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Level Access Subscription Terms of Service

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Subscription Terms of Service (U.S)

Last Updated: February 1, 2023

THESE TERMS OF SERVICE (THE “TERMS“), TOGETHER WITH ONE OR MORE STATEMENTS OF WORK, ORDER FORMS, OR SIMILAR DOCUMENTS (EACH AN “ORDER FORM,” TOGETHER WITH THE TERMS, THE “AGREEMENT”) GOVERNS THE ACCESS TO AND USE OF OUR TECHNOLOGY DESCRIBED HEREIN.

As used in the Agreement:

Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with Customer. “Control,” for purposes of this definition, means (a) direct or indirect ownership or control of more than 50% of the voting interests of the subject entity, or (b) the ability of an entity to control the decision-making of the other entity through an agreement or other arrangement.

Authorized User” means a Customer’s employees, consultants, external users, contractors, agents, and third parties with which Customer does business where Customer has authorized to access or use the Subscription Service, Developer Tools, or the Services under this Agreement. The number of Authorized Users shall be limited to the number specified in an Order Form.

Customer,” “you,” or “your” means the company, business, individual, organization, or other legal entity identified in an Order Form.

Customer Content” means any technical or other information, data, and other content related to your websites, mobile applications, or other similar systems or materials that are submitted or otherwise transmitted by or on behalf of you through a Subscription Service or Developer Tool.

Developer Tool” means an application programming interface, software development kit, or a similar set of development tools offered by or through us and ordered by you under an Order Form for a specified term length. An example of a Developer Tool is Access Continuum.

Documentation” means any related technical or non-technical manuals, reference manuals, best practices or standards, instructions, or other documents or materials provided or made available by Level Access to Customer, including such materials that describe the functionality, components, features, or requirements of a Subscription Service, a Developer Tool, or our Services.

Feedback” means any feedback, ideas, enhancement requests, recommendations, or suggestions regarding our Technology that you or others acting under the rights granted herein provide to us. For such Feedback, you agree that: (a) we are not under any confidentiality obligation as to the Feedback, (b) we may use or disclose (or choose not to use or disclose) your Feedback for any purpose and in any manner, (c) we own the Feedback, and (d) to the extent required by applicable law, you grant to us an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such Feedback for any purpose without any obligation or compensation to you.

Harmful Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

Intellectual Property Right” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

Level Access,” “we,” “us,” or “our” means Level Access, Inc., 1310 N Courthouse Rd., Suite 860, Arlington, VA 22201.

Non-Level Access Product” means any applications, products, software, websites, intranets, or other solutions not owned by Level Access that link, interoperate, or interface with the Technology, including, any applications, products, software, websites, intranets, or other solutions provided by Customer.

Permitted Use” means Customer or its Authorized Users’ access, installation, and use of the Technology for the analyzing and remediating Non-Level Access Products utilized by Customer for its internal business purposes. For clarity, the Permitted Use does not include any uses that are restricted or otherwise not permitted under the Agreement.

Professional Service” mean professional services offered by or through Level Access and ordered by you under an Order Form, including website or mobile application testing, audit, or analysis; software or mobile application design, development, or programming; web form auditing and remediation; and support and maintenance services related to the above, in-person or online training services, and consulting pertaining to best practices and compliance regarding web content accessibility. An example of our Services is Access Advisor

Subscription Service” means one or more subscription-based, online, web-based software. or mobile applications offered by or through us (including upgrades and updates thereto made commercially available by Level Access to similar customers at no cost) and ordered by you under an Order Form. Examples of our Subscription Service include AMP (Accessibility Management Subscription Service), Access University, and Access Analytics.

Technology” means the Developer Tools, Documentation, Professional Services, Subscription Service, Beta Service, and any other products, materials, or services offered by or through Level Access, and ordered by you under an Order Form.

Usage Data” means data and information related to your or your Authorized Users’ use of the Technology that is used by us in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Technology.

Viewer Account” means a limited-access account provisioned by an Authorized User to permit a third party to access and view curated Customer Content from the Subscription Service.

Web Content Accessibility Guidelines” or “WCAG” means the accessibility requirements for web content, including text, images, audio-visual materials, and the code used for structure, style, and interactions put forth by the World Web Consortium (WC3). For more information, you may visit https://www.w3.org/WAI/standards-guidelines/wcag/.

 

1. TECHNOLOGY.

1.1. Access and Use.

We will provide you and your Authorized Users with a limited, non-sublicensable, non-exclusive, non-transferable right to access and use the Subscription Service, Developer Tools, Documentation, and other applicable Technology for the Permitted Use.

1.2. Viewer Accounts.

Viewer Accounts are meant to provide access solely to view specific Customer Content created in the Subscription Service (e.g., reports that are created by Authorized Users). While the Viewer Account will remain active, when the subscription of the paid edition user that owns or has created such Customer Data in the Service lapses this material will no longer be viewable by the Viewer Accounts.

1.3. Professional Service.

We will provide the Professional Services: (a) in English, (b) remotely, and (c) using personnel in a number and possessing qualifications that we deem to be sufficient to perform the Professional Services; provided, that, all Professional Services will be performed in a workmanlike and professional manner.

1.4. Beta Services.

We may invite you, at no additional charge, to use and evaluate certain new services, functionality, or features in connection with our Subscription Service (each a “Beta Service”). Such Beta Service is for evaluation purposes only and is not intended for production use. You acknowledge that: (a) the Beta Service (i) may contain bugs, errors, or produce unintended results due to its early development stage, (ii) is provided (A) “AS-IS” and “AS-AVAILABLE” without any representations, promises, or warranties (whether express or implied) as to the Beta Service’s functionality, merchantability, quality, availability, or suitability, (B) without any obligation on our part to provide technical or other support services, (b) to the extended permitted by applicable law, we disclaim liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise as to any such Beta Service provided to you, (c) may be discontinued by us at any time in our sole discretion and without prior notice to you, and (d) you may be asked to provide Feedback regarding the Beta Service. Your access to and use of the Beta Service may be subject to additional terms and conditions appearing on the trial registration webpage, webform, or as otherwise communicated to you as part of the trial, and any such additional terms and conditions are incorporated into this Agreement by reference.

