SHOEBOX® AUDIOMETRY TERMS OF SERVICE AND HARDWARE TERMS OF SALE

Revision Date:  May 25, 2018

These Terms of Service (“Terms”) form a legal agreement between you and Clearwater Clinical Limited, which has its principal place of business at Suite 501, 1306 Wellington St. W., Ottawa, ON, K1Y 3B2 Canada (“Clearwater”, “our”, or “us”).  SHOEBOX Audiometry is a clinically validated iPad Audiometer that is listed with FDA and Health Canada and is CE marked in Europe.  SHOEBOX Audiometry is comprised of an iPad application (the “App”) and cloud storage service (the “Service“).  The Service is used to automatically move audiograms or other data captured on the iPad using the App to the Service to manage the data and help keep it secure. We refer to the iPad, transducer and any other hardware supplied to you by Clearwater as “Hardware”. Please read these Terms and our Privacy Statement carefully because they govern your access to and use of the Service and the App.  If you are in the European Union, the terms of our Data Processing Addendum will also apply to your use of the Service and the App.  If you are in the United States, the terms of our Business Associate Agreement will also apply to your use of the Service and the App.  The Privacy Statement, Data Processing Addendum and Business Associate Agreement are incorporated into these Terms by reference.

YOU ACKNOWLEDGE AND AGREE THAT BY ACCEPTING THESE TERMS, ACCESSING OR USING THE SERVICE AND THE APP OR ACCEPTING SHIPMENT OF HARDWARE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS.  If you are agreeing to these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity.  You must also be at least eighteen (18) years old to agree to these Terms. If you do not have such authority, are not at least eighteen, or if you do not agree with these Terms, you may not use the Service or the App.  These Terms are effective between you and Clearwater as of the date you click to accept these Terms or begin to use the App.

Clearwater reserves the right, at its sole discretion, to modify, discontinue or terminate the Service and/or the App or to modify these Terms, at any time.  If we modify these Terms, we will provide you with notice of the modification. By continuing to access or use the Service and the App after we have given notice of a modification to the Terms, you agree to be bound by the modified Terms.  If the modified Terms are not acceptable to you, you agree to immediately stop using the Service and the App, as applicable.

1. Rights and Restrictions:

1.1 Subject to these Terms, you are hereby granted a non-exclusive, non-transferable license, as applicable, to: (i) access and use the Service; and, (ii) download, install, access and use the App on an iPad to conduct hearing tests.  If you are a company or other legal entity, you may have the number of users permitted by Clearwater to access and use the Service or download and install the App. All such users will also be governed by these Terms. Your use of the App is also subject to the Usage Rules set forth in the Apple Inc. (“Apple”) App Store Terms of Service.

1.2 You may not: (i) copy, adapt, change, alter or otherwise modify or create derivative works based on the Service or the App; (ii) decompile, disassemble, or otherwise reverse engineer the Service or the App; (iii) sell, rent, lease, provide, disclose, sublicense, distribute, repackage, transfer, or assign the Service or App in whole or in part; (iv) use the Service or App to provide hosting, outsourcing or subscription services; or, (v) use the Service or App to access, transmit, receive or store any information for which you either do not have the right or permission to access, transmit, receive or store or which is derogatory, defamatory, obscene or offensive.

