These Agreements (the "Agreement") are entered into by UserWay Inc., 1007 North Orange St. 4th Floor Wilmington, DE, 19801, USA ("UserWay"), and the entity executing this Agreement ("You") and Your authorized Clients (defined below) and any Reseller or Agent of UserWay Products.
UserWay Products include the AI-Powered Accessibility Widget (the "AI-Widget") and UserWay's Free Accessibility Widget (the "Free-Widget"); UserWay's Accessibility Scanning & Monitoring (the "Scanner"); UserWay Audits (the “Audit”), UserWay AI-Powered Content Moderator (the “Moderator”); and any additional services or products that UserWay will provide.
This Agreement governs Your use of UserWay Products. BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING A USERWAY PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT.
In consideration of the foregoing, the parties agree as follows:
Should any conflict or inconsistency exist between the provisions of the Agreement set out herein and information appearing on any other pages of the Website, the terms of this Agreement shall govern.
You are invited to contact UserWay regarding any topic sending an e-mail to: firstname.lastname@example.org.
The words "include" and "including" mean "including but not limited to."
Without limiting the foregoing and for the avoidance of doubt, it is clarified that this Agreement does not replace and/or derogate from the Agreement of any Reseller or third parties, should any such apply and as applicable, but are rather complementary thereto; provided, however, that in the event of a conflict therewith, this Agreement shall govern.
The following terms shall have the meanings ascribed alongside them, unless explicitly stated otherwise:
"UserWay Products" is defined above.
The Widget refers to both the AI-Widget and the Free-Widget. Terms of the agreement that apply to, or ascribe meaning to the Widget apply or ascribe meaning to both the AI-Widget and the Free-Widget.
A "User" means a user of UserWay Products, directly or indirectly, through digital link or otherwise.
“Violation-Claims Support Services” means any support services UserWay may offer – at its sole discretion – in support of a Licensee’s efforts to defend against a third party Violation-Claim relating to a Licensee Website (as defined below) not being accessible after implementing UserWay Products.
“License” means a license to use UserWay Products for one (1) Licensee website, subject to and in accordance with this Agreement.
“Licensee” means whoever purchases a License for UserWay Products, whether (i) for the purpose of the Licensee’s personal use of UserWay Products; (ii) for another person or entity using UserWay Products on the Licensee behalf (if permitted by UserWay in writing); (iii) for enabling the Licensee’s clients to access and use UserWay Products on a Website (if permitted by UserWay in writing).
“WCAG Standard” means WCAG 2.1 level AA success criteria.
“Website” means UserWay’s website at https://userway.org, https://userway.com or https://accessibilityserver.org, or any related subdomains.
Use of UserWay Products
A Licensee may only use UserWay Products in accordance with the rules set out in this Agreement, unless express prior written consent of UserWay to do otherwise, is obtained. Without limiting the generality of the foregoing:
When using UserWay Products you may not impersonate a different person or business organization;
You may not: (i) copy, modify, create any derivative work of; or (ii) reverse assemble, decompile, reverse engineer or otherwise attempt to impact upon or derive source code (or the underlying ideas, algorithms, structure or organization);
You may not breach or impair, in any manner, any intellectual property rights existing in UserWay Products, including without limitation any patents, copyrights, trademarks, or any other proprietary rights, whether belonging to UserWay or any third party;
You may not use UserWay Products in any manner contrary to or inconsistent with this Agreement, nor (without limiting the generality of the aforementioned), in any manner which is illegal, immoral, or contrary to public policy;
You may not use UserWay Products in any manner that could damage, disable, impair or deny access to UserWay Products;
UserWay Products are provided “as is,” and are only intended to be used by the Licensee on the website for which Licensee has obtained a License (each such website, a “Licensee Website”). Without limiting the foregoing and for the avoidance of doubt, the Licensee is not permitted to transfer and/or sell its License to any other third party.
