Service Terms

1.1 Providing Services.

Customer or its Affiliates may engage Equalize Digital to perform the Services under this Agreement. Equalize Digital will perform the Services as detailed in an applicable SOW. Each SOW forms part of this Agreement. An SOW may be supplemented by supporting documentation or reference materials that further clarify the specifics of the Services. An SOW may also supplement or replace a previously accepted SOW, in which case it will function as a Change Order under Section 1.3 (Change Orders). To avoid confusion, informal interactions such as email exchanges, phone conversations, or virtual meeting notes or transcripts are not sufficient on their own to constitute an SOW unless expressly incorporated into a formal SOW issued through Equalize Digital’s official systems and accepted by Customer in the manner described in the definition of SOW Date.

Equalize Digital’s Services may include digital accessibility consulting, manual accessibility audits, user testing with assistive technology, accessibility remediation for WordPress websites and applications, ongoing accessibility conformance monitoring, team accessibility training, and the preparation of Accessibility Conformance Reports, including VPATs.

Equalize Digital will comply with Customer Policies, if any, that are expressly identified in the applicable SOW.

If a Customer Affiliate enters an SOW with Equalize Digital, references to Customer in the SOW or this Agreement will mean that Affiliate for that engagement.

1.2 Cooperation.

Customer will reasonably cooperate with Equalize Digital to allow the performance of Services. Equalize Digital is not responsible for an inability to perform the Services caused by Customer’s failure to cooperate as reasonably requested. Equalize Digital will provide its own equipment and tools to perform the Services.

Customer acknowledges and agrees that Equalize Digital’s preferred method of communication will be through a private project management dashboard established for Customer, except that consultations, training, and orientation are generally held via Zoom or similar online teleconferencing software. Customer acknowledges that portions of the Services may require Customer approval and that failure to provide timely approval or response may result in project delay.

1.3 Change Orders.

Equalize Digital or Customer may amend any SOW by entering a Change Order. If a party requests a Change Order, the other party will review and consider the proposed changes in good faith and respond to the Change Order request within a reasonable timeframe. However, a Change Order will not be binding until Equalize Digital and Customer agree in writing on the Change Order.

1.4 Acceptance.

If according to the SOW Deliverables are subject to this section, Customer will be deemed to have approved a Deliverable if Customer does not reject the Deliverable within the Rejection Period. If Customer rejects a Deliverable, Customer must notify Equalize Digital in writing with reasonable detail about why the Deliverable did not meet the requirements in the SOW. Equalize Digital will correct the issue and resubmit the Deliverable within the Resubmission Period.

The Rejection Period is 10 days from Deliverable submission. The Resubmission Period is 30 days from notice of rejection.

1.5 Subcontractors.

Equalize Digital may use its Affiliates and other qualified personnel, contractors, consultants, vendors, and subcontractors as commercially necessary or appropriate to perform the Services and satisfy the requirements of an SOW. Equalize Digital remains responsible for the Services and meeting its obligations as a Recipient of Customer Confidential Information under this Agreement.

1.6 Customer Obligations.

Customer will comply with Customer Obligations, if any.

To facilitate the performance of Services, Customer will provide Equalize Digital with reasonable access to information and related systems, attend scheduled meetings, provide necessary materials, review Deliverables in a timely manner, pay invoices promptly, and provide prompt and detailed feedback. Customer will designate a primary contact to manage these obligations, and Customer should expect that individual to dedicate time each week to facilitating them. Unless otherwise specified in an SOW, Customer will provide feedback and respond to Equalize Digital’s reasonable requests within 3 business days. Equalize Digital’s delivery timelines are based on that average response time.

1.7 Accessibility Standards and Legal Guidance.

The parties acknowledge that Accessibility Laws are numerous and the regulatory environment is changing rapidly. The parties further agree that, unless otherwise specified in an SOW, the accessibility of a site, Service, or Deliverable will be measured against Web Content Accessibility Guidelines (“WCAG”).

