Level Access Master Services Agreement
This Master Services Agreement (the “Agreement”) is made between Level Access, Inc., a Delaware corporation (“Level Access”) and each party (“you”) that executes an Order Form for Level Access’s products and services (“Services”).
Now therefore, you and Level Access agree as follows:
1. General Terms
Level Access provides a suite of digital accessibility and compliance tools, which can be delivered as one-time services, subscription-based software and services, or both. This Agreement covers any software that Level Access may provide or services that Level Access may perform for you. If you are engaged in a free trial of any of these Services, this Agreement will also govern the terms of that free trial. Certain capitalized terms are defined in Section 11.
As a general overview, any work that is created specifically for you will be considered Work Product, as defined below, and you will own all the Work Product that is created specifically for you. Level Access uses pre-existing software, methodology and content that are used to create and deliver certain aspects of the work property (“Delivery Systems”). These Delivery Systems, inclusive of all Level Access Technology and Level Access Content, are considered the intellectual property of Level Access and no right, title or ownership in them is granted to you under this Agreement.
2. Services Terms
2.1 Work Product and Customer Data You Will Own
When Level Access develops content, findings documents, deliverables, and any other materials specifically for you, you will own all the resulting work (“Work Product”). Work Product will be designated “Work for Hire” on the applicable Order Form, and in that case such Work Product will be deemed work made for hire pursuant to the U.S. Copyright Act, 17 U.S.C. §101 et seq, and any foreign equivalent thereof. On payment of all applicable fees, Level Access will assign to you all Intellectual Property Rights in the Work Product.
Customer Data includes information you provide Level Access pursuant to this Agreement or that Level Access generates while providing the Services. All Customer Data is yours and you grant Level Access no ownership rights in it.
2.2 Technology and Content Level Access Will Own
Level Access Content and Level Access Technology are materials and technology Level Access has developed to use across its customer base. Except for your license and use rights in this Agreement and your ownership rights in Work Product described above, Level Access and its licensors retain all title, ownership rights and Intellectual Property Rights in all of the Level Access Content and Level Access Technology.
The Level Access Technology and Level Access Content are protected by copyright and other intellectual property laws and by international treaties. Your only rights in the Level Access Content and Level Access Technology are the license and use rights in this Agreement, and even if the terms “purchase” and “sale” are used regarding software, your only rights in Level Access software are those of a licensee.
2.3 Acceptance of Deliverables
If an Order Form requires acceptance of deliverables, Level Access will deliver you a draft copy of the deliverable by email for review and acceptance, and the acceptance process will be as follows (except as otherwise agreed in the Order Form):
- Upon receipt of the draft copy of the deliverables, you will have 10 business days to formally approve or reject the deliverables.
- To formally approve the deliverables, you should indicate approval or acceptance via an e-mail.
- To formally reject the deliverables, you must provide a detailed description of why it was rejected and what items must be addressed for the deliverable to be deemed acceptable.
- If the rejection is based on factors or scope not identified in the Order Form, outside of the scope of the acceptance criteria, or outside of the scope of the project, you must submit a change request to Level Access to add the factors to the acceptance criteria for the project. This may cause the project delivery schedule, dates, scope, or approach to change.
Any deliverables will be deemed to be formally approved 10 business days after delivery absent other notice.
2.4 Subcontracting and Personnel Assignments
Level Access may subcontract Services as needed for their effective delivery. Level Access will require its subcontractors to comply with the terms of this Agreement (including confidentiality obligations) and will remain solely responsible for the obligations performed by, and the acts or omissions of, any subcontractor. If Level Access subcontracts any portion of the Services hereunder the following shall apply:
- Upon request, Level Access will identify the subcontractors in writing prior to the start of any work.
- Level Access shall require any approved subcontractor having access to Confidential Information to agree to protect the confidentiality of such Confidential Information in a manner consistent with the obligations of confidentiality under this Agreement.
- Level Access will perform thorough due diligence on any proposed subcontractor and ongoing due diligence with respect to the sub-contractor to ensure compliance with the applicable terms of this Agreement. Such due diligence may include site visits, financial research and other investigations deemed appropriate in the sole discretion of Level Access.