Purchase, Sale and Termination Policy
Upon purchasing a License, the Licensee agrees and confirms that it is engaging in a “Software as a Service” agreement (“SaaS”), whereby it purchases a License for UserWay Products for a specific website, with UserWay Products operated from UserWay’s servers. The Licensee is not purchasing UserWay Products or any part thereof, including without limitation, the code and/or supporting files and/or databases and/or any other component of the software that, either jointly or severally, comprise UserWay Products.
Without limiting the foregoing and for the avoidance of doubt, it is clarified that after the Widget script has been embedded, no further use of the script and/or the License may be made for any other domain name or any other website operated by the Licensee other than the Licensee Website unless the Licensee purchased a new dedicated License from UserWay for the other website.
The License is for the use of the Licensee only on one website, limited as set forth in this Agreement, and may not be sold and/or transferred and/or assigned, unless the License is purchased by a Reseller under a reseller agreement or any other specified agreement.
UserWay Products are only compatible for use by users on the following browsers: Chrome, Firefox, Safari, Microsoft Edge, Internet Explorer 11, Opera.
The functionality of UserWay Products requires that the Licensee Website on which UserWay Products operates be based solely on HTML files and tags ("HTML"), and that the source code be written according to the HTML/CSS standards of the World Wide Web Consortium (“W3C”), without any errors or validation warning in W3C’s troubleshooting inspections; please note that Licensee changes to HTML may impact the functionality of the Widget.
By way of example, UserWay Products do not support components not supported in the W3C Standard such as Canvas, Flash, Silverlight and cross-site frames and iframes and any other components that restrict access to their inner content.
In addition regarding the AI-Widget: The AI-Widget will only return AI-powered results in the English language.
The License is purchased through the Website, using the means of payment available on the Website as of the purchase date or by the Reseller through UserWay, if applicable.
The License may be purchased on a monthly or annual basis and is renewed automatically unless the Licensee requests otherwise from UserWay in writing.
UserWay reserves the right to replace and/or alter, from time to time, the means of payment available on the Website, as well as to update the price of the License, as well as to collect different prices from different Licensees and Resellers, at UserWay’s sole discretion and without need for justification.
Transactions may be terminated within 14 days of submission of the purchase order, less any cancellation fee under applicable law. In order to terminate the transaction, the Licensee and/or the Reseller must e-mail email@example.com, with its full name and email, identifying information, or account ID, the domain name for which the termination is sought, and a copy of the transaction receipt.
The Licensee may terminate its engagement with UserWay at any time, subject to payment of all sums owed to UserWay.
UserWay reserves the right to transfer its rights and obligations under this Agreement to any third party, provided the rights of the Licensee are not adversely affected.
UserWay reserves the right to terminate the transaction and/or the License at any time, without justification to the Licensee and/or the Reseller, by providing the Licensee and/or Reseller a 30-day prior notice. Should UserWay terminate the License, the company shall refund the Licensee or the Reseller, as applicable, for any period of time paid for that is post-termination.
Website Accessibility; Malfunctions; Issues
UserWay exerts best commercial efforts to ensure that UserWay Products enable the Licensee to become compliant with the WCAG Standard.
When the Free-Widget is embedded into the Licensee Website, the Licensee Website will become more accessible in accordance with the provisions of the WCAG Standard, only when certain accessibility functions are manually enabled by the end-user.
When the AI-Widget is embedded into the Licensee Website, the Licensee Website will become substantially more accessible in accordance with the provisions of the WCAG Standard, without requiring any intervention by the end-user.
When the Scanner's violation reports and instructions for remediation are followed and implemented by site developers as regards the Website scanned and monitored, the Licensee Website will become substantially more accessible in accordance with the provisions of the WCAG Standard. Without limiting the foregoing, and for the avoidance of doubt, this applies to all the code within scope of the Scanner (HTML) and not non-HTML items such as PDF, Audio, Video, etc.