For clarity, Accessibility Laws may include but are not limited to the Americans with Disabilities Act, Section 508 of the Rehabilitation Act, and Directive (EU) 2019/882 on the accessibility requirements for products and services, commonly known as the European Accessibility Act, to the extent applicable to Customer or the Services.

Customer understands that Equalize Digital is not a law office, Equalize Digital’s employees are not attorneys, and Equalize Digital does not practice law. Customer should not use Equalize Digital as its sole source of information related to compliance with Accessibility Laws and should retain its own legal counsel regarding legal compliance obligations.

Equalize Digital does not guarantee that conformance with WCAG equates to compliance with the Americans with Disabilities Act, Section 508, or any other applicable Accessibility Laws. However, absent more concrete regulatory guidance, the parties acknowledge that WCAG is an appropriate accessibility standard for most organizations to use as a technical benchmark.

1.8 Service Exceptions.

If the Services include remediation, or formal certification of accessibility through a letter of conformance or an Accessibility Conformance Report (“ACR”) derived from a Voluntary Product Accessibility Template (“VPAT”), the Services, Warranty, and Deliverables will not include or apply to:

• any individual post or page that is not analyzed and remediated, or certified as meeting WCAG standards, by Equalize Digital;
• any linked document, including PDF, DOCX, XLS, PPT, or Google Doc files;
• any page, post, content, or other Deliverable modified by Customer after remediation or certification is complete;
• any plugins, extensions, or other website software added by Customer after remediation or certification is complete; or
• any third-party system, plugin, or element that is updated or modified after remediation or certification is complete.

Equalize Digital will promptly inform Customer if it identifies any areas where an exception might apply so Customer may plan accordingly.

2.1 Deliverables.

Except for Pre-Existing Materials and Third-Party Materials, Equalize Digital assigns all right, title, and interest in the Deliverables, if any, to Customer at the Time of Assignment. Upon the Time of Assignment, Equalize Digital will assert no rights over such Deliverables.

2.2 Customer Materials.

Equalize Digital may copy, display, modify, and use Customer Materials only as needed to provide the Services. Customer is responsible for the accuracy and content of Customer Materials.

2.3 Pre-Existing Materials.

To the extent Equalize Digital incorporates Pre-Existing Materials into Deliverables, Equalize Digital grants Customer a non-exclusive, non-transferable, perpetual, irrevocable, worldwide license to use Pre-Existing Materials only as necessary to use the Deliverables according to this Agreement.

2.4 Third-Party Materials.

(a) Equalize Digital may incorporate Third-Party Materials into Deliverables only if allowed in the SOW and as authorized by Customer in writing, including by email or within Basecamp project management software. 

(b) Equalize Digital is responsible for obtaining all rights, licenses, consents, approvals, and authorizations necessary to use and incorporate the Third-Party Materials procured by Equalize Digital and incorporated into the Deliverables. This includes securing the ability to grant Customer rights in the Deliverables under this Agreement and ensuring that Customer has all rights necessary in these Equalize Digital-procured Third-Party Materials so that Customer may use Deliverables according to this Agreement. 

(c) Customer is responsible for procuring, and for all associated costs of, Third-Party Materials procured by Customer that are required for the performance of Services or incorporated into the Deliverables. Customer is also responsible for obtaining all rights, licenses, consents, approvals, and authorizations necessary to use and incorporate Customer-procured Third-Party Materials into the Deliverables. This includes securing the ability to grant Equalize Digital rights in the Customer-procured Third-Party Materials so Equalize Digital can incorporate those Third-Party Materials into Deliverables. Equalize Digital will reasonably assist Customer in obtaining the necessary rights, licenses, consents, approvals, and authorizations for Third-Party Materials that Equalize Digital recommends but that Customer procures.

