These Terms of Service define the terms by which clients may use the ADA Buzz website and portal and the accompanying accessibility testing, audit, and development services (the “Services”) and are an agreement between you (“you” or “Client”) and ADA Buzz (the “Company”), who may each individually be referred to as a ‘Party” or collectively as the “Parties.” By submitting a request for Services to our web-based Portal (the “Portal”), you expressly acknowledge that you have read, accept, and agree to be bound by these Terms of Service, as well as any applicable laws hereunder. You should not submit a request for Services to the Portal if you do not agree to these Terms of Service.
Company may modify these Terms of Service at any time in its sole discretion, and any amendments will apply upon thirty (30) days prior written notice. Your continued use of the ADA Buzz Portal and the accompany Services after any amendments shall signify your acceptance of the amendments. You should return to this page from time to time in order to ensure that you are aware of any updated terms.
1. Our Portal
ADA Buzz is Portal which enables clients to submit on-demand requests for web-based ADA accessibility audit, testing and development services.
Only adults, who are at least eighteen (18) years of age, are eligible to use our Services. By using our Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms of Service and can abide by all of the terms and conditions set forth therein. In addition, to use the Services, you must be fully competent to enter into and to comply with the terms, conditions, obligations, representations, and warranties set forth herein.
To access our Portal, you will need to register and create an account. When you register, you will be asked to provide the following information: your first and last name name, a phone number, your email address, and a password.
You should not disclose your password to any third party. You are solely responsible for keeping your password confidential and for the activity that occurs on your account. We will never ask you to send your password or other sensitive information to us in an email or to enter it via any website other than one with the URL of [insert link]. If you suspect any unauthorized use of your account or access to your password, please change your password immediately and contact us. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. You are solely liable for any loss or damage arising from your failure to comply with this Section 2.
All information provided by you in your registration must be truthful and complete. We may suspend your account immediately without notice if we have any reason to believe that you have misrepresented your identity.
(a) Audit Report Requests. To initiate an audit report request via the Portal, you will need to log into the client dashboard, identify the domain for which you seek Services in the box marked “add a new website,” and initiate the submission via the “Get a Report” button. Once the request is submitted, an accessibility audit report request will be pending in the Portal.
Upon receiving notification of the pending request, a manager will assign the request to a tester, who will then review the website at the domain submitted and conduct testing to verify the compliance of the website on the following accessibility concerns:
(i) Use alt tags for all images, videos and audio files, so that a user who has a visual impairment and uses a screen reader (a software program that reads text on a website out loud) will be able to identify the image;
(ii) Availability of text transcripts for audio and video content, so that hearing- impaired users may understand content that would otherwise be inaccessible to them;
(iii) Use of periods in abbreviations, like A.D.A., so that screen readers can differentiate individual letters;
(iv) Descriptions of links so the visually impaired know where the link is taking them.
(v) Use of color control to optimize text and background colors, thereby making navigation easier for the visually impaired.
(vi) Use of big, well identified buttons so that those buttons are visible to the physically impaired and the visually impaired.
(vii) Use of simplified copy in order to make text easy to listen to;
(viii) Inclusion of an accessibility guide;
(ix) Inclusion of automatic website navigation recommendations to website input errors;
(x) Identification of website language in order to guide text readers; and
(xi) Inclusion of a consistent, organized layout in order to facilitate navigation.
Upon completion of the audit, the tester will generate an audit report, which evaluates the website’s compliance with each of the above-listed accessibility concerns, and notify you that the report is available for viewing on the Portal. Audit reports will be available for viewing within twenty-four (24) hours following the submission of any audit report request.
(b) Compliance-Based Development Requests. To initiate a compliance-based development request via the Portal, you will need to login into the client dashboard, find the available audit report, and initiate the request via the “Get 100% Compliant” button.
Upon clicking the button, a development services request form will appear, in which you will be asked to identify the following:
(i) The domain of the website for which you seek Services;
(ii) Your company name, if any;
(iii) The web technologies utilized on the website
(iv) The specific pages of the website for which Services should be provided or alternatively, that Services should be provided on all pages of the website; and
(v) Any notes to the developers.
