PLEASE READ THIS AGREEMENT BEFORE USING ONLINE ADA’S A11Y TOOLBOX SOFTWARE OR SERVICES. BY ACCESSING OR USING A11Y TOOLBOX, YOU (“Client”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SOFTWARE OR SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ONLINE ADA’S A11Y TOOLBOX SOFTWARE LICENSE OR SERVICE, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT. This License Agreement (“Agreement”) is entered into between Client and Online ADA, Inc. an Oregon corporation (“Online ADA”), with its principal place of business at 207 E 5th Ave Suite 240, Eugene, Oregon 97401. Online ADA and Client agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.
A. The parties wish to enter into an agreement whereby Online ADA licenses the use of A11y Toolbox (“Product”) to Client.
B. This Agreement applies to the computer software product, in machine readable form only, that accompanies this Agreement (the “Software”).
C. The Software is owned solely by Online ADA and its licensors. The Software is licensed, not sold. The Software is protected by the United States and international copyright laws and treaties, as well as other intellectual property laws and treaties.
AGREEMENT In consideration of the foregoing, the Parties agree as follows:
- Licensing of Product.
1.1. Grant of License. Subject to the terms of this Agreement, Online ADA hereby grants to Client, during the term of this Agreement, nontransferable, nonexclusive license to access and use the Product pursuant to the terms herein. The Product is licensed, not sold. The Product is protected by United States and international copyright laws and treaties, as well as by other intellectual property laws and treaties. Client will not attempt to, and will not permit its users or any other third party to attempt to, (a) alter, modify, improve, reverse engineer, disassemble, or decompile the Product; or (b) interfere in any manner with the hosting of the Product. Online ADA grants Client the right to sublicense to Client’s end users during the term of this licensing agreement pursuant to the terms of this agreement.
1.2. Ownership. All right, title, and interest in the Product, including any updates or revisions to the Product, is and will remain the sole and exclusive property of Online ADA, its licensors, and their successors and assigns. Other than the limited license explicitly set forth in this Agreement, no interest in or rights or licenses to the Product are granted to Client, and no interest in or rights or licenses to the Product will inure in or accrue to Client, whether by implication, estoppel, or otherwise. All rights of any kind in the Product that are not expressly granted in this Agreement or other written agreement between the Parties are entirely and exclusively reserved to and by Online ADA, its licensors, and their successors and assigns.
- Confidentiality and Limitations on Use.
2.1. The Software constitutes trade secrets and confidential information of Online ADA and its licensors. The foregoing license is for internal business purposes only and ends on the termination of this Agreement. On termination of this Agreement, you must discontinue use of the Software and destroy or return all copies of the Software to Online ADA.
2.1.1. You may not under any circumstances:
Copy the Software;
Sublicense, rent, lease, lend, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the Software, except as set forth in this agreement;
Use or allow use of the Software after the termination or expiration of this Agreement (except pursuant to another valid license);
Access, attempt to access, decrypt, use, or disclose the Software source code;
Remove or alter any copyright or other proprietary rights notices included in or affixed to the Software.
- Term and Termination.
3.1. Term. This Agreement will commence on the Effective Date and will continue until terminated. A11y Toolbox can be licensed monthly, or annually. Unless terminated the term will be determined by the purchase agreement for the period purchased. Some terms in this Agreement survive the term of use.
3.2. Termination for Cause. Either party may terminate this Agreement on the material breach of the other party if the breach remains uncured for 30 days after written notice to the breaching party.
3.3. Effect of Termination. On termination of this Agreement for any reason, you must immediately cease all use of the Product in any form and immediately return or destroy all copies of the Product in their possession or control.
3.4. Survival after Termination. Except as otherwise stated in this Agreement, any provisions in this Agreement that by their sense and context are intended to survive the termination of this Agreement will survive such termination. Notwithstanding the foregoing, any cause of action that Online ADA has against Client for breach of this Agreement will survive such termination.
- Limited Warranty.
4.1. Online ADA warrants that from the Effective Date the Software, when properly used, will perform substantially in accordance with the corresponding documentation. This limited warranty is void if failure of the Software results from abuse, misuse, modification, or improper use.
4.2. Online ADA’s entire liability and your exclusive remedy for breach of the foregoing warranty will be repair or assistance with troubleshooting and resolution of proper performance of the Software, at Online ADA’s discretion, cancelation of the Software for a refund of the last billing cycle’s fees you paid.
4.3. Online ADA does not warrant that the Software will meet your requirements or that operation of the Software will be uninterrupted or error-free. Online ADA is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any website or web based software for which the Software is procured, nor is Online ADA responsible for problems that result from using the Software in conjunction with an incompatible website or third-party software.
4.4. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR OBLIGATIONS, EXPRESS OR IMPLIED. THE LICENSOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability.