1.3 As between you and Clearwater, all of the audiograms, information, content or other data that you upload, download, use, transfer, process or share using the Service or the App, including, but not limited to, individually identifiable personal health information (“PHI”), (collectively, “Content”) belong to you. You acknowledge and agree that, except to the extent required for Clearwater to provide the Service, you are solely responsible for all Content.  It is up to you to ensure that you obtain valid consent to use an individual’s Content and that the consent is documented in a way that meets the requirements of your institution, licensing body and/or jurisdiction.  Accordingly, you represent and warrant that: (i) you are either the sole and exclusive owner of all Content or you have all rights, licenses, consents and releases that are sufficient and necessary to use the Content with the Service and the App and to grant to Clearwater the rights as contemplated in these Terms; and, (ii) neither the Content nor your posting, uploading, publication, submission or transmittal of the Content or Clearwater’s use of the Content with the Service and App will: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or (b) result in the violation of any applicable law or regulation, including, but not limited to, the Health Insurance Portability and Accountability Act (HIPAA), the Personal Information Protection and Electronic Documents Act (PIPEDA), the EU General Data Protection Regulation (GDPR) or any other applicable National, Provincial, State, and Federal privacy laws (collectively, the “Privacy Laws”) depending on your country of access to the Service or the App. You retain the sole responsibility for your compliance with all applicable laws, including Privacy Laws.

1.4 You hereby grant Clearwater a non-exclusive, royalty-free, worldwide sub-licenseable right and license to host, access and use the Content in order to provide the Service and App as contemplated by these Terms.  You are advised that, depending on your geographic location, THE CONTENT STORED USING THE SERVICE IS HOSTED EITHER IN THE UNITED STATES OR CANADA AS OUTLINED IN DETAIL IN OUR PRIVACY STATEMENT.

1.5 You will take appropriate steps to protect Content that may be lost, harmed or destroyed when using the Service or the App, including protection of the secrecy of your login information.  Clearwater will not, under any circumstances, be responsible for any such losses or damages.

1.6 Clearwater collects, compiles and analyzes anonymous, aggregate and/or de-identified data from the Service and App regarding: (i) how the Service and the App are used, the results of their use, and how they perform (“Usage Data”); and, (ii) if you agree to share your GPS location with Clearwater, your location (“Location Data”). Clearwater collects this information directly, but it also uses third party software for this purpose as further described in its Privacy Statement Collectively, Usage Data and Location Data are referred to as Compiled Data.  Clearwater uses Compiled Data to build features and improve the functionality and feature set of the Service and the App.  Clearwater also uses Compiled Data to perform statistical analyses of the data gathered by users of the Service and App, such as, but not limited to, geographic data, demographic data, the number of hearing tests conducted and number of hearing impairments found.  You agree that Clearwater: (i) may collect, compile and modify Compiled Data derived from your use of the Service and the App; (ii) may offer you personalized suggestions based on your use of the Service and the App, as well as on your Compiled Data; (iii) may combine your Compiled Data with Compiled Data of other users of the Service and the App; and, (iv) has  a royalty-free, worldwide, irrevocable, perpetual right and license to use Compiled Data for the purposes set out in this paragraph as long as Clearwater does not use or distribute any Compiled Data in a way that identifies you, your provisioned users or any Content.

1.7 You agree that Clearwater may reuse all general knowledge, know-how, work and technologies acquired during provision of the Service and the App.  Moreover, Clearwater shall have a royalty-free, worldwide, irrevocable, perpetual right and license to use and incorporate into the Service or the App any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Service or the App.

2. Intellectual Property:

Ownership in the Service and App will at all times remain with Clearwater. Clearwater will retain all right, title, copyright, trade secrets, patents, trademarks, and other proprietary and intellectual property rights in the Service and the App. You do not acquire any rights, express or implied, in the Service or the App, other than those specified in these Terms.

3. Protection of Content

3.1 As applicable, Clearwater will protect the Content in accordance with its Privacy Statement and the Data Processing Addendum.    If you are a Covered Entity as defined in the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), then the SHOEBOX Business Associate Addendum (“BAA”) will also apply to your use of the Service and the App.

3.2 Clearwater will report to you any use or disclosure of PHI of which it becomes aware and that is not provided for by the Terms, including breaches of unsecured PHI.   Such reporting will occur as soon as feasible and without unreasonable delay but in no case more than ten (10) business days after Clearwater becomes aware of the breach.

