TERMS OF SERVICE
BY USING ANY SERVICES OR THE WEBSITE PROVIDED BY ADA CONSULTING LLC (“ADA CONSULTING”), YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) IS HEREBY AGREEING WITH ADA COMPLIANCE TO THE FOLLOWING TERMS OF SERVICE AND ANY TERMS INCORPORATED HEREIN BY SPECIFIC REFERENCE (COLLECTIVELY, THE “TERMS”).
“Customer” means any Participant or Member and any employees, personnel or agents of Customer.
“Devices” means computer hardware, network, storage, input/output, or electronic control devices, or software installed on such devices.
“IP” or “IPs” means Internet Protocol addresses.
“Member” means any website owner who is utilizing ADA Compliance’s services and has paid monies to ADA COMPLIANCE for membership(s) and/or Services.
“Participant” means any website owner who is utilizing ADA Compliance’s free services.
“Services” means those services offered by ADA Compliance that are branded by ADA Compliance as “ADA Compliance” services and that have been purchased or utilized by Customer, and are provided for the purposes of conducting Website Accessibility Audits, including but not limited to documentation, explanatory texts, imagery, logo marks and seals.
“Website” means the ADA Compliance website and services available via the Internet that facilitate, provide or describe the Services.
“Website Accessibility Audits” are audits conducted to ascertain the accessibility of a website. Website scans may include, but are not limited to, scanning and crawling a website to perform testing of forms or application responses, or to confirm the existence or accessibility of files and pages through URLs.
“Website Authorities” includes any government or non-government organization including but not limited to Section 508 of the Rehabilitation Act (29 U.S.C. 794d), Web Accessibility Initiative (WAI), Web Content Accessibility Guidelines (WCAG), and others that may be referred to by ADA Compliance. ADA Compliance does not endorse, guarantee or confirm the accuracy or completeness of any Website Authority, nor ADA Compliance testing results.
To the extent permissible by law, Customer is ineligible to use ADA Compliance Services if: (1) Customer is a direct competitor of ADA Compliance except with prior written consent of ADA Compliance; (2) Customer is accessing the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (3) Customer is more than thirty (30) days past due on any monies owed to ADA Compliance; (4) Customer is located in a country, state or region that is prohibited from using the Services by law; or (5) a staff member of ADA Compliance has determined that Customer or its employees or other personnel using the Services are engaging in conduct that is detrimental to ADA Compliance, its Members or Participants, or other third parties.
YOUR IDENTITY AND AUTHORITY
Customer agrees to provide current, accurate information in all electronic or hardcopy registration forms submitted in connection with the Services. Customer agrees not to impersonate or in any way misrepresent its affiliation or authority to act on behalf of any person, company, or other entity. By utilizing any Services or accepting these Terms, Customer’s personnel using the Services or accepting these Terms certify that they are authorized to act on behalf of Customer, and are authorized by Customer as a representative of an individual, business or other legal entity having contractual usage rights granted by an ISP or web host owning or licensed to use, any and all IPs and the associated Devices to which Customer directs the Services to be performed. Customer agrees to cooperate with ADA Compliance in reasonable measures to verify the identity and authority of persons using the Services.
Customer shall not use or direct the Services to interact with websites, IPs or Devices for which Customer is not expressly authorized to do so. Customer shall not use the Services in such a way as to create unreasonable load on websites, IPs or Devices with which Customer has directed the Services to interact. Customer shall not use the Website or any other website, IP or Device, directly or indirectly, to initiate, propagate, participate in, direct or attempt any attack, hack, or crack, or send bandwidth saturation, malicious or potentially damaging network messages to any Device, whether owned by ADA Compliance or not, or to cause any other harm to person or property. Customer shall not direct any such attacks of any kind using any protocol at any of ADA Compliance’s Devices. Customer shall not direct bots, spiders, crawlers, or any other automated process at ADA Compliance’s computer systems. Customer shall not, through the use of the Services or by any other means, create unreasonable load on any of ADA Compliance’s Devices. Customer shall not use the Services or ADA Compliance’s Devices to perform any unlawful activity including but not limited to computer crime, transmission or storage of illegal content or content or software in violation of intellectual property and copyright laws. Customer shall not access or use information on ADA Compliance’s Devices for which Customer is not authorized, or which is not made available intentionally, publicly and in accordance with ADA Compliance’s Privacy Statement (available at http://adawebsiteconsulting.com/privacypolicy). If Customer gains access to any information for which Customer is not authorized, by any method or means, or for any reason, Customer must discontinue the access and report such access to ADA Compliance immediately and destroy all electronic or hard copies of such information. Customer must report incidents by email with return receipt requested to Joshua@adawebsiteconsulting.com, or by calling (212) 792-0046. Any breach of the above covenants will result in immediate termination of Services and, if appropriate, referral to law enforcement authorities.