Nonetheless, it is possible that, for reasons arising from the Licensee Website and/or changes and updates that may be performed, from time to time, by the Licensee and/or their representatives on the Licensee Website and/or for other reasons beyond the control of UserWay, the Licensee Website may not be substantially accessible at any given time.
Should the Licensee provide UserWay with a notice regarding an error or deviation from the provisions of the WCAG Standard, UserWay will act to the best of its abilities to instruct the Licensee on how to repair such deviation, as noted in the notice, and to restore the Licensee Website’s accessibility in accordance with the WCAG Standard, within a reasonable time of receiving such notice from the Licensee. Any Licensee notice concerning a violation or Violation-Claim must be as clear and specific as possible and refer to the exact component of the Licensee Website that is not accessible. Without limiting the foregoing and for the avoidance of doubt, UserWay undertakes to repair such violation within the scope of UserWay System’s technical capabilities, as stated in the Purchase, Sale and Termination Policy of this Agreement.
UserWay grants solely to the Licensees, and solely during normal business hours and via e-mail, technical support services, including assistance in operating UserWay Products, solutions to software defects in UserWay Products, and similar technical and operational matters of payment, purchase or termination of transactions.
The Licensee agrees to report any software defect or issue observed in UserWay Products immediately to UserWay by e-mail; upon receipt of such report, UserWay undertakes to investigate the software defect in a reasonably prompt manner. UserWay shall employ its best efforts to resolve software defects in UserWay Products in a reasonably prompt manner. In the event that the technology needed to resolve an issue does not exist, or in the event that its implementation is not possible, UserWay shall document the issue in its records and resolve it once this becomes possible on a technological level, subject to and in accordance with UserWay’s agreements with the Licensee.
UserWay does not undertake to manage and/or resolve software defects or issues originating in the Licensee Website. Without limiting the foregoing and for the avoidance of doubt, under no circumstances will any changes be made to the code in UserWay’s systems and/or platforms in order to adapt them to any needs specific to a Licensee Website.
Licensee Responsibility, Limitation of Liability
UserWay Products shall be provided to the Licensee “AS IS”, and UserWay shall not bear any liability for damages incurred by the Licensee and/or any representatives thereof on account of their use of UserWay Products and/or products or services of third parties that interface with UserWay Products. UserWay provides no representation, undertaking or warranty not specified in this Agreement, including without limitation any representation or undertaking with respect to the quality, reliability, completeness, accuracy, currency or availability of the information appearing in UserWay Products, the use thereof or their suitability for any particular purpose.
From time to time, UserWay may update and/or upgrade UserWay Products (including UserWay’s servers), which may cause a temporary interruption in the operation of UserWay Products. UserWay has no control over software defects that may occur, from time to time, in respect of services provided by third parties.
The Licensee is aware that the use of each of UserWay Products or Widget does not substitute legal consultation. The Website, any and all communications with UserWay’s representatives, and the use of UserWay Products do not constitute the provision of legal advice and may not be relied on for any legal purpose.
No conversation or correspondence with any UserWay employee or representative and/or other information provided by UserWay shall be considered legal advice, and the Licensee shall have no claims to the contrary.
Without derogating from the generality of the foregoing: (a) the Scanner reports may not accurately reflect a website's accessibility features, and (b) any Violation-Claims Support Services provided (if provided) are at Licensee’s own risk; and each is subject in all respects to all limitation of liability provisions set forth herein.
The Licensee is aware that the installation of UserWay Products cannot guarantee that Violation-Claims will not arise, and that using UserWay Products to make a Licensee Website accessible does not, on its own, fulfill all of the requirements of applicable law in respect of website accessibility (for example, the Widget does not automatically remediate PDF files or create subtitles for videos, and the Scanner does not automatically identify these impediments to accessibility). UserWay does not undertake that the Licensee Website will be 100% accessible at any given moment, owing to factors such as Licensee changes made to the Licensee Website, issues originating in the Licensee Website and/or limitations stemming from technological reasons. The Licensee irrevocably waives any claims against UserWay from any liability, legal or otherwise, and that it shall assert no claims against UserWay in this regard (including in relation to any Violation-Claims Support Services, if provided).