3.3 You acknowledge and agree that, because you control the upload, download, use, transfer, processing and storage of Content, including PHI, in connection with your use of the Service and the App, Clearwater does not know the nature of PHI, if any, contained in your account, nor is it able to easily identify which individuals may be identified in the PHI.  As such, it is not feasible for Clearwater to provide information about the identities of any individuals who may have been affected by an impermissible use, disclosure or breach of PHI. It is also not feasible for Clearwater to provide a description of the type of information that may have been subject to an impermissible use, disclosure or breach of PHI.  In the event of an impermissible use, disclosure or breach of PHI, you will be responsible for identifying which individuals, if any, may have been included in the Content and for providing a description of the PHI disclosed and for contacting them.

3.4 Both the Service and the App permit you to export Content so that you may store it in another location, share it with another person or print it.  You are fully liable for the protection and treatment of exported Content.

3.5 Clearwater may use and disclose the Content contained in the Service, including PHI, as required: (i) to operate the Service as set out in these Terms; and, (ii) by applicable law or valid and binding order.

3.6 You shall not agree to any restriction on the use or disclosure of Content, including PHI, which is inconsistent with these Terms or would cause Clearwater to violate these Terms or applicable law.

4. Confidentiality

4.1 Your Confidential Information shall include your Content; Clearwater’s Confidential Information shall include Compiled Data; and Confidential Information of each party shall include the information about your subscription, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information  shall not include any information that: (i) is publicly known or readily ascertainable by the public, through no wrongful act of Receiving Party; (ii) is received from a third party without breaching an obligation owed to the Disclosing Party; (iii) is independently developed by or for the Receiving Party; or (iv) was in its possession prior to it being furnished to the Receiving Party by the Disclosing Party.

4.2 The Receiving Party agrees that Confidential Information of the Disclosing Party: (i) will not be used for any purpose outside the scope of these Terms; (ii) will be treated with the same degree of care as similar information of the Receiving Party is treated within the Receiving Party’s organization (but in no event less than reasonable care); (iii) will not be used for the benefit of a third party; and (iv) will remain the property of the Disclosing Party. The Receiving Party will limit access to Confidential Information of the Disclosing Party except as otherwise authorized by the Disclosing Party in writing, to those of its and its Affiliates’ employees, officers, directors, contractors, and agents who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Disclosure of Confidential Information by the Disclosing Party’s employees, officers, directors, contractors, agents or Affiliates is deemed to be the disclosure by the Disclosing Party.

4.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

4.4 The obligations of the Receiving Party set forth in this section will remain in effect for a period of five (5) years following the date of first disclosure. Confidential information identified as a trade secret will be held in confidence indefinitely.

5. Hardware Terms

5.1 Clearwater may supply Hardware to you as part of your SHOEBOX Audiometry subscription.  Except as agreed otherwise in your order confirmation; (i) Clearwater will arrange, at your cost, for shipping and delivery of the Hardware, as well as for insurance on the Hardware during transit; and, (ii) once Clearwater delivers the Hardware to the carrier, it will be at your risk.   Shipping and delivery dates are estimates only and Clearwater is not responsible or liable for delays in delivery. In the event of delayed delivery attributable to Clearwater, Clearwater reserves the right to terminate the order or to reschedule shipment to take place within a reasonable time.  When delivery is delayed for reasons attributable to you or your representatives, we may charge you storage costs and the Hardware will be at your risk from the start of such delay. Clearwater reserves the right to deliver and invoice in separate consignments.

5.2 You must notify Clearwater within ten (10) calendar days of the delivery date if any part of an order is missing, wrong or damaged.  Clearwater’s sole obligation will be to, at its option, replace or repair the damaged Hardware, refund any amounts paid for undelivered Hardware or deliver new Hardware.  Any Product returns must be conducted in accordance with the RMA procedure set out in Section 5.6.

