Terms of Service
This Accessible Web Terms of Service (together with any Order Forms or SOW (each as defined below) issued hereunder from time to time, this “Agreement”) is entered into by and between Accessible Web LLC (“Accessible Web”) and the Person placing an order for or accessing any Services (“Client” or “you”).
IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” OR “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement permits Client to purchase subscriptions to Accessible Web’s hosted platform and other services provided by Accessible Web pursuant to any Accessible Web ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be provided. This Agreement will govern Client’s initial purchase on the Effective Date as well as any future purchases made by Client that reference this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Client’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Accessible Web Hosted Platform” means the software-as-a-service platform made available by Accessible Web to Client in a hosted environment pursuant to an Order Form.
“Accessible Web Software” means any mobile application or desktop client software included in the applicable Service that is made available by Accessible Web to Client.
“Client Data” means information, data, and other content, in any form or medium, that is provided by or on behalf of Client to the Services or Accessible Web, downloaded, or otherwise received, directly or indirectly from Client or a Permitted User by or through the Services, including from Third-Party Products.
“Client Website” means Client’s website identified in the applicable Order Form.
“Confidential Information” means all information of a confidential or proprietary nature obtained by one party or its representative from the other party or its representative in connection with this Agreement that (i) is identified by the disclosing party as confidential or proprietary or (ii) should reasonably be understood by the receiving party to be of a confidential or proprietary nature. Without limiting the generality of the foregoing, the Accessible Web Code, Accessible Web Hosted Platform, Accessible Web Software, Documentation and Accessible Web user interfaces are Confidential Information of Accessible Web, and the pricing and other terms of this Agreement are Confidential Information of each party. However, the term “Confidential Information” shall not include information that (I) is independently derived by the receiving party without use of the other party’s Confidential Information, (II) is or becomes a matter of public knowledge through no fault of the receiving party, (III) is or was lawfully obtained by the receiving party from a third party that is under no obligation of confidentiality to the other party hereto, or (IV) is aggregated and anonymized.
“Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise, and whether in paper, electronic or other written form) regarding the Services that is made available by Accessible Web to Client online or in any other manner
“Laws” means all applicable local, state, federal and international laws and regulations.
“Permitted Agent” means any third party that is providing information technology services to Client and that is not a competitor of Accessible Web.
“Permitted User” means an employee or Permitted Agent of Client who is authorized to access the Services.
“Person” means any natural person, corporation, partnership, joint venture, limited liability company, government authority or any agency or subdivision thereof, unincorporated organization, trust, association or other entity.
“Professional Services” means Accessible Web audit and certifications, Accessible Web web design and development and Accessible Web consulting.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); or (iii) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU General Data Protection Regulation or any successor directive or regulation).
“Services” means Accessible Web’s proprietary software-as-a-service solution(s) (SaaS), including the Accessible Web Hosted Platform, Accessible Web guided audits, Accessible Web application programming interfaces (APIs), & Accessible Web Code, together with any Professional Services, in each case, as described in and purchased by Client on the applicable Order Form.
“Third-Party Product” means any software, software-as-a-service, data sources or other products or services not provided by Accessible Web that are integrated with Services as described in the Documentation.
“WCAG ” means the Web Content Accessibility Guidelines developed by the World Wide Web Consortium.
2. Accessible Web Services
2.1 Provision of Services.
Services other than Professional Services are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Accessible Web may also offer certain related Professional Services. Client will purchase and Accessible Web will provide the specific Services, including Professional Services (if any) as specified in the applicable Order Form.
2.2 Access to Services.
Client may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form. Use of and access to the Services is permitted only by Permitted Users. Client is responsible for all activity occurring under Client’s account. Client agrees to protect and maintain the confidentiality of all user IDs, passwords, API keys and other access credentials utilized to access or use the Services. User IDs are granted to individual, named persons and may not be shared. If any Permitted User who has access to a user ID is no longer an employee or Permitted Agent of Client, then Client will immediately delete such user ID and otherwise terminate such Permitted User’s access to the Services.
