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HomeMy WebLinkAboutC23-189 Online ADA dba AbilityAGREEMENT FOR SERVICES
BETWEEN EAGLE COUNTY, COLORADO
AND
Online ADA, Inc. DBA “ABILITY”
THIS AGREEMENT (“Agreement”) is effective as of _________________ by and between Online ADA, Inc. DBA
“ABILITY” an Oregon Corporation (hereinafter “Contractor” or “Consultant”) and Eagle County, Colorado, a body
corporate and politic (hereinafter “County”).
RECITALS
WHEREAS, Online ADA, Inc, DBA “ABILITY” will provide a variety of digital accessibility auditing, testing, training,
and consulting services (the “Project”) and the services will take place at a combination of webinar/seminar training, and
by ABILITY’s staff at its Eugene, Oregon offices (the “Property”); and
WHEREAS, Contractor is authorized to do business in the State of Colorado and has the time, skill, expertise, and
experience necessary to provide the Services as defined below in paragraph 1 hereof; and
WHEREAS, this Agreement shall govern the relationship between Contractor and County in connection with the
Services.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and County agree as
follows:
1.Services or Work. Contractor agrees to diligently provide all services, labor, personnel and materials necessary
to perform and complete the services or work described in Exhibit A (“Services” or “Work”) which is attached hereto and
incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this
Agreement.
a.Contractor agrees to furnish the Services no later than September 30, 2023 and in accordance with the
schedule established in Exhibit A. If no completion date is specified in Exhibit A, then Contractor agrees to furnish the
Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Contractor
represents that it has the expertise and personnel necessary to properly and timely perform the Services.
b.In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and
the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail.
2.County’s Representative. The IT Department’s designee shall be Contractor’s contact with respect to this
Agreement and performance of the Services.
3.Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the
provisions of paragraph 11 hereof, shall continue in full force and effect through the 31 day of December, 2023.
4.Extension or Modification. This Agreement may be extended for up to three additional one year terms upon
written agreement of the parties. Any amendments or modifications shall be in writing signed by both parties. No
additional services or work performed by Contractor shall be the basis for additional compensation unless and until
Contractor has obtained written authorization and acknowledgement by County for such additional services in accordance
with County’s internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change
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orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been
unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis
of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by
County for such additional services is not timely executed and issued in strict accordance with this Agreement,
Contractor’s rights with respect to such additional services shall be deemed waived and such failure shall result in non-
payment for such additional services or work performed.
5. Compensation. County shall compensate Contractor for the performance of the Services in a sum computed and
payable as set forth in Exhibit A. The performance of the Services under this Agreement shall not exceed $20,000.
Contractor shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours
unless specifically authorized in writing by County.
a. Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper
and accurate invoice from Contractor. Contractor will invoice County for the auditing and certification service described
in this agreement ($12,450) upon Contractor’s delivery of the first audit results report to County. All invoices shall
include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may
request.
b. If, at any time during the term or after termination or expiration of this Agreement, County reasonably
determines that any payment made by County to Contractor was improper because the Services for which payment was
made were not performed as set forth in this Agreement, then upon written notice of such determination and request for
reimbursement from County, Contractor shall forthwith return such payment(s) to County. Upon termination or
expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County.
c. County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor agrees
to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the
terms of this Agreement.
d. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations
under this Agreement after, nor shall any payments be made to Contractor in respect of any period after December 31 of
any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County
Commissioners in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget
Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20).
6. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the
particular reputation and expertise of Contractor. Contractor shall not enter into any subcontractor agreements for the
performance of any of the Services or additional services without County’s prior written consent, which may be withheld
in County’s sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to
the subject Project during the performance of this Agreement and no personnel to whom County has an objection, in its
reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor, as approved by
County and to the extent of the Services to be performed by the subcontractor, to be bound to Contractor by the terms of
this Agreement, and to assume toward Contractor all the obligations and responsibilities which Contract or, by this
Agreement, assumes toward County. County shall have the right (but not the obligation) to enforce the provisions of this
Agreement against any subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor
shall be responsible for the acts and omissions of its agents, employees and subcontractors.
