LAST UPDATED: April 19, 2023
By making your reservation, you understand and agree to the following:
1. PLEASE READ THESE TERMS CAREFULLY. THEY INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION FOR USERS IN THE UNITED STATES, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF THIS SITE OR THESE RESERVATION TERMS TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. THIS PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.
3. These Reservation Terms are not an agreement to purchase a Masimo Freedom Smart Watch (the “Freedom Watch”) or Masimo Freedom Band (the “Freedom Band”), nor do they constitute a purchase or order of a Freedom Watch or Freedom Band and will not be recognized as such in official company communications.
4. Each $100 payment made under the Reservation Terms (the “First Reservation Payment”) secures an approximate reservation position to place an order for the purchase of Freedom Watch or Freedom Band. The user may make a second reservation by making an additional $100 payment (a “Second Reservation Payment”) for an additional Freedom Watch or Freedom Band. The time of delivery of the Freedom Watch or Freedom Band will depend upon time of production and relevant place in time of your reservation. For the avoidance of doubt, a user may make a First Reservation Payment and a Second Reservation Payment for any combination of two (2) Freedom Watches or Freedom Bands.
5. A reservation becomes effective under these Reservation Terms once Masimo Consumer receives the full $100 deposit (or subsequent $100 deposit for a second reservation) and you accept these Reservation Terms.
6. When the start of production for a reservation nears, you will be notified and given the opportunity to convert your reservation into a final purchase order which will include the full purchase price, plus applicable taxes, less the $100 deposit already paid.
7. You may cancel a reservation at any time, for any reason or no reason, by sending notice to Masimo Consumer, on the website, or contacting support (email@example.com) at any time prior to submitting a final purchase order for the Freedom Watch.
9. Each Reservation Payment is fully refundable in the event you cancel your reservation at any time prior to entering into the final purchase order. All refunds will be made within 60 days of receipt of written notice of cancellation, provided the correct payment details are provided to Masimo Consumer.
10. If you proceed with the order, Masimo Consumer will apply the First Reservation Payment towards the purchase of the first Freedom Watch or Freedom Band, and, if applicable, the Second Reservation Payment towards the purchase of the second Freedom Watch or Freedom Band.
11. Masimo Consumer will not pay any interest on the First Reservation Payment or the Second Reservation Payment, regardless of whether the payments are applied to the purchase of a Freedom Watch, or if the Reservation Payment is returned to you.
12. Reservations are limited to two reservations in any combination of Freedom Watches and Freedom Bands per user.
13. A reservation is not transferable or assignable to another party.
14. Masimo Consumer may cancel a reservation at any time, for any reason or no reason, by sending notice to you. In the event your reservation is cancelled by Masimo Consumer, you will receive a full refund within 60 days of the cancellation.
16. Through the Reservation Terms, Masimo Consumer makes no representations on the development or definitive delivery dates for the Freedom Watch or Freedom Band. Production and delivery dates may vary from region to region at the sole discretion of Masimo Consumer.
(a) Purpose. The term "Dispute" means any dispute, claim, or controversy, except as specifically excluded in Section 20(b) below, between you and Masimo Consumer, or any of Masimo Consumer’s current or former affiliates, including parents or subsidiaries, and any predecessor or successor entity, arising out of or relating to your relationship with Masimo Consumer or its affiliates, your Reservation Payment, the production or delivery of the Freedom Watch, any of its specification, Masimo Consumer's privacy practices, or the interpretation, application, or enforcement of these Reservation Terms (including the validity, enforceability or scope of this Section 20), whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory. The term Dispute is to be given the broadest possible meaning that will be enforced. If any Dispute should arise between you and Masimo Consumer, or any of Masimo Consumer’s officers, directors, employees and agents that cannot be resolved through negotiation within the time frame described in the "Notice of Dispute" clause below, you and Masimo Consumer agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 20, and not litigate any Dispute in court, except for those matters listed in the Exclusions from Arbitration clause. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
(b) Exclusions from Arbitration. You and Masimo Consumer agree that the following causes of action and/or claims for relief are exceptions to the Disputes covered by the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as outlined in this arbitration agreement): (i) any claim or cause of action alleging actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (iii) a request for the remedy of public injunctive relief, where such remedies are permitted and cannot be waived by applicable law. You or Masimo Consumer may alternatively bring Disputes in small claims court, to the extent a dispute meets such requirements.