2.5 Feedback and Usage Data.

Customer may, but is not required to, give Equalize Digital Feedback, in which case Customer gives Feedback “AS IS”. Equalize Digital may use all Feedback freely without any restriction or obligation. In addition, Equalize Digital may collect and analyze Usage Data, and Equalize Digital may freely use Usage Data to maintain, improve, and enhance Equalize Digital’s products and services without restriction or obligation. However, Equalize Digital may only share Usage Data with others if the Usage Data is aggregated and does not identify Customer.

2.6 Reservation of Rights.

Except for (a) Customer’s ownership of Deliverables, if any, under Section 2.1 (Deliverables); (b) Equalize Digital’s rights to use Customer Materials in Section 2.2 (Customer Materials); and (c) Customer’s rights to Pre-Existing Materials in Section 2.3 (Pre-Existing Materials), neither party transfers any rights in any of their products, data, or any other intellectual property.

3.1 Personal Data.

If the parties have a DPA, each party will comply with its obligations in the DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement.

4.1 Fees and Invoices.

Unless the currency is specified in the SOW, all Fees are in U.S. Dollars and are exclusive of taxes. Except for the prorated refund of prepaid Fees allowed with specific termination rights, Fees are non-refundable. Fees will be established and agreed upon in advance in an SOW. Depending on the nature of the Services, Fees may be milestone-based, retainer-based, or hourly. 

Hourly Fees are billed at $175 per hour unless an SOW specifies a different rate.

Unless otherwise specified, Fees exclude travel expenses. While the nature of the Services typically requires no travel, if travel expenses become necessary, Equalize Digital will seek Customer’s prior written approval for reimbursement and is under no obligation to travel without that approval.

Equalize Digital will send invoices for Fees as described in the SOW. Unless an SOW states otherwise:

• Milestone-based fees are invoiced upon initiation of each major project phase.
• Retainer-based Fees are invoiced in advance of each predefined service period.
• Hourly Fees are invoiced monthly in arrears.

4.2 Payment.

Customer will pay Equalize Digital the Fees and taxes in each invoice in U.S. Dollars, unless the SOW specifies a different currency, within the Payment Period. The default Payment Period is NET21 unless a specific invoice states a different due date, in which case the invoice controls.

Payments may be made by credit card, ACH, direct debit, check, or another payment method mutually agreed upon by the parties.

Past due amounts may be subject to a $35 late fee and a monthly finance charge of 1% of the outstanding balance.

4.3 Taxes.

Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding, that Equalize Digital itemizes and includes in an invoice. However, Customer is not responsible for Equalize Digital’s income taxes.

4.4 Payment Dispute.

If Customer has a good-faith disagreement about the amounts charged on an invoice, Customer must notify Equalize Digital about the dispute during the Payment Period for the invoice and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days after the end of the Payment Period. If no resolution is agreed, each party may pursue any remedies available under the Agreement, the applicable SOW, or Applicable Laws.

5.1 Term.

This Agreement will start on the Effective Date and continue until 12 months have elapsed since the end of the latest SOW Term end date. An SOW begins on the SOW Date and continues through the SOW Term.

5.2 Termination.

(a) Either party may terminate this Agreement or an SOW immediately if the other party (i) fails to cure a material breach of the Agreement or SOW within 30 days after receiving notice of the breach; (ii) materially breaches the Agreement or SOW in a manner that cannot be cured; (iii) dissolves or stops conducting business without a successor; (iv) makes an assignment for the benefit of creditors; or (v) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.

(b) Either party may terminate an affected SOW immediately if a Force Majeure Event prevents Equalize Digital from providing the Services for 30 or more consecutive days.

(c) Either party may terminate this Agreement for any or no reason if there are no active SOWs.

(d) A party must notify the other of its reason for termination.

5.3 Effect of Termination.

Upon any expiration or termination:

(a) termination of the Agreement pursuant to Section 5.2(a) will automatically terminate all active SOWs;

(b) Equalize Digital will no longer have to provide the Services;

(c) each Recipient will return or destroy Discloser’s Confidential Information in its possession or control;

(d) except where Customer terminates pursuant to Section 5.2(a), Equalize Digital will submit a final invoice for all outstanding Fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment & Taxes);

and (e) except where Equalize Digital terminates pursuant to Section 5.2(a), Equalize Digital will issue a refund for any unearned, prepaid Fees.