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7. Insurance. Contractor agrees to provide and maintain at Contractor’s sole cost and expense, the following
insurance coverage with limits of liability not less than those stated below:
a. Types of Insurance.
i. Workers’ Compensation insurance as required by law.
iii. Commercial General Liability coverage to include premises and operations, personal/advertising
injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per
occurrence and $1,000,000 aggregate limits.
iv. Professional Liability (Errors and Omissions) including Cyber Liability with prior acts coverage
for all deliverables, Services and additional services required hereunder, in a form and with insurer or insurers satisfactory
to County, with limits of liability of not less than $1,000,000 per claim and $1,000,000 in the aggregate. The insurance
shall provide coverage for (i) liability arising from theft, dissemination and/or use of confidential information stored or
transmitted in electronic form; (ii) Network Security Liability arising from unauthorized access to, use of or tampering with
computer systems including hacker attacks, inability of an authorized third party to gain access to your Software or Services
including denial of access or Services unless caused by a mechanical or electrical failure; (iii) liability arising from the
introduction of a computer virus into, or otherwise causing damage to, County or a third person’s computer, computer
system, network or similar computer related property and the data, software and programs thereon.
b. Other Requirements.
ii. Contractor’s certificates of insurance shall include subcontractors, if any as additional insureds
under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor.
iii. The insurance provisions of this Agreement shall survive expiration or
termination hereof.
iv. The parties hereto understand and agree that the County is relying on, and does
not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and
protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available
to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers.
v. Contractor is not entitled to workers’ compensation benefits except as
provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is
provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any
moneys paid pursuant to this Agreement.
8. Indemnification. The Contractor shall indemnify and hold harmless County, and any of its officers, agents and
employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such
losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any
performance or nonperformance by Contractor or any of its subcontractors hereunder; and Contractor shall reimburse
County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with
investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims
by third parties against the County to the extent that County is liable to such third party for such claims without regard to
the involvement of the Contractor. This paragraph shall survive expiration or termination hereof.
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9. Ownership of Documents. All documents (including electronic files) and materials obtained during, purchased or
prepared in the performance of the Services shall remain the property of the County and are to be delivered to County
before final payment is made to Contractor or upon earlier termination of this Agreement.
10. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered,
or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other
comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when
transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by
giving five (5) days prior written notice of such change to the other party.
COUNTY:
Eagle County, Colorado
Attention: Scott Lingle
500 Broadway
Post Office Box 850
Eagle, CO 81631
Telephone: 970-328-3581___
E-Mail: Scott.Lingle@eagecounty.us
With a copy to:
Eagle County Attorney
500 Broadway
Post Office Box 850
Eagle, Co 81631
Telephone: 970-328-8685
E-Mail: atty@eaglecounty.us
CONTRACTOR:
Online ADA, Inc. DBA “ABILITY Digital Accessibility Co.” (ABILITY)
40 E Broadway, Suite 210
Eugene, OR 97401
Primary Contacts:
Zack Poelwijk | Director, Client Success | zack@onlineada.com | 503-997-8635 (call/text)
Abbi Pearson | Project Manager | abbip@onlineada.com
11. Termination. County may terminate this Agreement, in whole or in part, at any time and for any reason, with or
without cause, and without penalty therefor with seven (7) calendar days’ prior written notice to the Contractor. Upon
termination of this Agreement, Contractor shall immediately provide County with all documents as defined in paragraph 9
hereof, in such format as County shall direct and shall return all County owned materials and documents. County shall pay
Contractor for Services satisfactorily performed to the date of termination.
12. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement,
or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive
forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of
the State of Colorado.
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13. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties
approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic
signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed
copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents.
All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the
Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121.
