Masimo Trace™ END USER LICENSE AGREEMENT
IMPORTANT – PLEASE READ CAREFULLY: This End User License Agreement (this “Agreement”) is a legally enforceable contract between you (either an individual or an entity) and Masimo Americas, Inc., a Delaware corporation (“Masimo”), regarding your use of Masimo’s proprietary Trace software accompanying or provided under this Agreement, together with the associated Documentation, technical configurations, and technical data (the “Trace Software”). “Documentation” means the user manual and other documentation (including print and online), if any, provided to you with the Trace Software.
In addition, certain third party programs or code (“Third Party Software”) are being provided to you under the terms and conditions of separate and distinct license agreements, copies of which are contained in or can be found at the locations set forth in Schedule A (“Thirty Party Licenses”).
BY CLICKING “I ACCEPT” BUTTON BELOW OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE TRACE SOFTWARE, 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 TRACE SOFTWARE.
- 1. Limited License. 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 2 below), to install and use the Trace Software, in object code version, on a single computer for your internal business purposes.
- 2. Term. Trace Software can be used by you for 14 days before requiring you to activate the software (the “Trial Period”). At the end of the Trial Period, the software may contain mechanisms that will terminate your ability to use the Trace Software. Following the expiration of the Trial Period, you must obtain license or activation keys from Masimo (one per twelve-month period), which will provide you with use of the Trace Software for successive twelve-month periods (each such period, the “License Period” and collectively with the Trial Period, the “Term”), upon payment of an annual license fee plus any applicable taxes through one of the payment methods accepted by Masimo. Upon receipt of such license fees, Masimo will provide you another license key to activate the Trace Software for the License Period on a single computer.
- 3. Backup Copies. You may make one backup copy of the Trace Software, provided your backup copy is not installed or used on any computer and further provided that such copy bears the original and unmodified copyright, patent and other intellectual property markings that appear on or in the Trace Software. You may not transfer the rights to a backup copy unless you transfer all rights in the Trace Software as provided in this Agreement.
- 4. Ownership. You acknowledge that the Trace Software 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 structure, sequence and organization of the Trace Software are the valuable trade secrets and confidential information of Masimo and its licensors. Trace Software 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 Trace Software. You will take no actions which adversely affect Masimo’s intellectual property rights in the Trace Software. This Agreement is a license and not an agreement for sale. No title to, or ownership of, the Trace Software, or any intellectual property rights subsisting therein, is transferred to you.
- 5. Restrictions. Trace Software is licensed solely for internal use within your organization 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 Trace Software except as expressly set forth in this Agreement, (ii) disassemble, decompile, reverse engineer, or translate any part of the Trace Software, or otherwise attempt to reconstruct or discover the source code of the Trace Software, 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 Trace Software, (iv) externally distribute, sublicense, resell, encumber or otherwise transfer the Trace Software, (v) rent, lease, lend, or use the Trace Software, or any part thereof, for timesharing or bureau 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 Trace Software, (vii) take any action that would cause the Trace Software to be placed in the public domain or become subject to open source license agreement, or (viii) use the Trace Software 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 Trace Software 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 Trace Software licensed under this Agreement. The Trace Software and all updates and upgrades are licensed as a single product and such updates and upgrades may not be separated from the Trace Software to exceed the scope of your original license.
- 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 Software. You may contact Masimo to determine the availability of support, maintenance, and new versions, and the fees, terms and conditions that would apply.
- 8. Limited Warranty. Masimo warrants that the original copy of the Trace Software will perform substantially in accordance with the accompanying Documentation for a period of 90 days from the date of the initial installation. Masimo does not warrant that functions contained in the Trace Software will meet your requirements or that the operation of the Trace Software will be error-free or uninterrupted. As your exclusive remedy for breach of Masimo’s warranty, Masimo shall use reasonable efforts to provide maintenance, modifications or fixes in a timely manner, or at its option replace the Trace Software, provided the Trace Software is returned with a copy of your receipt. This limited warranty is void if failure of the Trace Software has resulted from accident, abuse, alteration or misapplication. Any replacement software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. 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 Trace Software or any upgrade or update is procured, nor is Masimo responsible for problems which occur as a result of the use of the Trace Software in conjunction with software of third parties or with hardware, which does not meet Masimo’s specific requirements.