- Level Access will cause the subcontractor to enter into any required organization specific contracting requirements as defined in and governed by the Flow Down Policies section of this Agreement.
- Level Access will remain your sole point of contact regarding the Services.
Nothing in this Agreement shall be construed to create any contractual relationship between you and any of Level Access’s subcontractors or any obligation on your part to pay any money due any such subcontractors.
2.5 Removal of Personnel
Upon your request Level Access shall remove any Level Access personnel or subcontractor personnel performing Services under this Agreement and replace such personnel as soon as practicable with replacement personnel acceptable to You. If a change would cause a change in Level Access’s pricing for Services, Level Access will notify you and obtain your written consent to the price change before replacing the relevant personnel or subcontractor.
2.6 Employment Status
Level Access shall be solely responsible for the provision of benefits and the payment of compensation of personnel assigned to perform Services hereunder. You shall not be responsible for payment of wages, compensation, benefits, worker’s compensation, disability benefits, and unemployment insurance or for withholding and paying employment taxes for any Level Access personnel or subcontractor personnel, and such responsibility shall be solely that of Level Access.
2.7 Free Trial
From time to time Level Access may provide free access to a Service on a trial basis, free of charge, until the earlier of (a) the end of the free trial period as provided by Level Access or (b) the start date of your paid Subscription Term, as set forth on the applicable Order Form. Additional trial terms and conditions may appear on the trial registration web page or form or be communicated to you in electronic media as part of the trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.8 Beta Services
From time to time, Level Access may invite you to try Beta Services at no charge. You may accept or decline any such trial at your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Level Access’s warranties and indemnification provisions provided in this Agreement do not apply to Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of three months from the trial start date or the date that a version of the Beta Services becomes generally available; provided that Level Access may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Level Access will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. Subscription Services
3.1 Service Types
Level Access Subscription Services are provided in various package configurations, the specifics of which are detailed in individual Order Forms as executed under this MSA.
In addition to the paid subscription service packages, Level Access also provides unpaid access to Services for User(s) that solely need to view specific Level Access Content and Customer Data in the Service (“Viewer Account(s)”). These Viewer Accounts are meant to provide access solely to view specific pieces of Customer Data created in the system. These commonly provide access to view reports that are created by Users with a current, up-to-date subscription to the relevant Subscription Service. 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.
Your subscription allows you to use the Service features for the Service Edition you subscribed for, described in the relevant Order Form. If you use features for a different Edition, Level Access may require you to upgrade to the applicable Edition.
3.2 License Grant
Level Access hereby grants you a non-exclusive, non-transferable, worldwide right to use the Services for which you subscribe, solely for your own internal business purposes, during the Subscription Term and subject to the other terms and conditions of this Agreement and the applicable Order Form. All rights not expressly granted to you are reserved by Level Access and its licensors.
3.3 Subscription Changes
Subscriptions for additional Services may be added during the subscription term at the same pricing as the base subscription pricing, prorated for the remaining portion of the Subscription Term. Unless otherwise specified in the Order Form, any added subscriptions will terminate on the same date as the underlying base subscriptions.
3.4 Open Source Notice
Level Access may distribute third party open source software programs with the Subscription Services either incorporated into the Subscription Services or provided separately. These third-party programs are subject to their own additional license terms, none of which require notice, attribution, payment, disclosure or license back of any Customer Data. A list of open source software programs delivered with the Services is available on request from Level Access.
4. Level Access Responsibilities
4.1 Provision of Subscription Services
For paid editions of the Services, Level Access will (a) make the Subscription Services available to you pursuant to this Agreement and the applicable Order Form(s), (b) provide standard support for the Subscription Services to you at no additional charge and (c) use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for: (i) planned downtime of which Level Access shall provide at least 8 hours electronic notice and which Level Access shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time, and (ii) any unavailability caused by circumstances beyond Level Access’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.
4.2 Protection of Your Customer Data
Level Access will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Policies section of this Agreement. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Level Access personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law or (c) as you expressly permit in writing.
