ACCESSIBILITY VENTURES LLC TERMS OF SERVICE
Last Updated March 7, 2019 (the “Effective Date”)
IMPORTANT – PLEASE READ THIS AGREEMENT CAREFULLY.
This Accessibility Ventures LLC Terms of Service (the “Agreement”), is entered into by and between Accessibility Ventures LLC (“AV LLC”) and the person or business entity executing this Agreement (“You” or “Customer”). You and AV LLC are each considered a “Party” and together, we are the “Parties”.
This Agreement describes and governs Your rights and responsibilities when accessing or using our websites www.accessibilityventures.com, www.accessibilitytool.com and https://signup.accessibilitytool.com (the “Website(s)”); our accessibility tools, including but not limited to The Accessibility Tool provided through the Websites (the “Software”); any materials provided, or made available online by AV LLC as part of the Software (the “Documentation”); and, any other support and maintenance services that AV LLC provides (the “Support Services”). The Websites, Software, and Documentation are collectively referred to herein as the “Services”.
BY CLICKING THE “ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND THE PERSON OR BUSINESS ENTITY TO THIS AGREEMENT. YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, YOU REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF SERVICE THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE IMMEDIATELY.
Supplemental terms and conditions or documents may be posted on our Websites from time to time and are hereby expressly incorporated herein by reference. AV LLC reserves the right, in its sole discretion, to make changes or modifications to these Terms of Service at any time and for any reason. AV LLC will alert You about any changes by updating the “Last Updated” date of these Terms of Service, and You waive any right to receive specific notice of each such change. It is Your responsibility to periodically review these Terms of Service to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Service by Your continued use of the Services after the date such revised Terms of Service are posted.
The information provided on the AV LLC Websites and within the Services are not intended for use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject AV LLC to any registration requirement within any jurisdiction or country. Accordingly, those persons who choose to access the Websites or Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Websites and Services are intended for users are who are at least 18 years of age. All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by an adult over the age of 18 and, if you are under the age of 18, must have an adult over the age of 18 read and agree to these Terms of Service prior to using the Websites or Services.
In consideration of the foregoing, the Parties agree as follows:
1.1. These Terms of Service shall be effective as of the Effective Date set forth above (the Last Updated date) and shall remain in effect so long as You are using the Services, unless terminated earlier in accordance with Section 7 of these Terms of Service.
2. Intellectual Property Rights and Obligations.
2.1. Definition. “Intellectual Property Rights” means any and all registered and unregistered intellectual property rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
2.2. AV LLC’s License Grant. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, AV LLC grants You a revocable, terminable, non-exclusive, non-assignable, non-sublicensable, worldwide, limited license, exercisable during the Term (as defined below), to use, solely by Customer, the Services, solely for Customer’s operations as contemplated herein and subject to all conditions and limitations set forth herein.
2.3. Restrictions on Use. Customer shall not, directly or indirectly:
2.3.1. copy the Software or Documentation underlying the Services, in whole or in part;
2.3.2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of any part of the Services, including, but not limited to, the Software and/or Documentation (“Derivative Work”);
2.3.3. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other software programs;
2.3.4. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain AV LLC to the source code of the Software or any part thereof;
2.3.5. remove, delete, alter, or obscure any Intellectual Property Rights’ notices included on or in the Software, including any copy thereof;
2.3.6. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, display, host, outsource, or permit timesharing or service bureau use of, or otherwise provide any AV LLC to or use of the Software or any features or functionality of any of the Services, for any reason, to any other person or entity operations;
2.3.7. use the Software in violation of any law, regulation, or rule;
2.3.8. use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to AV LLC’s commercial disadvantage; or
2.3.9. access or use the Software or Documentation in any way that is adverse to or in violation of AV LLC’s then-current acceptable use policy.
2.4. Other Customer Obligations. During the Service Term, Customer shall: (a) take all commercially reasonable measures to safeguard the Software from infringement, misappropriation, theft, misuse or unauthorized access; and (b) promptly notify AV LLC in writing if Customer becomes aware of any actual or suspected infringement, misappropriation or other violation of AV LLC’s Intellectual Property Rights in or relating to the Software, and (c) at AV LLC’s sole expense, reasonably cooperate with and assist AV LLC in the conduct of any claim, suit, action or proceeding by AV LLC to prevent or abate any actual or threatened infringement, misappropriation or violation of AV LLC’s rights in, and to attempt to resolve any claims relating to, the Software or Documentation.
