PLEASE READ THIS AGREEMENT BEFORE USING ABILITY’S SERVICES OR MAX ACCESS SOFTWARE. BY ACCESSING OR USING MAX ACCESS, YOU (“Client”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SOFTWARE OR SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ABILITY’S MAX ACCESS SOFTWARE LICENSE OR SERVICE, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.

This License Agreement (“Agreement”) is entered into between Client and Ability, Inc., an Oregon corporation (“Ability”), with its principal place of business at 40 E Broadway Suite 210, Eugene, Oregon 97401. Ability and Client agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.

Definitions. For purposes of this Agreement:

• Product refers to Ability’s Max Access software, which includes both free and paid versions, as well as any associated updates, features, enhancements, or services provided by Ability under this Agreement. The Product encompasses any tools, integrations, or additional functionalities offered within Max Access.
  
• Effective Date. The Effective Date of this Agreement is the date on which the Client first accesses or uses the Product, the date of Client’s acceptance of this Agreement (if clicking to accept), the date which the free version is installed, or the date payment is processed for the Product, whichever occurs first.
• Dashboard means a secure area on the Ability website where the Client can manage Max Access, including user accounts, payment methods, subscription details, and configuration settings. Through the Dashboard, the Client may also access the Product’s functionality, review usage data, and make adjustments to accessibility settings for the Client’s websites.
  
• Toolbar refers to the accessibility interface integrated within the Client’s website through the Product, enabling users to adjust accessibility settings and improve usability. The Toolbar provides users with options to modify the display, navigation, and other interactive elements in accordance with accessibility preferences.
  

AGREEMENT In consideration of the foregoing, the Parties agree as follows:

1. Licensing of Product

1.1. Grant of License. Subject to the terms of this Agreement, Ability hereby grants to Client, during the term of this Agreement, a nontransferable, nonexclusive license to access and use the Product pursuant to the terms herein. The Product is licensed, not sold. The Product is protected by United States and international copyright laws and treaties, as well as by other intellectual property laws and treaties. Client will not attempt to, and will not permit its users or any other third party to attempt to, (a) alter, modify, improve, reverse engineer, disassemble, or decompile the Product; or (b) interfere in any manner with the hosting of the Product. Ability grants Client the right to sublicense to Client’s end users during the term of this licensing agreement pursuant to the terms of this agreement.

1.2. Ownership. All right, title, and interest in the Product, including any updates or revisions to the Product, is and will remain the sole and exclusive property of Ability, its licensors, and their successors and assigns. Other than the limited license explicitly set forth in this Agreement, no interest in or rights or licenses to the Product are granted to Client, and no interest in or rights or licenses to the Product will inure in or accrue to Client, whether by implication, estoppel, or otherwise. All rights of any kind in the Product that are not expressly granted in this Agreement or other written agreement between the Parties are entirely and exclusively reserved to and by Ability, its licensors, and their successors and assigns.

1.3. Automatic Software Updates. Client acknowledges and agrees that the Product is a cloud-based software that may undergo automatic updates, including modifications, feature enhancements, or fixes, which may be implemented without prior notice. Ability will make reasonable efforts to ensure updates are seamless; however, such updates may, from time to time, temporarily impact availability or functionality.

2. Confidentiality and Limitations on Use

2.1. Confidentiality of Proprietary Information. The Product, along with any documentation, updates, or other proprietary information provided by Ability, constitutes trade secrets and confidential information of Ability and its licensors (“Confidential Information”). Client agrees to maintain the confidentiality of this Confidential Information and to use it solely for internal business purposes and in accordance with the terms of this Agreement. Client shall take reasonable measures to prevent unauthorized disclosure or use of Confidential Information and agrees not to disclose such information to any third parties without Ability’s prior written consent.

2.2. Non-Disclosure Requirement. Client agrees that it will not share, disclose, or otherwise make the Confidential Information available to any third party without Ability’s express written permission, except as required by law. Client shall ensure that any employees or authorized agents permitted access to the Confidential Information are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement.

2.3. Limitations on Use. Client may not, under any circumstances:

• Copy the Product or any related materials;
• Sublicense, rent, lease, lend, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the Product, except as expressly set forth in this Agreement;
• Use or allow use of the Product after the termination or expiration of this Agreement (except pursuant to another valid license);
• Access, attempt to access, decrypt, use, or disclose the Product’s source code;
• Remove or alter any copyright or other proprietary rights notices included in or affixed to the Product.

2.4. Survival of Confidentiality Obligations. The confidentiality obligations set forth in this Section shall survive the termination or expiration of this Agreement.