4.3 Internet Delays
Level Access’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Level Access is not responsible for any delays, delivery failures, or other damage resulting from such problems.
During the term of the Agreement, Level Access shall, at its own cost and expense, obtain and maintain in full force and effect, the following minimum insurance coverage:
- Workers’ compensation insurance in accordance with all applicable federal, state and local statutory requirements;
- Automobile liability insurance (including bodily injury and property damage coverage) for all owned, non-owned and hired vehicles, with a combined single limit of $1,000,000 per person and per accident or the minimum limit required by law, whichever limit is greater;
- Commercial general liability insurance (including premises, operations, independent contractors, products/completed operations, personal injury, advertising injury, and liability assumed under an insured contract) on an occurrence basis with minimum single limit coverage of $1,000,000 per occurrence and $2,000,000 aggregate combined single limit;
- Professional errors and omissions liability insurance with a limit of $5,000,000 per event and $5,000,000 aggregate and an excess errors and omissions policy of $5,000,000 which brings the E&O policy in full to $10,000,000, covering liability arising from negligent delivery of professional services;
- Employee dishonesty insurance (including blanket coverage for employee dishonesty and computer fraud or for loss or damage arising out of or in connection with any fraudulent or dishonest act committed by Seller Personnel, acting alone of in collusion with others) with minimum single limit coverage event of $1,000,000 per claim; and
- Excess or umbrella insurance with limits of $5,000,000 per occurrence in excess of the limits specified above for employers’ liability, automobile liability, and commercial general liability insurance.
Upon request, and as is reasonable given the total scope of the work under this Agreement, Level Access will name you as an additional insured to Level Access’s commercial general liability, automotive liability, and excess / umbrella insurance and as a loss payee on Seller’s employee dishonest and errors and omissions insurance. In such instance, Level Access will furnish to you a certificate showing compliance with these insurance requirements within 30 days of receipt of your written request. Further, Level Access will provide You with no less than 30 days’ prior written notice of any termination or reduction in the amount or scope of coverage.
5. Your Responsibilities
5.1 Appropriate Use of Services.
You will (a) be responsible for your Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which you acquired Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Level Access Content, and notify Level Access promptly of any such unauthorized access or use, (d) use Services and Level Access Content only in accordance with this Agreement, the Order Form, Documentation and applicable laws and government regulations and (e) ensure payment for the Services in accordance with the terms of the section of this Agreement titled Billing, Payments and Fees for Subscription Services.
5.2 License and Use Restrictions
Services and Level Access Content are subject to usage limits, including, for example, the scope of use specified in the Service Types section of this document or terms provided in a relevant Order Form. Unless otherwise specified, (i) a quantity in an Order Form refers to Editions of the Services, (ii) the Services or Level Access Content may not be accessed more broadly than the defined scope of use and (iii) a single User’s password may not be shared with any other individual.
In addition, you may not:
- Access the Services if you are a direct competitor of Level Access except with Level Access’s prior written consent.
- Access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
- License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party a Service, the Level Access Content or Level Access Technology in any way;
- Modify, copy or make derivative works based upon a Service, Level Access Content or Level Access Technology or any part, feature, function or user interface thereof except as explicitly provided in this Agreement;
- Create Internet links or frame or mirror any Service, Level Access Content or Level Access Technology on any other server or wireless or Internet-based device;
- Reverse engineer or access the Services in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of a Service, or (C) copy any ideas, features, functions or graphics of a Service;
- Modify, translate, decompile or disassemble a Service or Level Access Technology, except and solely to the extent an applicable statute expressly and specifically prohibits such restrictions;
- Remove any proprietary notices or labels on or in any Services, Level Access Content or Level Access Technology;
- Use a Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- Send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights;
- Use a Service to store or transmit Malicious Code;
- Permit direct or indirect access to or use of any Service or Level Access Content in a way that circumvents a contractual usage limit or the terms of this agreement;
- Interfere with or disrupt the integrity or performance of a Service or the data contained therein; or
- Attempt to gain unauthorized access to a Service or its related systems or networks.
