MASTER SERVICES AGREEMENT
The Proposal and this Master Services Agreement (collectively, the “Agreement”) are entered into by and between EasyLlama, Inc. (“we” or “EasyLlama”) and the Customer identified in the Proposal effective as of the Effective Date set forth in the Proposal. BY EXECUTING THE PROPOSAL, CUSTOMER HEREBY AGREES TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. EasyLlama and Customer shall individually be referred to as a “Party” and collectively as the “Parties.” In consideration of the mutual representations, warranties, and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
AI Functionality. The optional opt-in AI powered content creation feature which enables Customer to utilize AI-generated Content solely in connection with the Course Authoring Tools.
Anonymous Reporting Services. The term “Anonymous Reporting Services” shall mean a secure tool that enables individuals to provide feedback and/or report or disclose information about misconduct or violations of applicable law through a confidential whistleblowing channel.
Authorized Users. The term “Authorized Users” shall mean Customer’s designated administrator(s) and participating personnel authorized to access and use the Subscription Services.
Content. The term “Content” shall mean any and all text, data, information, images, fonts, templates, graphics, audio, video, and/or audiovisual combinations.
Course Authoring Tools. The term “Course Authoring Tools” shall mean the Course Authoring Tools available as an add-on to EasyLlama’s learning management solution, which enables Customers to create their own e-learning courses to make available to Authorized Users solely within the Platform.
Course Upload Services. The term “Course Upload Services” shall mean the Course Upload Services available as an add-on to EasyLlama’s learning management solution, which facilitates the upload, assignment and progress tracking of Customer Courses, and is subject to the terms of the Addendum attached hereto and hereby expressly incorporated by reference.
Customer Course. The term “Customer Course” shall mean the video, image, text, and other files (i) owned and/or licensed by Customer and uploaded within the Course Upload Services, or (ii) created by Customer in connection with the Course Authoring Tools.
Customer Data. The term “Customer Data” shall mean any Content input, submitted, uploaded, imported, integrated, and/or communicated by Customer through the Subscription Services, including Personal Data of Authorized Users.
EasyLlama Course. The term “EasyLlama Course” shall mean the proprietary training modules developed and owned by EasyLlama, including, but not limited to, all hard copy, machine-readable materials that comprise the course, all related images, video and audio recordings, text, software, electronic files, data, and related documentation provided by EasyLlama as part of the learning management solution (“LMS”) Subscription Services.
HR Compliance Tools. The range of add-on services available to Customer and its Authorized Users as specified in the applicable Proposal, including, but not limited to, smart chatbot, employee handbooks, document signature, multi-state comparison tool, compliance updates, task automation, compliance FAQ library, resources, and the ability for the user to connect with an HR compliance advisor. Access to certain HR Compliance Tools are expressly conditioned on Customer’s acceptance of the terms and conditions set forth in Section 23.
Output. The term “Output” shall mean any Content output generated in connection with the Course Authoring Tools.
Personal Data. The term "Personal Data" means information relating to an identified or identifiable natural person. For the avoidance of doubt, Personal Data includes personally identifiable information and personal information as defined by applicable data privacy and protection laws, including, but not limited to, the California Consumer Privacy Act of 2018, California Privacy Rights Act (“CPRA”), Colorado Privacy Act (“CPA”), Virginia Consumer Data Privacy Act (“VCDPA”), all implementing regulations related thereto and other similar state and federal laws, and the General Data Protection Regulation (EU) 2016/679 ("GDPR"), in each case, as may be amended, superseded or replaced.
Platform. The term “Platform” shall mean the EasyLlama website and learning management system located at easyllama.com and the EasyLlama Learning Portal, administrative accounts, and Subscription Services made available to Customer and its Authorized Users pursuant to this Agreement.
Proposal. The term “Proposal” means the proposal or order form that is mutually agreed to in writing by the Parties setting forth the commercial terms of the Subscription Services and which forms a part of this Agreement.
Seat. The term “Seat” shall mean a single Authorized User that may access and use the Subscription Services pursuant to the Seat count specified in the applicable Proposal.
Service Data. The term “Service Data” shall mean any anonymized, aggregated, statistical and/or other benchmark data generated by EasyLlama in connection with Customer’s use of the Subscription Services. For the avoidance of doubt, Service Data shall not contain or include Personal Data.
Subscription Services. The term “Subscription Services” shall mean the cloud-based software as a service subscription services purchased by Customer as specified within the applicable Proposal.