1.5. Non-Level Access Products.

We may make available or allow Non-Level Access Products for Customer’s use with the understanding that Customer’s acquisition and use of a Non-Level Access Products, and any exchange of data between Customer and any third-party provider, is solely between Customer and the Non-Level Access Product provider.

1.6. Updates; Changes; Legacy Products.

1.6.1. Updates. Unless provided in an Order Form, we are not required to provide any revision, new release, update, improvement, modification, or additional functionality enhancement of the Technology (each an “Update”). You acknowledge and agree that the Technology provided hereunder is neither contingent on the delivery of any Update, nor ordered in reliance on any oral or written public comments made by us regarding any such Update.

1.6.2. Changes. We may modify the Technology to (a) improve or enhance: (i) its quality or delivery; (ii) its competitive strength or market; or (iii) its cost efficiency or performance; or (b) comply with applicable law (each a “Change”). Any Change made by us will apply to all customers and their respective users of the Technology subject to the Change.

1.6.3. Legacy Product. If you have any product or offering that is not part of the Technology as of the Effective Date, but is a prior product design, version, or implementation (whether commercialized or not) of Level Access (each a “Legacy Product”), the features and functionality that apply to that Legacy Product may be different than those that appear in the Technology. Please consult with our customer service team for further information. Please be aware that we may deprecate or degrade such Legacy Products at our discretion and at our option (with or without notice to you); however, we will make all reasonable efforts to transition you to the replacement Technology or a comparable product, which may require you to execute a new Order Form.

1.7. Technology Security.

We will maintain the commercially appropriate administrative, physical, and technical safeguards in relation to our Technology as set forth in our Trust Center (the “Security Measures”). Considering the nature, scope, and purpose of the Technology and the manner of and any associated risks to the processing of any Customer Content using the Technology, you acknowledge and agree that the Security Measures constitute an appropriate level of security as to the Technology and any Customer Content.

1.8. Support Services.

We offer support services for selected Subscription Services in accordance with our Service Level Agreement (available at https://www.levelaccess.com/sla/). Otherwise, support services will be offered only if and to the provided in an Order Form.

1.9. Access Suspension.

You or your Authorized Users’ access to the Technology may be subject to suspension (“Suspension”) if we reasonably determine that (a) you or any Authorized User has violated, are violating, or intend to violate any of the provisions contained in Section 2 (Customer Responsibilities; Restrictions) of the Agreement; (b) you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (c) you are delinquent in your payment of Fees; or (d) the continued provision of the Technology to you or any Authorized User is prohibited by applicable law. We will use commercially reasonable efforts to: (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such Suspension; (y) where practicable limit the Suspension based on the circumstances leading to the Suspension (e.g., to certain Authorized Users), and (z) provide updates regarding resumption of access following any Suspension and resume such access as soon as reasonably possible after the event giving rise to the Suspension is cured.

 

2. RESTRICTIONS; CUSTOMER RESPONSIBILITIES.

2.1. Restrictions.

You will not, and will not permit any third party to: (a) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, in whole or in part, of the Technology, (b) copy, modify, or create derivative works of the Technology, (c) lease, sell, sublicense, assign, distribute, or otherwise make available the Technology to any third party, (d) bypass or breach any security device or protection used by the Technology, (e) input, upload, or transmit any Harmful Code through or using the Technology, (f) disrupt, disable, interfere with, or otherwise impede or harm the Technology or our provision of the Technology to any third party, (g) access or use the Technology in a manner that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law, or (h) otherwise access or use the Technology beyond the Permitted Purpose.

2.2. Responsibilities.

You are responsible for (a) the acts and omissions of any third party that accesses any portions of the Technology through, or under rights granted to, you, (b) your Authorized Users’ compliance with the Agreement, (c) issuing and securing of all access credentials used by you or your Authorized Users to access the Technology; (d) providing to us all cooperation and assistance as may be reasonably requested by us to enable us to exercise our rights and perform our obligations under the Agreement; and (e) ensuring that all Non-Level Access Products used to access or use the Technology by you and your Authorized Users is free of Harmful Code and utilize appropriate security measures to mitigate unauthorized access or use of the Technology.

 

3. FEES; PAYMENT.

3.1. Fees.

You will pay us all fees or other costs in the amount set forth in an applicable Order Form (the “Fees”). The Fees on renewal of a Technology Term shall be at our then-current fees for such Technology as of the first day of the applicable renewal term or as reasonably determined by us but not exceeding an amount equal to a five percent (5%) annualized increase over the Fees charged for such Technology on the start date of the preceding Technology Term.

3.2. Taxes.

All Fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You agree to pay any Taxes applicable to your use or receipt of our Technology. If we are legally obligated to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.3. Payment.

You will pay all Fees on the payment terms set forth in the applicable Order Form. All Fees are to be remitted in U.S. dollars and are non-refundable. If you fail to make payment when due then, in addition to any other remedy available to us, we may apply interest at the rate of one and one-half percent (1½%) per month, or such lesser amount required by law, assessed from the due date through the date of payment and you will reimburse us all costs (including reasonable attorneys’ fees) incurred by us in collecting any delinquent payment or interest thereon.

 

4. DISCLAIMERS; LIMITATION OF LIABILITY.

4.1. DISCLAIMER OF WARRANTIES.

THE TECHNOLOGY ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LEVEL ACCESS.