Users must not share their log-in names or passwords (“Credentials”) with any third party, must maintain the confidentiality of all passwords, and may not attempt to use or facilitate use of any Credentials beyond the privileges authorized for them. You are responsible and liable for all activity conducted through the Credentials of your Users. You will immediately notify Level Access of any unauthorized use of Credentials, or any other breach of security related to the Service, of which you become aware. Level Access may change the password to your and your Users’ account(s) if Level Access believes it is no longer secure.
5.3 Level Access Content Use
YOU MAY NOT COPY ANY OF THE LEVEL ACCESS CONTENT FROM WITHIN THE SERVICES FOR DISTRIBUTION OUTSIDE OF THE SERVICES. THIS INCLUDES WITHOUT LIMITATION COPYING ANY PORTION OF THE LEVEL ACCESS CONTENT, INCLUDING BEST PRACTICES, TRAINING CONTENT AND METHODOLOGY CONTENT INTO AN ELECTRONIC DOCUMENT, E-MAIL, INSTANT MESSAGE OR ANY ELECTRONICALLY DISSEMINABLE MEDIUM OR FORM.
5.4 Audit Right
Level Access may, at its expense and not more frequently than annually, audit your use of the Services, and you agree to reasonably cooperate with respect to any such audit. Any such audit shall be conducted with at least 30 days’ notice, during regular business hours at your facilities and shall not unreasonably interfere with your business. If the audit indicates a discrepancy in the fees payable to Level Access greater than 5% of the amount paid by you for the period audited, you shall pay Level Access’s reasonable expenses of the audit in addition to any other amounts due.
6. Representations, Warranties, Remedies and Disclaimers
6.1 General Warranties
Each party represents and warrants that: (i) it has the full right, power and authority to enter into and fully perform this Agreement; (ii) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (iii) its entry herein does not violate any other agreement by which it is bound; and (iv) it is a legal entity in good standing in the jurisdiction of its formation and shall continuously remain in good standing during the term of this Agreement.
You represent and warrant that you have not falsely identified yourself or provided any false information to gain access to the Services and that your billing information is correct.
6.2 Services Warranty
Level Access warrants that the Services will perform substantially in accordance with the Documentation accompanying the Service. Level Access is not obligated to correct errors caused by unauthorized modification to a Service, by using a Service other than as described in the Documentation, by non-Level Access software, or by combining a Service with any hardware or software not authorized by Level Access in writing.
Level Access represents and warrants to the best of its knowledge that the Services will be free of Malicious Code.
Level Access represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will perform substantially in accordance with the Order Form and Documentation under normal use and circumstances.
All Level Access personnel that directly participate in the delivery of Services shall be sufficiently and appropriately licensed, qualified and trained as required by any applicable laws and generally accepted industry standards to provide the Services and meet the other requirements of this Agreement and each Order Form.
6.3 Disclaimer of Warranties
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES, ALL LEVEL ACCESS CONTENT AND ALL LEVEL ACCESS TECHNOLOGY ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” 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 AND ITS LICENSORS, INCLUDING USE OF THE SOFTWARE IN COMMON CARRIERS, CRITICAL SAFETY SYSTEMS OR NUCLEAR FACILITIES, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
6.4 Beta and Free Trial Disclaimer of Warranties
FREE TRIAL AND BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL OR USE OF BETA SERVICES WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA BEFORE THE END OF THE TRIAL OR BETA PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL OR BETA PERIOD TO A SERVICE THAT WOULD BE A DOWNGRADE (E.G., FROM ENTERPRISE EDITION TO PROJECT EDITION). IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE, IF LEVEL ACCESS CLOSES A BETA SERVICE WITHOUT RELEASING A COMMERCIAL EDITION OR IF YOU DON’T SUBSCRIBE FOR THAT EDITION, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL OR BETA PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
6.5 Limitations of Liability
IN NO EVENT SHALL EITHER PARTY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR LICENSEES (COLLECTIVELY “AGENTS”) BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY LEVEL ACCESS CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE LEVEL ACCESS CONTENT (REGARDLESS OF CAUSE), EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS AND CLAIMS ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AGENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
7.1 Confidential Information
Subject to the limitations set forth in Section 7.2, all information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information”.
