SHOEBOX LTD. TERMS OF SERVICE

Last Revised:  May 12, 2020

These Terms of Service (“Terms”) form a legal agreement between you and SHOEBOX Ltd., which has its principal place of business at 301-80 Aberdeen St., Ottawa, ON Canada K1S 5R5 (“SHOEBOX”, “our”, or “us”).

ABOUT SHOEBOX PRODUCTS AND SERVICES

SHOEBOX® Audiometry Standard and SHOEBOX® Audiometry Pro are registered medical devices in certain jurisdictions.  They are tablet-based audiometers that perform diagnostic hearing testing.

SHOEBOX® QuickTest is a tablet-based hearing screening test.  SHOEBOX QuickTest is not a medical device.

SHOEBOX® Online is an online hearing screening test.  SHOEBOX Online is not a medical device.

SHOEBOX® Data Management Portal is a cloud data storage system that is used to synchronize and store the data collected in association with the use of SHOEBOX products. SHOEBOX Data Management Portal is not a medical device.

Collectively, we refer to these products as the “SHOEBOX Solutions”.

Audiological Services are professional audiological services performed by in-house SHOEBOX audiologists and independent contractors within SHOEBOX’s Audiological Services Network.  There are additional terms of service specific to Audiological Services which can be found here.

Managed Services are consulting services that may include services such as integration support, deployment services, or a dedicated support representative.

Support Services are help desk services that are provided to assist or redirect our customers as required.

Collectively, we refer to these services and any other services that we may perform during the course of our engagement with you, including but not limited to, integration services or translation services, as “Services

If you are in the European Union, the terms of our Data Processing Addendum will also apply to your use of the SHOEBOX Solutions and Services.  If you are in the United States, the terms of our Business Associate Addendum will also apply to your use of the SHOEBOX Solutions and Services.  The Privacy Statement, Data Processing Addendum, Business Associate Agreement, and Terms of Service for Audiological Services are incorporated into these Terms by reference.

YOU ACKNOWLEDGE AND AGREE THAT BY ACCEPTING THESE TERMS OR ACCESSING OR  USING ANY PART OF THE SHOEBOX SOLUTIONS OR SERVICES, 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 SHOEBOX Solutions or Services.  These Terms are effective between you and SHOEBOX as of the date you click to accept these Terms, or the date you begin to use the SHOEBOX Solutions or Services.

SHOEBOX reserves the right, in its sole discretion, to modify, discontinue or terminate any part of the SHOEBOX Solutions or modify these Terms at any time by posting the revised terms at www.shoebox.md.

By continuing to access or use the SHOEBOX Solutions and/or Services after we have posted the modified 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 SHOEBOX Solutions and/or Services, as applicable.

1.   RIGHTS AND RESTRICTIONS

1.1  Right to Access and Use.  Subject to these Terms, you are hereby granted a limited, non-exclusive, non-sublicensable, non-transferable, revocable right to access and use (and to permit the number of provisioned users agreed by the parties to access and use) the SHOEBOX Solutions listed on your quote as follows: (i) you may access and use SHOEBOX Audiometry Standard and/or Pro to conduct diagnostic hearing tests; and, (ii) you may access and use SHOEBOX QuickTest and/or SHOEBOX Online to conduct non-diagnostic hearing screening tests; and, (iii) you may access and use the SHOEBOX Data Management Portal to store data collected using the SHOEBOX Solutions or other Content (as defined in Section 1.3) imported into the SHOEBOX Data Management Portal. All provisioned users’ use of the SHOEBOX Solutions will also be governed by these Terms.  For SHOEBOX Online, you are limited to the number of tests specified in your quote (“Testing Volume Limit”) and your Testing Volume Limit is reset at the beginning of each Renewal Term without any carry-over from the previous Initial Term or Renewal Term (as defined in Section 12.1).  SHOEBOX reserves the right to charge you a commensurate fee for tests conducted over your Testing Volume Limit.

