The following terms and conditions are applicable to any uRemediate subscriptions ordered by Customer (“Terms of Subscription”). Capitalized words or phrases that are not otherwise defined herein shall have the meanings set forth in the Order.
I. SUBSCRIPTION DETAILS
- uRemediate Subscription Elements. The uRemediate subscription includes the following elements:
(a) The uRemediate Accessibility Menu. This menu provides accessibility tools/options for site users concerning: (1) screen reader use; (2) keyboard navigation; (3) color contrast; (4) monochromatic/grayscale color; (5) moving elements/blinking; (6) screen magnification; (7) help layer; (8) user feedback; and (9) linking to/accessing an accessibility statement. The accessibility menu options for (3), (4), (6), (8), and (9) listed immediately above will be fully operational, and accessibility menu option (5) partially operational, for the domains/subdomains and associated platforms listed in the Order within twenty-four (24) hours of Customer’s insertion of the uRemediate Snippet described below. All accessibility menu options will be fully operational for the domains/subdomains and associated platforms listed in the Order upon completion of the domain/subdomain site configuration and testing described below.
(b) Configuration and Testing.
(1) Standard and Timelines: Upon Customer’s insertion of a few lines of User1st-provided HTML code (the “uRemediate Snippet”) into the Customer’s domain/subdomain (development or production) sites listed in the Order, User1st personnel will configure, remediate, and test inaccessible website page template elements for the applicable domains/subdomains and associated platforms to make them accessible using the uRemediate subscription in accordance with the World Wide Web Consortium’s Web Content Accessibility Guidelines (“WCAG”) 2.0 standard, conformance level AA, at a minimum. Screen reader accessibility is configured and tested using only the screen reader programs set forth in the Order. Keyboard navigation is configured and tested through use of only the browser applications set forth in the Order. Configuration and testing of website page template elements for the main domain homepage listed in the Order will be completed no later than fifteen (15) business days after Customer’s insertion of the uRemediate Snippet into the site’s code (“Main Domain Homepage Timeline”). Configuration and testing of all other listed domain/subdomain website page template elements will be completed no later than sixty (60) business days after configuration and testing of the listed main domain homepage (“Domain/Subdomain Template Timeline”).
(2) Conditions to Timelines. Customer acknowledges and agrees that User1st’s ability to meet the Main Domain Homepage Timeline and Domain/Subdomain Template Timeline is conditioned upon Customer engaging cooperatively with the User1st configuration team, including, but not limited to: (i) prompt insertion of the uRemediate Snippet; (ii) prompt provisioning to User1st of an appropriate number of user credentials for applicable domains/subdomains listed in the Order that may require log-in or access rights; and (iii) Customer limiting changes, to the extent reasonable and practicable given business conditions, to domain/subdomain website page template elements or configurations while User1st is performing the configuration and testing work. Customer shall endeavor to promptly inform User1st of any changes, modifications, or additions to domain/subdomain website page template elements or configurations while User1st is performing the configuration and testing work. Customer further acknowledges and agrees that User1st reserves the right not to, and shall not be responsible or liable to Customer for failing to, re-configure, remediate, or re-test website page template elements that Customer may change, modify, or add to after their initial configuration and testing by User1st pursuant to the Order.
(c) Close-Out Report. User1st will provide Customer with a close-out report describing inaccessible site elements that User1st remediated during its configuration and testing of the uRemediate subscription. The close-out report is typically provided within (2) two weeks of User1st’s completion of the configuration and testing. Customer acknowledges and agrees that User1st does not configure, remediate, or test website page template elements after the close-out report unless Customer purchases a separate, applicable maintenance/support package from User1st.
(d) User Feedback. User1st shall endeavor to provide to Customer any site user feedback submitted to User1st through the uRemediate accessibility menu that concerns Customer or the user’s experience with the domains/subdomains listed in the Order.
- uRemediate System Limitations. The uRemediate subscription shall at all times be subject to the system requirements and limitations set forth in the “System Limitations” available at https://www.user1st.com/system-limitations/, which System Limitations are expressly incorporated as if fully set forth herein.
- Commencement of the Subscription Term. The uRemediate subscription commences upon the date of Customer’s execution of the Order.