2.3 Accessible Web Software.
Subject to all of the terms and conditions of this Agreement, if Accessible Web provides Accessible Web Software to Client for use in connection with the Services, Accessible Web hereby grants to Client a limited, personal, non-transferable, non-sublicensable, non-exclusive license during the term of the applicable Order Form to use the object code form of the Accessible Web Software internally, but only in connection with Client’s use of the applicable Service and otherwise in accordance with the Documentation and this Agreement.
2.4 Accessible Web Code.
Subject to all of the terms and conditions of this Agreement, if Accessible Web provides Accessible Web Code to Client for use in connection with the Services, Accessible Web hereby grants to Client a limited, personal, non-transferable, non-sublicensable, non-exclusive license during the term of the applicable Order Form to copy the Accessible Web Code in the form provided by Accessible Web on Client’s Website solely to support Client’s use of the applicable Service and otherwise in accordance with the Documentation and this Agreement. Client may be required to implement Accessible Web Code on Client’s Website in order to utilize features of the Services. Client will implement all Accessible Web Code in strict accordance with the Documentation and other instructions provided by Accessible Web. Client acknowledges that any changes made to Client’s Websites after initial implementation of Accessible Web Code may cause the Services to cease working or function improperly and that Accessible Web will have no responsibility for the impact of any such Client changes.
2.5 Contractors and Affiliates.
Client may permit its Permitted Agent’s employees and contractors to serve as Permitted Users, provided Client remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Client.
2.6 General Restrictions.
Client agrees not to: (i) transfer, assign or sublicense, whether by agreement, operation of law, or otherwise, its subscription rights or other rights or obligations under this Agreement to any person or entity, and Client acknowledges that any such attempted transfer, assignment or sublicense shall be void; (ii) make error corrections to or otherwise modify, change, or adapt the Services, Accessible Web Code, Accessible Web Hosted Platform or Accessible Web Software, or create derivative works or enhancements based upon or to the Services, Accessible Web Code, Accessible Web Hosted Platform or Accessible Web Software, or permit third parties to do the same; (iii) decompile, decrypt, reverse engineer, attempt to obtain or modify the source code of or non-public APIs, or disassemble, any aspect of the Services, Accessible Web Code, Accessible Web Hosted Platform or Accessible Web Software, or otherwise reduce any such software to human-readable form, or permit third parties to do the same; (iv) except as otherwise expressly provided in this Agreement, permit third parties to use or have access to the Services, Accessible Web Code, Accessible Web Hosted Platform or Accessible Web Software, or use or permit use of the Services, Accessible Web Code, Accessible Web Hosted Platform or Accessible Web Software for the performance of services, or processing or generation of data, for third parties; (v) use Services, Accessible Web Code, Accessible Web Hosted Platform or Accessible Web Software, in a manner that is contrary to applicable law or in violation of any third party rights, including without limitation ownership, privacy or intellectual property rights; (vi) use the Services, Accessible Web Code, Accessible Web Hosted Platform or Accessible Web Software to publish, post, upload, store or transmit any data, information or files that contain any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any systems, data, information or property of another; or (vii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services, Accessible Web Code, Accessible Web Hosted Platform or Accessible Web Software. Client shall indemnify and hold harmless Accessible Web and its Affiliates from and against any and all losses, damages, expenses, and liabilities incurred as a result of any claims of third parties that arise out of Client’s breach of this Section 2.6.
2.7 Accessible Web APIs.
If Accessible Web makes access to any APIs available as part of the Services, Accessible Web reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Accessible Web may monitor Client’s usage of such APIs and limit the number of calls or requests Client may make if Accessible Web believes that Client’s usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on Accessible Web).