1.2  Restrictions.  You may only access and use the SHOEBOX Solutions and Services in conformity with: (i) the applicable instructions for use, intended use statement, user manual, or other accompanying or online user documentation provided by SHOEBOX (“Documentation”); (ii) accepted medical or industry procedures; and, (iii) all applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies. You agree to run the latest versions of SHOEBOX Audiometry Standard, Pro, and SHOEBOX QuickTest applications that are available in the App Store and you further agree to only run the applications on supported hardware and software platforms as specified by SHOEBOX. You may not: (i) copy, adapt, change, alter or otherwise modify or create derivative works based on the SHOEBOX Solutions, Services, or Documentation; (ii) decompile, disassemble, or otherwise reverse engineer the SHOEBOX Solutions; (iii) sell, rent, lease, provide, disclose, sublicense, distribute, repackage, transfer, or assign the SHOEBOX Solutions, Services, or Documentation in whole or in part; (iv) frame or mirror any part of the SHOEBOX Solutions; (v) use the SHOEBOX Solutions, Services, or Documentation to provide hosting, outsourcing, or subscription services; or, (vi) use the SHOEBOX Solutions or Services 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.  SHOEBOX QuickTest and SHOEBOX Online contain functionality that enables you to include your own branding in the product (“White Labelling”).  White Labelling does not breach the restrictions in this Section 1.2.

1.3  PII and PHI.  As between you and SHOEBOX, all of the audiograms, information, content, or other data that you upload, download, use, transfer, process, or share using the SHOEBOX Solutions and Services, including, but not limited to, personally identifiable information (“PII”) and personal health information (“PHI”), (collectively, “Content”) belong to you. You acknowledge and agree that, except to the extent required for SHOEBOX to provide the SHOEBOX Solutions and Services, you are responsible for the accuracy, quality, and legality of all Content you deliver to SHOEBOX.  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 SHOEBOX Solutions and Services and to grant to SHOEBOX the rights as contemplated in these Terms; and, (ii) neither the Content nor your posting, uploading, publication, submission, or transmittal of the Content or SHOEBOX’s use of the Content with the SHOEBOX Solutions or Services 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 SHOEBOX Solutions and Services.   You retain the sole responsibility for your own compliance with all applicable laws, including Privacy Laws.

1.4  SHOEBOX Access to Content.  In order for SHOEBOX to deliver certain Services to you, SHOEBOX employees or independent contractors within the Audiological Review Network may need access to your Content.  In that situation, SHOEBOX will require that your authorized representative sign a Data Access Form granting SHOEBOX permission to access your Content before SHOEBOX can perform such Services.  We will only access the minimum necessary Content required to perform the Services.

1.5  Location of Content.  You hereby grant SHOEBOX a non-exclusive, royalty-free, worldwide sublicensable right and license to host, access, and use the Content in order to provide the SHOEBOX Solutions and Services as contemplated by these Terms.  You are advised that, depending on your geographic location, THE CONTENT IS HOSTED EITHER IN THE UNITED STATES OR CANADA AS OUTLINED IN DETAIL IN OUR PRIVACY STATEMENT.

2. COMPILED DATA AND FEEDBACK

2.1  Compiled Data.  SHOEBOX collects, compiles and analyzes anonymous, aggregate and/or de-identified data derived from its customers’ access to and use of the SHOEBOX Solutions and Services, including Content (“Compiled Data”).  SHOEBOX employs an automated system to securely de-identify the data used to create the Compiled Data and then uses third party software to perform analytics on the Compiled Data.  The third party analytics software is listed in our Privacy Statement.

2.2  Use of Compiled Data.  SHOEBOX uses Compiled Data to: (i) understand how our customers and their provisioned users access and use the SHOEBOX Solutions and Services; (ii) understand the results generated by our customers’ use of the SHOEBOX Solutions and Services; (iii) evaluate how the SHOEBOX Solutions and Services perform; (iv) perform analyses of the Compiled Data, including but not limited to, analysis of geographic data, demographic data, the number of hearing tests conducted, the number of hearing impairments found, and to identify trends in audiological data; (v) determine how to make improvements to the SHOEBOX Solutions and Services and to develop new capabilities; (vi) investigate reported bugs in the SHOEBOX Solutions or Services and identify customers who may be affected by such bugs; and, (vii) conduct research, whether such research is conducted by SHOEBOX, its affiliates or partners.

