Services Agreement

(Accessibility Services Only)

This Services Agreement (“Agreement”) shall govern the performance of the services and obligations of the Parties contained in any Statement of Work (“SOW”), Work Order or Change Order executed between the Parties which references this Agreement. Deque and Client shall together be considered the “Parties” or individually as a “Party”.

1. Services

Deque will perform the accessibility services (“Services”) described in detail in an SOW or Change Order executed by the Parties in accordance with the terms of this Agreement.

1.1 Deliverables.

As used in this Agreement, “Deliverable” means the tangible results of the Services performed by Deque with respect to Client Data (defined below) and delivered by Deque to Client pursuant to an SOW or Change Order.  A Deliverable may include Deque Materials.  Except as otherwise stated in the applicable SOW or Change Order the Client shall own the Deliverables (excluding any Deque Materials included in the Deliverables) and Deque hereby assigns all rights to the Deliverables (excluding such Deque Materials) to Client.  Deque shall have no right to use Client Data or the Deliverables (except for such Deque Materials) other than as needed to perform Services or other services that are the subject of a written agreement between the Parties. “Client Data” means the public-facing, non-production web or app data provided by Client to Deque for assessment for accessibility by Deque for Client pursuant to an SOW or Change Order.

1.2 Deque Materials.

Deque owns (i) the Deque Materials utilized in creating and/or included in the Deliverables, but Deque hereby grants to Client a non-exclusive, and non-transferable, limited right to use, reproduce, distribute, prepare derivative works of, display, perform, digitally transmit such Deque Materials that are included in the Deliverables to the extent necessary to use the Deliverables for the purpose for which it was provided; and (ii) the Deque Marks utilized in performing the Services, but Deque hereby grants to Client a limited, non-exclusive, non-transferable license to use the Deque Marks with respect to Deque’s automated accessibility certification service (the “Accessibility Certification Service”); provided that (A) Client must obtain Deque’s prior written consent, in each instance, to place and prominently display any Deque Marks on its publicly facing digital asset(s), and (B) any accessibility statement posted on Client’s publicly facing digital asset(s) must be consistent with Deque’s reasonable policies for trademark and logo usage communicated to Client from time to time, and must include a backlink to www.deque.com and a Deque certification logo.  Any use by Client or its authorized representatives of any of the Deque Marks and all goodwill associated therewith shall inure to the benefit of Deque.  In addition to its rights under Section 10, Deque may terminate the license granted with respect to Deque Marks at any time upon written notice to Client if Client is in violation of its obligations under this Section 1.2, and Client must immediately discontinue all use of such Deque Marks upon receipt of the notice.  “Deque Materials” means the Deque visual presentation format, templates, document and spreadsheet macros and formulae, and methodologies and tools utilized by and on behalf of Deque in the creation of the Deliverables under this Agreement.  Training materials provided as part of a training course shall also be considered Deque Materials. “Deque Marks” means Deque’s trademarks, service marks, logos, or graphic.

2. Non-Solicitation.

Commencing on the SOW or Change Order effective date and for two (2) years following the completion of the last SOW or Change Order executed by the Parties and governed by this Agreement, neither Deque nor Client shall, without the other Party’s written approval, solicit for employment, any person who performed Services under an SOW or Change Order during the Term. The hiring of an employee, contractor, or agent who, without individual solicitation, responds to advertisements or solicitations aimed at the general public shall not be considered a breach of this Section 2.

3. Personal Data

3.1 Personal Data

“Personal Data” means information that both (i) relates to an identified or identifiable natural person, where an “identifiable natural person” is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person and (ii) is protected, and/or its use is restricted, as such by applicable law. If and when Client provides, or causes or allows to be provided, to Deque Personal Data (“Provided Personal Data”), Client represents and warrants that Client has all necessary rights in Provided Personal Data (e.g., consent, legitimate basis, derogation, exemption, etc.) necessary to provide the Provided Personal Data to Deque and for Deque to process such Provided Personal Data as reasonably necessary to perform Services under this Agreement using such Provided Personal Data. Client will provide to Deque no Personal Data that is not necessary for Deque’s performance under this Agreement. Deque will use any Provided Personal Data solely for the purposes of performance under this Agreement and will comply with all law applicable to Deque that regulates Personal Data.

