’s income). Upon providing at least 90 days’ prior written notice to Customer, Masimo may raise the prices once per year by the inflation rate reflected in the consumer price index.
  2. Unless otherwise specified in the Quote, all payments for Services will be made on an annual pre-paid basis by Customer as reflected in Masimo’s invoice to Customer. Customer will issue a purchase order to Masimo for any quote within five business days after the Effective Date of the Agreement. For any Services plans spanning a multi-year term, Customer will issue to Masimo a standing purchase order for the entire term providing for annual payment by Customer on each anniversary date of the term. All payments for the Services are due within 30 days after the invoice date. If unapproved for credit, payment will be made in cash or other form as agreed by Masimo before any Services will be provided by Masimo. Payment may be made only by check, by electronic funds transfer (EFT) via automated clearing house (ACH), or by wire transfer. Each party will provide any required banking information necessary to enable payment, and bear its own bank service charges. If payment is made by check, the check must be sent to the address specified on the invoice. Late payments are subject to interest charges of the lesser of 1½% per month or the legal maximum. Customer must pay any expense incurred by Masimo to collect any late payment, including, without limitation, attorney’s fees. Payments will be deemed made only when received by Masimo at the address specified on the invoice. If Customer has not paid within 30 days after payment is due or fails to perform its obligations under the Agreement, Masimo may suspend the Services until paid in full or Customer has otherwise come into full compliance with the Agreement, without any penalty or ongoing obligation to Customer whatsoever.
  3. If the Services are charged on a per item or per activity basis, e.g., per Covered System, per monitored bed, and/or per patient record, if requested by Masimo, Customer will provide Masimo within 10 days following the end of each month a complete and accurate count of each item or activity for which the charge applies in a form reasonably requested by Masimo. Upon submitting each count to Masimo, Customer represents that the count is accurate to the best of its knowledge. In any event, Customer agrees to maintain complete and accurate records of each item or activity measured and will make such records available to Masimo upon request for Masimo to verify the accuracy of its charges for the Services. If there is any discrepancy between the charges and the count or records, a representative from each of the parties having authority to bind the parties will cooperate to reconcile the discrepancies.

4. Access; Network Requirements; Hardware Requirements; & On-Site Requirements

  1. As reasonably required by Masimo to provide any of the Services, but subject to the terms below, Customer will provide reasonable on-site or remote access to the Covered Sites and the Covered Systems, remote or on-site access to Customer’s IT network (e.g., through a virtual private network or VPN), or both. If the Services require remote or on-site access and Customer does not or is unable to provide Masimo appropriate access, Masimo will not be liable for failure to provide the Services that require access. Customer will notify Masimo of any changes to Customer’s IT network, including, without limitation, network configuration, security settings, or other features, that may affect the Services before making the change. Additional installation time required to address changes made to the network configuration which are not communicated in advance to Masimo will be billed to customer at Masimo’s then-current time and materials rate. Unless expressly authorized by Customer, Masimo will not access Customer’s IT network, but Masimo will not be obligated to provide any Services where Customer refuses or is unable to give access reasonably required for Masimo to provide the Services in a cost effective and time efficient manner. If on-site Services are unable to be completed by Masimo in a timely and efficient manner because Customer has not permitted access, either to the site or to Customer’s IT network, or any necessary assistance from a knowledgeable Customer representative, Masimo may charge Customer its then-prevailing time and materials rates for the applicable on-site visit in addition to any other charges applicable to the visit, as liquidated damages to compensate Masimo for the time spent by its personnel waiting to gain access or, if Masimo’s personnel was unable to provide any on-site Services, the time spent travelling to and from the site and for any time spent waiting for access that was not given.
  2. Customer must provide a VPN connection to each Covered System connected to Customer’s IT network. Within 10 days of purchasing the Services, Customer must provide all necessary network configuration data and assistance required to achieve the necessary remote connection and to install the Covered Systems so that they are fully functional, designate an appropriate IT liaison, and provide Masimo (via e-mail to PSN@masimo.com) with the IT liaison’s name and contact information. Customer will complete Masimo’s Systems Infrastructure Configuration Questionnaire and return it to Masimo within 30 days of receipt. The IT liaison will provide technical assistance and coordination necessary to configure and install the Covered System.
  3. If, during on-site service, the defect or service issue is discovered to be caused by Customer’s network, systems, hardware, software, or any other cause not related to a defect or issue with a Masimo product, Customer will be required to purchase additional hours for that on-site service, and those hours may not be deducted against the allocated number of hours included with any service plan.
  4. If the Services require access to any protected health information or other personally identifiable data, Masimo will enter into a mutually agreeable business associate agreement with Customer before providing the Services if requested by Customer. Otherwise, Masimo will comply with all laws relating to the protection of this information or data, including the HIPAA and HITECH laws or any other laws that are applicable to this information or data in the location of the Customer. In any event, Customer will make reasonable efforts to prevent the transmission of protected health information or other personally identifiable data to Masimo.
  5. Before any Services must be provided by Masimo that require access to Customer’s IT network, Customer will ensure that its IT network meets the minimum system performance and security requirements provided by Masimo. Without limiting the foregoing requirement, if any Covered System is connected to Customer’s IT network as a result of this or any other agreement with Masimo, Customer will ensure that the IT network to which the Covered System is connected is secured using appropriate safeguards to protect Masimo’s devices and systems from cybersecurity and similar threats.
  6. If Customer is providing access via a hardwired network, Customer must provide (1) all cable routing and termination in conformance to standards, (2) an adequate number of switch / router ports to support all available bedsides where Masimo devices or systems may be connected, and (3) cabling drops and termination to all applicable devices.
  7. Customer must provide adequate physical space, ventilation, and emergency power for the Covered Systems.