14. Other Contract Requirements and Contractor Representations.
a. Contractor has familiarized itself with the nature and extent of the Services to be provided hereunder and
the Property, and with all local conditions, federal, state and local laws, ordinances, rules and regulations that in any
manner affect cost, progress, or performance of the Services.
b. Contractor will make, or cause to be made, examinations, investigations, and tests as he deems necessary
for the performance of the Services.
c. To the extent possible, Contractor has correlated the results of such observations, examinations,
investigations, tests, reports, and data with the terms and conditions of this Agreement.
d. To the extent possible, Contractor has given County written notice of all conflicts, errors, or
discrepancies.
e. Contractor shall be responsible for the completeness and accuracy of the Services and shall correct, at its
sole expense, all significant errors and omissions in performance of the Services. The fact that the County has accepted or
approved the Services shall not relieve Contractor of any of its responsibilities. Contractor shall perform the Services in a
skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to
contractors performing similar services. Contractor represents and warrants that it has the expertise and personnel
necessary to properly perform the Services and shall comply with the highest standards of customer service to the public.
Contractor shall provide appropriate supervision to its employees to ensure the Services are performed in accordance with
this Agreement. This paragraph shall survive termination of this Agreement.
f. Contractor agrees to work in an expeditious manner, within the sound exercise of its judgment and
professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement.
g. This Agreement constitutes an agreement for performance of the Services by Contractor as an
independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create
a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between County
and Contractor except that of independent contractor. Contractor shall have no authority to bind County.
h. Contractor represents and warrants that at all times in the performance of the Services, Contractor shall
comply with any and all applicable laws, codes, rules and regulations.
i. This Agreement contains the entire agreement between the parties with respect to the subject matter
hereof and supersedes all other agreements or understanding between the parties with respect thereto.
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j. Contractor shall not assign any portion of this Agreement without the prior written consent of the County.
Any attempt to assign this Agreement without such consent shall be void.
k. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their
respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations
hereunder are reserved solely for the parties, and not to any third party.
l. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof.
No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach.
m. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision hereof.
n. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or
beneficial interest whatsoever in the Services or Property described in this Agreement. The Contractor has no beneficial
interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and
Contractor shall not employ any person having such known interests.
15. Data Security.
a. Definitions:
i. “County Data” means all data created by or in any way originating with County and End Users,
and all information that is the output of any computer processing, or other electronic manipulation, of any information that
was created by or in any way originating with County and End Users, in the course of using and configuring the Services
provided under this Agreement, and includes all records relating to County’s use of Contractor Services and Protected
Information.
ii. “End User” means the individuals (including, but not limited to employees, authorized agents,
students and volunteers of County; Third Party consultants, auditors and other independent contractors performing
services for County; any governmental, accrediting or regulatory bodies lawfully requesting or requiring access to any
Services; customers of County provided services; and any external users collaborating with County) authorized by County
to access and use the Services provided by Contractor under this Agreement.
iii. “Protected Information” includes, but is not limited to, personally-identifiable information,
student records, protected health information, criminal justice information or individual fi nancial information and other
data defined under C.R.S. §§ 24-72-101 et seq., and personal information that is subject to local, state or federal statute,
regulatory oversight or industry standard restricting the use and disclosure of such information. The loss of such Protected
Information would constitute a direct damage to the County.
iv. “Security Incident” means the potentially unauthorized access by non-authorized persons to
personal data or non-public data the Contractor believes could reasonably result in the use, disclosure or theft of County
Data within the possession or control of the vendor. A Security Incident may or may not turn into a data breach.
b. During the course of Contractor's performance of the Work, the Contractor may be required to maintain,
store, process or control County Data. The Contractor represents and warrants that:
i. Contractor will take all reasonable precautions to maintain all County Data in a secure
environment to prevent unauthorized access, use, or disclosure, including industry-accepted firewalls, up-to-date anti-
virus software, and controlled access to the physical location of the hardware containing County Data;
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ii. Contractor’s collection, access, use, storage, disposal and disclosure of County Data shall comply
with all applicable data protection laws, as well as all other applicable regulations and directives;
iii. Contractor will notify County of any Security Incident as soon as practicable, but no later than 24
hours after Contractor becomes aware of it;
iv. Contractor will provide information sufficient to satisfy County’s legal and regulatory notice
obligations. Upon notice of a Security Incident, County shall have the authority to direct Contractor to provide notice to
any potentially impacted individual or entity, at Contractor’s expense, and Contractor shall be liable for any resulting
damages to County.
v. Where Contractor has been contracted to maintain, store or process personal information on
behalf of the County, it shall be deemed a “Third-Party Service Provider as defined in C.R.S. § 24-73-103(1)(i), and
Contractor shall maintain security procedures and practices consistent with C.R.S §§ 24-73-101 et seq.; and
vi. Contractor will promptly return or destroy any County Data upon request from the County
Representative.
c. Contractor’s indemnification obligations identified elsewhere in this Contract shall apply to any breach of
the provisions of this Paragraph.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above.