The development request will be submitted to the manager upon receipt of the applicable fees for the Services, who will then process the request and assign developers and testers to the project.
The developers will then proceed to make the requested accessibility updates to the website. Upon completion of the development Services, the testers will evaluate the updates. If tester determines that the updates “fail” testing, the project will be sent back to the developer with instructions for improvement and the development will resume to fix the identified issues. If tester determines that the updates “pass” testing, the updated web pages will be provided to you for review and you will receive a notification that the web pages are available for viewing in the Portal.
(c) Client Review Process. Upon completion by Company of the updated web pages, you will have the option to “approve” or “disapprove” any of the work product If you disapprove of the updates for any reason, you will be able to send the updated web pages back to the tester along with feedback notes and the tester will revisit the updates and provide a response to the Client feedback within three (3) business days. If you approve of the updates, they will go live and you will not be able to make further changes to the website via the Portal.
4. Client Responsibilities
You will be responsible for the following:
(a) Prompt Responsiveness. Promptly reviewing and providing timely feedback to the completed work product within three (3) business days following receipt of a notification that web page(s) are available for viewing in the Portal; and
(b) Policy Compliance. Complying with the requirements set forth in the Acceptance Use Policy and any other policies subsequently implemented by Company.
5. Fees & Payment
You will pay to Company a service fee in the amount of Seventy-Five Dollars ($75.00) per web page submitted, which is due and payable immediately upon submission of a development request to the manager. All payments shall be made in U.S. Dollars. You will be solely responsible for any taxes imposed on the Services. Company accepts the following forms of payment: credit cards and debit cards.
6. Intellectual Property
(a) Client Content. You shall retain ownership of all right, title, and interest in any intellectual property rights arising from content submitted to Company in connection with the Services.
(b) Deliverables. Company assigns all right, title, and interest to you in any deliverables arising from the Services.
(c) Logos and Trademarks. You acknowledge and agree that Company owns all right, title, and interest in the logos and trademarks used by Company in conjunction with the marketing and advertising of the Portal, and the Services, and that no right to use any such logos and trademarks is granted herein.
(d) Company Content. You acknowledge and agree that Company owns all right, title, and interest in any text, images, other content that Company incorporates into the online Portal, and any improvements or derivative works made thereto of such Company content.
(a) Company Warranty. Company warrants and represents that the Services will be performed (i) in a professional and workmanlike manner consistent with generally accepted industry standards and (ii) in accordance with the Web Content Accessibility Guidelines (WCAG) 2.1.
(b) Client Warranty. You warrant and represent that (i) the content in any web pages submitted through the Portal shall not infringe the intellectual property rights of any third party; (ii) that all fees will be paid as set forth in these Terms of Service; and (iii) you will comply with the client responsibilities set forth in Section 4.
(c) Disclaimer. THE PORTAL AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. USE AND RELIANCE ON THE PORTAL AND THE SERVICES ARE AT CLIENT’S OWN RISK. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES AND/OR UPDATES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION (i) OF MERCHANTABILITY OR (ii) OF MERCHANTABLE OR STATISFACTORY QUALITY, (iii) OF FITNESS FOR A PARTICULAR PURPOSE (iv) OF NONINFRINGEMENT, OR (v) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES THAT USE OF THE PORTAL OR ACCESS TO THE SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, BUG-FREE, ERROR-FREE, VIRUS-FREE, FREE OF DEFECTS, OR FREE OF TECHNICAL PROBLEMS; THAT THE SERVICES WILL MEET ALL OF A CLIENT’S NEEDS; THAT THE PORTAL WILL BE COMPLETELY SECURE FROM THIRD PARTIES AND WILL NEVER BE SUBJECT TO ANY LOSS; OR THAT ANY PARTICULAR BACKUP MADE BY THE COMPANY WILL BE VIABLE. COMPANY DOES NOT WARRANT THAT THE PORTAL OR SERVICES WILL OPERATE BUG FREE, ERROR-FREE, CONTINUOUSLY, OR UNINTERRUPTED.