5. Limitations and Exclusions

The Services are limited to the specific services, features, and benefits expressly stated either in the Quote or the Service Description and excludes all other services, features, and benefits. Without limiting the generality of the foregoing limitation and exclusion, unless stated otherwise in the Quote or Masimo’s Service Description, the following are specifically excluded from the Services, provided that, if the Services include coverage for any of the below, it will include it only to the extent expressly stated in the Quote or the Service Description:

  1. Any network enhancements or upgrades to Customer’s IT network, including hardware, software, cabling, or other items;
  2. Replacement or service of consumable items such as batteries, patient cables, patient sensors, adapters, protective covers, external connection cables (e.g., RS232, serial, Satshare®, and Iris Adapter);
  3. Troubleshooting or support of Customer’s IT network or infrastructure;
  4. The moving, decontamination, de-installation, re-installation, or disposal of a Covered System;
  5. Damage or repair caused or necessitated by: (1) use of any consumable, part, sensor, accessory, or other product, device, or system with the Covered System that is not provided by Masimo or expressly authorized and licensed for use with the Covered System; (2) operation of the Covered System outside the recommended environmental or power ranges specified in, or not in accordance with, the applicable directions for use; (3) neglect, accident, abuse, misuse, liquid contact, fire, or other external cause; (4) modification of the Covered System by anyone other than Masimo; (5) lack of performing the maintenance recommended in the applicable directions for use; (6) negligent acts or omissions by anyone other than Masimo; (7) repairs made by persons other than those expressly authorized by Masimo in writing; or (8) repairs or service necessary due to Customer’s changes, settings, or configurations that affect the device or Covered System, such as changes in hardware/software configuration or internet protocol class or gateway.
  6. Operating system or software issues that do not materially affect the performance or function of the Covered System;
  7. Support to interface a Covered System with any non-Masimo manufactured or supplied device, application, system, software, network, or other item or product requiring custom or any special software programming by Masimo or any other party;
  8. Data recovery services, regardless of the cause of data loss;
  9. Training, product demonstrations, adaptations, or modifications required by new regulations;
  10. Support for any end-of-life devices or Covered Systems for which, among other reasons, there is an unavailability of parts or trained personnel or the Covered System cannot be maintained in a commercially reasonable or safe or effective manner; and
  11. Any other exclusion or limitation specified in the Service Description.

6. Warranty and Disclaimer

Provided that Customer fulfills all of its obligations under the Agreement, Masimo warrants to Customer that the Services will be performed in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, it will use reasonable efforts to resolve any problem with a Covered System, and that any replacement parts supplied in connection with the Services will conform to Masimo’s specifications at the time of the replacement. Masimo’s sole liability under this warranty is (a) re-performance of the Services (and/or replacement of any defective replacement part) or, at Masimo’s option, (b) giving Customer a pro-rata credit or refund for the price paid for the defective Services. The remedies in this section are Customer’s sole and exclusive remedy and Masimo’s entire liability under this warranty. Masimo makes no other warranty with respect to the Services, express or implied, or otherwise, including any for merchantability, fitness for its intended purpose, satisfactory quality, or reasonableness. Masimo specifically does not warrant that it will be able to repair or replace any device without loss of any data stored on the device or that any Service will completed in shorter than a reasonable period of time.

7. Limitations of Liability

In no event will Masimo be liable for any indirect, punitive, incidental, consequential, or special damages, regardless of the theory of law or equity under which they are alleged even if Masimo has foreseen or has been advised of the possibility of these damages and despite the failure of any remedy to fulfill its essential purpose. The total liability of Masimo for all damages and based on any claim, regardless of the theory of law or equity under which it is alleged, arising from the Services or Masimo’s performance of the Services, is limited to the total fees paid by Customer for the Services.