COUNTY OF EAGLE, STATE OF COLORADO, By and
Through Its COUNTY MANAGER
By: ______________________________
Jeff Shroll, County Manager
CONSULTANT
Online Ada, Inc.
By: _____________________________________
Print Name: Zack Poelwijk
Title: Director Client Services
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EXHIBIT A
DESCRIPTION OF SERVICES
PROPOSAL EXECUTIVE SUMMARY
ABILITY will provide Eagle County, CO its flagship service, One-Time Auditing and Certification, on the county’s
primary website, https://EagleCounty.us.
DEFINING IMPORTANT TERMS/SERVICES
Website Audit
The auditing process has six core practices/methodologies. We believe ABILITY’s website auditing protocol is the most-thorough in
the industry.
• Screen-reader testing is conducted on all unique page templates and user journeys. We use NVDA and /or JAWS primarily,
and additional testing methods may be available upon request for an additional fee.
• We scan the website with our A11y Toolbox, which is a powerful scanning tool we've authored and built in -house over the
past 7 years. It helps us find linear violations at scale, which keeps us efficient. It finds violation s that are able to be
determined by an algorithm. Of course, scanning alone cannot determine all WCAG violations... scanning is just a part of
our approach.
• Keyboard navigation testing is performed to ensure that the website is consumable, operable, and a ctionable without the
use of a mouse, and only via keystroke on a keyboard.
• Technical auditing is the most thorough methodology we employ. For each unique template and user journey, we conduct a
multi-dozen point inspection, with each of the WCAG guidelines acting as an item in the checklist. The technical testing
allows us to identify granular WCAG violations.
• Mobile-reflow (responsive) testing is done to ensure screen scaling.
• Per the official WCAG evaluation methodology, an additional technical audit of a random sampling of pages if relevant
(for example, a corporate blog).
Audit Reports
When we conduct an audit, we generate two reports:
1) A PDF summary: A high-level overview that summarizes the compliance health of your website from a “30,000 -foot view”.
This document groups violations together by category (for example, color contrast violations or keyboard navigability) and
provides links to resources, guides, and tutorials. This document is written in lay -person language and is meant to be
reviewed by everyone from non-technically-inclined executives to developers.
2) A spreadsheet with the following columns:
● A unique issue number for easy tracking.
● The page(s) in question.
● A description of what the violation is, and where it exists on the web page.
● The specific WCAG guideline(s) in question, including its level (A, AA) and the specific text of the guideline.
● An official WCAG technique if relevant (success technique or failure technique).
● State (desktop, mobile, logged in, etc…).
● A recommended solution to the problem.
● Screenshot (a visual that points to the violation, typically annotated or marked up).
● Resources (guides, code patterns).
● Browser and screen-reader combination.
● Priority/Severity.
DETAILED DESCRIPTION OF SERVICES
1) One-Time Auditing and Certification of a website:
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Certification is a very specific type of award that you earn. We’re recommending a one -time certification service for your county’s
primary website.
Certification comes in two forms:
• Full conformance: We certify that on the day of final review, the website meets or exceeds accessibility standards as defined
by WCAG within a reasonable and best-faith interpretation of the guidelines.
• Partial conformance: Everything about this website meets or exceeds WCAG standards with the exception of X, Y, or Z
(with reasons why).
One-time certification is described as follows:
• A minimum three-audit cycle (with as many additional audits as is necessary to verify at no additional cost).
• Unlimited technical support to your developers as they work through remediation.
• Certification credentials, badge, and documentation to verify the exercise.
Recommendation: We recommend one-time website certification for the county’s primary website, https://www.eaglecounty.us/.