2.3  Permission to Create and Use Compiled Data.  You agree that SHOEBOX: (i) may collect, compile, and modify Compiled Data; (ii) may offer you personalized suggestions based on your Compiled Data; (iii) may combine your Compiled Data with Compiled Data of other customers; and, (iv) has a royalty-free, worldwide, irrevocable, perpetual right and license to use Compiled Data for the purposes set out in these Terms.

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

3.  PROTECTION OF CONTENT 

3.1  SHOEBOX Protection of Content.  SHOEBOX will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of 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 Ltd. Business Associate Agreement (“BAA”) will also apply to your use of the SHOEBOX Solutions and the Services.

3.2  Importing Content.  In the event that you elect to provide Content to SHOEBOX that is not generated using the SHOEBOX Solutions, you agree to deliver such Content in a format that is approved by SHOEBOX and to ensure that it is delivered to SHOEBOX using encryption methods sufficient to protect the privacy and security of the Content.

3.3  Customer Protection of Content. You will take appropriate steps to protect Content that may be lost, harmed, or destroyed when you or your provisioned users are accessing and using the SHOEBOX Solutions and Services, including protection of the secrecy of login information.

3.4  Exporting Content.  The SHOEBOX Solutions permit you and your provisioned users 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 security, protection and treatment of Content that you or your provisioned users export.

3.5  No Restrictions.  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 SHOEBOX to violate these Terms or applicable law.

3.6  SHOEBOX Disclosure of Content.  SHOEBOX may use and disclose the Content, 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.

3.7  Reporting.  SHOEBOX will report to you any unauthorized 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 seventy-two (72) hours after SHOEBOX becomes aware of the breach.

3.8  Control of Content. You acknowledge and agree that because you control the upload, download, access to and use of Content, including PHI, in connection with your access to and use of the SHOEBOX Solutions, SHOEBOX does not know the nature of PHI, if any, contained in your SHOEBOX organization within the SHOEBOX Data Management Portal, nor is it able to easily identify which individuals may be identified in the PHI.  As such, it is not feasible for SHOEBOX 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 SHOEBOX 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 impermissible use, disclosure or breach of PHI, for providing a description of the PHI used, disclosed or breached, and for contacting them about such impermissible use, disclosure or breach of PHI.

4.  SERVICES TERMS

4.1  Performance of Services.  SHOEBOX represents and warrants that the Services will be performed in a professional, competent, and timely manner by employees or independent contractors of SHOEBOX that are qualified to perform the applicable Services.  SHOEBOX acknowledges that it is responsible for the acts or omissions of its independent contractors who are performing Services on its behalf.  SHOEBOX reserves the right to make all staffing decisions in its sole and reasonable discretion.  SHOEBOX has had an independent third party conduct employment verification and criminal history checks on all employees who require access to Personal Health Information in order to develop the SHOEBOX Audiology System or perform the Services.

5.  HARDWARE TERMS

5.1  Hardware.  We refer to the iPads, transducers, microphones, Switchboxes, ear inserts, and any other hardware supplied to you by SHOEBOX as part of your subscription to SHOEBOX Solutions as “Subscription Hardware”.  We refer to the transducers, microphones, Switchboxes, ear inserts, and any other hardware sold to you as a capital purchase as “Capital Hardware”.  Collectively, we refer to Subscription Hardware and Capital Hardware as “Hardware”.

5.2  Shipping Terms.  Except as otherwise agreed in writing, SHOEBOX will ship the Hardware Ex Works (SHOEBOX premises) INCOTERMS® 2020.  Shipping and delivery dates are estimates only.  In the event of delayed shipment attributable to SHOEBOX, SHOEBOX reserves the right to reschedule your shipment to take place within a reasonable timeframe, but no more than a month from your original shipment date, failing which you may cancel your order.  When shipment is delayed for reasons attributable to you, we may charge you storage costs and the Hardware will be at your risk from the start of such delay.  SHOEBOX reserves the right to ship and invoice in separate consignments.