2.8 Trial Subscriptions.
If Client receives free access or a trial or evaluation subscription to any Service (a “Trial Subscription”), then Client may use the applicable Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by Accessible Web (the “Trial Period”). Trial Subscriptions are permitted solely for Client’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Service. Client’s right to access and use the Services included in the Trial Subscription will terminate at the end of the Trial Period. Accessible Web has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING A TRIAL SUBSCRIPTION THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND ACCESSIBLE WEB SHALL HAVE NO INDEMNIFICATION, SUPPORT OR OTHER OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE TRIAL SUBSCRIPTION PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ACCESSIBLE WEB’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE TRIAL SUBSCRIPTION SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, ACCESSIBLE WEB AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT: (I) CLIENT’S USE OF THE SERVICES DURING THE TRIAL SUBSCRIPTION PERIOD WILL MEET CLIENT’S REQUIREMENTS, (II) CLIENT’S USE OF THE SERVICES DURING THE TRIAL SUBSCRIPTION PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (III) USAGE DATA PROVIDED DURING THE TRIAL SUBSCRIPTION PERIOD WILL BE ACCURATE. CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ACCESSIBLE WEB AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF THE SERVICES DURING THE TRIAL SUBSCRIPTION PERIOD, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.9 Professional Services.
Accessible Web will provide the Professional Services purchased in the applicable Order Form. The scope of Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Client will pay Accessible Web at the per-hour rates set forth in the Order Form (or, if not specified, at Accessible Web’s then-standard rates) for any excess services. Client will reimburse Accessible Web for reasonable travel and lodging expenses as incurred. Accessible Web will retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Accessible Web (or its agents).
3. Client Data
3.1 Rights in Client Data.
As between the parties, Client will retain all right, title and interest (including any and all intellectual property rights) in and to the Client Data as provided to Accessible Web. Subject to the terms of this Agreement, Client hereby grants to Accessible Web a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Client Data solely to the extent necessary to provide the Services to Client. Accessible Web owns and retains the right to collect, use in any lawful manner and disclose aggregated, anonymized data or other data that is not Confidential Information.
3.2 Storage of Client Data.
Accessible Web does not provide a data storage service. Accessible Web agrees only that it will not intentionally delete any Client Data from any Service prior to termination of Client’s applicable Subscription Term. Accessible Web expressly disclaims all other obligations with respect to data storage.
3.3 Client Obligations.
a.) In General. Client is solely responsible for the accuracy, content and legality of all Client Data. Client represents and warrants to Accessible Web that Client has all necessary rights, consents and permissions to collect, share and use all Client Data as contemplated in this Agreement (including granting Accessible Web the rights in Section 15 (Rights in Client Data)) and that no Client Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing Client’s Website or Client’s accounts with any Third-Party Products. Client will be fully responsible for any Client Data submitted to the Services by any Person as if it was submitted by Client.
b.) No Sensitive Personal Information. Client specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Client acknowledges that Accessible Web is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. Accessible Web will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
d.) Compliance with Laws. Client agrees to comply with all applicable Laws in its use of the Services.
Accessible Web agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Client Data. However, Accessible Web will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Accessible Web’s reasonable control.
5. Third-Party Products
The Services may support integrations with certain Third-Party Products. In order for the Services to communicate with such Third-Party Products, Client may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Products. By enabling use of the Services with any Third-Party Products, Client authorizes Accessible Web to access Client’s accounts with such Third-Party Products for the purposes described in this Agreement. Client is solely responsible for complying with any relevant terms and conditions of the Third-Party Products and maintaining appropriate accounts in good standing with the providers of the Third-Party Products. Client acknowledges and agrees that Accessible Web has no responsibility or liability for any Third-Party Product or any Client Data exported to a Third-Party Product. Accessible Web does not guarantee that the Services will maintain integrations with any Third-Party Product and Accessible Web may disable integrations of the Services with any Third-Party Product at any time with or without notice to Client. For clarity, this Agreement governs Client’s use of and access to the Services, even if accessed through an integration with a Third-Party Product.
6. 1 Feedback.
