Section 8: ICT Accessibility Contract Language: Warranties and Remedies

Important Disclaimer: This is template language for illustrative purposes only. It is CRITICAL that this language be reviewed, customized, and approved by your institution’s legal counsel to ensure it aligns with your institution’s specific needs, risk tolerance, procurement policies, and all applicable federal and state laws. 

Section [X]: Information and Communication Technology (ICT) Accessibility 

[X].1 Definitions  

For the purposes of this Section [X], the following terms shall have the meanings ascribed to them: 

  • (b) “ICT Product(s) and/or Service(s)” refers to all software, hardware, electronic content, websites, applications (including mobile applications), platforms, systems, and related documentation, support, and professional services provided by Vendor under this Agreement. 
  • (c) “Accessibility Defect” means any failure of the ICT Product(s) and/or Service(s) to conform to the Accessibility Standards. 

[X].2 Accessibility Warranty 

  • (a) Warranty of Conformance: Vendor warrants that the ICT Product(s) and/or Service(s) delivered, maintained, and supported under this Agreement will conform to the Accessibility Standards throughout the Term of this Agreement, including any updates, upgrades, new releases, modifications, or enhancements provided by Vendor. This warranty extends to any integrated third-party components to the extent that such components are within Vendor’s control or are integral to the overall functionality and accessibility of the ICT Product(s) and/or Service(s) provided by Vendor. 
  • (b) Accuracy of Accessibility Documentation: Vendor warrants that all accessibility documentation provided to [Name of Educational Institution], including but not limited to its Accessibility Conformance Report (ACR) based on the Voluntary Product Accessibility Template (VPAT®), is accurate, complete, and reflects the true accessibility conformance of the ICT Product(s) and/or Service(s) as of the Effective Date of this Agreement and at the time of any subsequent updates to such documentation. 
  • (c) Functionality with Assistive Technology: Vendor warrants that the ICT Product(s) and/or Service(s) will function and interoperate with commonly used assistive technologies (e.g., screen readers, screen magnifiers, voice recognition software) to ensure that individuals with disabilities can effectively access and use the ICT Product(s) and/or Service(s). 

[X].3 Accessibility Remedies 

  • (a) Notification of Accessibility Defect: [Name of Educational Institution] shall notify Vendor in writing upon discovery of any Accessibility Defect. 
  • (b) Remediation by Vendor: Upon receipt of notification of an Accessibility Defect, Vendor shall, at its sole cost and expense, develop and implement a corrective action plan to remediate such Accessibility Defect and bring the ICT Product(s) and/or Service(s) into full conformance with the Accessibility Standards. Vendor shall:  
  • (i) Acknowledge receipt of the notification of an Accessibility Defect within [e.g., five (5)] business days. 
  • (ii) Provide [Name of Educational Institution] with a written corrective action plan detailing the steps and timeline for remediation within [e.g., fifteen (15)] business days of acknowledging the defect. This plan is subject to approval by [Name of Educational Institution]. 
  • (iii) Complete the remediation of the Accessibility Defect and provide [Name of Educational Institution] with evidence of such remediation, including updated accessibility documentation if applicable, within [e.g., thirty (30) to sixty (60)] calendar days from [Name of Educational Institution]’s approval of the corrective action plan, or such other timeframe as mutually agreed upon by the parties in writing, depending on the complexity of the defect. 
  • (c) Equally Effective Alternate Access: During the period of any Accessibility Defect and its remediation, Vendor shall, upon request by [Name of Educational Institution] and at no additional cost, promptly provide an Equally Effective Alternate Access Plan (EEAAP) to ensure that individuals with disabilities can access the information and functionality provided by the ICT Product(s) and/or Service(s) in a comparable and timely manner. Provision of an EEAAP shall not relieve the Vendor of its obligation to remediate the Accessibility Defect. 
  • (d) Failure to Remediate: If Vendor fails to remediate an Accessibility Defect within the agreed-upon timeframe, or if the corrective action plan is not acceptable to [Name of Educational Institution], [Name of Educational Institution] shall have the right, without prejudice to any other rights or remedies available under this Agreement or at law or in equity, to:  
  • (i) Independent Remediation: Perform or procure the performance of remediation services from a third party, and Vendor shall reimburse [Name of Educational Institution] for all reasonable costs incurred in connection therewith; and/or 
  • (ii) Price Reduction or Refund: Receive an equitable reduction in fees payable under this Agreement or a refund for ICT Product(s) and/or Service(s) that are not accessible; and/or 
  • (iii) Withhold Payment: Withhold payment for the non-conforming ICT Product(s) and/or Service(s) until the Accessibility Defect is remediated; and/or 
  • (iv) Terminate for Cause: Terminate this Agreement in whole or in part for material breach in accordance with the termination provisions herein. 
  • (e) Repeated Accessibility Defects: The occurrence of [e.g., three (3) or more] separate Accessibility Defects within any [e.g., twelve (12)-month period], or Vendor’s failure to meet its remediation obligations for any single significant Accessibility Defect, may be deemed a material breach of this Agreement by [Name of Educational Institution], entitling [Name of Educational Institution] to terminate this Agreement for cause. 
  • (f) Costs of Compliance: Vendor shall be responsible for all costs associated with ensuring its ICT Product(s) and/or Service(s) comply with the Accessibility Standards, including but not limited to design, development, testing, and remediation costs. 

[X].4 Accessibility Indemnification  

Vendor shall indemnify, defend, and hold harmless [Name of Educational Institution], its officers, trustees, employees, and agents from and against any and all claims, demands, losses, costs, expenses, damages, and liabilities (including reasonable attorneys’ fees) arising out of or related to any third-party claim alleging that the ICT Product(s) and/or Service(s) provided by Vendor under this Agreement are not compliant with applicable accessibility laws or the Accessibility Standards warranted herein, provided that [Name of Educational Institution] promptly notifies Vendor in writing of such claim and cooperates with Vendor in the defense of such claim. This indemnification obligation is in addition to any other indemnification obligations set forth in this Agreement. 

[X].5 Survival  

The warranties, remedies, and indemnification obligations set forth in this Section [X] shall survive the termination or expiration of this Agreement. 

Key Considerations for Your Institution: 

  • Specify Standards Clearly: Ensure the WCAG 2.1 AA and other referenced standards are precise. 
  • Timeframes: The bracketed timeframes (e.g., for acknowledgment, remediation plan, completion) are suggestions. Adjust them based on your institution’s needs and the typical complexity of ICT solutions you procure. 
  • “Material Breach”: Consult legal counsel on what constitutes a material breach and the implications for termination. 
  • Indemnification: This is a critical clause. Legal counsel should carefully review and tailor it. Often, indemnification clauses are part of a general section in the contract but ensuring accessibility-related claims are explicitly or implicitly covered is important. 
  • Integration with Other Clauses: Ensure this section aligns with other contract provisions, such as general warranties, limitation of liability, termination, and dispute resolution. 
  • Vendor Negotiation: Be prepared for vendors to negotiate these terms. Understand your institution’s non-negotiable points versus areas where there might be flexibility. 
  • Practicality: Ensure the remedies are practical for your institution to enforce. 

This template provides a strong starting point for protecting your institution and ensuring vendors are held accountable for the accessibility of their ICT products and services. 

Disclaimer: This is a template and should be reviewed and customized by legal counsel and relevant stakeholders within your educational institution. It’s crucial to adapt the roles, responsibilities, specific standards (e.g., current WCAG version), and exception processes to your institution’s structure, resources, and existing policies. Consider any specific state laws that may apply.

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