5.3 Clearwater reserves the right to revise, discontinue, or cease to make available any or all of the Hardware at any time.  Clearwater may cancel any order under reasonable conditions. In the event that Clearwater cancels an order, it will refund to you any amounts already paid for undelivered Hardware.  Clearwater cannot guarantee Hardware availability. In the event that you have an outstanding order for Hardware that is discontinued or no longer available, Clearwater has the right to substitute Hardware that has equivalent functionality and specification of the discontinued or unavailable Hardware, provided that the performance is equivalent to or better than the original Hardware.  The transducers used in conjunction with the iPad may be subject to periodic calibration requirements depending on your jurisdiction and use case. Please contact support@shoebox.md  for information about pricing and logistics.

5.4 You have the right to use the Hardware in compliance with the applicable instructions for use, intended use statement, user manual or other accompanying or online user documentation (“Documentation”).  You must not reverse engineer, disassemble, modify, adapt or create derivative works of the Hardware or Documentation.  You agree to handle and use the Hardware in conformity with: (i) accepted medical or industry procedures; (ii) all applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies; and, (iii) the Documentation.   Clearwater is not liable for any personal use of the Clearwater-supplied iPad, nor for any data that may be lost as a result of your election to use the party mobile device management service provided by one of our third party suppliers.

5.5 Clearwater warrants that: (i) the SHOEBOX Audiometry software will remain compatible with the iPad(s) you receive from Clearwater as part of your subscription to the Service, failing which, Clearwater will replace the affected iPad(s); (ii) the Hardware will remain free of defects in materials and workmanship, failing which, Clearwater will replace the affected Hardware; (iii) it will repair or replace broken or damaged Hardware once every three (3) years.  Replacement Hardware will not be replaced again during that three (3) year period. Clearwater will not be responsible for lost or stolen Hardware. To make a warranty claim, you must contact Clearwater and return your affected Hardware in accordance with Section 5.6. You will be responsible for the shipping costs of replacement Hardware.

5.6 Clearwater will only accept Hardware returned according to the following Return Material Authorization (“RMA”) procedures.  You must contact Clearwater to obtain an RMA number and shipping instructions prior to returning any Hardware to Clearwater.  Any Hardware which has been returned to Clearwater but which is found to be not defective in materials or workmanship will be subject to Clearwater’s then standard examination charge.  When any Hardware is returned without an itemized statement of claimed defects, Clearwater will not evaluate the Hardware but will return it to you at your expense.

5.7 These  warranties and remedies will not apply to any Hardware if repair or replacement is required because of: (i) accident, neglect, misuse, or causes other than ordinary use in accordance with the Documentation; (ii) your repairs or alterations, or attempted repairs or alterations, of any Hardware, where such activity is not authorized by Clearwater; (iii) the use of non-Clearwater supplied software or hardware, or, (iv) disaster, including but not limited to fire, smoke, or water.

5.8 The remedies in this Section are your exclusive remedies and Clearwater’s sole obligations for breach of the warranties in Section 5.5.

6. Disclaimers:

6.1 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, EXCEPT AS SET OUT IN SECTION 5, THE USE OF THE SERVICE,  APP AND HARDWARE ARE AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, APP AND HARDWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. CLEARWATER HEREBY DISCLAIMS ALL REPRESENTATIONS, COVENANTS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY,  FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CLEARWATER DOES NOT WARRANT THAT THE USE OF THE SERVICE, APP OR HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICE, APP OR HARDWARE WILL MEET YOUR REQUIREMENTS, OR THAT REPORTED FAULTS ARE OR WILL BE CORRECTABLE.

