SHOEBOX QuickTest Terms of Service

Effective Date:  May 1, 2022

These SHOEBOX® QuickTest Terms of Service (“TOS”) form a legal agreement between the customer subscribing to the SHOEBOX Solutions (“Customer”) and SHOEBOX Ltd., 301-80 Aberdeen St., Ottawa, ON Canada K1S 5R5 (“SHOEBOX”).

SHOEBOX® QuickTest is a tablet-based hearing screener.  It is not a medical device.

SHOEBOX® Data Management Portal is a cloud data storage system that is used to process and store the data collected by SHOEBOX QuickTest.  It is not a medical device.

Collectively, the above products are referred to in these TOS as the “SHOEBOX Solutions”.

Support Services are help desk services that are provided to assist SHOEBOX customers.

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

Collectively we refer to Support Service and Professional Services as “Services

CUSTOMER ACKNOWLEDGES AND AGREES THAT BY ACCESSING OR USING THE SHOEBOX SOLUTIONS, IT IS AGREEING TO BE BOUND BY THESE TOS. Customer must be at least eighteen (18) years old to agree to these Terms. These TOS are effective as of the subscription date indicated on Customer’s invoice for the SHOEBOX Solutions.

SHOEBOX reserves the right to modify, discontinue or terminate any part of the SHOEBOX Solutions or modify these TOS at any time by posting the revised TOS at www.shoebox.md.  By continuing to access or use the SHOEBOX Solutions after SHOEBOX has posted the revised TOS, Customer agrees to be bound by the modified TOS. If the modified TOS are not acceptable to Customer, Customer agrees to immediately stop using the SHOEBOX Solutions.

1. RIGHTS AND RESTRICTIONS

1.1  Right to Access and Use. Subject to these Terms, Customer is hereby granted a limited, non-exclusive, non-sublicensable, non-transferable, revocable right to have its Provisioned Users access and use the SHOEBOX Solutions in order to conduct hearing screening on end users or participants.  “Provisioned User” means a natural person to whom Customer grants access to operate the SHOEBOX Solutions.  All Provisioned Users’ use of the SHOEBOX Solutions will also be governed by these Terms.

1.2  Restrictions. Customer may only access and use the SHOEBOX Solutions in conformity with: (i) the applicable instructions for use and other applicable user documentation in SHOEBOX’s Knowlege Base (“Documentation”); and, (ii) all applicable laws and regulations. Customer agrees to upgrade to the latest version of the SHOEBOX Solutions within ninety (90) days’ of their release and further agrees to only run the SHOEBOX Solutions on supported hardware and software as specified by SHOEBOX. Failure by Customer to upgrade in a timely manner or use supported hardware may result in SHOEBOX discontinuing support Services for the affected SHOEBOX Solutions.  Customer may not: (i) copy, adapt, change, alter or otherwise modify or create derivative works based on the SHOEBOX Solutions 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 or Documentation in whole or in part; (iv) frame or mirror any part of the SHOEBOX Solutions; or, (v) use the SHOEBOX Solutions to provide hosting, outsourcing, or subscription services.

1.3  Personal Data. All Personal Data will be processed as set out in the Data Processing Addendum between the parties (“DPA”), which is incorporated into these TOS by reference.  All of the screening results or other personally identifiable information that an end user shares or creates using the SHOEBOX Solutions are considered Personal Data as defined in Section 1 of the DPA.  As between SHOEBOX and Customer, all Personal Data belongs to Customer.

1.4  Customer’s Responsibilities Regarding Personal Data. Customer must ensure that it obtains valid consent to use an end user’s Personal Data and that the consent is documented in a way that meets the requirements of Customer’s jurisdiction.

1.5  Processing of Personal Data. Customer hereby grants SHOEBOX a non-exclusive, royalty-free, worldwide sublicensable right and license to host, process, access, and use the Personal Data as contemplated by these TOS.

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 Personal Data (“Compiled Data”).   SHOEBOX processes such Compiled Data as set out in Section 2.5 of the DPA.