5.3  Incomplete Orders.  SHOEBOX performs quality control inspections of all outgoing orders to ensure order accuracy.  You must notify SHOEBOX within ten (10) calendar days of the delivery date if any part of an order is missing or wrong.  SHOEBOX’s sole obligation will be to, at its option, refund any amounts paid for undelivered Hardware or deliver new Hardware.  All returns of wrong orders must be conducted in accordance with Section 5.8.

5.4  Subscription Hardware Warranty.  For the term of your subscription, SHOEBOX warrants that: (i) the SHOEBOX Audiometry Standard and Pro software, and QuickTest software will remain compatible with the iPad(s) you received from SHOEBOX as part of your subscription, failing which SHOEBOX will replace the affected iPad(s); and, (ii) the Subscription Hardware will remain free of defects in materials and workmanship, failing which SHOEBOX will replace the affected Subscription Hardware as set out in Article 5.

5.5  Capital Hardware Warranty.  SHOEBOX warrants that Capital Hardware will remain free of defects in material and workmanship for one (1) year from the date of purchase, failing which, SHOEBOX will replace the affected Capital Hardware as set out in Article 5.

5.6  Changes to Hardware.  SHOEBOX reserves the right to revise, discontinue, or cease to make available any or all of the Hardware at any time.  SHOEBOX may, upon written notice to you, cancel any order under reasonable conditions.  In the event that SHOEBOX cancels an order, it will refund to you any amounts already paid for undelivered Hardware.  SHOEBOX cannot guarantee Hardware availability.  In the event that you have a warranty claim or an outstanding order for Hardware that is discontinued or no longer available, SHOEBOX may, at its option: (i) 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 (“Equivalent Hardware”); or, (ii)  terminate your subscription to the SHOEBOX Solutions or Services, as applicable, if it is unable to procure Equivalent Hardware.

5.7  Hardware Disclaimers.  These warranties and remedies will not apply to any Hardware if repair or replacement is required because of: (i) loss, theft, accident, neglect, misuse, or causes other than ordinary use in accordance with the Documentation; (ii) repairs or alterations, or attempted repairs or alterations, of any Hardware, where such activity is not authorized by SHOEBOX; (iii) the use of non-SHOEBOX supplied software or hardware, or, (iv) disaster, including but not limited to fire, smoke, or water.  SHOEBOX is not liable for any personal use of the SHOEBOX-supplied iPad nor for any data that may be lost as a result of your election to disable the SHOEBOX data backup functionality to the SHOEBOX Data Management Portal.

5.8  Warranty Claims and RMA Procedures.  SHOEBOX will only accept Hardware returned according to the following Return Material Authorization (“RMA”) procedures. To make a warranty claim or return Subscription Hardware at the end of your subscription term, you must contact SHOEBOX by emailing support@shoebox.md to first obtain an RMA number and shipping instructions prior to returning any Hardware to SHOEBOX.  You will be responsible for the shipping costs for RMAs.

5.9  Return of Hardware.    When any Hardware that is the subject of a warranty claim is returned to SHOEBOX without an itemized statement of claimed defects, SHOEBOX will not evaluate the Hardware and will return it to you at your expense.  All returned Hardware will be inspected and SHOEBOX reserves the right to charge for excess wear or damage beyond normal wear and tear. You will be charged current list price for Hardware items that are not returned to SHOEBOX.  Once we receive the Hardware or payment for damaged or missing Hardware, we will close your SHOEBOX account if you have no remaining SHOEBOX subscriptions.

5.10  Exclusive Remedy.  The Hardware remedies set out in Article 5 are your exclusive remedies and SHOEBOX’s sole obligations for breach of such warranties.

5.11  Calibration.  The transducers used in conjunction with the iPad are calibrated when we send them to you and may be subject to ongoing calibration requirements depending on your jurisdiction and use case.  Provided that you keep your contact information current with SHOEBOX, SHOEBOX will notify you when the transducer calibration is about to expire for your Subscription Hardware.  SHOEBOX is not responsible for any testing that is subsequently performed with uncalibrated transducers.  Please contact support@shoebox.md  for information about pricing and logistics.