Confidential Information shall not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.
Each party covenants that during the term of this Agreement and for a period of three years following termination of this Agreement (and indefinitely as to trade secrets of the disclosing party), it will not disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who have been informed of the receiving party’s confidentiality obligations under this Agreement and who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Informat
pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party’s Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.
On the disclosing party’s request, the receiving party must return or destroy on demand all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party; provided that Confidential Information stored in system-type media, such as for example system flushs and email backup tapes, need not be returned or destroyed, so long as the media: (a) are maintained in confidence; and (b) are periodically overwritten or otherwise destroyed in the ordinary course of business.
7.5 Notice of Immunity from Liability
In accordance with the US Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), a person is immune from any criminal or civil liability under any federal or state trade secret law for the disclosure of a trade secret that is made: (a) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed under seal in a lawsuit or other proceeding.
7.6 Customer Disclosure
8.1 Policy Overview
Level Access maintains a variety of policies and programs that govern the organization’s operational implementation of key data handling and security requirements. This Agreement incorporates each of the following policies:
- Level Access Privacy Statement
- Level Access Information Security Policy
- Level Access Business Continuity Statement
8.2 Policy Conflict
In the event of a conflict between any policy and this Agreement, this Agreement shall govern.
8.3 Policy Updates
Level Access’s policies are reviewed, updated, and validated on a quarterly basis. More frequent updates occur on an as-needed basis in response to any key changes in the information technology environment that must be addressed to ensure the robustness of any given policy. All changes are reviewed and approved by both the relevant staff members owning the policy and senior management, including the office of the CEO.
8.4 Policy Request
Level Access’s policies are reviewed, updated, and validated on a quarterly basis. More frequent updates occur on an as-needed basis in response to any key changes in the information technology environment that must be addressed to ensure the robustness of any given policy. All changes are reviewed and approved by both the relevant staff members owning the policy and senior management, including the office of the CEO.
8.4 Policy Request
All policies referenced in this Agreement are available on request from Level Access. You agree that all policies are to be treated as confidential information as defined in the Confidential Information section of this agreement and handled accordingly.
9. Billing, Payments and Fees
9.1 Services Payments
Level Access will bill you and you agree to pay all fees for the Services in accordance with each Order Form. Except as otherwise provided on an Order Form, all fees are due within 30 days of Level Access’s invoice and all indicated prices are annual prices. If there is a conflict in terms between this Agreement and a Level Access invoice or any purchase order submitted by Customer, this Agreement shall control. Any additional or different terms in invoices, acknowledgment forms, purchase orders, or other communications, are deemed material, are objected to, and rejected by the parties. If you believe your bill is incorrect, you must contact Level Access in writing within 30 days of the date of the applicable invoice to be eligible to receive an adjustment or credit.
Level Access will automatically renew your subscription and issue an invoice to you prior to the expiration of your Subscription Term or as otherwise mutually agreed to in your Order Form.
Level Access’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities (“Taxes”), and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Level Access’s income, property and employees. You are responsible for paying all Taxes associated with your orders hereunder. If Level Access pays or remits Taxes for which you are responsible, Level Access will invoice you and you will pay that amount unless you provide Level Access with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.4 Non-Payment and Suspension.
In addition to any other rights granted to Level Access herein, Level Access reserves the right to suspend or terminate this Agreement and your access to any Service if your account becomes
delinquent. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for all agreed to Services during any period of suspension. If you or Level Access initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the terms of the section of this Agreement titled Billing, Payments and Fees for Subscription Services.
Level Access reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to a Service.
9.5 Future Functionality
Unless explicitly provided for in the Order Form you agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Level Access regarding future functionality or features.
10. Term and Termination
10.1 Term of Agreement
This Agreement commences as of the Effective Date and will continue until terminated. All subscription products and/or services entered into under this MSA are noncancelable after execution by both parties, and the terms of such subscriptions entered into shall not be altered prior to the end of the term of each subscription instance, unless there is a termination for cause as described in section 10.2.2.