2.2  Feedback. Customer agrees that SHOEBOX may reuse all general knowledge and know-how acquired during the provision of the SHOEBOX Solutions and Services to Customer. 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 Customer relating to the SHOEBOX Solutions and Services.

3.  PROTECTION OF PERSONAL DATA 

3.1  SHOEBOX Protection of Personal Data. SHOEBOX will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of the Personal Data as set out in the DPA.

3.2  Customer Protection of Personal Data. Customer will take appropriate steps to protect Personal Data that may be lost, harmed, or destroyed when Customer and Customer’s Provisioned Users are accessing and using the SHOEBOX Solutions and Services, including protection of the secrecy of login information.

3.3  Exporting Personal Data. The SHOEBOX Solutions permit Customer and Customer’s Provisioned Users to export Personal Data so that Customer may store it in another location, share it with another person, or print it. Customer is fully liable for the security, protection and treatment of Personal Data that Customer or its Provisioned Users export.

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 representatives of SHOEBOX that are qualified to perform the applicable Services. SHOEBOX reserves the right to make all staffing decisions for the Services.

5.  HARDWARE TERMS

5.1  Hardware. SHOEBOX refers to new or refurbished iPads, transducers and any other hardware supplied by SHOEBOX as part of a subscription to SHOEBOX Solutions as “Subscription Hardware”.  SHOEBOX refers to the iPads, transducers and any other hardware sold 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 Customer’s shipment to take place within a reasonable timeframe, but no more than a month from Customer’s original shipment date, failing which Customer may cancel the applicable order. When shipment is delayed for reasons attributable to Customer, SHOEBOX may charge Customer storage costs and the Hardware will be at Customer’s 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. Customer 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 replacement Hardware. All returns of wrong orders must be conducted in accordance with Section 5.8.

5.4  Subscription Hardware Warranty. For the term of Customer’s subscription, SHOEBOX warrants that: (i) the software for the SHOEBOX Solutions will remain compatible with the iPad(s) received from SHOEBOX as part of a 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 this 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 this 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 Customer, cancel any order under reasonable conditions. In the event that SHOEBOX cancels an order, it will refund to Customer any amounts already paid for undelivered Hardware. SHOEBOX cannot guarantee Hardware availability.  In the event that Customer has 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 Customer’s subscription to the SHOEBOX Solutions 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 Customer’s election to disable the SHOEBOX data backup functionality to the SHOEBOX Data Management Portal.

5.8  RMA Procedures. SHOEBOX will only accept Hardware returned according to its Return Material Authorization (“RMA”) procedures. To make a warranty claim or return Subscription Hardware at the end of Customer’s subscription term, Customer must contact SHOEBOX by emailing support@shoebox.md to first obtain an RMA number and shipping instructions prior to returning any Hardware to SHOEBOX. Customer 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 Customer at its expense. All returned Hardware will be inspected and SHOEBOX reserves the right to charge for excess wear or damage beyond normal wear and tear.  Customer will be charged current list price for Subscription Hardware items that are not returned to SHOEBOX.

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

6.  CONFIDENTIALITY  

6.1  Definition of Confidential Information. Customer’s Confidential Information includes Customer’s Personal Data; SHOEBOX’s Confidential Information includes Compiled Data; and Confidential Information of each party includes the information about Customer’s subscription, including pricing, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party that are either marked confidential or that a reasonable person would consider confidential. However, Confidential Information shall not include any information that: (i) is publicly known or readily ascertainable by the public through no wrongful act of the 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 TOS; (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 TOS 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 two (2) years after termination of Customer’s subscription to the SHOEBOX Solutions. Confidential information identified as a trade secret will be held in confidence indefinitely.

7.  INTELLECTUAL PROPERTY  

7.1  IP Ownership. SHOEBOX and/or its licensors own all right, title, interest, copyright, trade secrets, patents, trademarks, and all other proprietary and intellectual property rights in the SHOEBOX Solutions (excluding Customer’s Personal Data), Services, Compiled Data, and Documentation (“IP”). Customer does not acquire any rights, express or implied, in the IP other than those specified in these TOS.

