US

Masimo SafetyNet^® Terms of Use

Last updated on October 18, 2024

If you are in the U.S., these Terms of Use shall apply.

 

How The System Works

            The System is a telehealth platform designed for remote patient management in nontraditional and home settings. For patients, the System will collect, process, transmit, and store your health data, including oxygen saturation (SpO2), pulse rate, and/or temperature, received from Devices connected to the System. For healthcare providers, the System allows you to view and manage your patients’ health data and enroll patients in a customizable care program (each, a “CareProgram”) via the Portal.

 

1. Using the System. When you input information into the System, you must provide true, accurate, current, and complete information and update the information as necessary. You are responsible for maintaining the confidentiality of your account user name, email, and password.

2. Supplemental Documentation. Please ensure that you read all instructions, user manuals, product inserts, and other documentation for the App, Devices, and/or Portal for a full description of features, safety information, directions for use, limitations, and other important information.

3. Compatibility. The System is designed to work with certain compatible devices and supported operating systems. Using the System with any incompatible or unsupported device, accessory or software voids any warranty and may cause the System to fail, work improperly, measure the health data inaccurately, or cause serious bodily injury or death. You do not have permission or a license to use the System with any incompatible or unsupported device, accessory or software. You assume the risk of using the System with any incompatible or unsupported device, accessory or software.

4. Healthcare Providers. This section applies only to healthcare providers using the System to remotely manage patients. As a healthcare provider, you acknowledge and agree that you are responsible for your patients, including to (a) be aware of each patient’s unique medical history, (b) have an appropriate discussion with your patients to account for the risks and benefits of remote patient management, and (c) choose the best course of action given the patient’s unique medical history. Accordingly, you agree that (1) you are solely responsible for ensuring that the System is appropriate for the patient, (2) you will provide adequate training to patients who use the System to ensure that it is used correctly, and (3) you will make the patient aware of the features, limitations, and risks of using the System. These limitations and risks include, among others, that the System requires patients to have a compatible mobile device and Internet connection, the System is not fail-safe or error-proof, the System does not have an alarm, and the System does not provide data in real-time to a healthcare provider or anyone else, but rather depends on the healthcare provider initiating access to the patient’s data. Further, the System is a supplemental patient management system and does not replace other prudent medical practices that you should advise a patient to follow, including, without limitation, advising the patient to call emergency services when warranted. Neither you nor the patient should rely on the System to contact emergency services.

5. Privacy Notice. Your use of the System is subject to the Masimo SafetyNet Privacy Notice, which is available at: https://www.mymasimo.com/documentation/masimo-safetynet/privacy/.

6. Disclaimer of Warranties. Except where prohibited by applicable law and except for any standard limited warranty given by Masimo, the System is provided “as is” and for the avoidance of doubt, this disclaimer applies to any software embedded, or provided or used with the System (including without limitation the App) and any network on which you operate the System. There is no other warranty of any kind, whether express, implied, or statutory. This includes, without limitation, any implied warranties of non-infringement, merchantability, fitness for a particular purpose, satisfactory quality, or reasonable care. Neither Masimo nor its licensors or affiliates represent or warrant that the System (i) will satisfy your requirements or achieve your intended purpose, (ii) is without defect or error, or (iii) will be timely, uninterrupted or error free. Masimo, its licensors and affiliates do not warrant the accuracy of any results obtained from the use of the System or make any other representations concerning any content contained in or accessed through the System. You understand and agree that any use or download of the App for use on your mobile device is at your own discretion and risk and that you will be solely responsible for any damages that may result from the download or use of the App, including (without limitation) damage to your mobile device or loss of data that may result. Under no circumstances will Masimo, its licensors or affiliates be liable to any user on account of (a) disruption or delays to the user’s Internet or other network connection, (b) incompatibility of the App with the user’s mobile device, or (c) that user’s use or misuse of or reliance on the System. Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of these may not apply to you. For Apple users in such jurisdictions, in the event of any failure of the App to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for the application (if any) to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty will be Masimo’s sole responsibility.