6.  CONFIDENTIALITY  

6.1  Definition of Confidential Information.  Your Confidential Information shall include your Content; SHOEBOX’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.

6.2  Use of Confidential Information.  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.

6.3  Permitted Disclosure.  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.

6.4  Confidentiality Term.  The obligations of the Receiving Party set forth in this Article 6 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.

7.  INTELLECTUAL PROPERTY  

7.1  IP Ownership.  Ownership of the SHOEBOX Solutions (excluding your Content), Services, Compiled Data, and Documentation (“SHOEBOX IP”) will at all times remain with SHOEBOX. SHOEBOX will retain all right, title, copyright, trade secrets, patents, trademarks, and all other proprietary and intellectual property rights in the SHOEBOX IP, including those that may be developed during our provision of the SHOEBOX Solutions and Services to you. You do not acquire any rights, express or implied, in the SHOEBOX IP other than those specified in these Terms.

8.  MUTUAL INDEMNIFICATION

8.1  Indemnification by You.  You agree to defend, indemnify, and hold SHOEBOX harmless from and against all claims, demands, actions, suits, and, discovery demands, including, without limitation, third party subpoenas, government investigations, or enforcement actions brought against SHOEBOX by a third party, and any damages, liabilities, losses, settlements, judgments, costs, and expenses (including, without limitation, reasonable attorney’s fees and costs): (i) alleging that your use of the SHOEBOX Solutions and/or Services is in violation of your contractual, regulatory, or other legal obligations; or, (ii) arising from your use of the SHOEBOX Solutions and/or Services in violation of these Terms; provided SHOEBOX: (a) promptly gives you written notice of the claim against SHOEBOX, (b) gives you sole control of the defense and settlement of the claim against SHOEBOX (except that you may not settle any claim against SHOEBOX unless  the settlement unconditionally releases SHOEBOX of all liability), and (c) gives you all reasonable assistance, at your expense. The above defense and indemnification obligations do not apply if a claim against SHOEBOX arises from SHOEBOX’s breach of these Terms.

8.2  Indemnification by SHOEBOX. SHOEBOX will defend, indemnify, and hold you harmless from and against all claims, demands, actions, suits, and, discovery demands, including, without limitation, third party subpoenas, government investigations, or enforcement actions brought against you by a third party, and any damages, liabilities, losses, settlements, judgments, costs, and expenses (including, without limitation, reasonable attorney’s fees and costs) alleging that your use of the SHOEBOX Solutions and/or Services as permitted by these Terms infringes or misappropriates a third party copyright, trade secret, trademark, or patent; provided you shall provide SHOEBOX with prompt notice of any allegation that the SHOEBOX Solutions and/or Services infringe or misappropriate a third party’s intellectual property right, shall grant SHOEBOX exclusive control over the defense and settlement of any such claim, and shall give SHOEBOX any information it reasonably requests in connection with the defense of the allegation. SHOEBOX shall not settle any claim against you in a manner that does not unconditionally release you from liability without your written consent. If SHOEBOX receives information about an infringement or misappropriation claim related to the SHOEBOX Solutions and/or Services, SHOEBOX may in its discretion and at no cost to you: (i) modify the SHOEBOX Solutions and/or Services, as applicable, so that they are no longer claimed to infringe or misappropriate; (ii) obtain a license for your continued use of the applicable SHOEBOX Solutions or Services in accordance with these Terms; or (iii) terminate your subscription for the applicable SHOEBOX Solutions or Services upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if: (1) the allegation does not state with specificity that the SHOEBOX Solutions and/or Services are the basis of the claims against you; (2) a claim against you arises from the use or combination of the SHOEBOX Solutions and/or Services or any part thereof with software, hardware, data, or processes not provided by SHOEBOX if the SHOEBOX Solutions and/or Services or use thereof would not infringe without such combination; (3) a claim against you arises from SHOEBOX Solutions and/or Services under a quote for which there is no charge; or, (4) a claim against you arises from Content, a non-SHOEBOX application, or your breach of these Terms, the Documentation, or quote.