6.2 CLEARWATER SHALL HAVE NO LIABILITY FOR: (i) DIAGNOSTIC USE OF THE SERVICE, APP, CONTENT OR HARDWARE, INCLUDING ANY DIAGNOSIS, MISDIAGNOSIS, OR INJURY THAT MAY BE CAUSED BY A HEALTH PRACTITIONER OR OTHER USERS OF THE SERVICE, APP, CONTENT OR HARDWARE; (ii) DAMAGE OF ANY NATURE TO EQUIPMENT USED IN CONJUNCTION WITH THE HARDWARE; (iii) THE FAILURE TO COMPLY WITH ACCEPTED MEDICAL PROCEDURES, LAWS, REGULATIONS, GUIDELINES OR DECISIONS IN THE HANDLING OR USE OF THE SERVICE, APP OR HARDWARE; (iv) ANY ISSUES RELATED TO PROFESSIONAL BILLING AND/OR REIMBURSEMENT FOR HEARING TESTING SERVICES RENDERED; OR, (v) ANY OTHER USE OR MISUSE OF THE SERVICE, APP, CONTENT OR HARDWARE BY YOU. NEITHER THE SERVICE, THE APP, THE HARDWARE, NOR ANYTHING CONTAINED IN THESE TERMS OR CLEARWATER’S WEBSITES, CONSTITUTE MEDICAL OR LEGAL ADVICE.

6.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

7. Limitation of Damages:

7.1 NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL CLEARWATER (OR ITS EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS) BE LIABLE TO YOU, OR ANY THIRD PARTY CLAIMING THROUGH YOU, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF INCOME, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, INCREASED COSTS OF OPERATION, LITIGATION COSTS, AND THE LIKE), WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THE SUPPLY, USE, OR PERFORMANCE OF THE SERVICE OR THE APP, REGARDLESS OF WHETHER CLEARWATER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE.

7.2 CLEARWATER’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION, OR OTHERWISE WILL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, BE LIMITED TO DIRECT DAMAGES AND WILL IN NO CIRCUMSTANCES EXCEED THE FEES PAID TO CLEARWATER BY THE YOU IN RESPECT OF THE SERVICE OR HARDWARE, AS APPLICABLE.

8. Payment Terms:

8.1 Unless otherwise agreed in your quote, your subscription to the Service renews automatically for the same term selected upon initial payment unless you provide fifteen (15) days’ prior, written notice to Clearwater that you will not be renewing for the next renewal term.

8.2 Fees will be set out on an invoice from Clearwater or via an online billing system. There will be no refunds or credits for partial periods of service or periods of inactivity.  All fees are exclusive of all taxes, levies, or duties imposed by customs or taxing authorities and you are responsible to pay all such fees. You agree to pay all shipping and handling charges, including insurance, brokerage fees, special packaging and transportation, except as agreed otherwise in Clearwater’s quote.  If you are required by law to make a withholding or deduction from payment, you will make payment to Clearwater net of the required withholding or deduction. You will supply to Clearwater satisfactory evidence (e.g. official withholding tax receipts) that you have accounted to the relevant authority for the sum withheld or deducted.

8.3 If you are paying for the Service by credit card, your credit card will be charged once a month for monthly subscriptions or annually in advance for an annual subscription payment. Clearwater will email you a receipt when your card has been charged. If your card cannot be charged, Clearwater will notify and you will need to update your payment information. In the event you do not update your payment information within ten (10) days of Clearwater’s notice, your access to the Service may be suspended and you will need to update your card information in order to resume use of the Service.

8.4 Clearwater reserves the right to charge interest at 1.5% per month or, if less, the highest amount chargeable by law, on any amounts past due.  Clearwater also reserves the right to suspend deliveries and performance of any order if you are past due in making any payments to Clearwater, including payments for other orders.  Credit approval may be revoked at any time.

9. Term and Termination:

9.1 The term of your subscription to the Service will commence as of the date you activate your account and continue either on a month-to-month basis or for the term specified on your invoice.

9.2 You may terminate your subscription to the Service at any time by giving us fifteen (15) days’ written notice by email to support@shoebox.md.  Despite your termination and, if applicable, any fees that you have committed to paying for the remainder of your subscription term must still be paid and Clearwater will not refund any fees previously paid.