4.2. Web Content Accessibility Guidelines.

The Technology supports WCAG 2.1 A and AA success criteria to the extent detailed in the Accessibility Conformance Report for the Subscription Services, which can be found in the VPAT® (Voluntary Product Accessibility Template) format here: AMP Accessibility Conformance Report (ACR), Continuum Explorer ACR, and the Access Assistant ACR. Our Technology is intended to assist you in ensuring that a Customer Application meets the WCAG 2.1 A and AA success criteria. PLEASE NOTE THAT THE WCAG CHANGE ON A CONSISTENT BASIS AND OFTEN SUCH CHANGES ARE SUBSTANTIVE IN NATURE, AND NO AUTOMATED VALIDATION CAN COMPLETELY VALIDATE CONTENT FOR ACCESSIBILITY WITHOUT ASSOCIATED HUMAN REVIEW. AS A RESULT, WE DO NOT AND CANNOT GUARANTEE THAT YOUR RESULTS THROUGH A SUBSCRIPTION SERVICE OR USING THE DEVELOPER TOOLS WILL BE COMPLETE OR ACCURATE UNLESS YOU FULLY REVIEW SUCH RESULTS AND PERFORM THE ASSOCIATED MANUAL QUALITY CHECKS USING QUALIFIED PROFESSIONAL PERSONNEL.

4.3. NO LEGAL ADVICE.

ALIGNMENT AND ALL DECISIONS RELATED TO CONFIGURATIONS AND PROCESS WORKFLOWS WITHIN THE SUBSCRIPTION SERVICE ARE THE CUSTOMER’S RESPONSIBILITY. THE TECHNOLOGY, SUPPORT SERVICES, MATERIALS, AND INFORMATION PROVIDED BY LEVEL ACCESS ARE NOT INTENDED, AND SHOULD NOT BE TAKEN AS LEGAL ADVICE. WE DO NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. EACH PARTY IS RESPONSIBLE FOR ITS OWN COMPLIANCE WITH APPLICABLE LAWS. PLEASE CONSULT WITH A QUALIFIED ATTORNEY VERSED IN WEBSITE ACCESSIBILITY LAWS PRIOR TO AND AS PART OF YOUR USE OF THE TECHNOLOGY.

4.4. LIMITATION OF LIABILITY.

4.4.1. NO INDIRECT DAMAGES. IN NO EVENT SHALL LEVEL ACCESS OR ANY OF OUR AFFILIATES BE LIABLE UNDER THIS AGREEMENT OR ITS SUBJECT MATTER TO YOU, YOUR AFFILIATES, OR ANY AUTHORIZED USER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH OUR PROVISION (AND YOUR USE) OF THE TECHNOLOGY OR ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

4.4.2. MAXIMUM LIABILITY. IN NO EVENT WILL THE AGGREGATE AND TOTAL LIABILITY OF LEVEL ACCESS OR ITS AFFILIATES TO YOUR, YOUR AFFILIATES, OR ANY AUTHORIZED USER, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OUR PROVISION (OR YOUR USE) OF THE TECHNOLOGY, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT PAID BY YOU TO US UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS SHALL NOT EXPAND THIS LIMITATION.

4.4.3. IF REMEDY FAILS ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 4.4 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE PARTIES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.4, AND THAT THE LIMITATIONS REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

 

5. CONFIDENTIALITY.

From time to time during the term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information[, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 5 by the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party before being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.

 

6. INTELLECTUAL PROPERTY RIGHTS.

6.1. Technology.

All right, title, and interest in and to the Technology, Usage Data, and Feedback, including all Intellectual Property Rights therein, are and will remain with Level Access. You have no right, license, or authorization with respect to any of the Technology, except as expressly set forth in the Agreement. To the extent useful, you unconditionally and irrevocably grant to us an assignment of all right, title, and interest in and to the Usage Data and Feedback, including all Intellectual Property Rights relating thereto.

6.2. Customer Content.

As between you and us, you are and will remain the sole and exclusive owner of all right, title, and interest in and to the Customer Content and, to the extent applicable, any Non-Level Access Product, subject to the right and permissions granted in the Agreement.

6.3. Reservation of Rights.

Other than expressly provided in this Agreement, nothing in the Agreement grants any right, title, or interest in or to (including any license under) and Intellectual Property Rights in or relating to, the Technology, Customer Content, or Non-Level Access Products, whether expressly, by implication, estoppel, or otherwise.

 

7. INDEMNIFICATION.

7.1. Level Access.

We shall indemnify you for any out-of-pocket damages, judgments, approved settlement payments, costs, and reasonable outside attorneys’ fees you incur in defending any claim, demand, suit, or proceeding made or brought against you by a third party (“Losses”) alleging that the Technology, or your use of the Technology as permitted hereunder, infringes or misappropriates that third-party’s Intellectual Property Rights. If we receive information about such Losses, we may in our discretion and at no cost to you: (a) procure for you the right to continue to use the affected Technology under this Agreement, (b) modify or replace the allegedly infringing Technology so that it no longer infringes but remains functionally equivalent, or (c) terminate the Order Form pertaining to the allegedly infringing Technology and refund the Fees paid in respect of such Technology for the remainder of the relevant Subscription Term starting with the date you lost use of the Technology due to the Losses. The foregoing indemnity shall not apply if the Losses arise out of: (x) specifications or designs furnished by you and implemented by us at your request, (y) the Technology being modified by, combined with, added to, interconnected with, or used in combination with software, application, hardware, equipment, or other technology not supplied by us where the Technology would not by itself, misappropriate or be infringing, or (z) the use of the Technology other than in accordance with the then-applicable Documentation. SECTION 7.1 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF US AND OUR AFFILIATES AND THE SOLE AND EXCLUSIVE REMEDY FOR YOU, YOUR AFFILIATES, OR ANY AUTHORIZED USER FOR ANY LOSSES COVERED UNDER SECTION 7.1.

7.2. Customer.

You shall indemnify us against any Losses (a) alleging that a Customer Application or Customer Content, or our use of a Customer Application or Customer Content as permitted hereunder, infringes, or misappropriates a third party’s Intellectual Property Rights or (b) arising from your breach of the requirements of Section 2 (“Restrictions; Responsibilities”) of the Agreement.

7.3. Procedure.

The Party seeking indemnification (as “Indemnitee”) will provide to the Party from whom indemnification is sought (as “Indemnitor”) prompt written notice of the Indemnitee’s Losses and, if requested by Indemnitor, provide reasonable assistance in the defense and settlement of any Losses. Indemnitor shall have sole control of the defense and settlement of the Losses; provided that, any settlement must unconditionally release Indemnitee of all liability and contain no admission of liability as to Indemnitee.