2.5. Reservation of Rights; AV LLC’s Intellectual Property Rights. Customer acknowledges and agrees that the Services are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Services under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions hereunder. Customer agrees that all right, title and interest in and to all Intellectual Property Rights in the Services, including, but not limited to, the Software and Documentation, and all modifications, extensions, customizations, scripts or other Derivative Works of the aforementioned provided or developed by AV LLC, are owned exclusively by AV LLC or its licensors. AV LLC service marks, logos and product and service names are marks of AV LLC (the “AV LLC Marks”). Customer agrees not to display or use the AV LLC Marks in any manner without AV LLC’s express prior written permission. AV LLC reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide.
2.7. Monitoring. AV LLC shall have the right to monitor and audit Customer’s use of the Software without notice and by any means, including, without limitation, remotely in order to verify Customer’s compliance with the terms of this Agreement.
2.8. Data Privacy Obligations.
2.8.2. In addition, Customer hereby grants AV LLC a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to (a) use or incorporate into the Services, any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, related to AV LLC’s Services (“Feedback”); and (b) compile and make publicly available de-identified and aggregated statistical information related to the performance and use of the Services, including, but not limited to, de-identified and aggregated statistical information Data, for any purpose related to any use of the Services by Customer and/or its Users, including but not limited to: (i) improving the performance of the Services or developing updates; and (ii) verifying compliance with the terms of this Agreement and enforcing AV LLC’s rights, including, but not limited to, all of its Intellectual Property Rights in and to the Services. Feedback is deemed to be AV LLC’s Confidential Information, subject to the confidentiality obligations herein.
2.9. Services Tools. AV LLC may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve Customer’s service requests. Data collected by the Tools (excluding production data) may also be used to assist in managing AV LLC’s product and service portfolio and for license management. Customer agrees that (a) Customer may not AV LLC or use the Tools during the Term, and (b) Customer shall not use or restore the Tools from any tape backup at any time following termination of the Agreement.
3. [INTENTIONALLY OMMITTED]
4. Representations, Warranties, Disclaimers, and Exclusive Remedies.
4.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the applicable laws of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder, and (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; (d) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (e) it can and shall comply with all applicable laws in exercising its rights and performing its obligations under this Agreement; (f) no notice or charge of non-compliance with any applicable law has been asserted or filed against it that may impair its ability to perform hereunder; and (g) it shall not perform or fail to perform any act that it knows or reasonably should know would place the other Party in violation of any applicable law.
4.2. Customer Warranties and Other Obligations Regarding Information. As a material inducement to enter into this Agreement, AV LLC relied on the information furnished by Customer. Customer shall immediately notify AV LLC of any material change in any such information or to any Customer approvals, licenses or permits relating to Customer’s business operations or locations.
4.3. No Warranty.
4.3.1. AV LLC, by this Agreement, makes no warranties or guarantees, either express or implied, arising by law or otherwise with regard to the Services. In particular, AV LLC assumes no obligation and makes no representations or warranties hereunder, express or implied, in law or in fact, with respect to the utility, quality or characteristics of the Services or any use or embodiment thereof or with respect to the use of any Software, or with respect to whether such Services or methods or any embodiments or modifications thereof would be in compliance with any federal, state or local laws, regulations, standards or criteria.
4.4.1. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS. AV LLC DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT AV LLC WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT AV LLC DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. AV LLC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
4.4.2. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, AV LLC, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, SYSTEM INTEGRATION, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
5. LIMITATION OF LIABILITY.
5.1. SUBJECT TO SECTION 5.3, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER UNDER CONTRACT, WARRANTY, STRICT LIABILITY, OR IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH DAMAGE MAY HAVE BEEN FORESEEABLE OR EITHER PARTY MAY HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
5.2. SUBJECT TO SECTION 5.3, AV LLC’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SERVICES AND TECHNOLOGY AGREEMENT OR CUSTOMER’S ORDER FORM, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO AV LLC FOR THE SERVICES UNDER THE ORDER FORM THAT IS THE SUBJECT OF THE CLAIM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS SPECIFIED IN THIS SECTION 5.2 SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
5.3. THE EXCLUSIONS AND LIMITATIONS IN SECTIONS 5.1 AND 5.2 DO NOT APPLY TO: (A) EITHER PARTY’S OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION), AS THE CASE MAY BE; (B) LIABILITY RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT; OR (C) IN THE CASE OF CUSTOMER, ANY INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF AV LLC’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER, ITS AGENTS, OR ITS USERS, INCLUDING, BUT NOT LIMITED TO, ANY UNAUTHORIZED USE OF THE SERVICES.
5.4. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY AND RESTRICTIONS SET FORTH HEREIN ARE REASONABLE UNDER THE CIRCUMSTANCES.