9.3 Clearwater, in its sole discretion, has the right to suspend or terminate your use of the Service and the App and may refuse any future use of the Service and the App by you.  Clearwater will use all reasonable efforts to contact you directly to warn you prior to any such suspension or termination. Should Clearwater terminate your subscription to the Service, Clearwater will provide you with notice of the effective date of termination.

9.4 In event of termination, all subscription Hardware must be returned to Clearwater within thirty (30) days under RMA process detailed in Section 5.6.  Returned hardware will be inspected and Clearwater reserves the right to charge for excess wear or damage. You will be charged current market rates for applicable hardware items that are not returned to Clearwater.  If you do not return or pay for retained Hardware within thirty (30) days, Clearwater may lock down the iPad.

9.5 In advance of the termination or expiry of your subscription to the Service, you must create a copy of any Content you will require post termination.  Subject to any retention requirements that Clearwater may have at law, your Content will be permanently deleted within six (6) months of the termination or expiration of your subscription to the Service, whether the termination is by you or by Clearwater.

10. U.S. Government Restricted Rights Legend:

Software distributed to or on behalf of the United States of America, its agencies or instrumentalities (“U.S. Government”) is provided with Restricted Rights. Use, duplication, or disclosure of software by the U.S. Government is subject to the restrictions in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer Software – Restricted Rights at 48CFR52.227-19, as amended or applicable, or such other applicable rules and regulations.

11. General:

11.1 Governing Law: This Agreement will be governed by, interpreted, and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Each party irrevocably attorns to the jurisdiction of the courts of the Province of Ontario. The parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods, and any legislation implementing such Convention will not apply to this Agreement nor to any dispute arising therefrom.

11.2 Relationship of Parties: The parties are not agents or legal representatives of each other. The parties to this Agreement are independent contractors. No relationship of principal to agent, master to servant, employer to employee, or franchisor to franchisee is established hereby between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.

11.3 Survival: The provisions in Articles 2, 4, 6, 7 and 11 and Sections 1.3, 1.6, 1.7, and 11.3 will survive termination of this Agreement.

11.4 Precedence:  Conflicts are to be resolved in the following order of precedence as applicable: (i) BAA; (ii) Data Protection Addendum; (iii) Privacy Statement; (iv) Terms.

11.5 Assignment:  You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise.  Clearwater may assign these Terms at any time.

11.6 Waiver:  The waiver by either party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach.  Except for actions for breach of Clearwater’s proprietary rights in the Service or the App, no action, regardless of form, arising out of these Terms may be brought by either party more than one (1) year after the cause of action has arisen.

11.7 Entire Agreement: These Terms, together the Privacy Statement, Data Protection Addendum and the BAA, if applicable, comprise the entire agreement between the parties regarding the subject matter of these Terms and supersede all prior or contemporaneous communications or agreements that may exist.  Any pre-printed terms on your purchase order shall be of no force or effect.

11.8 Apple Terms:  You acknowledge that these Terms are concluded between you and Clearwater only and are not with Apple.  Apple and any Apple subsidiaries are third party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.  Apple and Apple subsidiaries shall have no liability under these Terms.

11.9 Severability: If one or more provisions of these Terms are held to be unenforceable under applicable laws, such provisions will be modified to the minimum extent necessary to comply with applicable law and the intent of the parties.

11.10 Export Administration:  You represent: (i) that you are not named on any U.S. Government list of persons or entities prohibited from receiving exports from the United States; (ii) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and, (iii) you shall not access or use the Service or App in violation of any United States export embargo, prohibition or restriction

11.12 Legal Notices; Contacting Clearwater:  All legal notices to Clearwater shall be sent to legal@shoebox.md.  Legal notices to you will be sent via email, the Service, the App or posted on Clearwater’s website.   Questions regarding the Service or the App can be directed to www.shoebox.md.  Apple is not responsible for addressing any questions, comments, complaints or claims regarding the Service or the App.