Either party may terminate this Agreement on notice to the other (a) at least 30 days prior to an applicable Subscription Term renewal date, or (b) at any time if no Service subscriptions are active. For unpaid use of a Subscription Service, such as that provided by a Viewer Account, the term is indefinite and may be terminated at any time in Level Access’s sole discretion.
10.2.2 Termination for Cause
Either party may terminate this Agreement immediately by written notice if the other party: (1) commits a non-remediable material breach; (2) commits a remediable breach (including nonpayment) that is not remedied following 30 days’ notice by the non-breaching party; (3) ceases operation without a successor; or (4) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
10.3 Effect of Termination
Immediately on termination of the Agreement you must stop using all Services and pay any outstanding fees owed to Level Access. Level Access will not refund any prepaid Subscription fees.
Within 30 days following termination (other than by reason of your breach), Level Access will make available to you a file of Customer Data if you so request at the time of termination. You agree and acknowledge that Level Access has no obligation to retain the Customer Data and may delete such Customer Data following 30 days after termination.
Upon termination of the Agreement Level Access will deliver to you all in-process undisputed Work for Hire.
10.4 Surviving Provisions
The provisions of this Agreement which, by their terms, require performance after the termination or expiration of this Agreement, or have application to events that may occur after the termination or expiration of this Agreement, will survive the termination or expiration of this Agreement.
11. Mutual Indemnification
11.1 Indemnification by Level Access
Level Access at its own expense will defend, indemnify and hold you, your affiliates, successors, assigns, members, shareholders, officers, directors and agents (“Related Parties”) harmless from and against all liabilities, obligations, losses, damages, fines, judgments, settlements, charges, interest, expenses (including reasonable attorneys’ and accountants’ fees and disbursements) and costs (collectively, “Expenses”) arising from claims, demands, suits, actions or proceedings made or brought by Third Parties (collectively, “Claims”) alleging infringement by the Services of the Third Party’s Intellectual Property Rights. “Third Party” means a party other than Level Access or you, as applicable, and each of their Related Parties.
11.2 Indemnification by You
You, at your own expense, will defend, indemnify and hold Level Access and its Related Parties harmless against any Expenses arising out of Claims alleging that your Customer Data infringes or misappropriates such third party’s intellectual property rights or violates applicable law.
11.3 Indemnification Procedure
Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a Claim, the party to be indemnified will notify the other party of the Claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense is materially prejudiced by failure to give notice. The indemnifying party will assume the defense and settlement of the
Claim with counsel reasonably satisfactory to the indemnified party at the indemnifying party’s risk and expense; provided, however, the indemnified party (a) may join in the defense and settlement of the Claim and employ counsel at its own expense, and (b) will reasonably cooperate with the indemnifying party in the defense and settlement of the Claim. The indemnifying party may not settle any Claim without the indemnified party’s written consent unless the settlement (x) includes a release of all covered claims pending against the indemnified party; (y) contains no admission of liability or wrongdoing by the indemnified party; and (z) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items.
11.4 Exclusive Remedy
This section, titled Mutual Indemnification, states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
As used in this Agreement and in any related documents:
“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.
“Beta Services” means Level Access Services that are not generally available to customers;
“Customer Data” means any data, information or material provided or submitted by you to a Level Access Service in the course of using the Service;
“Documentation” means Level Access online user guides, documentation, and help and training materials, as updated from time to time, accessible via a Level Access Service;
“Intellectual Property Rights” 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;
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document specifying the Services to be provided hereunder that has been executed by you and Level Access, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms can include mutually executed Statements of Work (SOWs), invoices documents, quotes or Purchase Orders.
“Level Access Content” means the text, audio and visual information, documents, reference manuals, best practices, standards, training materials, training slides, solutions documents, products and services contained or made available to you in the course of using any Service;
“Level Access Technology” means all of Level Access’s proprietary technology including without limitation Services, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to you by Level Access in providing the Services;
“Services” is defined in the heading of this Agreement.