3. Term and Termination

3.1. Term. This Agreement will commence on the Effective Date and will continue until terminated as provided herein. For paid licenses, Max Access can be licensed on a monthly or annual basis, with terms determined by the purchase agreement for the period purchased. For both the free and paid versions, Client’s access may continue until terminated by either party as set forth below or, for the free version, if Ability ceases to offer it.

3.2. Termination for Convenience.

• Paid Licenses: Either party may terminate a paid license at any time for convenience upon providing thirty (30) days’ written notice to the other party. If Client terminates, no refunds will be issued for any fees already paid.
• Free Licenses: Ability reserves the right to terminate access to the free version at any time, for any reason, with or without notice, and without liability to Client.

3.3. Termination for Cause and Revocation of License. Ability may revoke or terminate any license (free or paid) immediately if:

• (a) Client materially breaches any provision of this Agreement, engages in unauthorized, improper, or illegal use of the Product, or violates applicable laws or regulations;
• (b) Ability, in its sole discretion, determines that continuing to provide a license to Client may negatively impact Ability’s reputation, goodwill, or business interests due to Client’s conduct, affiliations, or use of the Product.

If a breach is curable, Client will have thirty (30) days to cure the breach after receiving written notice.

3.4. Discontinuation of Free Version. Ability reserves the right, at its sole discretion, to modify, suspend, or discontinue offering a free version of Max Access at any time. In such an event, Ability will provide thirty (30) days’ notice to current free users where feasible.

3.5. Effect of Termination. Upon termination or revocation of this Agreement for any reason, Client shall immediately cease all access to and use of the Product.

4. Limited Warranty

4.1. Performance of Software. Ability warrants that from the Effective Date, the Product, when properly installed, will perform substantially in accordance with the corresponding documentation. This limited warranty is void if failure of the Product results from abuse, misuse, modification, or improper installation.

4.2. Exclusive Remedies. Ability’s entire liability and Client’s exclusive remedy for any breach of the foregoing warranty will be, at Ability’s discretion, either (a) repair or assistance with troubleshooting and resolution of proper performance of the Product, or (b) cancellation of the Product with a refund of the last billing cycle’s fees paid by Client.

4.3. Downtime, Compatibility, and Limitations. Ability does not warrant that the Product will meet Client’s specific requirements or that operation of the Product will be uninterrupted or error-free. Ability is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any website or web-based software for which the Product is procured, nor is Ability responsible for issues arising from using the Product with an incompatible website or third-party software. Ability does not promise, guarantee, or imply 100% uptime at all times. Max Access may experience rare instances of downtime or bugs, which is typical for any software. If Client experiences downtime or a bug, Client should alert the support team at [email protected], and Ability will act in good faith to resolve the issue within a reasonable time frame. By using Max Access, Client acknowledges and accepts the risk of rare downtime, bugs, or a lack of WCAG conformance associated with using the Product.

4.4. Limitations of Liability. Ability, Inc. is not responsible or liable for lost revenue, demand letters, or lawsuits relating to digital accessibility compliance that may arise during downtime, lack of WCAG conformance remediation, or any bugs affecting the Product. If Client requires a higher level of accessibility compliance assurance, Ability recommends upgrading to Max Access +Plus or engaging in a full auditing and certification process.

4.5 Accessibility Limitations. Client acknowledges that the installation of the Product cannot guarantee that claims will not arise, and that embedding the Product in the Licensee website or software does not, on its own, fulfill all of the requirements of applicable law in respect of website accessibility. For example, the Product does not remediate PDF files or create subtitles for videos. The Client does not undertake that the Licensee website or software will be 100% accessible at any given moment. Furthermore the Max Access Toolbar or Dashboard may also not be 100% accessible and this license is not a guarantee of accessibility. Factors such as modifications made by the Licensee, issues originating from the Licensee website or software, limitations stemming from technological reasons, or feature, limitations, updates, and changes may alter the accessibility of the Product itself or the Client’s website or software. Furthermore, Client acknowledges that the Product does not remediate all WCAG compliance issues that may arise on Client’s website or software. The Licensee irrevocably waives any claims against Ability from any liability, legal or otherwise, and agrees that it shall assert no claims against Ability in this regard (including in relation to any Claims Support Services, if provided).

4.6 Limitation of Damages. THE LIABILITY OF ABILITY AND ITS LICENSORS FOR DEFECTIVE SOFTWARE IS LIMITED TO ABILITY’S OBLIGATIONS UNDER THE LIMITED WARRANTY SET FORTH ABOVE. IN NO EVENT WILL THE LIABILITY OF ABILITY OR ITS LICENSORS FOR THE USE OR INABILITY TO USE THE PRODUCT OR FOR BREACH OF THIS AGREEMENT EXCEED THE AMOUNT OF THE LICENSE FEE FOR THE PRODUCT TO WHICH THE CLAIM RELATES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ABILITY OR ITS LICENSORS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR LOST OR DAMAGED DATA, SUBSTITUTE GOODS, LOST PROFITS, INTERRUPTION OF BUSINESS, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR ANY OTHER LEGAL THEORY. IN NO EVENT WILL ABILITY’S TOTAL LIABILITY TO CLIENT FOR ALL DAMAGES EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). CLIENT AGREES THAT THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS ITS ESSENTIAL PURPOSE.