7. Limitation of Liability. To the maximum extent permitted by law, even if a remedy fails its essential purpose:

(a) in no event will Masimo, its licensors or affiliates be liable for any special, incidental, indirect, punitive or consequential damages whatsoever, including, without limitation, damages for personal injury, death, loss of profits, loss or corruption of data, data breach, business interruption, loss of information, or any other pecuniary loss, whether the claim or damages are based on warranty, contract, tort (including negligence), extra-contractual liability, strict liability or any other legal theory, even if a party has been advised of the possibility of such damages; and

(b) in no event will the entire liability of Masimo, its licensors and affiliates to you or any other party for any loss or damage resulting from any claims, demands or actions arising out of these Terms of Use or from your use of or inability to use the System exceed the amount actually paid or payable by you for the use of the System. 

Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitations may not apply to you. In these states and jurisdictions, the liability of Masimo, its licensors and affiliates will be limited to the greatest extent permitted by law. This section will survive the termination of these Terms of Use.

8. Sole Remedy and Allocation of Risk. Your sole and exclusive remedy and the sole and exclusive liability of Masimo, its licensors and affiliates are set forth in these Terms of Use. You acknowledge and agree that these Terms of Use define a mutually agreed-upon assignment and allocation of risk.

9. Limited License. Subject to your compliance with these Terms of Use, Masimo grants you a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free and limited license (i) to (A) install and use the App, in object code version, on your supported mobile device for your personal use solely in accordance with the System’s user manuals, product inserts, and other documentation included with it and (B) access the Portal through a web browser for your professional use (if you are a healthcare provider) solely in accordance with the System’s user manual, product inserts, and other documentation included with it (and for Apple Users (defined below), on an Apple or Mac device that you own or control and as permitted by the “Usage Rules” set forth in the terms of service for the Apple App Store which are available at https://www.apple.com/legal/internet-services/itunes/us/terms.html) and (ii) to use Masimo’s and its affiliates’ intellectual property embodied in the System solely for your personal or professional (if you are a healthcare provider) use of System in accordance with its user manual, product inserts, and other documentation included with it. Notwithstanding the non-transferable license above, the System may be accessed and used by other accounts associated with you via Apple Family Sharing or volume purchasing.

10. Ownership. You acknowledge that the components of the System embody and are the intellectual property of, and are owned by, Masimo or its licensors. The structure, sequence and organization of the App are the valuable trade secrets and confidential information of Masimo or its licensors. The App is protected by copyright, including, without limitation, by United States copyright law, international treaty provisions and applicable laws in the country in which it is used. You acknowledge that Masimo and its licensors retain the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the System. You will take no actions which adversely affect Masimo’s intellectual property rights in the System. These Terms of Use are a license and not an agreement for sale. No title to, or ownership of, the System (including, without limitation, any Devices or the App), or any intellectual property rights subsisting therein, is transferred to you. Masimo and its licensors reserve all rights not expressly granted to you in these Terms of Use.

11. Restrictions. The System is licensed solely for your internal use within your organization (if you are a healthcare provider) or your personal use, and any other use including for third parties is expressly prohibited. Without limiting the generality of the foregoing, you may not nor may you permit any other party to: (i) make copies of any software (including the App) used in or with the System, (ii) disassemble, decompile, reverse engineer, or translate any part of the System, or otherwise attempt to reconstruct or discover the source code of any software used in or with the System, except and only to the extent that such activity is expressly permitted by applicable law, (iii) modify or create derivative works based upon the System, (iv) externally distribute, sublicense, resell, encumber or otherwise transfer any software used in the System, (v) rent, lease, lend, or use any software used in or with the System, or any part thereof, for timesharing or bureau use, (vi) allow a third party to copy, access, or use any software used in the System (except as expressly provided in these Terms of Use), (vii) alter or remove any copyright, trademark or other proprietary notice which may appear in the App, the Portal, or on any Devices, (viii) take any action that would cause any software used in or with the System to be placed in the public domain or become subject to open source license agreements, or (ix) use the System in any manner that violates any statute, law, rule, regulation, directive, guideline, bylaw whether presently in force or that may be implemented by federal, state or local authorities.