Trademarks. The term “Trademarks” shall mean any trademarks, service marks, design marks, symbols, logos and/or other indicia of source owned or used under license by a Party, and all goodwill associated therewith.
Unused Seat. The term “Unused Seat” shall mean a Seat which has not been used by an assigned Authorized User to access any of the Subscription Services in any manner, including any de-minimis activity, access and/or use (e.g., in excess of 1%).
Access and Use of the Subscription Services. EasyLlama shall provide to Customer the Subscription Services described and set forth in the mutually executed Proposal, which may be amended by the Parties in writing from time to time. Subject to Customer’s compliance with the terms and conditions of this Agreement, EasyLlama hereby grants to Customer a non-exclusive, non-transferable, non-assignable (except as otherwise permitted pursuant to Section 28(f)), worldwide right to access and use the Subscription Services pursuant to the terms of this Agreement.
Authorized Users. The Subscription Services are provided on a per-Seat, subscription basis. Authorized Users shall access the Subscription Services in accordance with the terms and conditions of this Agreement. Customer and its Authorized Users shall safeguard all access credentials. Customer shall take all necessary steps to ensure an Authorized User’s access is deactivated in the case of changes to such Authorized User’s employment status and immediately notify EasyLlama if it learns of any unauthorized use of any access credentials. A Seat may only be assigned to one (1) Authorized User and is not freely reassignable. Unused Seats may be transferred to another Authorized User only in the event the employment of an Authorized User assigned to an Unused Seat is terminated and such Authorized User’s prior access has been deactivated. All Seats shall expire at the end of the Subscription Term and will not carry over to the next Subscription Term.
EasyLlama Course Customization Services.EasyLlama Course templates may be customized to integrate Customer Content (in the form of H.R. policies and procedures, for example),branded to incorporate Customer’s Trademarks, and/or modified per Customer’s request.
Any EasyLlama Course customization scope set forth in the Proposal applies solely to the initial set of provided Course files only. Customized Courses are not automatically updated to reflect changes in state and federal compliance requirements. Incorporation of pre-existing customizations to updated Courses shallonly be made pursuant to Customer’s request, a separate scope of work and additional fees as mutually executed by the Parties. Unless mutually agreed in writing pursuant to a change order, EasyLlama shall have no obligation to modify any EasyLlama Course text, or provide any additional customization Course services, beyond the EasyLlama Course customization scope set forth (e.g., allocated hours or slides) within the Proposal.
Customer shall be solely responsible for ensuring that all modifications requested by Customer, including any additions, deletions, or alterations to Course Content, comply with all applicable federal and state compliance training requirements. This includes, but is not limited to, (i) managing conflicting requirements between jurisdictions; and (ii) ensuring modified Course Content meets or exceeds minimum training requirements in applicable jurisdictions. Customer assumes all responsibility and liability for all Customer requested modifications to Course Content.
Professional Services. Customer may request that EasyLlama provide certain professional services related to Customer’s use of the Subscription Services, including, by way of example, configuration services or additional training of Customer personnel. Excluding those agreed between the Parties in the Proposal or otherwise mutually agreed in writing, EasyLlama will have no obligation to provide or perform such services for or on behalf of Customer. All professional or other consulting services provided to Customer that are out of scope of the Proposal will be provided subject to the written agreement of the Parties (e.g., a new Proposal), including the payment of additional fees.
Limited Promotional License. Upon Customer’s prior written consent, Customer grants to EasyLlama a limited, non-exclusive license to use Customer’s name and logo for the limited purpose of identifying Customer on EasyLlama’s website to market its Subscription Services. EasyLlama shall comply with Customer’s trademark and brand guidelines in connection with such use. This promotional license may be terminated at any time upon Customer’s written notice tosupport@easyllama.com.
Customer Feedback License. Customer grants to EasyLlama a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as otherwise permitted pursuant to Section 28(f)), royalty-free, license to use, any suggestions or ideas submitted to EasyLlama, whether solicited or unsolicited (collectively, the “Feedback”), provided however, that any public disclosure of Feedback shall not include any Customer Confidential Information.
Customer Data License. Customer grants to EasyLlama a limited, non-exclusive license to use Customer Data solely as necessary for providing the Subscription Services pursuant to this Agreement.
Reservation of Rights.