“Subscription Service(s)” means the any of the Services you subscribe to or access via a user account including, without limitation, AMP (Accessibility Management Platform, Access Academy, Access Analytics, Access Advisor, or another Level Access service you have been provided access to.
“Subscription Term(s)” means the period(s) during which you are authorized to use a Service as a paid user. The Subscription Term will be defined on each Order Form. If the Order Form does not define the Subscription Term, it shall be for three years beginning with the Effective Date of the Order Form.
“User(s)” means an individual authorized to use the Service. This includes your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you or by Level Access at your request.
“Viewer Account” means a User account that has access to view content – typically a report – in a Service that was created by a User with an up-to-date Subscription Service.
“Work Product” is defined in Section 2.1.
13. General Provisions
During the Term of this Agreement and for a period of one year after the expiration or termination of this Agreement neither party shall, without the other party’s prior written consent, actively recruit or employ any individual (“Hiring Event”) who is regularly performing work under this Agreement. In the event of a breach of this covenant the party that triggered the Hiring Event shall pay the other party the equivalent of one year of the on-target earnings of the subject employee as negotiated by the triggering party. On-target earnings shall be calculated to include the annual base salary and the annual cash value of any incentive or bonus plans for the employee at 100% or full achievement of the relevant goals. On-target earnings shall not include the value of any stock, stock options, other secondary financial instruments or any benefits provided to the subject employee.
In the event of dissolution or cessation of the business of either party or if either party is in material default of this Agreement, such party waives all rights in this section and the other party may actively recruit and employ such party’s employees without penalty or obligation under this section.
Notwithstanding the foregoing, neither party is prohibited from employing an individual who applies for a position in response to a public posting, employment advertisement or other
general solicitation of employment, or whose resume is posted by the individual to an employment web site that is searchable by such party.
13.2 Export Regulations
All Service and technical data delivered under this Agreement are subject to US export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you.
You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Level Access employee or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify Level Access’s Contracting Department through your Level Access account manager.
13.4 U.S. Government Restricted Rights
If Services under this agreement, including related software and technology, are for ultimate U.S. Federal government end use they are provided solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Level Access to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
13.5 Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
13.7 Integration; Enforcement of Rights
This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.
13.8 Modification of Agreement
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. 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.
If one or more provisions of this Agreement is held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then such provision shall be enforced to the maximum extent permitted by applicable law.
Headings contained in this Agreement are for convenience of reference only and do not form part of this Agreement. A word importing the singular includes the plural and vice versa. Gendered pronouns are used for convenience and are intended to refer the masculine or feminine, as applicable.
This Agreement is personal to you and may not be assigned, whether by operation of law or otherwise, except that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party or an applicable business unit. Any other purported assignment shall be void.
Every notice or other communication required or contemplated by this Agreement by either party shall be delivered to the other party at the address in the signature block of the Order Form by: (a) personal delivery; (b) postage prepaid, return receipt requested, registered or certified mail; (c) internationally recognized express courier, such as Federal Express, UPS or DHL; or (d) facsimile or email with a confirmation copy sent simultaneously by postal mail. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given. A party may change its address by providing notice to the other party in accordance with this paragraph.
13.13 Governing Law
This Agreement shall be governed by and construed in accordance with laws of the Commonwealth of Virginia notwithstanding any choice-of-law principle that might dictate a different jurisdiction’s governing law. Any legal action or proceeding with respect to this Agreement shall be brought in the federal or state courts in Fairfax County, Virginia, and, by execution and delivery of this Agreement, the parties accept for themselves and in respect of their property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, which any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.
13.14 Attorney Fee
In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.
This Agreement may be accepted electronically or executed by written or electronic signature and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
13.16 Electronic Signatures
If electronic signature services are used to sign this Agreement or any Order Form, Level Access and you intend to be bound by their electronic signatures and such electronic signatures shall have the same legal effect as if manually affixed to a paper version of the agreement. The use of e-signatures is not required.
In the event of a conflict between this agreement and any Order Form this Agreement shall govern unless the Order Form specifically overrides Agreement terms.
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