CONDUCT AND CONTENT
Customer will use the Services in a responsible, businesslike manner in accordance with the law. Customer is responsible for its conduct while using the Services, as well as for any content Customer posts, distributes, transmits or solicits from others while using the Services. Customer will not use the Services in such a way as to distribute, link to, transmit or solicit any content of any type that: (a) is unlawful, libelous, violates a contract, or regulation; (b) is obscene, harmful to minors, pornographic, invasive to another’s privacy, racist, unethical, or otherwise offensive; (c) advocates or solicits criminal behavior, violence or racism; (d) infringes on someone’s intellectual property rights, copyright, or other right; (e) constitutes unauthorized or unsolicited commercial communications such as bulk or SPAM email; (f) contains any computer code designed to disrupt, damage or impair any computer or network systems and software, such as viruses, trojans, back doors, or macros, whether or not any damage occurs; (g) surreptitiously intercepts, downloads, copies, detrimentally interferes with, damages, or expropriates any system, data, or personally identifying information; (h) defaces the Website or Services in any way; or (i) reveals Customer’s account access information such as Customer’s password or secret question. Customer will comply with all applicable laws, regulations, and ADA Compliance policies regarding on-line conduct and content.
Customer agrees not to provide access to the Services by: (a) allowing others to use its account; (b) creating an account for someone who is not authorized to perform the role or view the information for which Customer has granted access; or (c) failing to revoke access for those persons who are no longer authorized to access the Services for any reason. Customer will immediately notify ADA Compliance of any unauthorized access from its account or the accounts of others for which Customer has administrative authority, including the use of accounts, passwords, or any other breach of security. Customer will not solicit, transfer or use another party’s password for any reason. Customer shall not access someone else’s account, nor disrupt, interfere, or limit the functioning of the Services, or other’s enjoyment of the Services.
ADA Compliance will not provide any support to “Participants” and will provide limited support to “Members” via email only during normal working hours (Eastern Time). Any additional support must be purchased by Customer under a separate agreement with ADA Compliance.
NO ENDORSEMENT OF USER CONTENT
Customer acknowledges and agrees that the ADA Compliance does not endorse the content of any user and is not responsible or liable for any content, even though it may be unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable, or even if it infringes or may infringe the intellectual property or other rights of another. Customer acknowledges that ADA Compliance does not pre-screen any user-posted content, but that ADA Compliance and its designees will have the right (but not the obligation) in its sole discretion to refuse, edit, move or remove any content that is publicly available via its Services or Website.
ADA COMPLIANCE’s SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. CUSTOMER UNDERSTANDS THAT ASSESSING ACCESSIBILITY IS HIGHLY COMPLEX, SUBJECTIVE AND CHANGEABLE. CUSTOMER UNDERSTANDS THAT USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. ADA COMPLIANCE’s SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ADA COMPLIANCE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. ADA COMPLIANCE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES ARE NOT RESPONSIBLE FOR CUSTOMER’S USE OF THE SERVICES OR ANY RESULTS THEREFROM. ADA COMPLIANCE MAKES NO WARRANTY THAT THE SERVICES WILL FIND ALL ACCESSIBILITY CONCERNS IN CUSTOMER’S WEBSITE OR SERVER(S), OR THAT THE SOLUTIONS SUGGESTED AND ADVICE PROVIDED IN ADA COMPLIANCE’s REPORT WILL BE COMPLETE OR ERROR-FREE. ADA COMPLIANCE SHALL BE HELD HARMLESS AND FREE FROM ALL LIABILITIES FOR ANY USE OR RELIANCE ON THE INFORMATION PROVIDED BY ADA COMPLIANCE IN CONNECTION WITH USING THE SERVICES. ADDITIONALLY, ADA COMPLIANCE MAKES NO WARRANTY THAT THE SERVICES WILL ALWAYS BE AVAILABLE, THAT THEY WILL BE ERROR FREE, OR THAT THEY WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER USES THE SERVICES OR ANY RELATED THIRD PARTY SERVICES AT ITS OWN RISK. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS DEVICES AS A RESULT OF USING THE SERVICES. ADA COMPLIANCE MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THE SERVICES OR THESE TERMS.
COPYRIGHT AND INTELLECTUAL PROPERTY
All content provided by ADA COMPLIANCE on the Website or in connection with the Services is protected under United States copyright law. Unless authorized in writing by ADA COMPLIANCE or elsewhere in these Terms, Customer must not reproduce or distribute in any form, whether or not for commercial purposes, any part of the Website, Services or content. Unless indicated otherwise, Customer may view, download, copy, and print ADA COMPLIANCE report documents from the Services, as long as such documents are for Customer’s use only and are not posted, distributed or modified, including being defaced or removing copyright, trademark or other intellectual property ownership notices.