Customer IP. Customer has and shall retain all right, title and interest, including, without limitation, all intellectual property rights, in and to (i) any Customer Data and Customer Trademarks, and (ii) Customer Courses uploaded within the Course Upload Services (collectively “Customer IP”) and all copies, modifications and derivative works thereof.
EasyLlama IP. EasyLlama has and shall retain all right, title and interest, including, without limitation, all intellectual property rights, in and to the Platform, Subscription Services, EasyLlama Content, EasyLlama Courses, Service Data, EasyLlama Confidential Information, and all source code and object code related thereto, and all copies, modifications and derivative works thereof (collectively “EasyLlama IP”). Any and all rights not expressly granted herein by EasyLlama are reserved by EasyLlama.
Use Restrictions. Customer will not use the EasyLlama IP to develop or otherwise cause to bring to market any product or application that is competitive with any Subscription Services. Customer will not distribute, redistribute, disseminate, sell, resell, or sublicense the EasyLlama IP to any third party, commercial or otherwise. Customer will not, directly or indirectly, alter or modify the EasyLlama IP, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the EasyLlama IP.
Term and Renewal. The term of this Agreement will commence on the Effective Date and shall continue for the subscription term identified in the applicable Proposal (“Subscription Term”). This Agreement shall automatically renew for subsequent periodic Subscription Term(s) unless either Party provides written notice of termination sixty (60) days prior to the expiration of the initial, or any renewal, Subscription Term.
Fees.
Payment. Customer agrees to pay the fees for the Subscription Services pursuant to the terms of the Proposal. Customer acknowledges and agrees that the amount billed and charged in each applicable billing cycle shall include applicable overages and upgrade fees, which shall be paid by Customer in accordance with the terms of this Agreement and is a condition precedent for Customer’s continued access to the Subscription Services. Upon any termination or expiration of this Agreement, EasyLlama will invoice for any outstanding fees, which shall be payable pursuant to the payment terms in the Proposal.
Upgrades and Downgrades; Overages.
Except as otherwise set forth herein, any LMS Subscription Services upgrades, downgrades or overages are subject to the terms set forth in the Proposal. LMS Subscription Services downgrades are not available for multi-year plans. To the extent a Customer assigns Seats in excess of their existing Subscription Services plan, Customer shall be automatically upgraded to the next applicable Subscription Services plan tier. Recurring Subscription Fees will automatically be adjusted for applicable upgrades and overages and invoiced annually on the next billing cycle.
If use of the Anonymous Reporting Services exceeds the Seats specified in the Proposal, Customer will automatically be upgraded to the next higher tier and EasyLlama will invoice annually on the anniversary of the Effective Date, and Customer will pay for, such upgraded tier at a prorated amount for the remainder of the applicable Subscription Term, based on the pricing specified in the applicable Proposal.
Renewal. In any renewal Subscription Term, the Subscription Services fees will reflect any applicable upgrades, downgrades or overages. EasyLlama reserves the right to increase the Subscription Fees at the end of the initial Subscription Term or then current renewal term, upon ninety (90) days prior notice to Customer (email sufficient). Notwithstanding anything to the contrary, any renewal in which Subscription Services plan has been downgraded will result in repricing at renewal without regard to the prior term’s per-unit pricing. Except as otherwise set forth in a mutually executed Proposal, Customer shall be responsible for payment of all invoices Net 30 days date of invoice.
Late Payments. EasyLlama reserves the right, upon ten (10) days prior written notice, to suspend or terminate the Subscription Services for payments that are more than thirty (30) days past due. Past due payments will accrue interest at the lesser of 1.5% monthly or the highest interest rate allowable under applicable law.
Taxes. Customer is responsible for paying any applicable taxes, excluding taxes based solely on EasyLlama’s net income, including, but not limited to, governmental sales, use, value-added, commodity, harmonized, GST, consumption tax, service tax or other similar taxes imposed in connection with the fees paid for the Subscription Services. To the extent EasyLlama is required to collect such taxes, the applicable tax will be invoiced to Customer and paid pursuant to the applicable Proposal payment terms.
Non-Refundable Fees. Except in the event of EasyLlama’s uncured material breach or as otherwise set forth in this Agreement, (i) fees will not be prorated upon cancellation or termination of this Agreement, and (ii) all fees paid through the date of termination are nonrefundable. Customer is responsible for payment of all Subscription Services fees, and fees for any additional Seats purchased, for the entire Subscription Term.