8.3  Exclusive Remedy. This Article 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this Article.

9.  DISCLAIMER AND LIMITATION OF LIABILITY

9.1  Disclaimer.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, EXCEPT FOR THE WARRANTIES SET OUT IN ARTICLES 4 AND 5, THE USE OF THE SHOEBOX SOLUTIONS,  SERVICES, DOCUMENTATION, AND HARDWARE IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SHOEBOX SOLUTIONS,  SERVICES, DOCUMENTATION, AND HARDWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. SHOEBOX 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.   SHOEBOX DOES NOT WARRANT THAT THE USE OF THE SHOEBOX SOLUTIONS, SERVICES, DOCUMENTATION OR HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SHOEBOX SOLUTIONS,  SERVICES, DOCUMENTATION OR HARDWARE WILL MEET YOUR REQUIREMENTS, OR THAT REPORTED FAULTS ARE OR WILL BE CORRECTABLE.  NEITHER THE SHOEBOX SOLUTIONS, SERVICES, NOR ANYTHING CONTAINED IN THESE TERMS, THE SHOEBOX SOLUTIONS, SERVICES, DOCUMENTATION OR THE SHOEBOX WEBSITES, CONSTITUTE MEDICAL OR LEGAL ADVICE.

9.2  Limitation of Liability.  SHOEBOX SHALL HAVE NO LIABILITY FOR: (i) ANY DIAGNOSIS, MISDIAGNOSIS, OR INJURY THAT MAY BE CAUSED BY A HEALTH PRACTITIONER OR OTHER USER OF THE SHOEBOX SOLUTIONS OR SERVICES; (ii) YOUR FAILURE TO PROTECT THE PRIVACY AND SECURITY OF YOUR CONTENT; (iii) YOUR FAILURE TO COMPLY WITH THE DOCUMENTATION, ACCEPTED MEDICAL PROCEDURES, APPLICABLE LAWS, REGULATIONS, GUIDELINES, OR DECISIONS IN THE HANDLING, USE OF, OR ACCESS TO THE SHOEBOX SOLUTIONS OR SERVICES; (iv) ANY ISSUES RELATED TO PROFESSIONAL BILLING AND/OR REIMBURSEMENT FOR HEARING TESTING SERVICES RENDERED; (vi) YOUR INABILITY TO USE THE SHOEBOX SOLUTIONS OR SERVICES BECAUSE OF A FAILURE OR DEGRADATION OF A THIRD-PARTY PROVIDER’S NETWORK, A FAILURE OR DEGRADATION OF INTERNET SERVICES PROVIDERS, OR ANY OTHER THIRD PARTY CAUSE; or, (vii) ANY MISUSE OF THE SHOEBOX SOLUTIONS OR SERVICES BY YOU OR YOUR PROVISIONED USERS.

9.3  Exclusions May Not Apply.  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.

10.  LIMITATION OF DAMAGES

10.1  Exclusions.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY (OR ITS EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS) BE LIABLE TO THE OTHER PARTY 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 SHOEBOX SOLUTIONS, SERVICES, DOCUMENTATION OR HARDWARE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE.

10.2  Aggregate Liability. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR YOUR PAYMENT OBLIGATIONS TO SHOEBOX, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY, 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 SHOEBOX BY YOU IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM.

11.  PAYMENT TERMS:

11.1  Payment.  Fees will be set out on a quote or invoice from SHOEBOX or via an online billing system.  Your non-refundable annual or monthly subscription fee will be charged in advance while certain of the Services may be charged in arrears as indicated on your quote.  Unless otherwise agreed in writing, 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 a quote.  If you are required by law to make a withholding or deduction from payment, you will make payment to SHOEBOX net of the required withholding or deduction.  You will supply to SHOEBOX satisfactory evidence (e.g. official withholding tax receipts) that you have accounted to the relevant authority for the sum withheld or deducted.

11.2  Credit Card Payments.  If you are paying by credit card, your credit card will be monthly in advance for monthly subscriptions, or annually in advance for annual subscriptions. SHOEBOX will email you a receipt when your credit card has been charged. If your credit card cannot be charged, SHOEBOX will notify you, and you will need to update your payment information. In the event you do not update your payment information within ten (10) days of such notice, your access to the SHOEBOX Solutions and/or Services may be suspended, and you will need to update your credit card information in order to resume use of the SHOEBOX Solutions and/or Services.