Client, from time to time, may submit Feedback to Accessible Web. Accessible Web may freely use or exploit Feedback in connection with any of its products or services. As used herein, “Feedback” means comments, questions, suggestions or other feedback relating to any Accessible Web product or service.
6.2 Accessible Web Intellectual Property.
Client agrees that the Services, Accessible Web Code, Accessible Web Hosted Platform, Accessible Web Software and Documentation, including the specific design and structure of programs, and including screen shots and user interfaces, are considered proprietary information, trade secrets or copyrighted materials and Confidential Information of Accessible Web. The Services, Accessible Web Code, Accessible Web Hosted Platform, Accessible Web Software and Documentation may also include proprietary information or other information or property owned by third parties and licensed to Accessible Web for use or distribution as contemplated hereby. Title to and ownership of the Services, Accessible Web Code, Accessible Web Hosted Platform, Accessible Web Software, Documentation, Professional Services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Accessible Web Intellectual Property”) and all rights therein (including all intellectual property rights) shall, as between Accessible Web and Client, be the exclusive property of Accessible Web. Except as expressly set forth in this Agreement, no rights in any Accessible Web Intellectual Property are granted to Client. Further, Client acknowledges that Client has no right to obtain a copy of any of the Services and that the Accessible Web Hosted Platform will be hosted by Accessible Web or its third-party hosting provider and will not be provided to or installed by Client.
7. Availability & Service Credits
The Services are available subject to Accessible Web’s Service Level Agreement (“SLA”) which is available at https://accessibleweb.com/legal/service-level-agreement/ .
During the Subscription Term of each Service, Accessible Web will provide support in accordance with Accessible Web’s “Support Policy” which is available at https://accessibleweb.com/legal/support-policy/.
9. Subscription Term, Fees, & Payment
9.1 Subscription Term and Renewals.
Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional one month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
9.2 Fees and Payment.
All fees are as set forth in the applicable Order Form and will be paid by Client in advance, electronically prior to commencement of the Services, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 10 (Limited Warranty) and Section 11 (Intellectual Property Indemnification), all fees are non-refundable. Client agrees to pay a late payment charge in the amount of one and one-half percent (1 ½%) per month on any unpaid amount for each calendar month (or portion thereof) that any payment is in default. Except as expressly provided in the applicable Order Form, renewal of subscriptions will be at Accessible Web’s applicable list price in effect at the time of the applicable renewal. Client is responsible for paying all sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign (collectively, “Taxes”), and all Taxes are excluded from any fees set forth in the applicable Order Form. If Client is required by Law to withhold any Taxes from Client’s payment, the fees payable by Client will be increased as necessary so that after making any required withholdings, Accessible Web receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made.
9.3 Payment Via Credit Card.
If you are purchasing the Services via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
a.) Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Client remains responsible for any amounts not remitted to Accessible Web and Accessible Web may, in its sole discretion, either (i) invoice Client directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Client (if applicable) or (iii) terminate this Agreement.
b.) Foreign Transaction Fees. Client acknowledges that for certain Credit Cards, the issuer of Client’s Credit Card may charge a foreign transaction fee or other charges.
c.) Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Client hereby authorizes Accessible Web (or its designee) to automatically charge Client’s Credit Card on each renewal date during the Subscription Term, which may be the same date each year during the Subscription Term, or if the Order Form provides that fees are to be billed on a monthly basis, the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) for all fees accrued as of that date (if any) in accordance with the applicable Order Form. Client acknowledges and agrees that the amount billed and charged on each renewal date may vary depending on Client’s use of the Services and may include subscription fees for the remainder of Client’s applicable billing period and overage fees for the prior period.
d.) Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Client may terminate the Subscription Term by sending Accessible Web notice of non-renewal to in accordance with Section 9.1 (Subscription Term and Renewals) or, if Client’s Subscription Term is on a monthly basis (or if otherwise permitted by Accessible Web), by deleting Client’s website from within the Accessible Web Hosted Platform, with termination effective at the end of the current Subscription Term. As set forth in Section 2.8 (Trial Subscriptions), if Client does not enter into a paid Subscription Term following a Trial Period, this Agreement and Client’s right to access and use the Services will terminate at the end of the Trial Period and Client’s Credit Card will not be charged.
e.) Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Accessible Web will charge Client’s Credit Card (or invoice Client directly) for any outstanding fees for Client’s use of the Services during the Subscription Term, after which Accessible Web will not charge Client’s Credit Card for any additional fees.