In order for UserWay to be able to provide Violation-Claims Support Services, the Licensee shall, as a prerequisite, provide UserWay with any and all information required by UserWay for such purpose. UserWay shall not use such information other than for purposes of providing Violation-Claims Support Services.
The Licensee is aware that, as a security measure, in the event the Licensee’s requires processing of more than 5,000 images per website per month, UserWay System may block such requests, and UserWay will contact the Licensee requesting that the Licensee limit the number of images that require such processing on its Licensee Website. UserWay shall employ reasonable commercial efforts to instruct the Licensee on how to encode such images/links so that less processing is required by UserWay Products. In the event the Licensee is unable or unwilling to implement UserWay’s instructions, the Licensee may notify UserWay that it wishes to terminate its engagement with UserWay, which case UserWay will issue a prorated refund to Licensee for any fees paid with respect UserWay Products related to the relevant Licensee Website for which image processing exceeded demands.
UserWay is not responsible for the contents of documents and/or graphics files and/or other data found on the Licensee Website, including with respect to copyrights and/or patents and/or trademarks and/or accessibility of texts, pictures, attached PPT, EXCEL, WORD, PDF, audio, video, VIMEO or YouTube files, nor files of any other video provider, nor any other file of any kind for which Licensee is responsible. It is the Licensees’ responsibility to verify, prior to using UserWay Products, that UserWay Products are compatible with its needs and that its rights to images and content on the Licensees' Website include the right to provide such images and content to UserWay for processing, and Licensee grants the right for UserWay Products to process images, its servers must access those images. Licensee is responsible for any copyright on the images, or image content, and UserWay is not liable for any breach of image or content agreements that the Licensee may hold. UserWay Products store the image and content information only to the extent that its servers require to generate AI-Powered accessibility information for said content and images, and maintain reasonable logs of such processing.
The Licensee is aware that UserWay does not treat URL parameters as pages, files and/or images. The Licensee has the responsibility to assure that all pages, files and/or images on the Licensee’s Website can be accessed through a standard URL. Without limiting the foregoing and for the avoidance of doubt, prior to the processing of any page, file and/or image, UserWay System may omit all of a URL’s parameters, such that a page, file and/or an image which shall be available only through URL parameters shall not be processed by UserWay Products.
The Licensee is aware that the Widget HTML code must be embedded within the BODY HTML tag of the Licensee’s Website, and that the Widget HTML code must appear on the browser’s “view source-code” feature. The embedding of the Widget HTML code may be executed by any means, as long as such means meets the above mentioned requirements. The Licensee is aware that not embedding the HTML code in the way detailed herein might cause certain parts of the UserWay System to not properly perform.
The Licensee is aware that Geo-Blocking could prevent UserWay from rendering the Widget and/or UserWay Products from performing properly. “Geo-Blocking” means: (i) a Licensee’s Website being unreachable from certain locations; or (ii) a Licensee’s Website redirecting to a different website based on user location.
It is the Licensee’s responsibility to verify, prior to using UserWay Products, the integrity of the Licensee Website’s connectivity, and that of the server on which it is stored, to the internet network and to Licensee’s infrastructure (telephone, computer and so forth). UserWay shall not bear liability for any damage to the Licensee on account of the foregoing issues, for which the Licensee is responsible.
Without derogating from the foregoing, the Licensee agrees that, in any event and with respect to any UserWay Product, UserWay’s liability towards it will be limited to a sum equal to the aggregate payments made by the Licensee to UserWay with respect to the relevant Licensee Website in the three (3) months preceding a claim or alleged breach, and no more.