 

8. TERM, TERMINATION, & SUSPENSION.

8.1. Term.

The Agreement will begin on the date that Customer executes an Order Form that references this Agreement (the “Effective Date”) and continue until the completion or the earlier termination of all Order Forms subject to and in accordance with this Agreement (the “Agreement Term”). The term for each Technology — subject to this Agreement — will commence on the start date specified in the applicable Order Form and continue, unless earlier terminated, for the term specified therein. (each a “Technology Term”). Unless provided otherwise in an Order Form, the Subscription Service and Developer Tools will automatically renew for successive additional terms of the same length to the Technology Term unless either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current Technology Term.

8.2. Termination for Cause.

Either you or we may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach is (a) incapable of cure or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. Notwithstanding the above, we may terminate the Agreement or the applicable Order Form effective on written notice of termination to you if you fail to pay any undisputed Fees when due and such failure remains uncured ten (10) days after we provide you with written notice thereof.

8.3. Effect of Expiration or Termination.

Upon the expiration or earlier termination of the Agreement Term or, as applicable, a Technology Term: (a) each party will return or, if requested, destroy any Confidential Information belonging to the other party in its possession; (b) you will immediately discontinue use of the Technology, (c) all earned and unpaid Fees become immediately due; and (d) at your written request and instruction, we will: (i) provide you with (1) temporary access to the Technology to retrieve Customer Content or (2) copies of all Customer Content then in our possession or control in a commonly accessible data format, or (ii) delete all Customer Content in our possession or otherwise in our control unless we are legally prohibited to do so. To the extent we created archived copies of the Customer Content during the performance of our obligations, then we will destroy such archived copies pursuant to our internal practices for record destruction.

8.4. Surviving Provisions.

Any defined term with the Agreement, and this Section 8.4 (Surviving Provisions) and Section 1.4 (Beta Services), Section 1.5 (Non-Level Access Products), Section 1.7 (Technology Security”), Section 2 (Restrictions; Responsibilities), Section 3 (Fees; Payment); Section 4 (Disclaimers; Limitation of Liability), Section 5 (Confidentiality), Section 6 (Intellectual Property Rights), Section 7 (Indemnification), Section 8.3 (Effect of Termination), and Section 9 (Miscellaneous) will survive the expiration or termination of the Agreement.

 

9. MISCELLANEOUS.

9.1. Entire Agreement.

The Agreement constitutes the sole and entire agreement of the parties, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any conflict or inconsistency between the statements made in the Terms, an Order Form, the Documentation, or any document incorporated by reference, unless such inconsistency is expressly acknowledged as intended in a document, the following order of precedence governs: (a) first, these Terms, (b) second, the applicable Order Form, (c) third, the Documentation, and (d) lastly, the document incorporated by reference.

9.2. Notices.

All notices, requests, claims, demands, waivers, and other communications to a party must be in writing, addressed to the intended recipient at the address set forth on the most recent Order Form, and sent by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid).

9.3. Force Majeure.

In no event shall we be liable to you, or be deemed to have breached the Agreement, for any failure or delay in performing our obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstance beyond our reasonable control, including, but not limited to: flood, fire, earthquake, pandemic, war, third-party criminal or willful cyber-related acts, civil unrest, any action taken by a government authority or other public authority (such as imposing an embargo), or international, national, or regional shortage of adequate power, telecommunications capacity, or transportation (each a “Force Majeure Event”). In allocating the risk of delay or failure of performance of a party’s respective obligations under the Agreement, the parties have not considered the possible occurrence of any of the events listed herein or any similar or dissimilar events beyond their control, irrespective of whether such listed, similar or dissimilar events were foreseeable as of the date of the Agreement.

9.4. Amendment; Waiver.

Unless you have a separately negotiated and signed agreement stating otherwise, we may modify the Terms or the Agreement by posting a revised version at https://www.________________ and such revised version will become effective as of the next business day following its posting. Prior to such posting, we will provide you with notice of any material revision by contacting your designated administrator(s) at the contact information provided by you. If you do not agree with a material modification to these Terms or the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at the webpage stated above will apply. However, if we can no longer reasonably provide the Technology to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Technology will terminate upon our notice to you and we will promptly refund any applicable prepaid but unused Fees.

9.5. Insurance.

We will maintain insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses in which we operate.

9.6. Assignment and Delegation.

Neither party shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party; provided, however, we may assign our rights or delegate our obligations, in whole or in part and without such consent, to an entity that acquires all or substantially all of our business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Any assignment or delegation in violation of this Section shall be invalid. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder unless the non-assigning or non-delegating party agree to a novation releasing the assigning or delegating party of its obligation under this Agreement.

9.7. Waiver.

No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving, nor will a party’s failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

9.8. Interpretation; Severability.

The parties intend that the construing of the Agreement is without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term, provision of this Agreement, invalidate, or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

9.9. Governing Law.

The Agreement is governed by and construed in accordance with the internal laws of the state of Virginia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the state of Virginia. Any action arising out of or related to the Agreement, or the subject matter herein will be instituted exclusively in the federal or state courts sitting in Fairfax County, Virginia (USA), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE TERMS OR THE TRANSACTIONS CONTEMPLATED THEREIN.

9.10. Accrual.

A party must file a claim arising directly or indirectly from the Agreement or our provision of the Technology no later than two (2) years after the claim accrued.

9.11. Government Terms.

We provide the Technology, including related software and technology, for ultimate federal government end use solely in accordance with this Agreement. If you are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Technology, or any related documentation of any kind, including technical data, software, and manuals, is restricted by this Agreement. All other use is prohibited and no rights other than those provided in this Agreement are conferred. The Technology was developed fully at private expense.

9.12. Customer Acknowledgment.

We may include your name and logo in our promotional and marketing materials in the portions of the same where we list our current or former customers.