9.4 Suspension of Service.
Accessible Web reserves the right, as a non-exclusive remedy, to suspend use of the Accessible Web Hosted Platform and provision of Services when charges to Client remain unpaid 15 days after the due date and to charge late fees (not to exceed 2% per month) for any overdue amounts.
Accessible Web also reserves the right to suspend Client’s access to the Services without liability to Client if Client’s use of the Services is in violation of Accessible Web’s use policies or Client is otherwise in breach of the terms and conditions of this Agreement, including, without limitation, the right to update Client’s Accessible Web certification status as “Self-Managed” on Client’s website in the event that Client does not make their website accessible in accordance with Accessible Web’s recommendations, or fails to address issues that Accessible Web has advised Client on.
10. Limited Warranty
10.1 Limited Warranty.
Accessible Web warrants, for Client’s benefit only, that the Accessible Web Hosted Platform will operate in substantial conformity with the applicable Documentation. Any claim under this warranty related to the Accessible Web Hosted Platform must be reported to Accessible Web in writing within 30 days following the date that the Accessible Web Hosted Platform is made available by Accessible Web or its Affiliate or other representative to Client online or in any other matter. Accessible Web’s sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Client, for Accessible Web to use commercially reasonable efforts to correct the reported non-conformity, or if Accessible Web determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Client will receive as its sole remedy a refund of any unused fees Client has pre-paid for use of such the Accessible Web Hosted Platform for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 10.1 will not apply: (i) unless Client makes a claim within 30 days of the date on which Client first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
10.2 Warranty Disclaimer.
The Accessible Web Hosted Platform and Services generally are designed to audit your website for WCAG accessibility, and then create a road map of steps towards WCAG conformance. THE SERVICES DO NOT CERTIFY COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT OF 1990, SECTION 508 OF THE REHABILITATION ACT OF 1973 OR ANY OTHER APPLICABLE LAW. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 10.1, ALL SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER ACCESSIBLE WEB NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. ACCESSIBLE WEB DOES NOT WARRANT THAT CLIENT’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES ACCESSIBLE WEB WARRANT THAT IT WILL REVIEW THE CLIENT DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CLIENT DATA WITHOUT LOSS OR CORRUPTION. ACCESSIBLE WEB SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. ACCESSIBLE WEB SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ACCESSIBLE WEB. CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
11. Intellectual Property Indemnification
Accessible Web shall defend or, at its option, settle, any third-party claim or proceeding brought against Client and shall indemnify Client against all costs, damages and expenses finally awarded against Client that result from any such claim or proceeding, in each case, alleging that Client’s use of the Services, as expressly permitted by this Agreement, infringes any third-party patent, copyright or other intellectual property right of any third party in the United States; provided that Client notifies Accessible Web promptly in writing of any such claim or proceeding, gives Accessible Web full and complete authority, information and assistance to defend such claim or proceeding, and gives Accessible Web sole control of the defense of any such claim or proceeding and all negotiations for its compromise or settlement.
Accessible Web shall not have any liability under Section 11.1 to the extent that any claim in Section 11.1 arises from or relates to (i) any third party content or Third-Party Products, (ii) access to or use of the Services in combination with any hardware, system, software, network, data or other materials or service not provided by Accessible Web; (iii) any modification of the Services by Client or any a third party, (iv) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Client by or on behalf of Accessible Web, or (v) any matter described in Section 12.