(c) Opt-Out Right. YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION AND THE CLASS ACTION WAIVER WITHIN 60 DAYS. If you do not wish to be bound by the binding arbitration and class action waiver in this section, you must notify Masimo Consumer in writing within 60 days of the date that you accept these Reservation Terms unless a longer period is required by applicable law (the "Opt-Out Deadline"). Your written notification must be sent to firstname.lastname@example.org and must include: (1) your name, (2) your address, (3) the email address associated with your online account with Masimo Consumer, if you have one, and (4) a clear statement that you do not wish to resolve Disputes with Masimo Consumer through individual arbitration.
In order to validly terminate the arbitration agreement, Masimo Consumer must receive your opt-out notice no later than 3 days after the Opt-Out Deadline for it to be valid. You agree that you must pursue any claim in arbitration or small claims court if Masimo Consumer does not receive an opt-out notice from you, or if Masimo Consumer receives an opt-out notice from you more than 3 days after the Opt-Out Deadline. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf. To use or assert your opt-out notice to contest the transfer of any Dispute to arbitration or to compel arbitration of any Dispute, you hereby agree to keep and present proof of your opt-out notice and its compliance with the procedures detailed in these Reservation Terms. You agree that failure to keep and provide this proof will forfeit your ability to rely on your opt-out notice to contest arbitration.
If, after your initial acceptance of these Reservation Terms, you have not submitted an opt-out notice by the Opt-Out Deadline then you are bound by these Reservation Terms's binding arbitration and class action waiver provisions. In the event that these Reservation Terms have not been modified or amended, and You subsequently communicate or reaffirm your acceptance to these Reservation Terms at a later time, this Opt-Out Right in this Section 20(c) shall not apply to that communication or reaffirmation. In the event these Reservation Terms are modified or amended, you may notify Masimo Consumer in writing, and pursuant to the procedures listed above in this Section 20(c), within 60-days of the date that you accept the modifications or amendments to these Reservation Terms, that you choose to opt out of the modifications and amendments, but only with regard to the modifications or amendments, if any, that alter the arbitration and/or class action waiver provisions in these Reservation Terms.
(d) Notice of Dispute. IF YOU HAVE A DISPUTE WITH MASIMO CONSUMER, YOU MUST SEND WRITTEN NOTICE TO LEGALNOTICES@MASIMO.COM TO GIVE MASIMO CONSUMER THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. Your notice must contain the following information: (1) your name, (2) your address, (3) your email address or phone number associated with your account, (4) your online membership ID, if any, (5) a brief description of the nature of the complaint, and (6) the resolution sought (together, the “Required Information”). If your notice does not contain all of the Required Information (or an explanation of why you are unable to include any of the Required Information), then the Notice of Dispute shall be without effect, and must be resent before any arbitration or other legal action may be initiated against Masimo Consumer. This requirement is intended to inform Masimo Consumer that you have a Dispute to be resolved. You and Masimo Consumer agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. All negotiations under this Section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws. If you and Masimo Consumer do not resolve the Dispute within 60 days from receipt of your notice of the Dispute, you or Masimo Consumer may pursue a claim in arbitration pursuant to the terms in this section.
(e) Class Action Waiver. YOU AND MASIMO CONSUMER AGREE THAT ARBITRATION WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND MASIMO CONSUMER SPECIFICALLY AGREE TO DO SO IN WRITING, EXCEPT AS OTHERWISE DESCRIBED BELOW IN THIS PARAGRAPH AND THIS SECTION 20. IF APPLICABLE LAW PRECLUDES ENFORCEMENT OF THE LIMITATION IS THIS PARAGRAPH AS TO A PARTICULAR REMEDY, THEN A CLAIM SEEKING THAT REMEDY (AND ONLY THAT REMEDY) MUST BE SEVERED FROM THE ARBITRATION AND BROUGHT IN COURT.