6. Indemnification and Hold Harmless.
6.1. AV LLC Indemnification. AV LLC shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses (as defined below) incurred by Customer arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an affiliate of Customer) to the extent that such Losses arise from any finally-adjudicated Action that Customer’s use of the Services (excluding Data or Third-Party Materials) in compliance with this Agreement infringes upon third party Intellectual Property Rights. Notwithstanding anything to the contrary herein, the foregoing obligation shall not apply to any Action or Losses arising out of or relating to any:
6.1.1. Access to or use of the Services in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by AV LLC;
6.1.2. modification of the Services other than with AV LLC’s written approval; or
6.1.3. failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of AV LLC.
6.2. Customer Indemnification. Customer shall indemnify, defend and hold harmless AV LLC and its affiliates and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “AV LLC Indemnitee”) from and against any and all Losses incurred by such AV LLC Indemnitee in connection with any Action by a third party (other than an affiliate of a AV LLC Indemnitee) that arises out of or relates to any:
6.2.1. Data, including any processing of, storage of or AV LLC to Data by AV LLC in accordance with this Agreement;
6.2.2. any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any User, including, but not limited to, AV LLC’s compliance with any specifications or directions provided by or on behalf of Customer or any User to the extent prepared without any contribution by AV LLC;
6.2.3. allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
6.2.4. negligence or more culpable act or omission (including, but not limited to, recklessness or willful misconduct) by Customer, any User, or any third party on behalf of Customer or any User, in connection with this Agreement.
6.3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Agreement. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take sole control of the defense and investigation of such Action and shall employ counsel in its reasonable discretion to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 6.3 will not relieve the Indemnitor of its obligations under this Section 6 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor will have the right to settle or compromise any action to which its indemnification is applicable, except that the Indemnitor may not agree to any settlement without the prior written consent of the Indemnitee if such settlement would cause the Indemnitee to undertake any action, assume any liability, pay any monies or acknowledge any wrongdoing or have a judgment entered against it.
7. Termination of Agreement.
7.1. AV LLC’s Immediate Right to Suspend or Terminate. AV LLC may suspend or terminate Services or the Agreement immediately if:
7.1.1. Customer fails to cure its default of the payment terms of the Agreement within ten (10) days of the due date;
7.1.2. Customer fails to cure any other material breach of the Agreement within ten (10) days after receiving AV LLC’s written notice, if such breach is capable of cure; or
7.1.3. Customer is dissolved or otherwise ceases to operate.
If AV LLC terminates the Agreement under this Section, Customer will be liable for any Services provided up to the date of termination, whether or not invoiced by the termination date, as well as any early termination fees, if applicable, and any other damages available to AV LLC at law or in equity.
7.2. Customer’s Right to Terminate. Customer may terminate the Services without paying any early termination fees set forth herein immediately upon written notice to AV LLC if: (a) AV LLC materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving Customer’s written notice of the failure. AV LLC’s material failure shall not include a failure caused by Customer or a Force Majeure Event (as defined below).
7.3. Termination for Convenience. Either Party may terminate the Agreement during the Term by providing written notice to the other Party (“Termination for Convenience”).
7.4. Effect of Termination. Upon termination or expiration of this Agreement: (a) all rights granted to Customer hereunder shall cease; (b) Customer shall immediately cease, and ensure that all Users cease accessing the Software; and, (c) each Party shall return to the other any Confidential Information that is in tangible form. Customer agrees and acknowledges that AV LLC has no obligation to retain Data and that Data may be irretrievably deleted after sixty (60) days following any termination.
8. Fees and Taxes.
8.1. Fees; Taxes. Customer agrees to pay for all Services. All sums paid under the Agreement are nonrefundable. All amounts owed hereunder are due and payable upon receipt. Customer agrees that Customer has not relied on the future availability of any Services or updates in entering into the payment obligations; however, the preceding does not relieve AV LLC of its obligation to deliver Services that Customer has ordered per the terms of the Agreement.
8.2. Payment; Late Payment. All payments due hereunder shall be made inside the U.S., in U.S. dollars. In addition to any remedies AV LLC may have hereunder or at law, any payments more than thirty (30) days overdue will bear a late payment fee of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. Delinquency in payment will result in a delay or suspension of the Services (including Support Services) provided by AV LLC. Resumption of services will occur after Customer is current on all outstanding payment obligations to AV LLC. AV LLC will not be liable for any damages caused by rescheduling of suspended services pursuant to this Section.
8.3. Offset. Customer agrees that AV LLC shall have the right to offset any return amounts owed to Customer with any and all fees Customer owes to AV LLC.
9. Confidential Information.
9.1. Definition. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information (as defined below) to the other Party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing, all non-public information regarding the Services, including, but not limited to, the Software and Documentation, are the Confidential Information of AV LLC, and the terms and existence of this Agreement are the Confidential Information of each of the Parties.