Should the Services or any portion thereof become, or in Accessible Web’s opinion be likely to become, the subject of a claim of infringement, Accessible Web shall, at Accessible Web’s option and expense, (i) procure for Client the right to continue using the Services or affected portion thereof, (ii) replace or modify the Services or affected portion thereof with a noninfringing version of substantially equivalent function and performance, or (iii) failing the above notwithstanding commercially reasonable efforts, terminate the subscription with respect to the Services or affected portion thereof and refund to Client the unused portion of the subscription fee with respect to the terminated Services or portion thereof (based on the percentage of days remaining in the then-current term).
The provisions of this Section 11 are in lieu of all other obligations, and state the sole, exclusive and entire liability of Accessible Web and its Affiliates, suppliers and licensors, and the sole, exclusive and entire remedy of Client, with respect to any actual or alleged patent, copyright, or other intellectual property infringement with respect to the Services.
12. Indemnification by Client
Client shall indemnify, defend and hold harmless Accessible Web and its Affiliates from and against any and all losses, damages, expenses, and liabilities (including reasonable attorneys’ fees and costs) arising out of or in connection with (i) any claim arising from or relating to any Client Data, including any claim that Client Data violates or infringes (a) any third party intellectual property, publicity, privacy or other rights, (b) any Laws, or (c) any terms of service, privacy policies or other agreements governing the Client’s Website or Client’s accounts with respect to any Third-Party Products, (ii) any breach or alleged breach by Client of the terms and conditions of this Agreement; (iii) Client’s negligence or willful misconduct, (iv) Client’s use or misuse of the Accessible Web Software and Accessible Web Hosted Platform. Accessible Web may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and Client will not settle any claim without Accessible Web’s prior written consent, unless the settlement fully and unconditionally releases Accessible Web and does not require Accessible Web to pay any amount, take any action, or admit any liability.
13. Limitation of Liability
CLIENT’S SOLE REMEDY FOR ANY DEFECT OR DEFICIENCY IN THE SERVICES IS THE REPAIR, REPLACEMENT OR CORRECTION OF SUCH DEFECT OR DEFICIENCY BY ACCESSIBLE WEB. IN NO EVENT WILL ACCESSIBLE WEB, ITS AFFILIATES, OR ITS OR THEIR OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, AFFILIATES OR ANY SUPPLIER OF THIRD PARTY APPLICATIONS REQUIRED FOR USE OF THE SERVICES BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF ACCESSIBLE WEB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESSIBLE WEB’S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SERVICES OR OTHERWISE IS LIMITED TO THE AMOUNT CLIENT HAS PAID TO ACCESSIBLE WEB FOR THE SERVICES IN THE 12 MONTHS PRIOR TO THE CLAIM.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Term & Termination
This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Order Forms.
14.2 Termination for Cause.
Either party may terminate this Agreement (including all related Order Forms) immediately upon written notice if the other party (a) fails to comply with any payment requirement and fails to cure such noncompliance within 10 days following written notice of such noncompliance, (b) becomes insolvent, or becomes the subject of a bankruptcy, receivership or similar action or proceeding that is not dismissed within 30 days or (c) fails to cure any material breach of this Agreement within 30 days following written notice of such material breach.