- 9. Disclaimer of Warranties. EXCEPT AS EXPRESSLY WARRANTED ABOVE IN SECTION 8, THE TRACE SOFTWARE IS PROVIDED “AS IS,” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER MASIMO NOR ITS LICENSORS REPRESENT OR WARRANT THAT THE TRACE SOFTWARE WILL SATISFY YOUR REQUIREMENTS OR THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of these may not apply to you.
- 10. Limitation Of Liability. EXCLUDING SECTION 11, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, EXCEPT FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND EXCLUDING YOUR BREACH OF ANY OF SECTIONS 1 THOUGH 5 ABOVE, (I) IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS AND 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 TRACE SOFTWARE 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, either party’s liability shall be limited to the greatest extent permitted by law. This section shall survive the termination of this Agreement.
- 11. 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 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.
- 12. 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.
- 13. Third Party Licenses. You understand and agree that, although provided to you by Masimo with the Trace Software, 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.
- 14. Export Restrictions. 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 Trace Software, 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.
- 15. High Risk Activities. The Trace Software 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”). The Company specifically disclaims any express or implied warranty of fitness for High Risk Activities.
- 16. 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 return the Software, including all Documentation and original media, to the Company. This shall not limit or affect any remedy available to the Company for your breach of this Agreement.
- 17. 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. Executives of 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 patent law, despite anything to the contrary, every arbitrator will be an attorney that specializes in patent law. (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.
- 18. Miscellaneous.
(a) If you are a unit or agency of the United States Government, the following applies: The Trace Software 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, Inc. (b) You may not assign, sublicense, or transfer this Agreement, the Trace Software, 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. (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.
SCHEDULE A THIRD PARTY SOFTWARE
This Schedule A contains Third Party Licenses for Trace Software. These licenses apply only with respect to the software supplied by the named third party and are made a part of and incorporated by reference into the Trace Software End User License Agreement that references these notices and/or additional terms and conditions.
- Copyright (c) 2007 Henri Torgemane
All Rights Reserved.
- BigInteger, RSA, Random and ARC4 are derivative works of the jsbn library (http://www-cs-students.stanford.edu/~tjw/jsbn/)
The jsbn library is Copyright (c) 2003-2005 Tom Wu ([email protected])
- MD5, SHA1, and SHA256 are derivative works (http://pajhome.org.uk/crypt/md5/)
- Those are Copyright (c) 1998-2002 Paul Johnston & Contributors ([email protected])
- SHA256 is a derivative work of jsSHA2 (http://anmar.eu.org/projects/jssha2/)
- jsSHA2 is Copyright (c) 2003-2004 Angel Marin ([email protected])
- AESKey is a derivative work of aestable.c (http://www.geocities.com/malbrain/aestable_c.html)
- aestable.c is Copyright (c) Karl Malbrain ([email protected])
- BlowFishKey, DESKey and TripeDESKey are derivative works of the Bouncy Castle Crypto Package (http://www.bouncycastle.org)
- Those are Copyright (c) 2000-2004 The Legion Of The Bouncy Castle
- Base64 is copyright (c) 2006 Steve Webster (http://dynamicflash.com/goodies/base64)
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. Neither the name of the author nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THE SOFTWARE IS PROVIDED "AS-IS" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL TOM WU BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT ADVISED OFTHE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUTOF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE.
Address all questions regarding this license to:
Additionally, the MD5 algorithm is covered by the following notice:
Copyright (C) 1991-2, RSA Data Security, Inc. Created 1991. All rights reserved.
License to copy and use this software is granted provided that it is identified as the "RSA Data Security, Inc. MD5 Message-Digest" in all material mentioning or referencing this software or this function.
License is also granted to make and use derivative works provided that such works are identified as "derived from the RSA Data Security, Inc. MD5 Message-Digest Algorithm" in all material mentioning or referencing the derived work. RSA Data Security, Inc. makes no representations concerning either the merchantability of this software or the suitability of this software for any particular purpose. It is provided "as is" without express or implied warranty of any kind.
These notices must be retained in any copies of any part of this documentation and/or software.
The MIT License (MIT)
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.