- Renewals. Subject to any termination of the subscription in accordance with these uRemediate Terms of Subscription, User1st will submit a renewal invoice to the Customer prior to the end of the purchased subscription term for the applicable domains/subdomains at the associated annual subscription prices and discounts listed in the Order. The uRemediate subscription shall thereafter continue for an additional year from the date of the end of the initial purchased subscription term (“First Renewal Term”) subject to Customer’s payment of the renewal invoice. User1st shall continue the foregoing renewal process and the uRemediate subscription shall thereafter continue for additional one-year periods of time from the anniversary date of the First Renewal Term (“Subsequent Renewal Terms”) subject to Customer’s payment of the applicable renewal invoices unless: (i) Customer notifies User1st that it will not renew the applicable subscription prior to the end of the First Renewal Term or Subsequent Renewal Term, as applicable; or (ii) User1st notifies Customer at least sixty (60) days prior to the end of the First Renewal Term or Subsequent Renewal Term, as applicable, that User1st is ending the applicable subscription.
- Invoicing and Schedule. All amounts set forth in the Order and in User1st’s invoices for the uRemediate subscription shall be in U.S. dollars. All invoices shall be paid within thirty (30) days of the date of the invoice (e.g., NET30); prompt payment discounts are available upon request. Invoices that have not been paid when due are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection (including reasonable attorneys’ fees).
For multi-year subscriptions, the total annual subscription price listed in the Order shall be paid each year during the subscription term as follows: (a) during the first year of the subscription term, (i) fifty percent (50%) of the annual subscription price shall be due upon execution of the Order; and (ii) fifty percent (50%) of the annual subscription price shall be due upon User1st’s submission of the close-out report to Customer; and (b) during subsequent years of the subscription term, the annual subscription price shall be due upon the anniversary of the subscription commencement date.
For single-year subscriptions, (a) fifty percent (50%) of the total subscription price listed in the Order shall be due upon execution of the Order; and (b) fifty percent (50%) of the total subscription price listed in the Order shall be due upon User1st’s submission of the close-out report to Customer.
II. SUBSCRIPTION ACCESS AND USE
- Customer Domains and Sites. Prior to or during the subscription term, User1st may require Customer to provide adequate proof that Customer owns or controls the domains/subdomains listed in the Order. Customer hereby permits the uRemediate subscription elements to access and integrate with the Customer domains/subdomains and underlying website language and code as may be necessary to enable subscription operation.
- Access to uRemediate Subscription Elements. uRemediate’s core functionality is maintained within third-party, cloud hosted provider infrastructure. Customer acknowledges that Internet connectivity is required for uRemediate subscription access and that User1st is not responsible or liable to Customer for such Internet connectivity or any third-party connection or data plan or charges required of Customer in order to access the uRemediate subscription.
- Customer Obligations. Customer shall not misuse uRemediate subscription elements accessed or integrated with the Customer domains/subdomains listed in the Order. Misuse includes, but is not limited to: probing, scanning, or testing the vulnerability of any uRemediate subscription elements; breaching or otherwise circumventing any security or authentication measures; accessing, tampering with, or using non-Customer designated areas or parts of the uRemediate subscription or shared areas of the User1st subscription supporting tools that Customer has not been invited to use; or interfering with or disrupting any uRemediate user, host, or network, for example by sending a virus or attempting to deny operation of any part of uRemediate.
- User1st Proprietary Rights. uRemediate subscription elements, including any underlying software, platforms, algorithms, technology and/or other proprietary materials (“Materials”), are the property of User1st and User1st retains all rights, title and interests in and to such Materials and all intellectual property rights relating thereto, including without limitations all copyright, patent, trademarks, logos, design rights, and any other proprietary rights. No transfer or grant of any rights or rights with respect to the Materials or otherwise is made or is to be implied by any access to or integration with uRemediate subscription elements. Except for Materials which are in the public domain or for which Customer has been given written permission by User1st, Customer may not copy, modify, publish, transmit, distribute, perform, display, or otherwise use any such Materials except to facilitate Customer’s use of the uRemediate subscription as ordered in accordance with the terms and conditions of the Order.