5. Consent to Use Data

5.1. Data Collection and Use. Client agrees that Ability and its agents may collect and use technical and related information gathered as part of the support, maintenance, and improvement of the Product. This information may include, but is not limited to, data about usage patterns, technical diagnostics, and system configurations to facilitate the provision of updates, product support, and other services related to the Product. Ability will use this data in a form that does not personally identify Client or its users.

5.2. Data Retention and Security. Ability will retain collected data only as long as necessary to provide the Product, fulfill contractual obligations, and improve its services, in compliance with applicable laws. Ability will implement commercially reasonable safeguards to protect collected data against unauthorized access or disclosure.

5.3. Aggregated and Anonymized Data. Ability may aggregate and anonymize data collected from Client’s use of the Product to analyze trends, improve functionality, and support business development. Aggregated data will not contain any personal or identifiable information about Client or its users.

5.4. Client Data Rights. If applicable, Client may request access to, modification of, or deletion of data associated with its use of the Product, subject to Ability’s data retention policies and applicable legal obligations. Requests can be directed to [email protected].

6. Accessing and Managing Account. Client manages Max Access through a customer dashboard. The customer dashboard allows Client to manage the following: payment methods, subscriptions, user profile, access/edit/manage the Max Access license for each installation, and to create new users to dashboard.

7. Indemnification

7.1. Indemnification by Client. Client shall indemnify, defend, and hold harmless Ability, its affiliates, officers, directors, employees, agents, and licensors from and against any and all claims, liabilities, damages, losses, costs, or expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or related to (i) any third-party claim, demand, or cause of action concerning actual loss or liability directly arising from accessibility compliance failure; (ii) Client’s use of the Product in a manner inconsistent with this Agreement, including any unauthorized, improper, or illegal use by Client or any third-party users; (iii) any breach of this Agreement by Client; or (iv) any violation of applicable laws or regulations by Client.

7.2. Survival of Indemnification Obligations. The provisions of this section shall survive the termination or expiration of this Agreement with respect to any claims or liabilities accruing prior to such termination or expiration.

7.3. Limitation on Indirect Damages. Except with respect to any third-party claims or damages, in no event shall either party be liable to the other for any indirect, special, or consequential damages arising from Client’s use of Ability’s services, including, but not limited to, lost profits and lost revenue, even if informed of the possibility of such damages.

8. Relationship. The Parties acknowledge that this license does not exstablish any partnership, agency, or other relationship between the Parties.

9. Modification. No modification of this Agreement shall be valid unless it is in writing and is signed by all of the Parties.

10. Integration. This Agreement is the entire agreement of the Parties. There are no promises, terms, conditions, or obligations other than those contained in this Agreement. This Agreement shall supersede all prior communications, representations, and agreements, oral or written, of the Parties.

11. Interpretation. The paragraph headings are for the convenience of the reader only and are not intended to act as a limitation on the scope or meaning of the paragraphs themselves. This Agreement shall not be construed against the drafting party.

12. Severability. The invalidity of any term or provision of this Agreement shall not affect the validity of any other provision.

13. Waiver. Waiver by any Party of strict performance of any provision of this Agreement shall not be a waiver of or prejudice any party’s right to require strict performance of the same provision in the future or of any other provision.

14. Binding Effect. Subject to restrictions in this Agreement upon assignment, if any, this Agreement shall be binding on and inure to the benefit of the heirs, legal representatives, successors, and assigns of the Parties.

15. Governing Law, Jurisdiction, and Arbitration

15.1. Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Oregon.

15.2. Jurisdiction and Venue. Any legal action or proceeding arising under this Agreement will be brought exclusively in the courts located in Lane County, Oregon, and the Parties hereby consent to the jurisdiction and venue therein.

15.3 Arbitration. Any claim or dispute arising out of or relating to this agreement, or to the interpretation or breach of this agreement, or to the existence, scope, or validity of this agreement, including tort claims, will be resolved by binding arbitration. Arbitration will be conducted by, though, and in accordance with the then effective arbitration rules of the Arbitration Service of Portland, Inc. (ASP). The arbitration will be held in Lane County, Oregon unless the parties mutually agree otherwise. 

16. Modifications and Updates. Max Access reserves the right to modify or update the terms of this License Agreement at any time without prior notice. Continued use of the service following any changes constitutes acceptance of the revised terms.