8.  INDEMNIFICATION

8.1  Indemnification by SHOEBOX. SHOEBOX will defend, indemnify, and hold Customer harmless from and against all third party claims, demands and actions, as well as any damages, liabilities, losses, settlements, judgments, costs, and expenses (including, without limitation, reasonable attorney’s fees and costs) alleging that Customer’s use of the SHOEBOX Solutions as permitted by these TOS infringes a third party copyright, trade secret, trademark, or patent (“IP Claim”); provided that Customer provides SHOEBOX with prompt notice of any IP Claim, grants SHOEBOX exclusive control over the defense and settlement of any such IP Claim, and gives SHOEBOX any information it reasonably requests in connection with the defense of the allegation. SHOEBOX shall not settle any IP Claim against Customer in a manner that does not unconditionally release Customer from liability without its written consent. If SHOEBOX receives information about an IP Claim, SHOEBOX may in its discretion and at no cost to Customer: (i) modify the SHOEBOX Solutions to address the allegations in the IP Claim; (ii) obtain a license for Customer’s continued use of the SHOEBOX Solutions in accordance with these TOS; or (iii) terminate Customer’s subscription for the SHOEBOX Solutions upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscription. The above defense and indemnification obligations do not apply if the IP Claim arises from the use or combination of the SHOEBOX Solutions or any part thereof with SHOEBOX Solutions, hardware, data, or processes not provided by SHOEBOX if the SHOEBOX Solutions or use thereof would not infringe without such combination.

8.2  Exclusive Remedy. This Article 8 states SHOEBOX’s sole liability and Customer’s exclusive remedy for any third-party claim described in this Article.

9.  DISCLAIMER AND LIMITATION OF LIABILITY

9.1  Disclaimer. THE SHOEBOX SOLUTIONS ARE NOT MEDICAL DEVICES AND NOT INTENDED FOR DIAGNOSTIC USE.  CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE WARRANTIES SET OUT IN ARTICLES 4 AND 5, THE USE OF THE SHOEBOX SOLUTIONS, SERVICES AND HARDWARE IS AT CUSTOMER’S SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SHOEBOX SOLUTIONS, SERVICES 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 OR HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SHOEBOX Solutions OR HARDWARE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT REPORTED FAULTS ARE OR WILL BE CORRECTABLE. NEITHER THE SHOEBOX SOLUTIONS, NOR ANYTHING CONTAINED IN THESE TOS, THE 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; (ii) CUSTOMER’S FAILURE TO PROTECT THE PRIVACY AND SECURITY OF ITS PERSONAL DATA;; (iii) CUSTOMER’S FAILURE TO COMPLY WITH  APPLICABLE LAWS, INCLUDING PRIVACY LAWS; (iv) ANY ISSUES RELATED TO PROFESSIONAL BILLING AND/OR REIMBURSEMENT FOR HEARING TESTING SERVICES RENDERED; (vi) CUSTOMER’S INABILITY TO USE THE SHOEBOX SOLUTIONS 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) CUSTOMER’S FAILURE TO COMPLY WITH THE DOCUMENTATION OR MISUSE OF THE SHOEBOX SOLUTIONS BY CUSTOMER.

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 CUSTOMER.

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 SHOEBOX’S INDEMNIFICATION OBLIGATIONS OR CUSTOMER’S 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 NOT EXCEED THE FEES PAID TO SHOEBOX BY CUSTOMER 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 in an invoice from SHOEBOX or its affiliated distribution partners within WS Audiology. Customer’s 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 the applicable invoice. 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 Customer is responsible to pay all such fees. Customer agrees to pay all shipping and handling charges, including insurance, brokerage fees, special packaging, and transportation, except as agreed otherwise in a quote. If Customer is required by law to make a withholding or deduction from payment, Customer will make payment to SHOEBOX net of the required withholding or deduction. Customer will supply to SHOEBOX satisfactory evidence (e.g. official withholding tax receipts) that it has accounted to the relevant authority for the sum withheld or deducted.