12. Updates. Masimo may modify or discontinue any feature or content of the System at any time and in its sole discretion. Masimo may, but is not obligated to, provide you with reasonable notice of any modification, change, or discontinuance of any feature or content of the System. Masimo is not liable to you or to any third party for any modification or discontinuance of any feature or content of the System. Except as otherwise expressly provided herein, these Terms of Use will govern any updates to the System that may be provided to you in accordance with Masimo’s then-current maintenance and support policies, unless such updates are provided under a separate license agreement. You may use the updates only in conjunction with your then-existing license under these Terms of Use. The System and all updates are licensed as a single product and the updates may not be separated from the System to exceed the scope of your original license. Masimo reserves the right to determine the timing and content of any updates to the System.

13. No Support. Except as expressly required by applicable law, nothing in these Terms of Use entitles you to any support, maintenance or new versions of the System. You may contact Masimo to determine the availability of support, maintenance, and new versions, and the fees, terms and conditions that would apply. Apple Users and Masimo acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

14. Your Indemnification. You agree to fully indemnify and completely hold harmless Masimo, its affiliates, licensors, suppliers and other contract relationships, and the officers, directors, employees, consultants, and agents of each, from any and all liabilities, claims, expenses, damages, including reasonable legal fees and disbursements, arising out of or relating to (i) any information you submit or transmit through the App or the Portal, (ii) your use of the System or any of its components or parts (including software), (iii) your failure to comply with any applicable laws, (iv) any act or omission which is, or can be determined to be, a breach of any term or condition in these Terms of Use, or (v) your violation of any rights of any other person or entity.

15. Third Party Open Source Software Licenses. You understand and agree that the System may contain or be provided with third-party open source libraries, components, and other open source software (collectively, “Open Source Software”), and your use of Open Source Software will be and is governed by the relevant terms of the third-party licenses listed by Masimo in the App. The ownership terms in Section 10 (Ownership) and the restrictions in Section 11 (Restrictions) do not apply to Open Source Software. You understand and acknowledge that under the third-party licenses, Open Source Software is being provided “as is” without any warranty, including, but not limited to, the implied warranties of non-infringement, merchantability, satisfactory quality, reasonable care, or fitness for a particular purpose. If there is a conflict between these Terms of Use and the license to any Open Source Software, the provisions of the Open Source Software license will prevail with respect to the Open Source Software only.

16. Use Restrictions. You agree to only use the System in the United States and other supported regions as specified in the user manuals and product inserts. Your breach of this clause is cause for immediate termination of these Terms of Use and your right to use the System.

17. Termination. Masimo may terminate these Terms of Use and discontinue the System or any component or part thereof at any time at its sole discretion and without notice or liability to you. In addition, the rights granted under these Terms of Use will automatically terminate without notice if you fail to comply with any material provision of these Terms of Use. In such event, you must immediately stop using the System and uninstall the App from your mobile device. This will not limit or affect any remedy available to Masimo for your breach of these Terms of Use.

18. Resolution of Disputes.

(a)            Purpose. The term “Dispute” means any dispute, claim, or controversy, except as specifically excluded in Section 18(b) below, between you and Masimo, or any of Masimo’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 or its affiliates (for purposes of this Section 18, “Masimo”), your use of the App, the Portal, the System, Masimo’s privacy practices, or the interpretation, application, or enforcement of these Terms of Use (including the validity, enforceability or scope of this Section 18), 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, or any of Masimo’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 agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 18, 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 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 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 in writing within 60 days of the date that you accept, or anyone acting on your behalf accepts, these Terms of Use unless a longer period is required by applicable law (the “Opt-Out Deadline”). Your written notification must be sent to legalnotices@masimo.com and must include: (1) your name, (2) your address, (3) the email address associated with your online account with Masimo, if you have one, and (4) a clear statement that you do not wish to resolve Disputes with Masimo through individual arbitration.