9.2. Exclusions. The confidentiality obligations of this Agreement shall not apply to information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
9.3.1. not access or use Confidential Information other than as strictly necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
9.3.2. except as may be permitted by and subject to its compliance with Section 9, not disclose or permit AV LLC to Confidential Information other than to its representatives who: (a) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9; and (c) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
9.3.3. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event, less than a reasonable degree of care; and
9.3.4. ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 9.
9.4. Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose.
9.5. DTSA Notice. Notwithstanding the nondisclosure obligations set forth in this Agreement, pursuant to 18 U.S.C. § 1833(b), an individual shall not be held criminally or civilly liable 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, directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
10. Other; Miscellaneous.
10.1. No Partnership. AV LLC is an independent contractor to Customer, and the Parties agree that no partnership, joint venture, or agency relationship exists between the Parties. Each Party shall be responsible for paying its own employees, including employment related taxes and insurance.
10.2. Notices. If Customer has a dispute with AV LLC or if Customer wishes to provide a notice to AV LLC under this Agreement, or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: Accessibility Ventures LLC at 744 South Street, Suite 770 Philadelphia, PA 19147, Attention: Contracts Department. AV LLC may give notice applicable to AV LLC’s customer base by means of a general notice on the AV LLC portal for Services, and notices specific to Customer by electronic mail to Customer’s e-mail or by written communication sent by first class mail or pre-paid post to Customer’s e-mail address / address on the Order Form.
10.3. Audits. AV LLC may audit Customer’s information to determine if Customer is paying the necessary fees pursuant to the Order Form. Customer agrees to cooperate with AV LLC’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer’s normal business operations. Customer agrees to pay within thirty (30) days of written notification any fees applicable to Customer’s use of the Services in excess of Customer’s rights. If Customer does not pay, AV LLC can terminate Customer’s Services and/or the Agreement. Customer agrees that AV LLC shall not be responsible for any of Customer’s costs incurred in cooperating with the audit.
10.4. AV LLC’s Business Partners. Customer understands that AV LLC’s business partners, including any third-party firms retained by Customer to provide computer consulting services, are independent of AV LLC and are not AV LLC’s agents. AV LLC is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as an AV LLC subcontractor on an engagement ordered under this Agreement.
10.5. Force Majeure. Except as to Customer’s payment obligations or either Party’s breach of confidentiality obligations hereunder, neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated Party. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event. This Section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures.
10.6. Governing Law; Jurisdiction. This Agreement has been made and entered into in the Commonwealth of Pennsylvania and shall be construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflict of laws principles. All actions, suits or other proceedings arising in connection with this Agreement shall be tried and litigated in state or federal courts located in Philadelphia, Pennsylvania. The Parties do hereby expressly state that they will submit to the exclusive jurisdiction and venue of these named courts and waive any claims of lack of personal jurisdiction to the courts.
10.7. Equitable Remedies. Notwithstanding anything to the contrary in this Agreement, in the event of a breach, or a threatened breach by either Party of its confidentiality obligations under this Agreement, or with respect to AV LLC, if AV LLC determines that Customer is likely to or has actually infringed on AV LLC’s Intellectual Property Rights, that Party shall have the right to seek injunctive relief, without the necessity of posting a bond, or other deposits, in addition to whatever other remedies may be available at law or otherwise.
10.8. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
10.9. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10.10. Waiver. No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement: (a) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or (b) any act, omission or course of dealing between the Parties.
10.11. Interpretation. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set out verbatim herein.
10.12. Successors and Assigns. Customer may not assign or transfer this Agreement or any of their respective rights or obligations hereunder without AV LLC’s prior written consent. Any attempted assignment in violation of the foregoing sentence shall be null and void and of no force or effect whatsoever. AV LLC may assign its rights and obligations hereunder and may engage subcontractors or agents in performing its duties and exercising its rights hereunder without Customer’s consent. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, executors, legal representatives, successors and permitted assigns.
10.13. No Third-Party Beneficiaries. The Parties acknowledge and agree that this Agreement is entered into by and between, and for the sole benefit of AV LLC and its affiliates and Customer, and that there are no third-party beneficiaries of this Agreement.
10.14. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same Agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
10.15. Entire Agreement. Customer agrees that the Agreement, including the information which is incorporated into the Agreement by written reference (including the Order Form and any reference to information contained in a URL or referenced policy) and the Exhibits attached hereto, is the complete Agreement for the Services ordered by Customer, and that the Agreement supersedes all prior or contemporaneous Agreements or representations, written or oral, regarding such Services. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement. It is expressly agreed that the terms of the Agreement, including any Order Form, shall supersede the terms in any purchase order or other non-AV LLC document and no terms included in any such purchase order or other non-AV LLC document shall apply to the Services ordered. In the event of any conflict or inconsistency between the terms of the Agreement and the terms of an Order Form, the Agreement shall take precedence. The Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of Customer and of AV LLC.