9.13. Contract for Services.

This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

9.14. Counterparts.

The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

 


 

Subscription Terms of Service (Canada)

Last Updated: February 1, 2023

THESE TERMS OF SERVICE (THE “TERMS“), TOGETHER WITH ONE OR MORE STATEMENTS OF WORK, ORDER FORMS, OR SIMILAR DOCUMENTS (EACH AN “ORDER FORM,” TOGETHER WITH THE TERMS, THE “AGREEMENT”) GOVERNS THE ACCESS TO AND USE OF OUR TECHNOLOGY DESCRIBED HEREIN.

As used in the Agreement:

Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with Customer. “Control,” for purposes of this definition, means (a) direct or indirect ownership or control of more than 50% of the voting interests of the subject entity, or (b) the ability of an entity to control the decision-making of the other entity through an agreement or other arrangement.

Authorized User” means a Customer’s employees, consultants, external users, contractors, agents, and third parties with which Customer does business where Customer has authorized to access or use the Subscription Service, Developer Tools, or the Services under this Agreement. The number of Authorized Users shall be limited to the number specified in an Order Form.

Customer,” “you,” or “your” means the company, business, individual, organization, or other legal entity identified in an Order Form.

Customer Content” means any technical or other information, data, and other content related to your websites, mobile applications, or other similar systems or materials that are submitted or otherwise transmitted by or on behalf of you through a Subscription Service or Developer Tool.

Developer Tool” means an application programming interface, software development kit, or a similar set of development tools offered by or through us and ordered by you under an Order Form for a specified term length. An example of a Developer Tool is Access Continuum.

Documentation” means any related technical or non-technical manuals, reference manuals, best practices or standards, instructions, or other documents or materials provided or made available by Level Access to Customer, including such materials that describe the functionality, components, features, or requirements of a Subscription Service, a Developer Tool, or our Services.

Feedback” means any feedback, ideas, enhancement requests, recommendations, or suggestions regarding our Technology that you or others acting under the rights granted herein provide to us. For such Feedback, you agree that: (a) we are not under any confidentiality obligation as to the Feedback, (b) we may use or disclose (or choose not to use or disclose) your Feedback for any purpose and in any manner, (c) we own the Feedback, and (d) to the extent required by applicable law, you grant to us an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such Feedback for any purpose without any obligation or compensation to you.

Harmful Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

Intellectual Property Right” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

Level Access,” “we,” “us,” or “our” means eSSENTIAL Accessibility, Inc..

Non-Level Access Product” means any applications, products, software, websites, intranets, or other solutions not owned by Level Access that link, interoperate, or interface with the Technology, including, any applications, products, software, websites, intranets, or other solutions provided by Customer.

Permitted Use” means Customer or its Authorized Users’ access, installation, and use of the Technology for the analyzing and remediating Non-Level Access Products utilized by Customer for its internal business purposes. For clarity, the Permitted Use does not include any uses that are restricted or otherwise not permitted under the Agreement.

Professional Service” mean professional services offered by or through Level Access and ordered by you under an Order Form, including website or mobile application testing, audit, or analysis; software or mobile application design, development, or programming; web form auditing and remediation; and support and maintenance services related to the above, in-person or online training services, and consulting pertaining to best practices and compliance regarding web content accessibility. An example of our Services is Access Advisor

Subscription Service” means one or more subscription-based, online, web-based software. or mobile applications offered by or through us (including upgrades and updates thereto made commercially available by Level Access to similar customers at no cost) and ordered by you under an Order Form. Examples of our Subscription Service include AMP (Accessibility Management Subscription Service), Access University, and Access Analytics.

Technology” means the Developer Tools, Documentation, Professional Services, Subscription Service, Beta Service, and any other products, materials, or services offered by or through Level Access, and ordered by you under an Order Form.

Usage Data” means data and information related to your or your Authorized Users’ use of the Technology that is used by us in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Technology.

Viewer Account” means a limited-access account provisioned by an Authorized User to permit a third party to access and view curated Customer Content from the Subscription Service.

Web Content Accessibility Guidelines” or “WCAG” means the accessibility requirements for web content, including text, images, audio-visual materials, and the code used for structure, style, and interactions put forth by the World Web Consortium (WC3). For more information, you may visit https://www.w3.org/WAI/standards-guidelines/wcag/.

 

1. TECHNOLOGY.

1.1. Access and Use.

We will provide you and your Authorized Users with a limited, non-sublicensable, non-exclusive, non-transferable right to access and use the Subscription Service, Developer Tools, Documentation, and other applicable Technology for the Permitted Use.

1.2. Viewer Accounts.

Viewer Accounts are meant to provide access solely to view specific Customer Content created in the Subscription Service (e.g., reports that are created by Authorized Users). While the Viewer Account will remain active, when the subscription of the paid edition user that owns or has created such Customer Data in the Service lapses this material will no longer be viewable by the Viewer Accounts.

1.3. Professional Service.

We will provide the Professional Services: (a) in English, (b) remotely, and (c) using personnel in a number and possessing qualifications that we deem to be sufficient to perform the Professional Services; provided, that, all Professional Services will be performed in a workmanlike and professional manner.

1.4. Beta Services.

We may invite you, at no additional charge, to use and evaluate certain new services, functionality, or features in connection with our Subscription Service (each a “Beta Service”). Such Beta Service is for evaluation purposes only and is not intended for production use. You acknowledge that: (a) the Beta Service (i) may contain bugs, errors, or produce unintended results due to its early development stage, (ii) is provided (A) “AS-IS” and “AS-AVAILABLE” without any representations, promises, or warranties (whether express or implied) as to the Beta Service’s functionality, merchantability, quality, availability, or suitability, (B) without any obligation on our part to provide technical or other support services, (b) to the extended permitted by applicable law, we disclaim liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise as to any such Beta Service provided to you, (c) may be discontinued by us at any time in our sole discretion and without prior notice to you, and (d) you may be asked to provide Feedback regarding the Beta Service. Your access to and use of the Beta Service may be subject to additional terms and conditions appearing on the trial registration webpage, webform, or as otherwise communicated to you as part of the trial, and any such additional terms and conditions are incorporated into this Agreement by reference.

1.5. Non-Level Access Products.

We may make available or allow Non-Level Access Products for Customer’s use with the understanding that Customer’s acquisition and use of a Non-Level Access Products, and any exchange of data between Customer and any third-party provider, is solely between Customer and the Non-Level Access Product provider.