In order to validly terminate the arbitration agreement, Masimo 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 does not receive an opt-out notice from you, or if Masimo 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 Terms of Use. 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 Terms of Use, you have not submitted an opt-out notice by the Opt-Out Deadline, then you are bound by the binding arbitration and class action waiver provisions in these Terms of Use. In the event that these Terms of Use have not been modified or amended, and you subsequently communicate or reaffirm your acceptance to these Terms of Use at a later time, this Opt-Out Right in this Section 18(c) shall not apply to that communication or reaffirmation. In the event these Terms of Use are modified or amended, you may notify Masimo in writing, and pursuant to the procedures listed above in this Section 18(c), within 60 days of the date that you accept the modifications or amendments to these Terms of Use, 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 Terms of Use.

(d)            Notice of Dispute. IF YOU HAVE A DISPUTE WITH MASIMO, YOU MUST SEND WRITTEN NOTICE TO LEGALNOTICES@MASIMO.COM TO GIVE MASIMO 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. This requirement is intended to inform Masimo that you have a Dispute to be resolved. You and Masimo 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 do not resolve the Dispute within 60 days from receipt of your notice of the Dispute, you or Masimo may pursue a claim in arbitration pursuant to the terms in this section.

(e)            Class Action Waiver. YOU AND MASIMO 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 SPECIFICALLY AGREE TO DO SO IN WRITING, EXCEPT AS OTHERWISE DESCRIBED BELOW IN THIS PARAGRAPH AND THIS SECTION 18. IF APPLICABLE LAW PRECLUDES ENFORCEMENT OF THE LIMITATION IN 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 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 these Terms of Use, 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 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 are unable to resolve a Dispute through the pre-dispute negotiation process, you or Masimo 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 18), 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 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’s relationship with you, or your use of the App, the Portal, or the System, 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 agree that California law will be the state law that applies to these Terms of Use. The arbitration shall be conducted in the English language.

Masimo 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 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 are able to demonstrate that the costs of arbitration would be prohibitive as compared to costs of litigation, Masimo 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 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 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 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 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 FAA). The arbitrator’s award will be binding and final, except for any right of appeal provided by the FAA or these Terms of Use, 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 these Terms of Use or the provision of Masimo’s products or services to you.

19. Miscellaneous.

(a)            If you are a unit or agency of the United States Government, the following applies: The System 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 Americas, Inc.

(b)             You may not assign, sublicense, or transfer these Terms of Use 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 these Terms of Use in the event of any such attempted assignment, sublicense, or transfer without Masimo’s consent. Masimo may assign or transfer these Terms of Use without restriction.

(c)             Except as otherwise stated herein, these Terms of Use constitute the final and complete understanding between you and Masimo with respect to the subject matter herein.

(d)            If any provision in these Terms of Use 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. All other provisions of these Terms of Use shall remain in effect.

(e)            Failure or delay on the part of Masimo 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 Masimo.

(f)             No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of these Terms of Use.

20. Additional Terms for Apple App Store and Google Play Store Users.

(a)            iOS and Mac users (“Apple Users”): You and Masimo acknowledge that these Terms of Use are between you and Masimo only, and not Apple, Inc. or any of its affiliates (“Apple”). Certain provisions of these Terms of Use apply only to Apple Users, and set forth certain rights and obligations as between you, Masimo, and Apple. Masimo, not Apple, is solely responsible for the System and the content therein. Notwithstanding the foregoing, upon your acceptance of these Terms of Use, Apple has the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as an intended third party beneficiary. To the extent that any usage restrictions for the App and its content are less restrictive or are otherwise in conflict with the “Usage Rules” under the terms of service of the Apple App Store, as of their effective date, Apple’s “Usage Rules” are incorporated by reference into this Agreement and shall control solely to the extent of such deficiency or conflict.

(b)            Google Play Store Users: To the extent that these Terms of Use conflict with the Google Play Developer Distribution Agreement, available at https://play.google.com/about/developer-distribution-agreement.html (the “Google Play Store Agreement”), the terms and conditions of the Google Play Store Agreement are incorporated by reference into this Agreement and will supersede this Agreement solely to the extent that they conflict.