5.1 The Licensee is aware that the use of the software cannot guarantee that claims will not arise, and that using the software for the Licensee Website does not, on its own, fulfill all of the requirements of applicable law in respect of website accessibility (software does not remediate PDF files or create subtitles for videos, for example). The Client does not undertake that the Licensee Website will be 100% accessible at any given moment, owing to factors such as Licensee changes made to the Licensee Website, issues originating in the Licensee Website and /or limitations stemming from technological reasons. The Licensee irrevocably waives any claims against the Client from any liability, legal or otherwise, and that it shall assert no claims against the Client in this regard (including in relation to any Claims Support Services, if provided).
5.2 THE LIABILITY OF ONLINE ADA AND ITS LICENSORS FOR DEFECTIVE SOFTWARE IS LIMITED TO ONLINE ADA’S OBLIGATIONS UNDER THE LIMITED WARRANTY SET FORTH ABOVE. IN NO EVENT WILL THE LIABILITY OF ONLINE ADA OR ITS LICENSORS FOR THE USE OR INABILITY TO USE THE SOFTWARE OR FOR BREACH OF THIS AGREEMENT EXCEED THE AMOUNT OF THE LICENSE FEE FOR THE SOFTWARE TO WHICH THE CLAIM RELATES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ONLINE ADA OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOST OR DAMAGED DATA, SUBSTITUTE GOODS, LOST PROFITS, INTERRUPTION OF BUSINESS, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR ANY OTHER LEGAL THEORY. IN NO EVENT WILL ONLINE ADA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). YOU AGREE THAT THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS ITS ESSENTIAL PURPOSE.
- Consent to Use Data. You agree that Online ADA and its agents may collect and use technical and related information, including but not limited to your use of the Product, that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Software and to verify compliance with the terms of this Agreement. You agree that Online ADA may use this information as long as it is in a form that does not personally identify you, for purposes of product development or to provide services or technologies to you. Online ADA will not store the data for more than 90 days.
- Accessing and Managing Account. Client manages A11y Toolbox through a customer dashboard. The customer dashboard allows Client to manage the following: payment methods, subscriptions, user profile, access/edit/manage the A11y Toolbox license for each account, and to create new users to dashboard.
- Indemnification. Client shall indemnify, defend, and hold harmless Online ADA from and against any third party claim, demand, or cause of action concerning an actual loss or liability (including attorney’s fees and expenses of litigation) for any claims directly arising from accessibility compliance failure. The provisions of this paragraph shall survive the termination of this agreement with respect to any claims or liability accruing before such termination. Except with respect to any third party claims or damages, in no event shall either party be liable to the other for any indirect, special, or consequential loss or damages arising from Client’s use of Online ADA’s services, including, but not limited to, lost profits and lost revenue, even if informed of the possibility of such damages.
- Relationship. The Parties acknowledge that there is no partnership, agency, or other relationship between the Parties.
- Notice. All notices required by this agreement will be in writing and will be sent and deemed given as follows: two days after deposit in United States mail, postage prepaid, registered or certified mail addressed to the physical mailing address of the party in file; upon receipt when personally delivered; one day after being sent by recognized overnight courier service; on the date transmitted by facsimile with electronic confirmation of delivery; the date sent by email to the last email address from which the sender received email from the recipient.
- Arbitration. Any claim or dispute arising out of or relating to this agreement, or to the interpretation or breach of this agreement, or to the existence, scope, or validity of this agreement, including tort claims, will be resolved by binding arbitration. Arbitration will be conducted by, though, and in accordance with the then effective arbitration rules of the Arbitration Service of Portland, Inc. (ASP). The arbitration will be held in Lane County, Oregon unless the parties mutually agree otherwise.
- Modification. No modification of this Agreement shall be valid unless it is in writing and is signed by all of the Parties.
- Integration. This Agreement is the entire agreement of the Parties. There are no promises, terms, conditions, or obligations other than those contained in this Agreement. This Agreement shall supersede all prior communications, representations, and agreements, oral or written, of the Parties.
- Interpretation. The paragraph headings are for the convenience of the reader only and are not intended to act as a limitation on the scope or meaning of the paragraphs themselves. This Agreement shall not be construed against the drafting party.
- Severability. The invalidity of any term or provision of this Agreement shall not affect the validity of any other provision.
- Waiver. Waiver by any Party of strict performance of any provision of this Agreement shall not be a waiver of or prejudice any party’s right to require strict performance of the same provision in the future or of any other provision.
- Binding Effect. Subject to restrictions in this Agreement upon assignment, if any, this Agreement shall be binding on and inure to the benefit of the heirs, legal representatives, successors, and assigns of the Parties.
- Governing Law. This Agreement shall be interpreted and enforced according to the laws of the state of Oregon.
- Counterparts. This Agreement may be executed in multiple counterparts, each of which shall constitute one agreement, even though all parties do not sign the same counterpart.