11.2  Credit Card Payments. If Customer is paying by credit card, Customer’s credit card will be charged monthly in advance for monthly subscriptions, or annually in advance for annual subscriptions. SHOEBOX will email Customer a receipt when its credit card has been charged. If Customer’s credit card cannot be charged, SHOEBOX will notify Customer, and Customer will need to update the payment information. In the event that Customer does not update its payment information within ten (10) days of such notice, Customer’s access to the SHOEBOX Solutions and/or Services may be suspended, and Customer will need to update its 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 Customer is 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, Customer’s subscription to the SHOEBOX Solutions starts on the date indicated on the applicable invoice and will continue for the committed term specified therein (“Initial Term”). The subscription will automatically renew for the same committed term as Customer’s Initial Term (each a “Renewal Term”, collectively the “Term”).

12.2  Thirty Day Right of Cancellation. Each new customer gets the benefit of a thirty (30) day right of cancellation during the first month of their first subscription to the SHOEBOX Solutions (“Cancellation Period”). If Customer wishes to terminate its subscription during the Cancellation Period, Customer must provide written notice of termination at least three (3) business days before the end of the Cancellation Period.  SHOEBOX will then refund any prepaid fees provided that Customer returns all Hardware (or provides valid shipment tracking information) to SHOEBOX within thirty (30) days of such notice in accordance with Section 5.7.

12.3  Non-Renewal.  In the event that Customer does not wish to renew its subscription, Customer 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

12.4  Suspension or Termination for Cause. Either party may terminate Customer’s subscription to the SHOEBOX Solutions 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 TOS, 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. SHOEBOX may suspend or terminate Customer’s access to the SHOEBOX Solutions and/or Services immediately if it determines, in its reasonable discretion, that Customer is using the SHOEBOX Solutions in violation of law, that its use of the SHOEBOX Solutions will expose SHOEBOX to criminal or regulatory fines, or if necessary to protect the SHOEBOX Solutions, Services, or Personal Data. In the event that Customer terminates its subscription to the SHOEBOX Solutions due to SHOEBOX’s material breach, SHOEBOX will refund any pre-paid but unearned fees.

12.5  Effect of Termination.  In advance of the termination or expiry of Customer’s SHOEBOX Solutions subscription, Customer must create a copy of any Personal Data it will require post termination.

13.  GENERAL

13.1  Governing Law. These TOS will be governed by 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 TOS nor to any dispute arising therefrom.

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

13.3  Survival. The following Articles and Sections will survive termination or expiration of these TOS between the parties: 6, 7, 8, 9, 10, 12.4, 13.

13.4  Precedence. Conflicts are to be resolved in the following order of precedence as applicable: (i) DPA; (ii) TOS.

13.5  Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law, merger, acquisition, or otherwise.

13.6  Waiver. The waiver by either party of any default or breach of these TOS 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 TOS may be brought by either party more than one (1) year after the cause of action has arisen.

13.7  Entire Agreement. These TOS, together with the DPA and the invoice, comprise the entire agreement between the parties regarding the subject matter of these TOS and supersede all prior or contemporaneous communications or agreements that may exist. Any pre-printed terms on Customer’s purchase order shall be of no force or effect.

13.8  Severability. If one or more provisions of these TOS 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.

13.9  Export Administration. Customer represents: (i) that it is not named on any U.S. Government list of persons or entities prohibited from receiving exports from the United States; (ii) it is 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) it shall not access or use the SHOEBOX Solutions or Services in violation of any United States export embargo, prohibition, or restriction.

13.10 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 SHOEBOX Solutions 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 SHOEBOX Solutions – Restricted Rights at 48CFR52.227-19, as amended or applicable, or such other applicable rules and regulations.

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