3.2 Restricted Data

“Restricted Data” means Personal Data that is “sensitive personal data” under applicable law or that applicable law provides protections and/or remedies that are in excess of those that apply to other personal data.  The term includes, but is not limited to, nonpublic Personal Data (as that term is defined by the Financial Services Modernization Act of 1999), protected health information (as that term is defined by the Health Insurance Portability and Accountability Act of 1996) Deque’s Services and training under this Agreement do not require that Deque possess or use Restricted Data.  Client will not make available to Deque any Restricted Data and Client will prevent Deque from being exposed to any Restricted Data in the course of Deque’s performance under this Agreement.

4. Confidentiality.

“Confidential Information” means any information (a) disclosed by either Party to the other Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information which is designated as “confidential,” “proprietary” or some similar designation (collectively, the “Disclosed Materials”) and (b) any information otherwise obtained, directly or indirectly, by a Receiving Party through inspection, review or analysis of the Disclosed Materials.  Information disclosed orally shall be considered Confidential Information.  Confidential Information may also include information of a third party that is in the possession of one of the Parties and is disclosed to the other Party under this Agreement. Usernames and email addresses required for the Parties to conduct business shall be protected as Confidential Information.

4.1 Treatment of Confidential Information.

Each Party receiving Confidential Information of the other Party (“Receiving Party”) will maintain the confidentiality of such Confidential Information being disclosed by the other Party (“Disclosing Party”) as detailed below:

  • Receiving Party shall use commercially reasonable measures to prevent the disclosure of the Confidential Information except to those of the Receiving Party’s employees, agents, and/or professionals to any third-party other than as permitted under this Agreement that has a bona fide need to possess or know the Confidential Information, and provided that such measures shall be at least as stringent as those used by the Receiving Party to protect its most proprietary and sensitive information.
  • Receiving Party shall only use, and permit the use of, the Confidential Information for the purposes of providing, or enjoying the benefit of, the goods, services, and software required by this Agreement.
  • Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software, or other tangible objects that embody the Disclosing Party’s Confidential Information and that are provided to the Receiving Party under this Agreement.
  • Receiving Party shall not make any copies of the Disclosing Party’s Confidential Information except upon the Disclosing Party’s prior written approval and shall reproduce the Disclosing Party’s proprietary rights notices on any such authorized copies, in the same manner, such notices were set forth in or on the original.
  • Receiving Party shall promptly notify the Disclosing Party of any use or disclosure of such Confidential Information in violation of this Agreement of which the Receiving Party becomes aware.
  • Each professional, such as a lawyer or an accountant retained by the Receiving Party in a professional-client relationship will be deemed under an adequate obligation of confidentiality for the purposes of this Agreement so long as the law recognizes an obligation of confidence actionable by the Receiving Party under law without a separate contractual obligation.
  • Upon written notice from the Disclosing Party, the Receiving Party shall destroy all written or other tangible copies of Confidential Information in the Receiving Party’s possession or direct or indirect control, including all extracts and copies thereof, within a reasonable time after, and in accordance with, Disclosing Party’s written request, provided that, the Receiving Party may retain an archival copy subject to the confidentiality obligations herein.

4.2 Exceptions to Confidentiality.

Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information to the extent that:

  • It is already known by the Receiving Party if:
    • The Confidential Information is not subject to a previous obligation of the Receiving Party to keep such Confidential Information confidential, and
    • The Confidential Information was not received in violation of a previous confidentiality obligation of the Receiving Party or a third party of which the Receiving Party knew or had reason to know,
  • It is or becomes readily ascertainable by proper means by the public without any breach of a confidentiality obligation of the Receiving Party.
  • It is received from a third party that is not under an obligation of confidentiality of which the Receiving Party knew or had reason to know.
  • It was independently developed by the Receiving Party without the use of the Confidential Information; or
  • It is required by law to be disclosed provided that, the Receiving Party provides to the Disclosing Party as much notice as is practicable under the circumstances of such requirement prior to disclosure and provides to the Disclosing Party, at the Disclosing Party’s expense, such assistance as the Disclosing Party requests in seeking confidential treatment, protective orders, nondisclosure, and/or similar measures.

