INTRODUCTION

These SHOEBOX™ Audiometry Hardware Terms of Sale (“Agreement”) made between you (“you” or “Purchaser”) and Clearwater Clinical Limited, Suite 501-1306 Wellington St. W., Ottawa, ON, Canada K1Y 3B2 (“Clearwater”) govern the purchase and sale of hardware products supplied by Clearwater for use in conjunction with Clearwater’s SHOEBOX Audiometry software (“Product(s)“).

SUPPLY OF PRODUCTS AND FORMATION OF CONTRACT

Upon Clearwater’s acceptance of a purchase order or signed quote for the sale of Products, the parties will be bound by the terms of this Agreement.  Quoted prices are effective until the expiration date on the quote or, if no date is stated, thirty (30) calendar days from the date of the quote. Unless otherwise agreed by Clearwater, the Products are solely for Purchaser’s use and may not be resold.

PRICE AND TAXES

Unless otherwise stated on the applicable invoice, Purchaser shall remit payment for the Products to Clearwater within thirty (30) calendar days from the date of the invoice, which invoice will be generated on or about the date that the Products are delivered to the carrier for shipping.  Purchaser shall pay all shipping and handling charges, including insurance, brokerage fees, special packaging, and transportation, except as agreed otherwise in Clearwater’s quote.

Purchaser shall also pay all sales, value-added and any other taxes (except the tax on Clearwater’s income) or customs duties associated with the sale of Products, except as agreed otherwise in Clearwater’s quote.  If Purchaser is required by law to make a withholding or deduction from payment, Purchaser will make payment to Clearwater net of the required withholding or deduction.  Purchaser will supply to Clearwater satisfactory evidence (e.g. official withholding tax receipts) that Purchaser has accounted to the relevant authority for the sum withheld or deducted.

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 Purchaser is past due in making any payments to Clearwater, including payments for other orders.  Credit approval may be revoked at any time.

SHIPPING AND DELIVERY

Except as agreed otherwise in the quote, Clearwater will arrange, at Purchaser’s cost, for shipping and delivery of the Products, as well as for insurance on the Products during transit.   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 Purchaser or its agents, storage costs may be charged to Purchaser and the Products will be at Purchaser’s risk from the date of commencement of such delay.  Clearwater reserves the right to deliver an invoice in separate consignments.

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

PASSING OF TITLE AND RISK

Except as otherwise agreed in the quote, from the time the carrier for Clearwater delivers the Products to Purchaser’s specified delivery location, the Products will be at Purchaser’s risk.

CHANGED OR DISCONTINUED PRODUCTS

Clearwater reserves the right, without liability or prior notice and in its sole discretion, to revise, discontinue, or cease to make available any or all the Products at any time.  Clearwater may cancel any order under reasonable conditions.  In the event that Clearwater cancels an order, it will refund to Purchaser any amounts paid for undelivered Products.  Clearwater cannot guarantee Product availability.  In the event that Purchaser has an outstanding order for Products that are discontinued or no longer available, Clearwater has the right, without liability or prior notice, to substitute Products that have equivalent functionality and specification of the discontinued or unavailable Products, provided that the performance is equivalent to or better than the original Product.

USE OF PRODUCTS

The purchase of the Products conveys to Purchaser the right for Purchaser to use the Products in compliance with the applicable instructions for use, intended use statement, user manual or other accompanying or online user documentation (“Documentation”).  Purchaser must not reverse engineer, disassemble, modify, adapt or create derivative works of the Products or Documentation.  Purchaser agrees to handle and use the Products in conformity with: (i) accepted medical procedures; (ii) all applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies; and, (iii) the Documentation.

SOFTWARE AND DOCUMENTATION

All SHOEBOX software and Documentation is supplied under separate license and not by way of sale.  All right, title and interest in and to the software and Documentation will remain vested with Clearwater and its licensors, and the Purchaser is granted only a limited, non-exclusive license to use the software and Documentation subject to the Terms of Service for SHOEBOX.

WARRANTIES

Other than for Products manufactured by Apple Inc., Clearwater warrants that, for a period of twelve (12) months from delivery of the Products to a carrier for delivery to Purchaser (the “Warranty Period”), the Products will be free of defects in materials and workmanship.  The SHOEBOX software associated with the Products will be warranted as set out in the SHOEBOX Terms of Service.  If during  the Warranty Period, Purchaser discovers a defect in materials or workmanship in a Product, and provided Purchaser informs Clearwater in writing of such defect, failure or non-performance during the Warranty Period, then Clearwater will correct, by replacement with functionally equivalent Product, or repair, the Product, at no cost to Purchaser.  If Clearwater is unable to repair or replace a warranted Product, it shall take back such Product and refund the amounts paid by Purchaser for such Product.

Clearwater is only required to accept Products returned pursuant to the following Return Material Authorization (“RMA”) procedures.  Purchaser must contact Clearwater to obtain an RMA number and shipping instructions prior to returning any Product to Clearwater.  Any Product which has been returned to Clearwater but which is found to be not defective in workmanship and material will be subject to Clearwater’s then standard examination charge.  Replaced Product will become Clearwater’s property.  Where any Product is returned without an itemized statement of claimed defects, Clearwater will not evaluate the Product but will return it to Purchaser at Purchaser’s expense.  Repairs and replacements are covered by the above warranty and are warranted to be free from defects as stated above, except that the defect must appear: (i) within ninety (90) days from the return date of repair or replacement; or, (ii) prior to the expiration of the remainder of the original Warranty Period, whichever is later.