In addition to the AAA Rules, you and Masimo Consumer agree that upon motion of one or more affected parties, and after providing all other affected parties an opportunity to be heard, the arbitrator may, in its discretion, coordinate more than one arbitration proceeding initiated under this arbitration agreement, in order to promote efficiency in discovery and to avoid inconsistent legal rulings. For the avoidance of doubt, any coordination under the preceding sentence will be limited only to currently pending arbitrations initiated under this agreement, and the arbitrator may not preside over any form of a representative or class proceeding. All parties will retain the right to request an individualized hearing.
If a court or arbitrator determines, in an action between you and Masimo Consumer where you purport to bring a class action, that this class action waiver is unenforceable, this arbitration agreement will not apply to you. If you opt out of the arbitration agreement as specified above, this class action waiver will not apply to you. Neither you, nor any other user, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt-out procedure set forth above.
(f) Initiation of Arbitration/Selection of Arbitrator. If you and Masimo Consumer are unable to resolve a Dispute through the pre-dispute negotiation process, you or Masimo Consumer may then, and only then, initiate an arbitration proceeding with the American Arbitration Association ("AAA"), in accordance with the rules of the AAA (as applicable, and as modified by this Section 20), including the Commercial Arbitration Rules and Consumer Arbitration Rules, as applicable (the “AAA Rules”). The AAA Rules and information about arbitration and fees are available online at www.adr.org or by calling 1-800-778-7879. The terms of this section govern in the event they conflict with the AAA Rules. Should the AAA decline to administer the arbitration or otherwise be unable to administer the arbitration for any reason, you agree that Masimo Consumer shall select an alternative arbitration forum, and that you will agree in writing to administration of the arbitration by the alternative arbitration forum selected by Masimo.
(g) Arbitration Procedures. Because Masimo Consumer's relationship with you, or your use of website, or the Reservation Payment concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. You and Masimo Consumer agree that California law will be the state law that applies to these Reservation Terms. The arbitration shall be conducted in the English language.
Masimo Consumer agrees to pay all filing, administration, and arbitrator fees, other than the initial filing fee to be paid by you, and if your Dispute is for less than $1,000, Masimo Consumer shall reimburse you for the filing fee upon written request for reimbursement with documentation of insufficient funds to pay the fee. In the event that you agree able to demonstrate that the costs of arbitration would be prohibitive as compared to costs of litigation, Masimo Consumer will pay as much of the filing fee in connection with the arbitration as the arbitrator deems necessary in order to prevent the arbitration from being cost-prohibitive as compared to the costs of litigation. In all other cases, Masimo Consumer and you will bear the fees and expenses for each party's own respective attorneys, experts, witnesses, and for preparation and presentation of evidence at the arbitration. The parties agree that the arbitrator shall award arbitrator compensation, administrative fees, and the prevailing party’s reasonable attorney’s fees to the prevailing party in any legal proceeding, regardless of venue, that resolves a Dispute. Any arbitration will be confidential, and you and Masimo Consumer agree not to disclose the existence, content, documents, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award.
(h) Arbitration Location. You or Masimo Consumer shall initiate arbitration in Orange County, California. In the event any other legal proceeding takes place outside of arbitration, the parties agree to be subject to jurisdiction in and hereby choose Orange County, California as the parties' exclusive venue.
(i) Arbitration Award. The arbitrator will have the power to grant declaratory or injunctive relief, whether interim or final, only in favor of you individually and only to the extent necessary to provide relief warranted by your individual claim without affecting other customers, and any provisional measures ordered by the arbitrator may be enforced by any court of competent jurisdiction. Nothing in this section will prevent you from seeking public injunctive relief separately from arbitration in court, and any such application will not be deemed incompatible with the agreement to arbitrate or as a waiver of the right to arbitrate your individual claims. You and Masimo Consumer agree that any proceedings seeking a remedy of public injunctive relief will proceed after the arbitration of all arbitrable Disputes, and will be stayed pending the outcome of the arbitration (pursuant to section 3 of the Federal Arbitration Act.) The arbitrator’s award will be binding and final, except for any right of appeal provided by the FAA or these Reservation Terms, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
(j) Severability. If any clause within this arbitration agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this section, and the remainder of this arbitration agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable in its entirety, this entire arbitration agreement will be unenforceable, and the Dispute will be decided by a court.
(k) Continuation. This section survives any termination of this agreement or the provision of Masimo Consumer's products or services to you.