1.6. Updates; Changes; Legacy Products.

1.6.1. Updates. Unless provided in an Order Form, we are not required to provide any revision, new release, update, improvement, modification, or additional functionality enhancement of the Technology (each an “Update”). You acknowledge and agree that the Technology provided hereunder is neither contingent on the delivery of any Update, nor ordered in reliance on any oral or written public comments made by us regarding any such Update.

1.6.2. Changes. We may modify the Technology to (a) improve or enhance: (i) its quality or delivery; (ii) its competitive strength or market; or (iii) its cost efficiency or performance; or (b) comply with applicable law (each a “Change”). Any Change made by us will apply to all customers and their respective users of the Technology subject to the Change.

1.6.3. Legacy Product. If you have any product or offering that is not part of the Technology as of the Effective Date, but is a prior product design, version, or implementation (whether commercialized or not) of Level Access (each a “Legacy Product”), the features and functionality that apply to that Legacy Product may be different than those that appear in the Technology. Please consult with our customer service team for further information. Please be aware that we may deprecate or degrade such Legacy Products at our discretion and at our option (with or without notice to you); however, we will make all reasonable efforts to transition you to the replacement Technology or a comparable product, which may require you to execute a new Order Form.

1.7. Technology Security.

We will maintain the commercially appropriate administrative, physical, and technical safeguards in relation to our Technology as set forth in our Trust Center (the “Security Measures”). Considering the nature, scope, and purpose of the Technology and the manner of and any associated risks to the processing of any Customer Content using the Technology, you acknowledge and agree that the Security Measures constitute an appropriate level of security as to the Technology and any Customer Content.

1.8. Support Services.

We offer support services for selected Subscription Services in accordance with our Service Level Agreement (available at https://www.levelaccess.com/sla/). Otherwise, support services will be offered only if and to the provided in an Order Form.

1.9. Access Suspension.

You or your Authorized Users’ access to the Technology may be subject to suspension (“Suspension”) if we reasonably determine that (a) you or any Authorized User has violated, are violating, or intend to violate any of the provisions contained in Section 2 (Customer Responsibilities; Restrictions) of the Agreement; (b) you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (c) you are delinquent in your payment of Fees; or (d) the continued provision of the Technology to you or any Authorized User is prohibited by applicable law. We will use commercially reasonable efforts to: (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such Suspension; (y) where practicable limit the Suspension based on the circumstances leading to the Suspension (e.g., to certain Authorized Users), and (z) provide updates regarding resumption of access following any Suspension and resume such access as soon as reasonably possible after the event giving rise to the Suspension is cured.

 

2. RESTRICTIONS; CUSTOMER RESPONSIBILITIES.

2.1. Restrictions.

You will not, and will not permit any third party to: (a) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, in whole or in part, of the Technology, (b) copy, modify, or create derivative works of the Technology, (c) lease, sell, sublicense, assign, distribute, or otherwise make available the Technology to any third party, (d) bypass or breach any security device or protection used by the Technology, (e) input, upload, or transmit any Harmful Code through or using the Technology, (f) disrupt, disable, interfere with, or otherwise impede or harm the Technology or our provision of the Technology to any third party, (g) access or use the Technology in a manner that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law, or (h) otherwise access or use the Technology beyond the Permitted Purpose.

2.2. Responsibilities.

You are responsible for (a) the acts and omissions of any third party that accesses any portions of the Technology through, or under rights granted to, you, (b) your Authorized Users’ compliance with the Agreement, (c) issuing and securing of all access credentials used by you or your Authorized Users to access the Technology; (d) providing to us all cooperation and assistance as may be reasonably requested by us to enable us to exercise our rights and perform our obligations under the Agreement; and (e) ensuring that all Non-Level Access Products used to access or use the Technology by you and your Authorized Users is free of Harmful Code and utilize appropriate security measures to mitigate unauthorized access or use of the Technology.

 

3. FEES; PAYMENT.

3.1. Fees.

You will pay us all fees or other costs in the amount set forth in an applicable Order Form (the “Fees”). The Fees on renewal of a Technology Term shall be at our then-current fees for such Technology as of the first day of the applicable renewal term or as reasonably determined by us but not exceeding an amount equal to a five percent (5%) annualized increase over the Fees charged for such Technology on the start date of the preceding Technology Term.

3.2. Taxes.

All Fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You agree to pay any Taxes applicable to your use or receipt of our Technology. If we are legally obligated to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.3. Payment.

You will pay all Fees on the payment terms set forth in the applicable Order Form. All Fees are to be remitted in U.S. dollars and are non-refundable. If you fail to make payment when due then, in addition to any other remedy available to us, we may apply interest at the rate of one and one-half percent (1½%) per month, or such lesser amount required by law, assessed from the due date through the date of payment and you will reimburse us all costs (including reasonable attorneys’ fees) incurred by us in collecting any delinquent payment or interest thereon.

 

4. DISCLAIMERS; LIMITATION OF LIABILITY.

4.1. DISCLAIMER OF WARRANTIES.

THE TECHNOLOGY ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LEVEL ACCESS.

4.2. Web Content Accessibility Guidelines.

The Technology supports WCAG 2.1 A and AA success criteria to the extent detailed in the Accessibility Conformance Report for the Subscription Services, which can be found in the VPAT® (Voluntary Product Accessibility Template) format here: AMP Accessibility Conformance Report (ACR), Continuum Explorer ACR, and the Access Assistant ACR. Our Technology is intended to assist you in ensuring that a Customer Application meets the WCAG 2.1 A and AA success criteria. PLEASE NOTE THAT THE WCAG CHANGE ON A CONSISTENT BASIS AND OFTEN SUCH CHANGES ARE SUBSTANTIVE IN NATURE, AND NO AUTOMATED VALIDATION CAN COMPLETELY VALIDATE CONTENT FOR ACCESSIBILITY WITHOUT ASSOCIATED HUMAN REVIEW. AS A RESULT, WE DO NOT AND CANNOT GUARANTEE THAT YOUR RESULTS THROUGH A SUBSCRIPTION SERVICE OR USING THE DEVELOPER TOOLS WILL BE COMPLETE OR ACCURATE UNLESS YOU FULLY REVIEW SUCH RESULTS AND PERFORM THE ASSOCIATED MANUAL QUALITY CHECKS USING QUALIFIED PROFESSIONAL PERSONNEL.