IN ADDITION, COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT ANY AND ALL ACCESSIBILITY CONCERNS WITH A PARTICULAR WEBSITE CAN BE RESOLVED WITHOUT BUILDING AN ENTIRELY NEW WEBSITE. You acknowledge and agree that some accessibility issues may not be fixable due to the age of the website or without making material changes to website functionality or other features that may negatively impact the appearance, useability, or overall performance of the website. In addition, you further acknowledge and agree that no certification process currently exists for ADA compliance and that the current guidelines and standards may not address or resolve all accessibility problems. ACCORDINGLY, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL ASSURANCES THAT ANY PARTICULAR ACCESSIBILITY GUIDELINES OR STANDARDS WILL RESOLVE ALL POSSIBLE WEBSITE ACCESSIBILITY ISSUES FOR ALL PERSONS HAVING A DISABILITY.
For any breach of warranty, your exclusive remedy and Company’s entire liability shall be the re-
performance of the non-compliant Services at Company’s expense.
8. CONSEQUENTIAL DAMAGES; LIABILITY
(a) No Liability for Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION LOSS OF DATA OR PROFITS, COST OF PROCUREMENT OR REPLACEMENT GOODS AND SERVICES, COVER, OR RELIANCE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE, OR PERFORMANCE OF THE DELIVERABLES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED WARRANTY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) Indemnification. Client agrees to indemnify, defend, and hold harmless Company, its officers, directors, employees, and independent contractors against any loss, liability, damage, judgment, award, penalty, fine, or expense arising from:
(i) any claim that Client Intellectual Property infringes any third party intellectual property;
(ii) any breach of a warranty provided herein.
(c) Limitation of Liability. Except in the case of indemnification, Client and Company agree that the total aggregate amount of all claims incurred by Company under this agreement shall not exceed the total amount of Client fees paid pursuant to this Agreement.
(a) Entire Understanding. These Terms of Service contain the entire understanding of the Client and Company with respect to the subject matter contained herein, and shall supersede all prior agreements and understandings, whether written or oral.
(b) Governing Law. These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law principles.
(c) Dispute Resolution. All disputes or controversies arising out of or in connection with these Terms of Service, their interpretation, performance, or termination, shall be submitted to binding arbitration in San Francisco, CA under the Commercial Rules of the American Arbitration Association. The proceeding shall be conducted in the English language by a single arbitrator and the costs of the arbitration, including administrative and arbitrators’ fees, shall be shared equally by the Parties. Each Party shall bear its own costs and attorneys’ and witnesses’ fees. The arbitration award shall be final and each Party shall comply in good faith and submit itself to the jurisdiction of the appropriate courts for the sole purpose of the entry of such arbitrator’s award to render effective such arbitration decision. Notwithstanding the foregoing, judgment on the award by the arbitrator may be entered in any court having jurisdiction. If judicial enforcement or review of the arbitrator’s decision is sought, the prevailing Party shall be entitled to costs and reasonable attorneys’ fees.
(d) Severance. If any provision of these Terms of Service is held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not be affected by such holding. Company and Client agree to negotiate and amend in good faith such provision in a manner consistent with the intentions of the parties as expressed in the Terms of Service if any invalid or unenforceable provision affects the consideration of either party.
(e) Modifications. These Terms of Service may be modified at any time and will become effective immediately for all clients.
(f) Assignment. These Terms of Service shall be binding upon and inure to the benefit of each of Client and Company. and their respective successors and assigns.
(g) Notices. Any notices required or permitted to be given to Company hereunder shall be sent to the address set forth in these Terms of Service, or at such other address as shall specify in writing. Such notice shall be deemed given upon personal delivery, or three (3) days after the date of mailing when sent by certified or registered mail, postage prepaid. All notices to Company shall be submitted to the following address:
[insert preferred mailing address for legal notices]
(h) Waiver. No waiver by either Party of any breach of these Terms of Service, no matter how long continuing or how often repeated, shall be deemed a waiver of any subsequent breach thereof, nor shall any delay or omission on the part of either Party to exercise any right, power, or privilege hereunder be deemed a waiver of such right, power, or privilege.
(i) Effective Date. These Terms of Service were last modified on the ____ of ____, 2020.