Terms

Definitions

Service means eA Web Accessibility evaluation and remediation support services, eA hosted services and the eA Software as described in the Order Forms.

Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this Agreement. “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.

Customer Data means all electronic data submitted by or on behalf of Customer to the Service.

Documentation means eA’s user guides and other end user documentation for the Service available on the online help feature of the Service, as updated by eA from time to time, or provided to the Customer directly.

Order Form means an ordering document that specifies the Service, Training Services, Support Services, and/or Professional Services purchased by Customer under this Agreement. Order Forms shall be subject solely to and incorporate by reference the terms of this Agreement

Professional Services means implementation services provided by eA in connection with the Service, as described more fully in a Statement of Work. Professional Services shall not include the Service.

Statement of Work means a document that describes certain Professional Services purchased by Customer under this Agreement. Each Statement of Work shall incorporate this Agreement by reference

Support Services means the support services provided by eA in accordance with eA’s then-current support policy and as identified on an Order Form. In the event that the level of support is not identified on the Order Form, Customer shall receive a “basic” level of support.

Training Services means the education and training services provided by eA as described more fully in an applicable Order Form.

Term means the period from commencement of Customer’s first use of the Service until terminated in accordance with Section: Term, Termination; and Effect of Termination

Users means individuals who are authorized by Customer to use the Service, for whom a subscription to the Service has been procured. Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, clients, external user, contractors and agents.

Service, Professional Services, and Training Services

Access Rights to Service & eA Obligations

eA shall make the Service available to Customer pursuant to this Agreement during the Term, and grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to allow its Users to access and use the Service in accordance with the Documentation, solely for Customer’s business purposes. Customer agrees that its purchase of the Service or the Professional Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by eA with respect to future functionality or features.

Customer’s Obligations

Customer is responsible for all activities conducted under its and its Users’ logins on the Service. Customer shall use the Service in compliance with this Agreement, the applicable Order Forms, Documentation, and applicable law and shall not and shall not permit any third party to: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Service, or any part thereof, or make it available to anyone other than its Users; (ii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (iii) modify, copy or create derivative works based on the Service, or any portion thereof; (iv) access the Service for the purpose of building a competitive product or service or copying its features or user interface; (v) interfere or attempt to interfere with the proper working of the Service; (vi) use any Product in a manner that violates applicable laws or regulations; or (vii) delete, alter, add to or fail to reproduce in and on the Service the name of eA and any copyright or other notices appearing in or on the Service or which may be required by eA at any time.

Professional Services; Training Services

Customer and eA may enter into Statements of Work that describe the specific Professional Services to be performed by eA. eA shall provide any Training Services in accordance with eA’s then current standard Training Services terms as described in the applicable Order Form. If applicable, while on Customer premises for Professional Services or Training Services, eA personnel shall comply with reasonable Customer rules and regulations regarding safety, security, and conduct made known to eA, and will at Customer’s request promptly remove from the project any eA personnel not following such rules and regulations.

Customer Affiliates

Customer Affiliates may purchase and use the Service, Professional Services, Support Service, and Training Services subject to the terms of this Agreement by executing Order Forms or Statements of Work hereunder that incorporate by reference the terms of this Agreement, and in each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order or SOW.

Security, and Support

Security

eA shall: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Service and the Customer Data in accordance with eA’s then current eA Security Requirements; (ii) protect the confidentiality of the Customer Data in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event less than reasonable care, and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement during the Term, and as otherwise expressly permitted in this Agreement.

Support

Provided Customer procures and pays for Support Services as identified in the applicable Order Forms, eA shall (i) provide Support Services to Customer during the Term; and (ii) provide Customer with at least 99.9% availability of the Service in accordance with eA’s then-current Service Level Agreement.

Confidentiality

Each party (“Receiving Party”) may, during the course of its provision and use of the Service or provision of Professional Services, Support Services or Training Services hereunder, receive, have access to, and acquire technical and business information from discussions with the other party (‘Disclosing Party”) which may not be accessible or known to the general public, such as technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business plans or opportunities, business strategies, finances, costs, vendors, penetration test results and other security information; defect and support information and metrics; and first and third party audit reports and attestations or customers and other third party proprietary or confidential information that Disclosing Party treats as confidential, (“Confidential Information”). Confidential Information shall not include Customer Data, and shall cease to include, as applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the public after the Effective Date, other than as a result of the act or omission of the Receiving Party; (c) were rightfully known to the Receiving Party without restriction prior to its receipt thereof from the Disclosing Party; (d) are or were disclosed by the Disclosing Party generally without restriction on disclosure; (e) the Receiving Party lawfully received without restriction from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Receiving Party without use of any Confidential Information as shown by documents and other competent evidence in the Receiving Party’s possession. For clarification obligations regarding Customer Data are solely addressed under the Section: Security, and Support. The Receiving Party shall not: (i) use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission, (ii) disclose or make the Disclosing Party’s Confidential Information available to any party, except those of its employees, contractors, and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance.