Customer Support. EasyLlama shall provide customer support in accordance with the support terms set forth in the Proposal. Customer may email EasyLlama at support@easyllama.com for Customer support and assistance. EasyLlama support personnel shall respond to Customer’s email inquiries regarding issues relating to the Subscription Services within a reasonable timeframe.
Security. EasyLlama will maintain administrative, physical, and technical safeguards reasonably designed to protect the security, confidentiality and integrity of the Subscription Services and Customer Data in accordance with prevailing industry practices and standards.
Privacy. Each Party shall be responsible for ensuring its respective compliance with any and all privacy, notice and consent rules or regulations and/or data collection laws or regulations applicable to its use of the Subscription Services and the performance of its obligations under this Agreement.
EasyLlama shall not use or disclose Personal Data submitted by Customer or its Authorized Users for any purpose other than for providing the Subscription Services. EasyLlama shall not: (i) sell the Personal Data; or (ii) retain, use, or disclose the Personal Data outside of the direct business relationship between the Parties. Except to the extent permitted by applicable law, EasyLlama shall not combine the Personal Data received from Customer with other Personal Data it receives from or on behalf of another person or entity or collects from its own interactions. EasyLlama shall notify Customer if at any time it can no longer meet its obligations under applicable laws. EasyLlama certifies that it understands and will comply with the restrictions set forth in this Agreement and any applicable Data Processing Addendum executed by the Parties hereto and expressly incorporated herein.
For purposes of compliance with GDPR, as applicable, each Party, in their respective roles as data controller and data processor, shall comply with all applicable data protections laws and regulations and the obligations set forth within a Data Processing Addendum executed by the Parties in connection with this Agreement. In relation to all such Personal Data: (i) EasyLlama acknowledges that Customer is the data controller of such data and that EasyLlama is only acting on Customer’s behalf as the data processor, and (ii) EasyLlama shall process such Personal Data solely in accordance with applicable privacy laws and Customer’s written instructions for the purposes of providing the Subscription Services in accordance with the Agreement and for no other purposes. Each Party agrees that Customer’s use of the Subscription Services to process such Personal Data shall be deemed a written instruction to EasyLlama to process such Personal Data.
To the extent Customer enables SMS messaging within Customer’s dashboard to provide EasyLlama or Customer Course assignment and completion reminders to Authorized Users via SMS (i.e., text messages), Customer shall first obtain express consent from Authorized Users in compliance with applicable laws, including, but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”), to receive assignment and completion status reminders using automated technology. Customer shall retain for five (5) years after the expiration or termination of this Agreement copies of all SMS consent records and provide to EasyLlama upon request. EasyLlama shall comply with all opt-out requests in compliance with applicable laws, including the TCPA.
In the event that EasyLlama comes into possession of the Personal Data of an individual associated with a report made through the Anonymous Reporting Services, EasyLlama shall be under no contractual obligation to disclose such Personal Data to Customer under any circumstances.
Confidentiality & Non-Disclosure.
Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain confidential information of the other Party. “Confidential Information” means all nonpublic information or material in oral and/or written form that either (i) relates to past, present and future research, development, business activities, trade secrets, products, and services; or (ii) has been identified, either orally or in writing, as confidential by the disclosing party or would be understood to be confidential by a reasonable person under the circumstances. Customer Data and Personal Data shall be considered Customer’s Confidential Information. All methodologies, processes, scripts, content, audio files, visual files, audio/visual file combinations, images, templates, and materials disclosed by EasyLlama to Customer as part of EasyLlama Course customization services shall be considered EasyLlama’s Confidential Information.
Exclusions. Confidential Information shall not include information that: (i) is or becomes publicly available or enters the public domain through no fault of the receiving party; (ii) is in the receiving Party’s possession without knowledge of any confidentiality obligations, or (iii) is independently developed by the receiving Party without use of or reference to Customer’s Confidential Information.
Non-Disclosure Obligation. Neither Party shall disclose the Confidential Information of the other Party to any third party for any reason without the disclosing Party’s prior written consent, other than its employees or agents (i) who have a need to know the Confidential Information in order to perform its obligations under this Agreement, and (ii) are subject to written confidentiality agreements with terms no less restrictive than the terms contained herein.
Required Disclosure. In the event a receiving Party is requested or required by legal process to disclose any of the Confidential Information, the receiving Party shall give the disclosing Party prompt notice so that the disclosing Party may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, the receiving Party shall disclose only that portion of the Confidential Information that its legal counsel advises is legally required to disclose, and shall work with the disclosing Party to minimize the extent and effect.