8. Term; Termination

  1. The Agreement will be effective for the term of the Services specified in the Quote or as long as Masimo is providing the Services, whichever is longer. The Services may be cancelled by Masimo at any time upon providing Customer with at least 90 days’ prior written notice. Customer may only cancel the Services during the term of the Services specified in the Quote only if so specified in the Quote and then only as provided in the Quote. Any amounts pre-paid by Customer for Services cancelled in accordance with the Agreement will be refunded by Masimo in an amount equal to the pre-paid amount less the higher of (1) the pro-rated amount for the period the Services were pre-paid but not provided or (2) the difference in amount that Masimo would have charged Customer for the Services if provided on a time and materials basis at Masimo’s then-prevailing rates and the amount specified in the Quote.
  2. Either party may terminate the Agreement if, after 60 days following notice of a material breach from a party, the breaching party fails to cure the breach within that time. Customer’s failure to pay is a material breach. Because the Covered Systems require Masimo to provide the Services to maintain their proper operation and functions, Customer’s breach of the Agreement or cancellation not in accordance with the Agreement will be deemed a breach of any agreement between the parties relating to the Covered Systems, and, in such event, Customer releases and will hold Masimo harmless from any and all claims, damages, and liabilities arising out of or in any way connected with Customer’s continued use of the Covered Systems without the Services, as deemed necessary by Masimo.
  3. If Masimo reasonably determines that it is unable to provide Service coverage because of unavailability of parts or trained personnel or the Covered Systems can no longer be maintained without undue burden, then Masimo may terminate the Agreement with respect to the affected Covered Systems upon 30 days’ notice to Customer and will provide Customer with a refund or credit for the pro-rata amount of any pre-paid amounts for Services not already completed.

9. Insurance

Masimo will maintain, at its expense, insurance coverage with reputable insurance carriers of the types and with limits customary for providers of services that are similar to the Services, including, as applicable, commercial general liability, cyber security, professional liability, and workers’ compensation insurance, and will provide proof of such insurance upon request of Customer. Customer expressly waives any and all claims against Masimo (regardless of cause) for all loss or damage resulting from any peril or damage covered by Customer’s insurance policies.

10. Confidentiality

The information in this document is confidential and proprietary and may cause Masimo substantial competitive harm if disclosed to a third party. In addition, during the Agreement, the parties may disclose to each other nonpublic and proprietary information or material or learn nonpublic and proprietary information about each other’s operations, including the Services. Neither party will disclose or use any nonpublic and proprietary information or material of the other party, including, without limitation, the information in the Agreement, for any purpose other than that for which the information or material was provided, without the prior written consent of the disclosing party. Despite the above, Masimo may identify Customer as its customer, and either party may issue a press release regarding this agreement subject to the written approval of the other party, which may not be unreasonably withheld or delayed.

11. Force Majeure

If Masimo is unable or is delayed in providing any Services for causes beyond its control, Masimo’s obligation to provide the Services will be suspended until Masimo is reasonably able to resume providing the Services. If Masimo is unable to provide the Services for more than 30 consecutive days because of a force majeure event and the cause is not within the reasonable control of Customer, Customer may terminate the Agreement upon written notice to Masimo, and Masimo will provide Customer with a refund or credit for the pro-rata amount of any pre-paid amounts for Services not already completed.

12. General

If the parties have entered into an agreement under which a Covered System was provided to Customer (“Product Agreement”), the Product Agreement will continue to apply except to the extent that it directly conflicts with a term in the Agreement and shall be read together to the greatest extent possible. Insofar as any software, product, or other item is provided to Customer as part of the Services, the terms in the Product Agreement will apply as if such software, product, or other item was provided under the Product Agreement. Each party will comply with all applicable laws in performing its obligations under the Agreement. Masimo is Customer’s independent contractor and no other relationship exists between the parties. Customer may not assign the Agreement without Masimo’s written consent, and the Agreement will be binding on the parties’ successors and permitted assigns. Any provision of the Agreement that must survive termination of the Agreement to give effect to the intention of the provision will survive termination of the Agreement. The failure of either party to enforce any obligation will not affect the right to enforce that obligation at any time after. If any part of the Agreement is held to be invalid or unenforceable, that part will be severed, and the rest of the Agreement will remain in effect. The Agreement is governed by and construed in accordance with the laws of the state where Customer is located, excluding its choice of law provisions. Any dispute arising between the parties will be resolved in accordance with the arbitration provisions in the Product Agreement, if any, which provisions are incorporated into the Agreement by this reference.

PLCO-003883/PLMM-11598A-0520