14.3 Effect of Termination.
Upon any expiration or termination of this Agreement, Client will immediately cease any and all use of and access to all Services (including any and all related Accessible Web Intellectual Property) and delete (or, at Accessible Web’s request, return) any and all copies of the Documentation, Accessible Web Code, Accessible Web Software, any Accessible Web passwords or access codes and any other Accessible Web Confidential Information in its possession. Client acknowledges that following termination it will have no further access to any Client Data input into any Service, and that Accessible Web may delete any such data as may have been stored by Accessible Web at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
15. Confidential Information
Each party hereto agrees that it shall not disclose Confidential Information of the other party hereto to any third party or use such Confidential Information for any purpose other than its intended purpose or as permitted hereunder; provided, however, that (a) subject to any other restrictions contained in this Agreement, a party may disclose Confidential Information of the other party to the first party’s Affiliates, representatives, advisors, consultants, contractors and vendors in connection with their performance of services for or on behalf of such first party or other party, provided that such first party shall be jointly and severally responsible for any disclosure or use by any such Affiliate, representative, advisor, consultant, contractor or vendor not permitted by the terms hereof, (b) a party may make any disclosure that such party reasonably believes is required by law or regulation if the disclosing party notifies the other party in advance of such disclosure and takes reasonable steps to minimize such disclosure and allows the other party to do the same, and (c) Client may allow use of and access to the Services as provided by Section 2.2 above. Each party shall implement reasonable security measures to protect the Confidential Information of the other party from unauthorized disclosure or use that are at least as protective of such Confidential Information as the measures used to protect its own Confidential Information. Because the unauthorized use, transfer or dissemination of any Confidential Information may substantially diminish its value and irreparably harm a party, if the other party breaches this Section 12, the first party shall, without limiting its other rights or remedies, be entitled to equitable relief, including but not limited to injunctive relief.
16. Dispute Resolution; Arbitration
Accessible Web and Client agree to use their best efforts to resolve disputes informally and amicably. If, after negotiating for thirty (30) days or for some longer period if the parties agree, no resolution of a dispute is reached, Accessible Web and Client will submit the dispute to binding arbitration as set forth in this Section 16. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Agreement, any Order Form and any Statement of Work, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement. CLIENT UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT CLIENT AND ACCESSIBLE WEB ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. The arbitration shall be conducted by a single, neutral arbitrator chosen by the parties, conducted under the Commercial Arbitration Rules of the American Arbitration Association, and conducted in the State of Vermont. The parties agree that the arbitrator, and not a court, shall have exclusive jurisdiction over the interpretation, validity, and scope of this arbitration agreement. The arbitrator’s decision shall be set forth in writing and shall set forth the essential findings and conclusions upon which the decision is based. Any remedy available from a court under the law shall be available in the arbitration. The award rendered by the arbitrator may be entered in any court having jurisdiction. Should either party refuse or neglect to choose an arbitrator or otherwise sincerely and in good faith participate in the arbitration process, then the arbitrator is empowered to proceed with one side alone. Neither party shall file or maintain any lawsuit in any court against the other, and agree that any suit filed in violation of this Agreement shall be dismissed by the court in favor of an arbitration conducted pursuant to this Agreement. The costs of the arbitration filing fee, arbitrator’s compensation, and facilities fees will be split by the parties. Each party shall pay for its own attorneys’ fees and costs. However, the arbitrator may award attorneys’ fees to the prevailing party to recover fees and costs to the extent permitted by applicable law. If any provision of this arbitration agreement is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of the Agreement. If this arbitration agreement is declared unenforceable and cannot be administered, interpreted, or modified to be enforceable, the parties agree to waive any right to a jury trial with respect to any dispute to which the Agreement applies and any such dispute shall be commenced and maintained exclusively in the state or federal courts situated in the State of Vermont and the parties each consent to the jurisdiction and venue of each such court.
Notwithstanding the provisions of Section 16.1), the parties agree that nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to seek injunctive or other similar equitable relief in a court of competent jurisdiction.
Accessible Web may request that Client issue a joint press release (the “Press Release”). Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Client also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Client’s name and logo on Accessible Web’s web site and in Accessible Web promotional materials. Client agrees that Accessible Web may disclose Client as a customer of Accessible Web.
Notices to a party hereunder shall be valid only if in writing and delivered to such party at its address or email address set forth on the Order Form or such other address as may have been provided by such party to the other party in accordance herewith.
If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
17.4 Governing Law and Jurisdiction.
This Agreement shall be governed by and construed under the laws of the State of Vermont without regard to its conflict of laws provisions. The United Nations Convention on the International Sale of Goods shall not apply. Subject to Section 16, the federal and state courts located in Vermont shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of the courts of Vermont and service of process being effected upon it by certified mail, return receipt requested, sent to the address set forth on the signature page of an Order Form, or if an Order Form has not been completed, to the address of the relevant client services contact designated by Client.