RIGHT TO DISPLAY THE ADA COMPLIANCE SEAL(S)
If authorized, Customer may display the ADA Compliance Member or Participant seal, but only by use of the code provided by ADA Compliance for the display of the ADA Compliance seal. Customer agrees to only place this code on sites that are registered as a Member or Participant with ADA Compliance Services, and as authorized by ADA Compliance. The ADA Compliance seal shall at all times be served only from ADA Compliance’s designated servers and shall remain under the full ownership and control of ADA Compliance. ADA Compliance shall have the right to discontinue the serving of the ADA Compliance seal at any time and for any reason, including if any Customer website, or other device that is being scanned in connection with the Services, fails to pass ADA Compliance’s audits for a period of ten (10) days or longer. Should Customer discontinue the Services, Customer agrees to immediately remove all HTML source code supplied by ADA Compliance from its computers and servers. Customer is prohibited from using the ADA Compliance seal for any purpose not authorized by these Terms or for or on behalf of any other party or in connection with any domain name and/or organization name other than those being scanned in connection with the Services that are enrolled and established under Customer’s account.
By agreeing to these Terms, Customer also agrees that ADA Compliance may collect and use the personally identifying information of Customer’s employees, personnel, agents or other users in accordance with ADA Compliance’s Privacy Statement (available at http://adawebsiteconsulting.com/privacypolicy). Customer also agrees to make commercially reasonable efforts to avoid accessing or revealing private or personally identifying information using the Services, and to comply with any provisions of the Privacy Statement that may affect use of the Services. ADA Compliance’s Privacy Statement is incorporated herein by reference, and is subject to change from time to time at ADA Compliance’s sole discretion.
USE OF INTERACTIVE SERVICES
Any forums, chat rooms, support tools or other interactive tools provided by ADA Compliance or associated with the Services are intended as a tool to discuss website accessibility issues, generally available ADA Compliance products and services, and other business and technical issues related to use of the Services. These interactive services are not intended to register complaints and may not be used by Customer to solicit business. ADA Compliance does not normally screen or edit user content or monitor interactive services, except as necessary to provide technical and customer support, but reserves the right to do so in the future. ADA Compliance is not responsible for any unintended or prohibited content and reserves the right to add and remove such interactive services, tools and content at any time without prior notice.
Except as provided in ADA Compliance’s Privacy Statement, ADA Compliance and Customer agree to hold each other’s Confidential Information in confidence and not to disclose it to any third party without the prior written consent of the disclosing party. Each party agrees to use the Confidential Information of the disclosing party only for purpose of performing the party’s obligations under this Agreement. Further, the receiving party shall use the same degree of care it uses with respect to its own Confidential Information to prevent the unauthorized disclosure to a third party of any Confidential Information of the disclosing party, but in no event less than reasonable care. Customer understands and agrees that ADA Compliance may transfer Customer data, which is gathered by the Services, to ADA Compliance data centers outside of Customer’s nation for purposes of fulfilling ADA Compliance’s obligations under these Terms. As used in these Terms, “Confidential Information” shall mean non-public, proprietary information including, without limitation, any information, technical data or know-how relating to discoveries, ideas, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, models, data, source code, object code, documentation, diagrams, flow charts, research, development, business plans or opportunities, business strategies, future projects or products, projects or products under consideration, procedures, and information related to finances, costs, prices, vendors, customers and employees which is disclosed by a party or on its behalf whether before, on or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of equipment or software, to the other party or any of its employees, personnel or agents. Customer agrees that the password or secret question used by Customer to access its account to receive Services shall be treated as Confidential Information. Customer agrees that the logos, trademarks or other identifying characteristics of Customer are not Confidential Information and that ADA Compliance may identify Customer as a customer, provided that such reference does not include any Confidential Information. The obligations to protect Confidential Information under this Section shall not apply to information which: (a) is or becomes publicly known through no act or failure to act on the part of the receiving party; (b) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; (c) became rightfully known to the receiving party, without confidential or proprietary restrictions, from a source other than the disclosing party; (d) is approved by the disclosing party for disclosure without restriction; (e) is or was developed independently by the receiving party without use of or reference to any of the Confidential Information and without violation of any confidentiality restriction; or (f) is required to be disclosed by law. The provisions of this paragraph shall survive termination of this Agreement and/or use of ADA Compliance’s Services.