5.4 Survival.

(a) The following sections will survive expiration or termination of the Agreement: Section 2.1 (Deliverables), Section 2.3 (Pre-Existing Materials), Section 2.5 (Feedback and Usage Data), Section 2.6 (Reservation of Rights), Section 4 (Payment & Taxes) for Fees accrued or payable before expiration or termination, Section 5.3 (Effect of Termination), Section 5.4 (Survival), Section 6 (Representations & Warranties), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Insurance) for the time period specified, Section 11 (Confidentiality), Section 12 (General Terms), Section 13 (Definitions), and the portions of this Agreement or an SOW referenced by these sections.

(b) Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 3 (Privacy & Security) and Section 11 (Confidentiality) will continue to apply to retained Confidential Information.

6.1 Mutual.

Each party represents and warrants to the other that:

(a) it has the legal power and authority to enter into this Agreement;

(b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin;

(c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement;

and (d) it will comply with the Additional Warranties.

6.2 From Customer.

Customer represents and warrants to Equalize Digital that (a) Equalize Digital’s use of Customer Materials and Customer-procured Third-Party Materials under this Agreement does not and will not infringe or misappropriate anyone else’s copyright, trademark, trade secret, or right of publicity; and (b) it has all rights necessary to provide Customer Materials and Customer-procured Third-Party Materials under Section 2.

6.3 From Equalize Digital.

Equalize Digital represents and warrants to Customer that:

(a) it will perform the Services in a timely, competent, and professional manner;

(b) the Deliverables, if any, excluding Customer Materials and Customer-procured Third-Party Materials, do not and will not infringe or misappropriate anyone else’s copyright, trademark, trade secret, or right of publicity;

(c) the Deliverables, if any, will conform to the requirements in the SOW;

and (d) it has all rights necessary to perform the Services and convey the Deliverables, if any, excluding Customer Materials and Customer-procured Third-Party Materials, under Section 2 (Intellectual Property).

6.4 Warranty Remedy.

If Equalize Digital breaches the warranty in Section 6.3(c), Customer must give Equalize Digital notice, with enough detail for Equalize Digital to understand or replicate the issue, no later than 15 days after the SOW Term for the affected SOW ends. Equalize Digital has no obligation to provide a warranty remedy for any claim submitted after that period. Within 45 days of receiving sufficient details of the warranty issue, Equalize Digital will reperform the Services. If Equalize Digital cannot resolve the issue, Customer may terminate the affected SOW and Equalize Digital will pay to Customer a prorated refund of prepaid Fees for the remainder of the SOW Term. Equalize Digital’s reperformance obligations and Customer’s termination right are Customer’s only remedies if Equalize Digital does not meet the warranty in Section 6.3(c).

7.1 Disclaimer.

Except for the warranties in Section 6 (Representations & Warranties), Equalize Digital and Customer each disclaim all other warranties, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.

8.1 Liability Caps.

If there are Increased Claims, each party’s total cumulative liability for the Increased Claims arising out of or relating to this Agreement will not be more than the Increased Cap Amount. Each party’s total cumulative liability for all other claims arising out of or relating to this Agreement will not be more than the General Cap Amount.

8.2 Damages Waiver.

Each party’s liability for any claim or liability arising out of or relating to this Agreement will be limited to the fullest extent permitted by Applicable Laws. Under no circumstances will either party be liable to the other for lost profits or revenues, or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.

8.3 Exceptions.

The liability caps in Section 8.1 do not apply to any Unlimited Claims. The damages waiver in Section 8.2 does not apply to any Increased Claims or a breach of Section 11 (Confidentiality).

9.1 Protection by Equalize Digital.

Equalize Digital will indemnify, defend, and hold harmless Customer from and against all Equalize Digital Covered Claims made by someone other than Customer or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Equalize Digital Covered Claim.