Neither this Agreement nor any of the rights or obligations of Client may be assigned or transferred by Client, by operation of law or otherwise, without the prior written consent of Accessible Web. Any attempted assignment or transfer in violation of the foregoing shall be void and shall result in the immediate and automatic termination of this Agreement. Subject to this restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
Client acknowledges and agrees that Accessible Web may subcontract its responsibilities under this Agreement or any Order Form to a subcontractor of its choosing. Accessible Web shall remain primarily liable and responsible for any actions or omissions of Accessible Web’s subcontractors performing Services hereunder. Client and Accessible Web acknowledge and agree that Accessible Web may provide any such subcontractor access to the Client’s Website and Client Data for the same purpose of providing Services.
17.7 Amendments; Waivers.
From time to time, Accessible Web may modify this Agreement. Unless otherwise specified by Accessible Web, changes become effective for Client upon renewal of Client’s current Subscription Term (as defined below) or entry into a new Order Form. Accessible Web will use reasonable efforts to notify Client of the changes through communications via Client’s account, email or other means. Client may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Client’s acceptance of such updated version. If Accessible Web specifies that changes to the Agreement will take effect prior to Client’s next renewal or order (such as for legal compliance or product change reasons) and Client objects to such changes, Client may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Client has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term. Except for the foregoing, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
17.8 Force Majeure.
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, epidemic, failure or diminishment of power or telecommunications or data networks or services, governmental order or refusal of a license by a government agency.
17.9 Entire Agreement.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any conflicting or additional terms contained in any document not signed by both parties, all of which terms are excluded. Client acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Accessible Web may make changes to the Services, and Accessible Web will update the applicable Documentation accordingly. The support and service level availability terms described in the Support Policy and the SLA may be updated from time to time upon reasonable notice to Client to reflect process improvements or changing practices.
17.10 Independent Contractors.
The relationship between Client and Accessible Web is that of independent contractors, and neither Client nor Accessible Web is an employee, agent, partner or joint venturer of the other. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
The provisions set forth in Sections 2.6 (General Restrictions), 2.8 (Trial Subscriptions), 3.2 (Storage of Client Data), 6 (Ownership), 9.2 (Fees and Payment), 9.3 (Payment Via Credit Card), 10.2 (Warranty Disclaimer), 11 (Intellectual Property Indemnification), 12 (Indemnification by Client); 13 (Limitation of Remedies and Damages), 14 (Term and Termination), 15 (Confidential Information), 16 (Dispute Resolution, Arbitration) and 17 (Miscellaneous), any Client payment obligations accruing prior to termination, and late fees accruing prior to or after termination, shall survive the termination of this Agreement.
17.12 Export Control.
The Services or elements thereof may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, or export or import laws in other countries. Client agrees to comply with such laws and to not import, export, reexport or allow use of the Services in violation of any law, including without limitation by installing or allowing use of the Services, Accessible Web Code, Accessible Web Hosted Platform or Accessible Web Software in any country or by any person on an applicable U.S., E.U., U.K. or Canadian embargo or sanctions list.
This Agreement may be executed in counterparts (which may be delivered via .pdf or other facsimile format), each of which will be deemed an original and all of which together will be considered one and the same agreement.
ACKNOWLEDGMENT OF ARBITRATION
I UNDERSTAND THAT THIS AGREEMENT BETWEEN ACCESSIBLE WEB AND CLIENT CONTAINS AN AGREEMENT TO ARBITRATE. BY SIGNING THIS DOCUMENT, CLIENT UNDERSTANDS THAT CLIENT WILL NOT BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION AGREEMENT, UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS. INSTEAD, CLIENT AGREES TO SUBMIT ANY SUCH DISPUTE TO AN IMPARTIAL ARBITRATOR.
Accessible Web Terms of Service Effective July 22, 2020.