The remedies in this Section are Purchaser’s exclusive remedies and Clearwater’s sole obligations in respect of breach of the warranties herein.

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

The foregoing warranty will not apply to any Apple Inc. Products supplied to Purchaser by Clearwater.  Purchaser should contact Apple Inc. directly for warranty claims for Apple Products.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

INTELLECTUAL PROPERTY RIGHTS

The Purchaser will not acquire any intellectual property rights in the Products.  All such intellectual property rights shall remain with Clearwater or its licensors.

LIMITATION OF LIABILITY

CLEARWATER SHALL HAVE NO LIABILITY FOR: (i) DIAGNOSTIC USE OF THE PRODUCTS, INCLUDING ANY DIAGNOSIS, MISDIAGNOSIS, OR INJURY THAT MAY BE CAUSED BY A HEALTH PRACTIONER; (ii) DAMAGE OF ANY NATURE TO EQUIPMENT USED IN CONJUNCTION WITH THE PRODUCTS; (iii) FAILURE OF PURCHASER TO COMPLY WITH ACCEPTED MEDICAL PROCEDURES, LAWS, REGULATIONS, GUIDELINES OR DECISIONS IN THE HANDLING OR USE OF THE PRODUCTS; OR, (iv) ANY OTHER USE OR MISUSE OF THE PRODUCTS BY PURCHASER.

IN NO EVENT WILL CLEARWATER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING FOR LOSS OF USE, DATA, BUSINESS, LOSS OF GOODWILL, REPUTATION, CREDIT OR PUBLICITY, LOSS OF REVENUE AND INTEREST, PROFITS, OR ANTICIPATED PROFITS AND CLAIMS FOR SUCH DAMAGES BY A THIRD PARTY) RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS REASONABLY FORESEEABLE.

CLEARWATER WILL ONLY BE LIABLE FOR DIRECT DAMAGES.  CLEARWATER’S TOTAL LIABILITY FOR ANY CLAIM FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY PURCHASER TO CLEARWATER FOR THE PRODUCT THAT IS THE SUBJECT MATTER OF THE CLAIM.  THIS LIMITATION SHALL BE IN EFFECT WHETHER OR NOT CLEARWATER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE.

EXPORT

Purchaser agrees to comply fully with all applicable export and import laws and regulations of Canada, the United States and any other applicable jurisdiction (“Export Laws”) to assure that the Products are not:  (i) exported or imported, directly or indirectly, in violation of Export Laws; or, (ii) used for any purposes prohibited by Export Laws.  Purchaser represents that it is not: (i) on any U.S. government list of persons or entities prohibited from receiving exports from the United States; and, (ii) 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.

GENERAL CONTRACT PROVISIONS

Force Majeure:  A party shall not be liable to the other for any delay in performing its obligations if the delay is caused by circumstances beyond its reasonable control, provided that the other party is promptly notified in writing.  If the circumstance lasts longer than 30 days, then the other party may terminate, in whole or in part, this Agreement by giving written notice to the delayed party.  This Section shall not relieve either party of its obligations under this Agreement, including payment, but rather will only excuse delay in performance.

Confidentiality: Purchaser shall keep confidential all confidential information and material disclosed by or obtained from Clearwater, including pricing.  Purchaser undertakes not to disclose any such material or information to any third party other than its responsible employees who require such disclosure for the proper performance of their duties hereunder.  Purchaser undertakes to take all reasonable steps to minimize the risk of disclosure of such confidential information by employees and others.

Privacy Policy:  Any personal information that Purchaser may provide to Clearwater during the purchase of Products will be protected in accordance with the terms of Clearwater’s Privacy Policy.

Governing Law: This Agreement will be governed by and construed and all disputes arising out of or relating to this Agreement will be settled in accordance with the laws of the Province of Ontario and the laws of Canada applicable in Ontario.  Rules governing conflict of laws shall not apply and the parties irrevocably submit to the non-exclusive jurisdiction of the courts in Ottawa, Ontario.  The United Nations Convention on the International Sale of Goods will not apply to this Agreement or to any dispute arising therefrom.

Assignment: The Purchaser shall not assign or transfer any Products or any rights hereunder to any party without the prior written consent of Clearwater.

No Waiver: No waiver by either party of any breach of any term or condition of the terms and conditions set out herein by the other party will be deemed to constitute a waiver of any other breach, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy hereunder operate as a waiver thereof.  No waiver given by a party hereunder will be binding upon such party unless expressed in writing and signed by such party.

Entire Agreement; Severability: This Agreement is the entire agreement with respect to its subject matter and supersedes all prior or contemporaneous communications or agreements that may exist.  Any pre-printed terms on Purchaser’s purchase order shall be of no force or effect.  Modifications to this Agreement will be made only through a written amendment signed by authorized signing officers of both parties.  If any provision of this Agreement is found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of the Agreement will remain in full force.  No rights may arise by implication or estoppel, other than those expressly granted herein.

Last Updated May 6, 2016