UserWay is not responsible for any loss and/or expense and/or damage incurred by the Licensee and/or any third party on account of its rendering the Licensee Website accessible, and full and exclusive liability in this regard remains with the Licensee. Similarly, UserWay is not responsible for re-organizing the Licensee Website when UserWay Products are used and result in re-organization.
The Licensee acknowledges that the Widget, in the course of its normal and desired functioning, may change words, texts, and other HTML contents of the Licensee Website. The Licensee is responsible for the Licensee content, including such changes that the Widget makes. UserWay shall not bear any responsibility for any damage, inconvenience or loss incurred by the Licensee, directly or indirectly, as a result of its use of UserWay Products and the embedding thereof in the Licensee Website.
The Licensee shall bear sole responsibility for Licensee content appearing on the Licensee Website and for Licensee’s compliance with laws applicable to it, including those relating to website accessibility. Without derogation, Licensee acknowledges that complying with applicable law requires it to consult an attorney; a matter that is beyond the scope of UserWay Products and the changes they make, or recommend, to make content accessible. The service rendered by UserWay pursuant to this Agreement does not comprise, and Licensee hereby expressly exempts UserWay from, examining website content and adapting it to applicable law and/or for examining the approvals required for the Licensee Website in respect of or connected to accessibility legal requirements. It is emphasized that these examinations fall under the exclusive responsibility of the Licensee and will be performed by the Licensee or legal counsel on its behalf, at Licensee’s expense.
Without derogating from the release and limitation of liability set out above, in no event shall UserWay be responsible, and the Licensee exempts UserWay from, any liability and/or duty and/or demand and/or claim arising prior to the completion of the accessibility rendering process on the Licensee Website through the use of UserWay Products.
In addition, and without derogating from the generality above, the Licensee shall indemnify and hold harmless UserWay for any sum UserWay bears and/or is required to incur for matters that are the Licensee’s responsibility, in addition to legal expenses, attorneys’ fees and other costs, to the extent applicable, within 30 days of receiving UserWay’s first written demand.
The Licensee undertakes to test the UserWay Technologies in a staging or testing website before using them on the Licensee Website, and, only after verifying that there is no malfunction or damage caused to such website, to use UserWay Products on its live or main Licensee Website.
UserWay Products, being based on software, hardware, and communications networks, are exposed to the inherent risks of such systems, including the risk of malicious software (viruses, trojan horses, etc.), wiretapping, hacking by hostile entities, impersonations and other online systems and scams. UserWay invests effort in defending against these risks, and designed its system to lack any direct ability to change Licensee Website's Servers. Nonetheless, it is not possible, and the Licensee is aware that it is not possible, to ensure complete immunity, and there may be damages and/or losses incurred in the event that such risks are realized, including disclosure and/or corruption of information provided and/or presented in UserWay Products, corruption of instructions/requests, unauthorized account actions, disruptions to the operation of UserWay Products and/or their response time, including interruption, partial performance and/or late performance of instructions/requests, unavailability of UserWay Products etc., by virtue of such unlawful third party interference.
The Reseller shall assume full responsibility for the execution of all the applicable Agreement by the Licensees and ensure that any agreement executed between the Reseller and any Licensee shall include provisions instructing the Licensees to comply with this Agreement.
The intellectual property rights, including copyrights and trademarks (should any exist) in UserWay Products or any other content included in UserWay Products (“UserWay IP”) belong solely to UserWay, or to the third party that provided its permission for UserWay to use them. You may not copy, distribute, publicly display, publicly perform, transfer to the public, process, amend, create derivatives of, sell or lease any part thereof, whether by yourself or in cooperation with any third party, in any way or using any means, whether electronic, optical or mechanical, using recording or photographic means, or through any other means, without receiving the prior written consent of UserWay and/or the other rightsholders, as applicable, and subject to the terms of such consent (if any). This provision is also valid in respect of any processing, editing or translation performed by UserWay on content input or provided by the Licensee to UserWay Products. Without limiting the foregoing and for the avoidance of doubt, and without derogation from the generality above, the databases, software, systems, code, AI algorithms, AI training sets, and applications, media, graphics files, video and audio files, written content, code content, training content and other materials, including designs, graphics, and algorithms relating to UserWay IP also belong to UserWay, and it holds the exclusive rights thereto.