4.3. NO LEGAL ADVICE.

ALIGNMENT AND ALL DECISIONS RELATED TO CONFIGURATIONS AND PROCESS WORKFLOWS WITHIN THE SUBSCRIPTION SERVICE ARE THE CUSTOMER’S RESPONSIBILITY. THE TECHNOLOGY, SUPPORT SERVICES, MATERIALS, AND INFORMATION PROVIDED BY LEVEL ACCESS ARE NOT INTENDED, AND SHOULD NOT BE TAKEN AS LEGAL ADVICE. WE DO NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. EACH PARTY IS RESPONSIBLE FOR ITS OWN COMPLIANCE WITH APPLICABLE LAWS. PLEASE CONSULT WITH A QUALIFIED ATTORNEY VERSED IN WEBSITE ACCESSIBILITY LAWS PRIOR TO AND AS PART OF YOUR USE OF THE TECHNOLOGY.

4.4. LIMITATION OF LIABILITY.

4.4.1. NO INDIRECT DAMAGES. IN NO EVENT SHALL LEVEL ACCESS OR ANY OF OUR AFFILIATES BE LIABLE UNDER THIS AGREEMENT OR ITS SUBJECT MATTER TO YOU, YOUR AFFILIATES, OR ANY AUTHORIZED USER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH OUR PROVISION (AND YOUR USE) OF THE TECHNOLOGY OR ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

4.4.2. MAXIMUM LIABILITY. IN NO EVENT WILL THE AGGREGATE AND TOTAL LIABILITY OF LEVEL ACCESS OR ITS AFFILIATES TO YOUR, YOUR AFFILIATES, OR ANY AUTHORIZED USER, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR OUR PROVISION (OR YOUR USE) OF THE TECHNOLOGY, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT PAID BY YOU TO US UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS SHALL NOT EXPAND THIS LIMITATION.

4.4.3. IF REMEDY FAILS ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 4.4 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE PARTIES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.4, AND THAT THE LIMITATIONS REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

 

5. CONFIDENTIALITY.

From time to time during the term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information[, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 5 by the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party before being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.

 

6. INTELLECTUAL PROPERTY RIGHTS.

6.1. Technology.

All right, title, and interest in and to the Technology, Usage Data, and Feedback, including all Intellectual Property Rights therein, are and will remain with Level Access. You have no right, license, or authorization with respect to any of the Technology, except as expressly set forth in the Agreement. To the extent useful, you unconditionally and irrevocably grant to us an assignment of all right, title, and interest in and to the Usage Data and Feedback, including all Intellectual Property Rights relating thereto.

6.2. Customer Content.

As between you and us, you are and will remain the sole and exclusive owner of all right, title, and interest in and to the Customer Content and, to the extent applicable, any Non-Level Access Product, subject to the right and permissions granted in the Agreement.

6.3. Reservation of Rights.

Other than expressly provided in this Agreement, nothing in the Agreement grants any right, title, or interest in or to (including any license under) and Intellectual Property Rights in or relating to, the Technology, Customer Content, or Non-Level Access Products, whether expressly, by implication, estoppel, or otherwise.

 

7. INDEMNIFICATION.

7.1. Level Access.

We shall indemnify you for any out-of-pocket damages, judgments, approved settlement payments, costs, and reasonable outside attorneys’ fees you incur in defending any claim, demand, suit, or proceeding made or brought against you by a third party (“Losses”) alleging that the Technology, or your use of the Technology as permitted hereunder, infringes or misappropriates that third-party’s Intellectual Property Rights. If we receive information about such Losses, we may in our discretion and at no cost to you: (a) procure for you the right to continue to use the affected Technology under this Agreement, (b) modify or replace the allegedly infringing Technology so that it no longer infringes but remains functionally equivalent, or (c) terminate the Order Form pertaining to the allegedly infringing Technology and refund the Fees paid in respect of such Technology for the remainder of the relevant Subscription Term starting with the date you lost use of the Technology due to the Losses. The foregoing indemnity shall not apply if the Losses arise out of: (x) specifications or designs furnished by you and implemented by us at your request, (y) the Technology being modified by, combined with, added to, interconnected with, or used in combination with software, application, hardware, equipment, or other technology not supplied by us where the Technology would not by itself, misappropriate or be infringing, or (z) the use of the Technology other than in accordance with the then-applicable Documentation. SECTION 7.1 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF US AND OUR AFFILIATES AND THE SOLE AND EXCLUSIVE REMEDY FOR YOU, YOUR AFFILIATES, OR ANY AUTHORIZED USER FOR ANY LOSSES COVERED UNDER SECTION 7.1.

7.2. Customer.

You shall indemnify us against any Losses (a) alleging that a Customer Application or Customer Content, or our use of a Customer Application or Customer Content as permitted hereunder, infringes, or misappropriates a third party’s Intellectual Property Rights or (b) arising from your breach of the requirements of Section 2 (“Restrictions; Responsibilities”) of the Agreement.

7.3. Procedure.

The Party seeking indemnification (as “Indemnitee”) will provide to the Party from whom indemnification is sought (as “Indemnitor”) prompt written notice of the Indemnitee’s Losses and, if requested by Indemnitor, provide reasonable assistance in the defense and settlement of any Losses. Indemnitor shall have sole control of the defense and settlement of the Losses; provided that, any settlement must unconditionally release Indemnitee of all liability and contain no admission of liability as to Indemnitee.