Customer will be in breach of these Terms if Customer fails to pay any amount owed to ADA Compliance when due, subject to a fourteen (14) day grace period, or if Customer fails to comply with these Terms. Unless otherwise stated, fees for Services are due in advance and subject to payment terms in the invoice(s) for the Services, which are incorporated into these Terms by reference. If Customer is in default, ADA Compliance may take any or all of the following actions to remedy the default and protect its interests: (a) declare all unpaid monies immediately due and payable; (b) terminate the Services; (c) take any other lawful action ADA Compliance may deem appropriate to enforce its rights and Customer’s obligations under these Terms. Customer agrees to pay any costs and reasonable attorney’s fees and expenses ADA Compliance may incur enforcing its rights under these Terms.
Customer shall be responsible for and pay any and all sales and other taxes, however designated, which are levied or imposed by reason of the transactions contemplated hereby (other than taxes on ADA Compliance’s income).
Customer agrees to indemnify, hold harmless, and defend ADA Compliance, its officers, directors, employees, agents, representatives, suppliers, licensors, third party information providers, affiliates and other related parties from and against all claims, suits, losses, damages, costs, and attorney’s fees (“Claims”) arising out of, relating to, or resulting from Customer’s violation of these Terms or any action, whether intentional, malicious, inadvertent, wrongful, negligent or otherwise, by Customer or related to Customer’s account, or use of the Services by Customer or any other person or persons who uses Customer’s user account. ADA Compliance does not, and will not, indemnify Customer or any other party against any Claims whatsoever, including any Claims made against Customer by others as a result of Customer’s use of the Services.
LIMITATION OF LIABILITY
Customer agrees that ADA Compliance will not be liable for any harms to customer or other third parties, including but not limited to direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses (even if ADA Compliance has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Services or Website; (ii) the cost of getting substitute goods and services resulting from any products, data, information or services purchased or obtained or messages received or transactions entered into through or from the Services or Website; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of anyone on or in connection with the Services or Website; (v) any server, network, or website issues caused directly or indirectly by our automated accessibility scanning; or (vi) any other matter relating to the Services or Website. If, notwithstanding the other provisions of these Terms, ADA Compliance is found to be liable to Customer for any damage or loss which arises out of or is in any way connected to your use of the Services or Website, ADA Compliance’s liability shall in no event exceed the greater of (i) half the total of any consideration or similar fees paid in the twelve (12) months prior to the date of the initial claim made against ADA Compliance, or (ii) US $100.00.
Title, ownership rights, and intellectual property rights in all of the Services and the Website shall remain vested in ADA Compliance. The Services are protected by copyright and other intellectual property laws and by the United States and international treaties. Title and related rights in the content accessed through the Services and Website are the property of the applicable content owner and are protected by applicable law. Nothing in these Terms shall be construed as granting Customer any rights to such content.
MODIFICATION OF TERMS AND SERVICES
WAIVER OF RIGHTS
Customer agrees that the only way to waive rights under these Terms is explicitly and in writing, signed by an authorized officer of ADA Compliance. Any failure to enforce any right under these Terms will not waive that right.
TERM AND TERMINATION
Customer agrees that the agreement under these Terms shall remain in effect for as long as Customer subscribes to, renews, or uses the Services or the Website. Each renewal of Services shall again be subject to these or modified Terms in effect at the time of renewal. Customer agrees that these Terms, and the parties’ agreement to them, can only be terminated by Customer after Customer has stopped using the Services and has paid all monies owed to ADA Compliance. Customer agrees that ADA Compliance can terminate these Terms and the parties’ agreement to them at any time with or without cause, if ADA Compliance has reason to believe that Customer is violating the Terms in any way, or if the Services are permanently discontinued. ADA Compliance may also discontinue Services immediately without notice for non-payment of any monies owed. Customer agrees that it will be responsible for payment of all of ADA Compliance’s costs and expenses, including court costs and reasonable attorneys’ fees, incurred by ADA Compliance to collect any monies owed by Customer or to otherwise enforce the Terms of this agreement.
Customer agrees that these Terms supersede any prior agreements or statements made verbally or in writing. This Agreement is governed by the laws of the State of New York, U.S.A., without regard to its conflicts of law provisions. The parties agree that all disputes arising out of or relating to the Services or Website shall be resolved by arbitration held in in New York, New York before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Use of the Services or Website is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation this section. Customer shall not use the Services or Website in any manner contrary to local, state or federal law. ADA Compliance expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) and reserves the right to terminate your Services immediately upon notice for your failure to comply with any such law. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. These Terms constitute the entire agreement between Customer and ADA Compliance with respect to the Services and Website and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between Customer and ADA Compliance with respect to the Services and Website. A printed version of these Terms and any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.