4.3 Injunctive Relief.

Because unauthorized use or disclosure of Confidential Information may result in immediate and irreparable injury to the Disclosing Party for which monetary damages may not be adequate, in the event that the Receiving Party or any officer, director, employee, agent, professional, or subcontractor of the Receiving Party uses or discloses Confidential Information or, in the Disclosing Party’s reasonable opinion, any such person is likely to use or disclose Confidential Information in breach of the Receiving Party’s obligations under this Agreement, the Disclosing Party will be entitled to seek equitable relief, including temporary and permanent injunctive relief and specific performance.  The Disclosing Party will also be entitled to recover any pecuniary gain that the Receiving Party realizes from the unauthorized use or disclosure of the Disclosing Party’s Confidential Information.  The rights in this Section 4.3 are in addition to any other rights of the Disclosing Party under this Agreement, at law, or in equity.

4.4 Duration of Confidentiality Obligations.

The confidentiality obligations under this Agreement will continue after the disclosure of each item of Confidential Information for the longer of

  • The time during which the Confidential Information remains a trade secret (as that term is defined in the Uniform Trade Secrets Act) of the Disclosing Party; or
  • Five (5) years after the Receiving Party receives the Confidential Information.

5. Compensation

5.1 Fees, Expenses and Taxes:

The fees to be paid for Services are set forth in the applicable SOW or Change Order and will be stated in United States dollars unless otherwise specified therein.  Client shall reimburse Deque for, any pre-approved, documented out-of-pocket expenses, including pre-approved travel and travel-related expenses, incurred by Deque in connection with the performance of the Services.

Applicable U.S. sales and/or use taxes will be separately stated on the applicable invoice and shall be reimbursed to Deque unless Client has provided a tax-exempt certificate to Deque.  With notice to Deque, Client may pay such taxes directly to the taxing authority, where permitted by law.

5.2 Foreign Taxes:

Any transaction taxes payable to a foreign government shall be the responsibility of the Client and Client shall not reduce payments to Deque for such foreign transaction taxes.

5.3 Invoicing and Payment:

Deque shall invoice Client in accordance with the fee schedule contained in the applicable SOW or Change Order.  Client shall submit payment for undisputed invoices within 30 days from invoice receipt unless otherwise specified in the SOW or Change Order.  Payments can be made via ACH or check in accordance with the instructions contained on the invoice.  Payments made via credit card will be assessed a 4% processing fee.  If Client fails to pay any amount when due, Deque shall have the right to invoice Client for late charges of the lesser of 1.5% per month on any undisputed amount past due or the maximum amount allowable under applicable law.  Deque shall not be responsible for any fees related to Client’s use of any third-party portal for the receipt and processing of invoices.

6. Warranty, Remedies and Disclaimers

6.1 Performance Warranty:

Deque will perform all Services and training in a professional workmanlike manner, with skilled resources and in accordance with industry standards and the specifications stated in the SOW or Change Order.

6.2 Remedies:

In the event that the Deliverable fails to conform in all material respects with the requirements of the applicable SOW or Change Order, Deque will, as Deque’s sole obligation and Client’s sole remedy, use commercially reasonable efforts to re-perform the Services and cause the Deliverable to meet the specifications of the SOW or Change Order.

6.3 Disclaimer of Other Warranties.

Except as expressly warranted in Section 6 herein:

  • DEQUE MAKES NO WARRANTY WITH RESPECT TO THE ACCURACY, QUALITY, OR INFRINGEMENT RELATED TO CLIENT DATA OR INFORMATION PROVIDED TO DEQUE AND UTILIZED IN THE CREATION OF THE DELIVERABLES; AND
  • DEQUE MAKES NO WARRANTY WITH RESPECT TO ANY IMPLIED WARRANTIES, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.