Ownership and Aggregated Data

Customer Data

All right, title and interest in and to the Customer Data is owned exclusively by Customer

Service

Except for the rights expressly granted under this Agreement, eA retains all right, title, and interest in and to the Service, the Professional Services, the Training Services materials, including all software, products, works, and other related intellectual property and moral rights inherent therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.

Suggestions

Notwithstanding anything else, Customer shall, and hereby does, grant to eA a non-exclusive, royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, reproduce, incorporate into the Service, and otherwise commercialize, exercise and exploit any suggestion, ideas, enhancements requests, feedback, recommendations, or other information provided by the Customer or its Users relating to the features, functionality or operation of the Service, the Professional Services, or the Training Services and any related intellectual property rights.

Aggregated Data

eA shall be permitted to use and aggregate Customer Data and the data generated in connection with Customer’s use of the Service; provided, however, in the event eA provides such data to third parties, it shall be anonymized and presented in the aggregate so that it cannot be linked specifically to Customer or User.

Fees, Expenses, and Taxes

Fees

eA will make the Service available to Customer at the start date of any purchased Service subscriptions ordered by Customer under an Order Form for such Service. Customer shall pay eA the fees set forth on the applicable Order Form (“Fees”) in accordance with this Agreement and the Order Form. If not otherwise specified on an Order Form, Fees are billed annually in advance and fees will be due within thirty (30) days of date of invoice. Except as otherwise specifically provided in this Agreement, all Fees paid and payable to eA hereunder are non-cancelable and non-refundable. If Customer fails to pay any amounts due under this Agreement by the due date, eA will have the right to charge interest at a rate equal to the lesser of three percent (3.0%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due; provided that eA will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.

Expenses

Unless otherwise specified in the applicable Statement of Work, upon invoice from eA, Customer will reimburse eA for all pre-approved, reasonable expenses incurred by eA while performing the Professional Services, including without limitation, transportation services, lodging, and meal and out-of-pocket expenses related to the provision of the Professional Services. eA will include reasonably detailed documentation of all such expenses in with each related invoice.

Taxes

eA’s fees do not include 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”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If eA has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, eA will invoice Customer and Customer will pay that amount unless Customer provides eA with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, eA is solely responsible for taxes assessable against it based on its income, property and employees.

Warranty and Disclaimer

Services

eA warrants that during the Term: (i) the Service shall perform materially in accordance with the applicable Documentation, (ii) eA shall make commercially reasonable efforts to make the Service available to Customer 24 hours a day, 7 days a week, every day of each year (except for any unavailability caused by a Force Majeure event); (iii) eA will employ then-current, industry-standard measures to test the Service to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Service, and (iv) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights to use the Service granted herein. As Customer’s sole and exclusive remedy and eA’s entire liability for a breach of the warranties set forth in this Section: Warranty and Disclaimer – Services, eA shall use commercially reasonable efforts to correct the non-conforming Service at no additional charge to Customer, and in the event eA fails to successfully correct the Service within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable. The warranties set forth in this subsection shall apply only if the applicable Service has been utilized in accordance with the Documentation, this Agreement and applicable law.

Professional Services

eA warrants that the Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. As Customer’s sole and exclusive remedy and eA’s entire liability for any breach of the foregoing warranty, eA will, at its sole option and expense, promptly re-perform any Professional Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Professional Services.

Disclaimer

EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION: WARRANTY AND DISCLAIMER, eA AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE SERVICE, PROFESSIONAL SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION: WARRANTY AND DISCLAIMER. EA MAKES NO WARRANTY REGARDING ANY THIRD PARTY SERVICE WITH WHICH THE SERVICE MAY INTEROPERATE.

Limitation of Liability

Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND EXPENSES, AND TAXES” SECTION ABOVE.

Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

Exceptions to Limitations: The limitations of liability on direct loss, claims or damages do not apply to: (a) breaches of confidentiality obligations set out in Section: Confidentiality, violations of a Party’s Intellectual Property Rights by the other Party, or the indemnification obligations set out in Section: Indemnification.

There is no limitation on direct loss, claims or damages arising out of: (a) breach of Restrictions, (b) breach of Confidentiality, or obligations of indemnity under Section: Indemnification.