Injunctive Relief. Both Parties understand and agree that monetary damages will not be a sufficient remedy for any breach of a Party’s confidentiality obligations under this Section, and that each Party shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies, but will be in addition to all other remedies available to at law or in equity.
Return or Destruction of Confidential Information. Upon written request at any time, the receiving Party shall, at the disclosing Party’s option, return or destroy all Confidential Information and, if requested, certify in writing that it has complied with the foregoing.
Representations and Warranties.
Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of the place of its origin, and possesses all the necessary authority to enter into and perform its obligations under this Agreement.
In connection with Anonymous Reporting Services, Customer represents, warrants and covenants that it shall not attempt, either directly or indirectly, to identify any individuals associated with a report submitted through the Anonymous Reporting Services who do not agree to be identified.
Compliance with Applicable Laws. Each Party shall comply with all state and federal laws or regulations applicable to the performance of its obligations under this Agreement. Customer shall not allow any third party to export from the United States or allow the re-export or re-transfer of any part of the Subscription Services: (a) to any country or territory subject to export control embargo or economic sanctions implemented by any agency of the U.S. Government; or (b) to any person or entity on any of the U.S. Government’s List of Parties of Concern or otherwise in violation of any export or import laws, regulations or requirements of any United States or applicable foreign agency or authority.
Termination.
Breach. Either Party may terminate this Agreement immediately if the other Party breaches any material provisions of this Agreement and, if curable, fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
Termination upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to other in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of the other Party’s creditors.
Effect of Termination. EasyLlama will, upon written request within sixty (60) days following expiration or termination of the Agreement, make Authorized User completion data available to Customer to export or download, provided Customer’s account has been paid in full. After expiration of the sixty (60) day period, EasyLlama shall, without liability or obligation of further notice to Customer, have the right to delete all Customer Data and Authorized User completion data.
Survival. The following Sections survive termination of this Agreement: Limited Promotional License, Customer Feedback License, Reservation of Rights, Confidentiality & Non-Disclosure, Disclaimers – Sections 19-20, Binding Arbitration, Disclaimers – Sections 26-27, Limitation of Liability, Indemnity, and Miscellaneous.
DISCLAIMERS.
DISCLAIMER - NO LEGAL OR PROFESSIONAL ADVICE. THE PLATFORM, SUBSCRIPTION SERVICES, EASYLLAMA CONTENT AND/OR EASYLLAMA COURSES ARE NOT INTENDED TO PROVIDE LEGAL OR OTHER PROFESSIONAL ADVICE. NEITHER THE PLATFORM, SUBSCRIPTION SERVICES, EASYLLAMA CONTENT NOR EASYLLAMA COURSES PROVIDED PURSUANT TO THIS AGREEMENT SHOULD BE CONSTRUED AS, OR USED AS A SUBSTITUTE FOR, THE ADVICE OF COMPETENT LEGAL OR APPLICABLE PROFESSIONAL COUNSEL. CUSTOMER’S ACCESS TO, AND USE OF THE HR COMPLIANCE TOOLS, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CUSTOMER UNDERSTANDS THAT QUESTIONS AND ANSWERS OR OTHER POSTINGS TO, OR COMMUNICATIONS ON OR IN CONNECTION WITH, THE HR COMPLIANCE TOOLS ARE NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE.
DISCLAIMER – CUSTOMER RESPONSIBILITY TO ENSURE COMPLIANCE. CUSTOMER HAS THE SOLE DISCRETION TO CHOOSE WHICH AVAILABLE COURSE VERSION COMPLIES WITH APPLICABLE JURISDICTIONAL COMPLIANCE REQUIREMENTS. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO ENSURE STATE AND FEDERAL TRAINING COMPLIANCE REQUIREMENTS HAVE BEEN SATISFIED BY ASSIGNING THE CORRECT JURISDICTIONAL VERSION AND ENSURING ANY MODIFICATION OR REMOVAL OF CONTENT COMPLIES WITH APPLICABLE FEDERAL AND STATE COMPLIANCE TRAINING REQUIREMENTS. CUSTOMER SHOULD SEEK INDEPENDENT LEGAL COUNSEL TO ASSESS ANY RISKS ASSOCIATED WITH CUSTOMER’S MODIFICATIONS. CUSTOMER HAS READ AND UNDERSTANDS THE FOREGOING DISCLAIMER AND EXPRESSLY WAIVES ANY CLAIMS AGAINST EASYLLAMA ARISING OUT OF THE SELECTION, ASSIGNMENT, AND MODIFICATION OF COURSES.