7. Indemnification

Deque agrees to defend, or, at its option, settle, any third-party claim, suit, or proceeding against Client to the extent based on a claim that a Deliverable infringes or misappropriates any third-party copyright, patent, trademark, or trade secret that relates to Client’s use thereof as contemplated by this Agreement and shall pay the damages and reasonable and verifiable costs and expenses which are finally awarded against Client by final judgment of a court of competent jurisdiction (or pursuant to settlements agreed to in writing by Deque), directly attributable to such claim, provided that: (a) Client notifies Deque in writing of such claim within 30 days of the claim; (b) Deque retains sole control of the defense and settlement of such claim, and (c) Deque receives reasonable assistance from Client necessary to perform Deque’s obligations hereunder.  Client shall have the right, at its own expense, to participate in such litigation or defense and to retain its own separate counsel and advise Deque on any proposed settlements, but only to the extent that such participation and advice do not unreasonably interfere with Deque’s ability to perform its obligations under this Section.  Deque shall not, without Client’s prior written consent (not to be unreasonably withheld), settle any indemnifiable claim unless such settlement is solely monetary in nature.

If a Deliverable is held by a court of competent jurisdiction to constitute an infringement or if the use of any Deliverable is enjoined (or Deque reasonably believes that any of the foregoing are reasonably likely to occur), Deque shall have the right to, at its option and expense: (i) procure the right to enable Client to continue use of such Deliverable; (ii) modify such Deliverable so that its use becomes non-infringing, which modification Client must immediately implement; (iii) replace such Deliverable with a deliverable that is substantially similar in scope; or (iv) if none of the foregoing alternatives is reasonably available to Deque, terminate the rights granted by Deque in respect to the infringing Deliverable and refund the fees paid by Client for such infringing Deliverable less a deduction equal to the fees for receipt or use of such Deliverable up to and including the date of termination on a pro-rated basis.

Deque shall have no liability under this Section 7 or otherwise for any infringement which arises out of or relates to (a) Client Data or any other information or specifications provided to Deque and utilized in the performance of the Services and/or provision of any Deliverable, (b) any portions of the Deliverable not supplied by or on behalf of Deque, (c) use of any Deliverable (i) other than in accordance with this Agreement or the applicable SOW or (ii) in combination with other products, processes or materials not provided by Deque, (d) modifications not made by Deque, (e) Client continuing the allegedly infringing activity after being notified thereof and provided modifications that would have avoided the alleged infringement or (f) to the extent that the rights of any third party asserted with regard to the Deliverable arise out of, or are connected with, claims (whether based in patent law or otherwise) to inventions, technologies, or methods that were in widespread unlicensed use by third parties as of the time the Deliverable was delivered to, or used by, Client.

THIS SECTION 7 STATES Client’s SOLE AND EXCLUSIVE REMEDY, AND DEQUE’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

8. Limitation of Liability

EXCEPT AS PROVIDED IN SECTION 7 AND IN THE CASE OF BREACHES OF THE CONFIDENTIALITY PROVISIONS:

  • NEITHER PARTY SHALL HAVE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
  • THE LIABILITY OF ONE PARTY TO THE OTHER FOR ANY REASON OR REASONS AND UPON ANY CAUSE OF ACTION OR CAUSES OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE UNDER THE AGREEMENT FOR THE PRIOR 12 MONTHS.

9. Insurance.

Throughout the Term, each Party shall bind and keep in force appropriate insurance coverage in accordance with industry practice applicable to its corporate requirements.  Deque will provide a copy of the Certificate of Insurance upon request.

10. Term.

The term of this Agreement begins on the Effective Date and shall continue until terminated by either Party in accordance with Section 11 below (“Termination”).

11. Termination.

Either Party may terminate this Agreement upon the default by the other Party if such default is not cured in 30 business days.  Upon any termination of this Agreement the Client’s limited license with regards to the Deque Materials and Deque Marks will terminate.

12. General Provisions.

12.1 No Software.

For the avoidance of doubt, this Agreement is restricted to consulting and training services.  Any agreement with respect to the licensing of software products or the use thereof will be under a software license agreement separately negotiated and executed by the Parties or accepted as a condition to the download of such software product.

12.2 Amendments.

No amendment, change, waiver, or discharge of this Agreement shall be valid unless in a record signed by the Party against whom enforcement is sought.

