SHOEBOX™ is the audiometry division of 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 both FDA and Health Canada listed.  SHOEBOX Audiometry is a combination 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.  Please read the following terms and conditions (“Terms”) and our Privacy Policy carefully because they govern your access to and use of the Service and the App.  These Terms constitute a binding legal agreement between you and Clearwater.

YOU ACKNOWLEDGE AND AGREE THAT BY ACCEPTING THESE TERMS, OR ACCESSING OR USING THE SERVICE AND THE APP, 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 eighteen (18) years old to agree to these Terms.  If you do not have such authority, are not 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.  These Terms can be viewed anytime at https://www.shoebox.md/terms-of-service/.  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 your iPad to conduct hearing tests.  If you are a company or other legal entity, you may have the number of users permitted by Clearwater 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 service; 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 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 Data Protection Directive 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 THE CONTENT STORED USING THE SERVICE IS ACTUALLY HOSTED IN THE UNITED STATES OF AMERICA BY CLEARWATER’S THIRD PARTY HOSTING PROVIDER, AMAZON WEB SERVICES.

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 aggregate, anonymous 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”).  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 analysis 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 Complied Data derived from your use of the Service and the App; and, (ii) has a royalty-free, worldwide, irrevocable, perpetual right and license to use Compiled Data for the purposes set out in this paragraph.  You also 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.

  1. 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.

  1. Protection of Content

3.1 Clearwater will protect the Content in accordance with its Privacy Policy and, as set out in these Terms, will use appropriate safeguards in an effort to protect the Content in a way that is consistent with HIPAA.

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 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.

  1. HIPAA Business Associate 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.

  1. Disclaimers:

5.1 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE SERVICE AND THE APP ARE AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND APP 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 OR THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICE OR THE APP WILL MEET YOUR REQUIREMENTS, OR THAT REPORTED FAULTS ARE OR WILL BE CORRECTABLE.

5.2  CLEARWATER SHALL HAVE NO LIABILITY FOR DIAGNOSTIC USE OF THE SERVICE, APP OR CONTENT.  NEITHER THE SERVICE, NOR THE APP, NOR ANYTHING CONTAINED IN THESE TERMS OR CLEARWATER’S WEBSITES, CONSITITUE MEDICAL OR LEGAL ADVICE.

5.3 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.

  1. Limitation of Damages:

6.1 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.

6.2 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.

  1. Fees:

Fees, if any, will be set out on an invoice from Clearwater. 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 taxing authorities, and you are responsible for payment of all such taxes, levies, or duties.

  1. Term and Termination:

8.1   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.

8.2  You may terminate your subscription to the Service at any time by giving us thirty (30) 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.

8.3  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.

8.4 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 ninety (90) days of the termination or expiration of your subscription to the Service, whether the termination is by you or by Clearwater.

  1. 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.

  1. General:

10.1 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.

10.2 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.

10.3 Survival: The provisions in Articles 2, 5, 6 and 10 and Sections 1.3, 1.6, and 8.2 will survive termination of this Agreement.

10.4 Precedence:  Conflicts are to be resolved in the following order of precedence: (i) BAA; (ii) Terms; (iii) Privacy Policy.

10.5 Assignment:  You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise.  Clearwater may assign these Terms in its discretion.

10.6 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.

10.7 Entire Agreement: These Terms, together with the Privacy Policy and the BAA, if applicable, comprise the complete agreement between the parties regarding the subject matter hereof and will not be deemed to have been waived by any act or failure to act.

10.8 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.

10.9 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.

10.10 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

10.11 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.