Indemnification

eA Indemnification Obligation

Subject to Indemnity Requirements below, eA will defend Customer from any and all claims, demands, suits or proceedings brought against Customer by a third party alleging that the Service or Professional Services, as provided by eA to Customer under this Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). eA will indemnify Customer for all damages and/or costs (including but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by eA, in connection with an Infringement Claim. In the event of any such Infringement Claim, eA may, at its option: (i) obtain a license to permit Customer the ability to continue using the Service; (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Service and refund to Customer any prepaid, unused Fees for such infringing Service hereunder. Notwithstanding the foregoing, eA will have no liability for any infringement claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than eA; (2) the combination of the Service with other products, processes or technologies (where the infringement would have been avoided but for such combination); or (3) Customer’s use of the Service other than in accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section: Indemnification are eA’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind

Customer Indemnification Obligation

Subject to Indemnity Requirements below, Customer will defend eA from any and all claims, demands, suits or proceedings brought against eA by a third party alleging (i) that any Customer Data or Customer’s use of Customer Data with the Services, (ii) a Non-eA Application provided by Customer, or (iii) the combination of a Non-eA Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Service in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against eA”), and will indemnify eA from any damages, attorney fees and costs finally awarded against eA as a result of, or for any amounts paid by eA under a settlement approved by Customer in writing of, a Claim Against eA

Indemnity Requirements

The party seeking indemnity under this Section: Indemnification (“Indemnitee”) must give the other party (“Indemnitor”) the following: (i) prompt written notice any claim for which the Indemnitee intends to seek indemnity, (ii) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor’s sole expense, and (iii) the option to assume sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense

Customer Mention

eA may use Customer’s name to identify Customer as an eA customer of the Service, including on eA’s public website. eA agrees that any such use shall be subject to eA complying with any written guidelines that Customer may deliver to eA regarding the use of its name and shall not be deemed Customer’s endorsement of the Service.

Term, Termination; and Effect of Termination

Term of Agreement

This Agreement commences on the date the Customer first accepts it and shall remain in effect until terminated in accordance with this Section. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Service.

Term of Order Forms

The term of each subscription for the Service commence on the Start Date specified in the applicable Order Form and continue for the subscription term specified therein unless otherwise terminated. Upon expiration of the Term, unless otherwise stated on an applicable Order Form, the Service will automatically renew for additional Terms of one (1) year each, unless and until either party gives the other notice of non-renewal at least sixty (60) days prior to the end of the then-current Term. The per-unit pricing during any renewal term will increase by up to seven percent (7%) above the applicable pricing in the prior term, unless eA provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at eA’s applicable list price in effect at the time of the applicable renewal.

Termination

Either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice. Termination due to Customer’s breach shall not relieve Customer of the obligation to pay any fees accrued or payable to eA under the Agreement.

Return of Customer Data

Upon request by Customer made within fifteen (15) days prior to the effective date of termination, eA will make available to Customer, at no cost, for a maximum of 30 days following the end of the Term for download Customer Data attachments in their native format. After such 30-day period, eA shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, be entitled to delete all Customer Data in its systems or otherwise in its possession or under its control.

Effect of Termination.

The sections titled “Definitions,” “Confidentiality,” “Ownership, Aggregated Data,” “Fees, Expenses and Taxes,” “Warranty Disclaimer,” “Limitation of Liability,” “Indemnification,” “Term, Termination, and Effect of Termination,” and “General” shall survive any termination or expiration of this Agreement.

General

Assignment

Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or eA without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, eA may freely assign this Agreement in its entirety (including all Order Forms), upon notice and without the consent of the Customer, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets

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. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

Force Majeure

If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.

Anti-Corruption

Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of eA employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify eA.

Waiver

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right

Governing Law and Severability

This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the Province of Ontario. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the provincial and Federal courts located in Toronto, Ontario. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the provisions will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

Notices

Except as otherwise specified in this Agreement, all notices related to this Agreement shall be in writing and will be effective upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given three (3) business days after deposit with a recognized courier, or (iii) except for notices of termination or indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.

Notices go to:

eSSENTIAL Accessibility Inc.

Attn: Legal Notices

658 Danforth Avenue, Suite 200

Toronto, ON M4J 5B9

Canada

With a copy emailed of even date to:

legalnotice@essentialaccessibility.com

Entire Agreement and Order of Precedence

This Agreement together with the Order Forms constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (other than with regard to capacity licensed, Term, Service, bill to, ship to, pricing) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.