- Subscription Availability. Once operational as described in these Terms of Subscription, the uRemediate accessibility menu tools/options and associated configurations for the Customer domains/subdomains listed in the Order shall be available 100% of the time within User1st’s immediate control. “Immediate Control” means User1st’s logical cloud services within its dedicated boundary provided by User1st’s cloud hosting providers. Specifically excluded from the foregoing definition of “Immediate Control” are the following: (a) equipment, data, materials, software, hardware, services, and/or facilities provided by or on behalf of Customer and Customer’s network services which allow the Customer to access the uRemediate subscription elements; (b) equipment, data, materials, software, hardware, services, and/or facilities provided by third party vendors or service providers of Customer; (c) acts or omissions of Customers, its employees, contractors, agents, representatives, third parties, or service providers; and (d) any outage, network unavailability, or downtime outside the User1st logical area of its cloud hosting provider infrastructure.
- Subscription Provided “As Is.” Except as otherwise provided in these Terms of Subscription, all uRemediate subscription elements are provided “as is.” User1st reserves the right to make changes and updates at any time to the uRemediate subscription elements and such changes and updates shall be provided free of charge to Customer provided such changes and updates are provided free of charge as part of User1st’s standard uRemediate subscription.
- Suspension of Subscription. In addition to any other remedies set forth in these Terms of Subscription, Customer’s breach of any of these Terms of Subscription, including non-payment of any amounts when due, may result in suspension of the subscription and such other reasonable actions appropriate to address the breach, as determined by User1st in its sole discretion. Until such breach is remedied and User1st, in its sole discretion, receives adequate assurances from the Customer that such breach will not reoccur, User1st may maintain such suspension of subscription without liability to Customer.
III. GENERAL TERMS AND CONDITIONS, WARRANTY, INDEMNITY, AND LIMITATION OF LIABILITY
- Entire Agreement. The Order and these Terms of Subscription supersede any prior agreements or understandings between User1st and Customer (individually, a “Party” and collectively, the “Parties”), and constitute the entire agreement between the Parties, related to the subject matter of the Order. No amendment, modification, or waiver of any provision of the Order or these Terms of Subscription will be valid unless it is in writing and signed by duly authorized representatives of the Parties. Customer also acknowledges and agrees that any provisions of any Customer order forms or acknowledgments that are inconsistent with the Order and these Terms of Subscription are rejected and of no force and effect.
- Relationship of the Parties. Nothing contained herein shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee between the Parties or any affiliates, contractors, or subsidiaries thereof, or to provide either Party with the right, power, or authority, whether express or implied, to create any duty or obligation on behalf of the other Party.
- Confidentiality. In connection with this Order, User1st recognizes that it may come into the possession, whether orally or in writing, of Confidential Information (as defined herein) of Customer. User1st hereby agrees that it will not disclose, publish, or distribute such Confidential Information to any third party without Customer’s consent, except as is reasonably required in connection with the exercise of its rights and obligations under the Order (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). For purposes of this Section III.3, “Confidential Information” means any and all non-public, confidential, or proprietary knowledge, data, or information of or concerning the Customer. For the avoidance of doubt, Confidential Information includes, without limitation, software, research, analyses, diagrams, methods, business plans, databases, and product delivery systems. Confidential Information shall not include information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure; (ii) is already in the lawful possession of User1st at the time of disclosure; (iii) is lawfully obtained from a third party lawfully in possession of such information and without a breach of such third party’s obligations of confidentiality; or (iv) is independently developed without use of or reference to any Confidential Information. In the event that User1st is required to disclose the Customer’s Confidential Information to governmental agencies, courts, or tribunals having authority over User1st, User1st shall use its best efforts to promptly give Customer written notice prior to any such disclosure so that Customer can seek a protective order. Nothing set forth herein or the Order shall prohibit User1st from using the Customer’s name and logo as part of a general client listing and as a specific citation in proposals or similar directed marketing efforts.
- Termination of Subscription. Failure by either Party to comply with any material term or condition of the Order or these Terms of Subscription, including non-payment of any amounts when due, shall entitle the other Party to give the Party in default written notice requiring it to cure such default. If the Party in default has not cured such default within thirty (30) days of receipt of notice, the notifying Party shall be entitled, in addition to any other rights it may have, to terminate the Order by giving notice effective immediately.