2) Digital accessibility training/knowledge transfer
This is an optional service for your consideration on an as-needed basis. We’ve developed several turn-key, role-specific training
sessions that we provide as live webinars that include approximately 40-60 minutes of training, and approximately 20-30 minutes of
Q&A, for an average duration of 90 minutes per training. These sessions can be recorded and delivered to Eagle County at no
additional cost. Topical webinars include things such as:
• Accessibility compliance for designers
• Accessibility compliance for non-developer content managers:
o Multimedia (video, audio, imagery, etc…)
o Non-developer content (documents, content management, the embedding of content, 3 rd -party embeds, etc…)
• Accessibility compliance for developers
These sessions will be made available to you on a per-use, as-needed basis.
3) Access to compliance scanning software; the A11y Toolbox
Our discussions with Eagle County have uncovered a need to address the on going nature of accessibility compliance in a manner that
is 1) effective, and 2) cost-efficient. The A11y Toolbox software is a powerful scanning software that will be licensed to your team for
a low, fixed, monthly fee. Features include:
• Multiple user accounts for Eagle County.
• Running scans on all of the county’s websites with as many scans per site as desired.
• Tracking of issues from identification, to remediation, to resolution.
• Identifying both issues that can be fixed by a lay person as well as issues that can be fixed by developers.
The A11y Toolbox, like all scanning software, cannot and does not identify all WCAG issues (human -led auditing is the only
mechanism that does this, which is why all sites must be human -led audited). However, the A11y Toolbox can find many types of
issues and will help the county continually work towards maintaining compliance.
Software training is offered for a nominal fee.
4) Optional document (PDF) remediation services
We can offer PDF remediation services (technically called “Tagging a PDF”) on an as-needed basis. Those rates are in the Pricing
Summary below.
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PRICING SUMMARY
1) Full one-time website certification for your primary website, https://EagleCounty.us:
• Rate: $12,450
2) Training Sessions
Each training session (approximately 60-90 minutes in duration, with 40-60 minutes training plus 20-30 minutes Q&A)
can be delivered to Eagle County at a flat-rate of $495 per session. The price includes a recorded copy of the training
session for your records.
3) A11y Toolbox scanning software license
The software’s Enterprise license is $179/month. No long-term commitment required. This price tier includes:
• Up to 50 uses
• 75 active clients, with unlimited projects under each client (this will be more than enough to serve the 20-25
websites that the
• county has)
• Unlimited scans and scan reports
Training for how to use the software is highly recommended. Training sessions are billed at $165/hour, and a typical
client needs 1-3bhours of training time. Training sessions are done virtually on Zoom.
4) PDF remediation services
PDF remediation pricing is based on two factors: 1) per-page pricing (quantity), and 2) complexity of each page. Pricing
information is below:
Page complexity:
• Simple page: text and font, intuitively structure order, requiring minimal human interpretation. An example of this
would be a simple white background with black text. The text would be in paragraph format.
• Moderate page: includes non-text items, reading order that requires human interpretation, nested lists, footnotes
etc. An example of this would be a congressional bill or formatted text document.
• Complex page: includes images, infographics, images of text, tables, charts, graphs, etc.
• Forms page: includes fields that need to be labeled, either fillable or not.
Per-page pricing:
• Simple page: $10/page
• Moderate page: $20/page
• Complex page: $60/page
• Forms page: $80/page
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TERMS FOR ALL SERVICES PROPOSED
1) Terms for website certification: See attached document titled “One-Time Certification Terms of Service”.
2) Terms for training sessions: No terms necessary from our perspective, though we’re open to drafting terms at your request.
3) Terms for licensing the A11y Toolbox software: At this link: https://a11ytoolbox.io/license/. (Except Clause 8
Indemnification, Clause 9 Arbitration, or Clause 18 Governing Law which are omitted and replaced with different terms that
both parties agree to.
4) Terms for PDF remediation: No terms necessary from our perspective, though we’re open to drafting terms at your request.
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EXHIBIT B
INSURANCE CERTIFICATE
Proof of corporate insurance has been provided in a separate document (two PDF files).
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