9.2 Protection by Customer.

Customer will indemnify, defend, and hold harmless Equalize Digital from and against all Customer Covered Claims made by someone other than Equalize Digital or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer Covered Claim.

8.3 Procedure.

The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: 

(a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; 

(b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and 

(c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. 

A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.

9.4 Exclusive Remedy.

This Section 9 (Indemnification) describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.

10.1 Insurance.

During the term of the Agreement and for six months after, each party will carry commercial insurance policies that meet the relevant Insurance Minimums required, if any. Upon request, each party will give the other a certificate of insurance evidencing its insurance policies that meet the required Insurance Minimums. A party’s insurance policies will not be considered as evidence of its liability. Insurance coverage will be on a date of occurrence form and waive rights of subrogation or crossclaim.

11.1 Non-Use and Non-Disclosure.

Except as otherwise authorized in the Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not, (a) use Discloser’s Confidential Information, nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.

11.2 Exclusions.

Confidential Information does not include information that:

(a) Recipient knew without any obligation of confidentiality before disclosure by Discloser;

(b) is or becomes publicly known and generally available through no fault of Recipient;

(c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure;

or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.

11.3 Required Disclosures.

Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.

11.4 Permitted Disclosures.

Recipient may disclose Discloser’s Confidential Information to employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 11 and Recipient remains responsible for everyone’s compliance with the terms of this Section 11.

12.1 Entire Agreement.

This Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements, whether in writing or not, about its subject. Equalize Digital expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes.

12.2 Modifications, Severability, and Waiver.

Any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each party. However, this does not limit Equalize Digital’s or Customer’s ability to update an SOW by following the Change Order procedures. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.

12.3 Governing Law and Chosen Courts.

The Governing Law will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The parties will arbitrate any dispute about this Agreement in the state or county that encompasses the Chosen Courts, in English, and agree to finally settle all such disputes according to the rules of Judicial Arbitration and Mediation Services, Inc. (“JAMS”). To the extent the JAMS streamlined rules are available, they will apply. The arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated, as determined by an arbitrator, the parties will bring the suit, action, or proceeding that cannot be arbitrated in the Chosen Courts and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.

12.4 Injunctive Relief.

Despite Section 12.3 (Governing Law and Chosen Courts), a breach of Section 11 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 11 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.

12.5 Non-Exhaustive Remedies.

Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.

12.6 Assignment.

Neither party may assign any rights or obligations under this Agreement or any SOW without the prior written consent of the other party. However, Customer may assign this Agreement upon notice if Customer undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

12.7 Publicity.

Equalize Digital may identify Customer and use Customer’s name, logo, and trademarks on Equalize Digital’s website and in marketing materials to identify Customer as a customer. Customer grants Equalize Digital a non-exclusive, royalty-free license to do so in connection with Equalize Digital’s marketing, promotion, or advertising during the term of this Agreement. Equalize Digital may not otherwise publicly announce the existence of this Agreement or any SOW without Customer’s prior written approval.

12.8 Notices.

Any notice, request, or approval about the Agreement must be in writing and sent to the Notice Address. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.

12.9 Independent Contractors.

The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.

12.10 No Third-Party Beneficiary.

There are no third-party beneficiaries of this Agreement.

12.11 Force Majeure.

Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees.

12.12 Export Controls.

Customer may not remove or export from the United States or allow the export or re-export of the Services, Deliverables, or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

12.13 Anti-Bribery.

Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Equalize Digital or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.

12.14 Titles and Interpretation.

Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation.

12.15 Signature.

This Agreement may be signed in counterparts, including by electronic copies or electronic acceptance mechanism. By clicking a button, checking a box, completing checkout, creating an account, renewing a subscription, or otherwise indicating acceptance through an electronic process that references this Agreement, Customer agrees to be bound by this Agreement. Each copy or accepted version will be deemed an original and all copies, when taken together, will be the same agreement.