- Notices. Notice given pursuant to any of the provisions of the Order or these Terms of Subscription shall be in writing and shall be mailed or delivered (including via email so long as the recipient acknowledges receipt) at the Party address set forth in the Order or to such other address as may be designated by a Party by giving written notice to the other Party pursuant to this Section III.5.
- Governing Law. The Order and these Terms of Subscription shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia as applied to contracts formed and intended to be performed within Virginia, without regard to its principles of choice of law and excluding the United Nations Convention on Contracts for the International Sale of Goods. In all disputes between the Parties arising under the Order, Customer agrees to submit to the jurisdiction of the state and federal courts in the Commonwealth of Virginia.
- Severability. If any of the provisions of the Order or these Terms of Subscription shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Order, but rather the entire Order shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the Parties shall be construed and enforced accordingly, unless the invalid or unenforceable provision was material and essential to either one of the Parties’ performance hereunder.
- Waiver. The failure of either Party at any time to enforce any right or remedy available to it under the Order or otherwise with respect to any breach or failure by the other Party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other Party.
- Assignment. Customer shall promptly notify User1st of any assignment of the Order to another party and Customer shall require any assignee to assume and be bound by the provisions of the Order and these Terms of Subscription to the same extent it would have been bound had such assignee been an original party to the Order.
- Warranty. Subject to Customer’s payment of all amounts when due, the “System Limitations” available at https://www.user1st.com/system-limitations/, and as otherwise set forth herein, User1st warrants that, as of the date of the close-out report and thereafter solely during the term (including any renewal terms) of the uRemediate subscription, the uRemediate accessibility menu options when enabled by a visitor to the domains/subdomains listed in the Order using the platforms, screen reader programs, and browser applications listed in the Order shall render the applicable website page template elements of such domains/subdomains compliant with the WCAG 2.0 standard, conformance level AA provided that Customer does not change domain/subdomain website page template elements that User1st configured and tested prior to the date of the close-out report. The foregoing warranty shall not apply to: (a) written or graphical content or electronic files or media contained or posted within the domains/subdomains listed in the Order; (b) website page template elements of the domains/subdomains listed in the Order that Customer adds, changes, or modifies after the date of the close-out report; (c) inaccessibility issues arising from use of a screen reader program or browser application different from the ones used by User1st to configure and test website page template elements as set forth in Section I.1(b)(1) of these Terms of Subscription; or (d) subjective user experience when accessing the domains/subdomains listed in the Order (e.g., order of and order of announcing information presented therein and order or ease of transactional flows). Customer shall promptly notify User1st of any actual or suspected breach of the foregoing warranty, and User1st shall have an opportunity to cure such actual or suspected breach within thirty (30) days of notification of the actual or suspected breach at User1st’s sole cost and liability. EXCEPT AS OTHERWISE SET FORTH HEREIN, USER1ST DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
- Indemnity/Third-Party Claims. (a) Subject to the limitations set forth herein, User1st shall indemnify Customer for liabilities, losses, expenses, and damages (including reasonable attorneys’ fees) incurred by Customer directly as a result of a third-party claim that the website page template elements of the domains/subdomains listed in the Order are not compliant with the WCAG 2.0 standard, conformance level AA in breach of the warranty set forth in Section III.10 (“Warranty”) above as determined by a final determination of a court or tribunal of competent jurisdiction unless otherwise agreed upon by User1st. User1st shall only be obligated to indemnify Customer hereunder for third-party claims subject to the foregoing indemnification individually and in the aggregate up to: (i) the actual losses sustained by Customer; (ii) four times (4x) the total subscription price paid by Customer to User1st; or (iii) one-hundred thousand dollars ($100,000), whichever is least; (b) In order to be entitled to any indemnification hereunder, Customer shall: (i) promptly notify User1st of any third-party claim for which Customer may be entitled to indemnification hereunder; (ii) give User1st sole control over defending and/or settling the third-party claim that is subject to indemnification; and (iii) cooperate in such defense or settlement activities. Customer will have the right to approve any settlement agreement, provided that such approval shall not be unreasonably withheld.
- LIMITATION OF LIABILITY. EXCEPT FOR: (A) INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN; OR (B) BREACHES OF OBLIGATIONS OF CONFIDENTIALITY UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), OR PUNITIVE DAMAGES OF ANY KIND OR FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING OUT OF THIS AGREEMENT.