 

8. TERM, TERMINATION, & SUSPENSION.

8.1. Term.

The Agreement will begin on the date that Customer executes an Order Form that references this Agreement (the “Effective Date”) and continue until the completion or the earlier termination of all Order Forms subject to and in accordance with this Agreement (the “Agreement Term”). The term for each Technology — subject to this Agreement — will commence on the start date specified in the applicable Order Form and continue, unless earlier terminated, for the term specified therein. (each a “Technology Term”). Unless provided otherwise in an Order Form, the Subscription Service and Developer Tools will automatically renew for successive additional terms of the same length to the Technology Term unless either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current Technology Term.

8.2. Termination for Cause.

Either you or we may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach is (a) incapable of cure or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. Notwithstanding the above, we may terminate the Agreement or the applicable Order Form effective on written notice of termination to you if you fail to pay any undisputed Fees when due and such failure remains uncured ten (10) days after we provide you with written notice thereof.

8.3. Effect of Expiration or Termination.

Upon the expiration or earlier termination of the Agreement Term or, as applicable, a Technology Term: (a) each party will return or, if requested, destroy any Confidential Information belonging to the other party in its possession; (b) you will immediately discontinue use of the Technology, (c) all earned and unpaid Fees become immediately due; and (d) at your written request and instruction, we will: (i) provide you with (1) temporary access to the Technology to retrieve Customer Content or (2) copies of all Customer Content then in our possession or control in a commonly accessible data format, or (ii) delete all Customer Content in our possession or otherwise in our control unless we are legally prohibited to do so. To the extent we created archived copies of the Customer Content during the performance of our obligations, then we will destroy such archived copies pursuant to our internal practices for record destruction.

8.4. Surviving Provisions.

Any defined term with the Agreement, and this Section 8.4 (Surviving Provisions) and Section 1.4 (Beta Services), Section 1.5 (Non-Level Access Products), Section 1.7 (Technology Security”), Section 2 (Restrictions; Responsibilities), Section 3 (Fees; Payment); Section 4 (Disclaimers; Limitation of Liability), Section 5 (Confidentiality), Section 6 (Intellectual Property Rights), Section 7 (Indemnification), Section 8.3 (Effect of Termination), and Section 9 (Miscellaneous) will survive the expiration or termination of the Agreement.

 

9. MISCELLANEOUS.

9.1. Entire Agreement.

The Agreement constitutes the sole and entire agreement of the parties, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any conflict or inconsistency between the statements made in the Terms, an Order Form, the Documentation, or any document incorporated by reference, unless such inconsistency is expressly acknowledged as intended in a document, the following order of precedence governs: (a) first, these Terms, (b) second, the applicable Order Form, (c) third, the Documentation, and (d) lastly, the document incorporated by reference.

9.2. Notices.

All notices, requests, claims, demands, waivers, and other communications to a party must be in writing, addressed to the intended recipient at the address set forth on the most recent Order Form, and sent by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid).

9.3. Force Majeure.

In no event shall we be liable to you, or be deemed to have breached the Agreement, for any failure or delay in performing our obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstance beyond our reasonable control, including, but not limited to: flood, fire, earthquake, pandemic, war, third-party criminal or willful cyber-related acts, civil unrest, any action taken by a government authority or other public authority (such as imposing an embargo), or international, national, or regional shortage of adequate power, telecommunications capacity, or transportation (each a “Force Majeure Event”). In allocating the risk of delay or failure of performance of a party’s respective obligations under the Agreement, the parties have not considered the possible occurrence of any of the events listed herein or any similar or dissimilar events beyond their control, irrespective of whether such listed, similar or dissimilar events were foreseeable as of the date of the Agreement.

9.4. Amendment; Waiver.

Unless you have a separately negotiated and signed agreement stating otherwise, we may modify the Terms or the Agreement by posting a revised version at https://www.________________ and such revised version will become effective as of the next business day following its posting. Prior to such posting, we will provide you with notice of any material revision by contacting your designated administrator(s) at the contact information provided by you. If you do not agree with a material modification to these Terms or the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at the webpage stated above will apply. However, if we can no longer reasonably provide the Technology to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Technology will terminate upon our notice to you and we will promptly refund any applicable prepaid but unused Fees.

9.5. Insurance.

We will maintain insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses in which we operate.

9.6. Assignment and Delegation.

Neither party shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party; provided, however, we may assign our rights or delegate our obligations, in whole or in part and without such consent, to an entity that acquires all or substantially all of our business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Any assignment or delegation in violation of this Section shall be invalid. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder unless the non-assigning or non-delegating party agree to a novation releasing the assigning or delegating party of its obligation under this Agreement.

9.7. Waiver.

No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving, nor will a party’s failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

9.8. Interpretation; Severability.

The parties intend that the construing of the Agreement is without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term, provision of this Agreement, invalidate, or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

9.9. Governing Law.

The Agreement is governed by and construed in accordance with the internal laws of the province of Ontario (CA) without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the province of Ontario (CA). Any action arising out of or related to the Agreement, or the subject matter herein will be instituted exclusively in the federal or provincial courts sitting in Toronto, Ontario (CA), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE TERMS OR THE TRANSACTIONS CONTEMPLATED THEREIN.

9.10. Accrual.

A party must file a claim arising directly or indirectly from the Agreement or our provision of the Technology no later than two (2) years after the claim accrued.

9.11. Government Terms.

We provide the Technology, including related software and technology, for ultimate federal government end use solely in accordance with this Agreement. If you are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Technology, or any related documentation of any kind, including technical data, software, and manuals, is restricted by this Agreement. All other use is prohibited and no rights other than those provided in this Agreement are conferred. The Technology was developed fully at private expense.

9.12. Customer Acknowledgment.

We may include your name and logo in our promotional and marketing materials in the portions of the same where we list our current or former customers.

9.13. Contract for Services.

This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Personal Property Security Act (Ontario), or any substantially similar legislation as may be enacted, by the federal government of Canada or by the government of a Province will not apply to this Agreement. If you are located outside of the territory of Canada, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

9.14. Counterparts.

The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

9.15 English Version.

The parties have expressly required that the present Agreement and any other contract, document or notice relating thereto be drafted in the English language. Les parties aux présentes ont expressément exige que le présent contract et tout autre contract, document ou avis y afferant soient rédiges en langue anglaise.

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