The Licensee is aware that UserWay Products are based on AI, and that data relating to Licensee's Website may be used to train AI models, ML models or other algorithmic modifications. Licensee grants that UserWay IP includes such AI components, and the training models of these components. Without limiting the foregoing and for the avoidance of doubt, and without derogation from the generality above, and regardless of the source of the data, UserWay IP includes training data, training instructions, algorithms that may be revised during the training process, and Licensee is responsible to assure that any third-party data provider requirements are not violated.
The Licensee is not entitled and will not be entitled to use UserWay Products or any part thereof in a manner that breaches the provisions of this Agreement, or that could harm the rights of UserWay and/or the rights of any third party, using any means, digital or otherwise, without the prior written consent of UserWay.
If and to the extent that consent is granted for the use of UserWay IP, the Licensee must refrain from removing, deleting or obscuring any notice or symbol concerning UserWay IP rights, such as copyright symbols (©) or trademarks (®) that accompany the content being used by the Client.
The name “UserWay” and any trademarks and/or service marks or symbols are the property of UserWay. The purchase of a License does not afford the Licensee the right to make use of any of the trademarks and/or service symbols for any purpose not expressly stated in this Agreement.
Upon purchasing a License, the Licensee approves UserWay’s disclosure of the fact that it provided and/or provides the Widget to the Licensee, and that UserWay System is embedded in the Licensee Website. The Licensee further confirms that UserWay may make use of its trade name and the address of the Licensee Website, and may make worldwide and indefinite use of the Licensee’s logo, for UserWay’s marketing purposes.
The provisions of this intellectual property clause shall apply notwithstanding the cessation of the provision of the Widget upon the conclusion of the License, for any reason.
The provisions of this section do not derogate from the provisions of any law or from any rights afforded UserWay by law.
Messages, Updates and Communications
Communication between UserWay and Licensee shall be via email. Updates and other messages on behalf of UserWay, including all communications regarding services and support, and including advertisement mail, may be sent to Licensees by e-mail to the address provided by the Licensees when it registered for any UserWay Product (provided that the Licensees approved the sending of such messages).
Termination of Service
UserWay may, from time to time and without prior notice, limit or terminate a Client’s access to UserWay Products, the Widget and/or the Scanner and refuse to provide it with such access, in the event of one of the following instances (without derogating from any other remedy afforded UserWay by law):
If a Licensee breaches this Agreement;
If UserWay is unable to verify and/or validate information provided by a Licensee or if UserWay reasonably believes the information provided by a Licensee is incorrect or inaccurate, in both such instances after UserWay makes reasonable efforts to communicate with a Licensee without avail;
If UserWay reasonably believes that a Licensee’s use of UserWay Products is giving rise to monetary risk and/or fraud of any kind and/or raises concerns of such; or
If UserWay reasonably believes that a Licensee’s use of UserWay Products is overloading its systems and taking too many resources due to technical issues with the Licensee site, or with UserWay's systems or for any other technical reason.
If UserWay reasonably believes that a Licensee’s actions may cause a monetary loss and/or payment and/or create legal liability for UserWay towards any third party.
Choice of Law and Jurisdiction
The Agreements entered into between You and UserWay are governed by the laws of the State of Delaware applicable to contracts wholly entered and performable within such State (without regard to applicable conflicts of law principles). The courts of the State of Delaware shall be the exclusive forum for any disputes arising out of or related to such agreement. Both you and UserWay agree to the personal jurisdiction and venue of these courts in any action related to such agreement.
Version dated July 2020
For further information and clarifications, please contact firstname.lastname@example.org