11.3  Interest.  SHOEBOX 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.  SHOEBOX also reserves the right to suspend deliveries and performance of any order if you are past due in making any payments to SHOEBOX, including payments for other orders.  Credit approval may be revoked at any time.

12.  TERM AND TERMINATION:

12.1  Term.  Subject to Section 12.2, your subscription to SHOEBOX Solutions and Services will start: (i) for SHOEBOX Audiometry Standard, Pro, and QuickTest, on the date your Hardware is shipped; (ii) for SHOEBOX Online, on the date of your signed quote; or, (iii) as identified in your quote and your subscription will continue for the committed term specified in your quote (“Initial Term”).  The subscription will automatically renew for the same committed time period as your Initial Term (each a “Renewal Term”, collectively the “Term”).  In the event that you do not wish to renew your subscription, you may provide notice of non-renewal to support@shoebox.md as follows: (i) for a monthly subscription, three (3) business days’ notice; or, (ii) for annual or multi-year subscriptions, thirty (30) calendar days’ notice prior to the end of the Initial Term or Renewal Term, as applicable.

12.2  Cancellation and Return Policy.  Each new customer gets the benefit of a thirty (30) day right of return during the first month of their first subscription to the SHOEBOX Solutions or Services (“Return Period”).  If you wish to terminate your subscription during the Return Period, you must provide written notice of termination at least three (3) business days before the end of the Return Period.  We will refund any prepaid fees to you, provided that you return all Hardware (or provide valid shipment tracking information) to SHOEBOX within thirty (30) days of such notice in accordance with Section 5.8.

12.4  Suspension or Termination for Cause.   Either party may terminate your subscription by providing at least thirty (30) days’ prior written notice to the other party in the event: (i) the other party has materially breached these Terms, including but not limited to non-payment of fees, and such breach remains uncured at the expiration of such thirty (30) day period; or, (ii) the other party has become insolvent, does not pay its debts as they become due, makes a general assignment for the benefit of its creditors, becomes the subject of any domestic or foreign bankruptcy or insolvency law, or applies for or has a receiver, trustee, or similar agent appointed to manage or dispose of any material portion of its property or business. We may suspend or terminate your access to the SHOEBOX Solutions or Services immediately if we determine, in our reasonable discretion, that you are using the SHOEBOX Solutions or Services in violation of law, that your use will expose us to criminal or regulatory fines, or if necessary to protect the SHOEBOX Solutions, Services, or Content.  In the event that you terminate your subscription due to our material breach, we will refund any pre-paid but unearned fees.

12.5  Effect of Termination.  Within thirty (30) days of your termination date, you must return all Subscription Hardware (or provide valid shipment tracking information) to SHOEBOX in accordance with Section 5.8. In advance of the termination or expiry of your subscription, you must create a copy of any Content you will require post termination.  SHOEBOX may permanently delete your Content three (3) months after the termination or expiration of your subscription.

13.  U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND: 

13.1  US Government Rights.  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.

14.  GENERAL

14.1  Governing Law. These Terms 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 these Terms nor to any dispute arising therefrom.

14.2  Relationship of Parties. The parties are not agents or legal representatives of each other. The parties to these Terms 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.

14.3  Survival.  The following Articles and Sections will survive termination or expiration of these Terms between the parties: 6, 7, 8, 9, 10, 12.4, 14.

14.4  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 of Service for Audiological Services; (v) Terms.

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

14.6  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 SHOEBOX’s proprietary rights, 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.

14.7  Entire Agreement. These Terms, together the Privacy Statement, Data Protection Addendum, the BAA, and Terms of Service for Audiological Services, as 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.

14.8  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.

14.9  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 SHOEBOX Solutions or Services in violation of any United States export embargo, prohibition, or restriction.

14.10  Legal Notices. All legal notices to SHOEBOX shall be sent to legal@shoebox.md.  Legal notices to you will be sent via email, using the SHOEBOX Solutions, or posted on www.shoebox.md.