12.3 Force Majeure.

If the performance of any part of this Agreement (other than payment of amounts due from Client) by either Party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, unusually severe weather, riot, fire, judicial or governmental action, labor dispute, act of God, act of terrorism, or any other cause beyond the control of either Party, that Party shall be excused from performance to the extent that it is prevented, hindered or delayed by such causes.

12.4 No Other Terms.

By entering into this Agreement, Client acknowledges this agreement constitutes the entire agreement between the Parties. Client agrees that all terms and conditions contained in its purchase order, vendor portal, or other documents that are different from or additional to the terms and conditions set forth in this Agreement, shall be null and void.

12.5 Governing Law.

This Agreement shall be governed in all respects by the laws of the Commonwealth of Virginia (excluding the Uniform Computer Information Transactions Act) without regard to its conflict of law provisions.

12.6 Assignment.

Neither Party shall assign any right or obligation under this Agreement without the prior written consent of the other Party, except that either Party may, without such consent, assign all, but not less than all, of its rights and obligations under this Agreement and all SOWs and Change Orders, as a whole, pursuant to a corporate reorganization or to a purchaser or other successor to all or substantially all of the Party’s business associated with this Agreement, provided only that (a) the assignee possesses financial and technical wherewithal necessary to fully perform under this Agreement, (b) the assignor gives to the other Party written notice of the assignment on or before the time at which the assignment is effective, (c) the assignment does not, by its nature, materially increase the other Party’s obligations or reduce the other Party’s rights, and (d) the assignee assumes in writing all of the assignor’s rights, obligations and liabilities under this Agreement (including the SOWs and Change Orders) as if it had been an original Party to this Agreement.  Upon any permitted assignment by a Party of its rights and obligations under this Agreement (including the SOWs and Changes Orders), the assigning Party will have no liability for acts or omissions of the assignee after the effective time of the assignment.  Subject to the foregoing, this Agreement (including the SOWs, and Change Orders) shall be binding upon and inure to the benefit of the Parties and their successors and assigns.

12.7 Notice.

Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective (a) if given by fax or e-mail, immediately upon delivery (b) if given by a nationally-recognized courier or mail service (in either case that has real-time or near-real-time tracking), at the time that the notice is delivered (or an attempt is made to deliver the notice, regardless of whether refused) to the receiver’s premises according to the tracking records of the courier or mail service. The mailing addresses for notice for each Party are set forth in the Preamble or if delivered by fax or e-mail as designated below.  Either Party may change its address for notice by notice to the other Party.

Deque e-mail:  general.counsel@deque.com

12.8 Severability.

If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of this Agreement shall remain enforceable.

12.9 Survival.

The terms and conditions that by their sense and context are intended to survive termination or expiration hereof shall so survive.

12.10 Order of Precedence.

If there is a conflict between the provisions of any of the terms of this Agreement and an SOW or Change Order hereto, the applicable SOW or Change Order shall control with respect to the specific item in conflict.

12.11 Publicity.

Neither Party shall, except as otherwise required by applicable law or stock exchange requirements, issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that Deque may include Client’s name and logo in its lists of Deque customers, its public website, RFP responses and other promotional material, subject to Client’s trademark and logo usage guidelines provided by Client to Deque at marketing@deque.com.  Deque agrees to promptly cease such uses of Client’s name and logo following Client’s request sent to marketing@deque.com. Client may use Deque’s name and logo as explicitly provided on any SOW or Change Order.

12.12 Compliance with Applicable Law.

Deque shall comply with and cause each of its employees, agents, and subcontractors to comply with, Applicable Law that applies to Deque under this Agreement, and shall obtain all licenses, permits, permissions and consents which may be required of it by any governmental authority. Customer shall comply with and cause each of its employees, agents, and subcontractors to comply with Applicable Law that applies to Customer under this Agreement, and shall obtain all licenses, permits, permissions and consents which may be required of it by any governmental authority. “Applicable Laws” means all laws, regulations, and other official releases of any governmental authority, in each case as amended, consolidated, supplemented, or replaced from time to time.