DISCLAIMER - NO GUARANTEE OF RESULTS OR OUTCOME: EASYLLAMA DOES NOT GUARANTEE OR WARRANT ANY RESULTS OR OUTCOME WITH RESPECT TO THE SUBSCRIPTION SERVICES, CUSTOMER COURSES, EASYLLAMA COURSES AND/OR EASYLLAMA CONTENT PROVIDED THROUGH THE PLATFORM.
ANONYMOUS REPORTING DISCLAIMER.EASYLLAMA PROVIDES THE ANONYMOUS REPORTING SERVICES AS A TOOL TO USE IN CONNECTION WITH CUSTOMER’S WHISTLEBLOWER COMPLIANCE PROGRAM. CUSTOMER ACKNOWLEDGES AND AGREES THAT EASYLLAMA SHALL HAVE NO RESPONSIBILITY WITH RESPECT TO THE MANAGEMENT, INVESTIGATION AND CONCLUSION OF ANY REPORTS RECEIVED THROUGH THE ANONYMOUS REPORTING SERVICES, INCLUDING, BUT NOT LIMITED TO, TIMELY ACKNOWLEDGEMENT AND FEEDBACK, AS REQUIRED UNDER APPLICABLE LAW, AND EASYLLAMA EXPRESSLY DISCLAIMS ALL OBLIGATION AND LIABILITY RELATED THERETO.
Binding Arbitration. Any claim or controversy arising out of or relating to the Platform, Courses, Subscription Services, EasyLlama or Customer Content and/or this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules,excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Federal Arbitration Act shall govern the interpretation and enforcement of this Agreement.
Future Functionality. Customer’s execution of this Agreement and use of the Subscription Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by EasyLlama regarding future functionality or features.
HR Compliance Tools; Access and Use Restrictions. To the extent selected through a Proposal, Customer may access the HR Compliance Tools subject to Customer and its Authorized User’s express online acceptance of the HR Compliance Tools Terms and Conditions.
Updates.
EasyLlama Course Updates. EasyLlama may from time to time provide updates to EasyLlama Course Content to incorporate changes in state and federal compliance requirements. Such updates shall be implemented automatically without any additional notice and at no additional charge to Customer. Customer shall be solely responsible for ensuring its Authorized Users are assigned to updated EasyLlama Course Content to ensure compliance with applicable state and federal laws and regulations.
Platform Updates. EasyLlama may provide updates to the Subscription Services at any time in the form of bug fixes, patches, and maintenance, provided such updates do not materially degrade the Subscription Services in any way.
Free Trial/Beta Services. EasyLlama may, at its sole discretion, offer a limited Free Trial of certain beta features and/or services made available through the Platform (“Free Trial Services”). Free Trial Services will be considered “Subscription Services” for such Free Trial period and Customers who utilize Free Trial Services will be bound by the terms of this Agreement. Upon the expiration of the Free Trial period, Free Trial Services will be discontinued and Customer must subscribe to any such services offered on a subscription basis for continued access. EasyLlama reserves the right to modify, cancel, and limit the Free Trial Services without notice at any time.
DISCLAIMER OF WARRANTIES. UNLESS OTHERWISE STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM, SUBSCRIPTION SERVICES, EASYLLAMA COURSES, AND EASYLLAMA CONTENT MADE AVAILABLE TO CUSTOMER AND ITS AUTHORIZED USERS THROUGH THIS AGREEMENT, INCLUDING ANY “BETA” RELEASES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EASYLLAMA DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, SUBSCRIPTION SERVICES, CUSTOMER COURSES, EASYLLAMA COURSES, OR EASYLLAMA CONTENT (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET CUSTOMER’S REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EASYLLAMA EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE.
DISCLAIMER OF THIRD PARTY CONTENT. EASYLLAMA DISCLAIMS ANY AND ALL LIABILITY FOR ANY THIRD PARTY CONTENT MADE AVAILABLE TO CUSTOMER AND ITS AUTHORIZED USERS THROUGH THE PLATFORM AND SUBSCRIPTION SERVICES, INCLUDING ALL CUSTOMER COURSE(S) AND HR COMPLIANCE TOOLS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EASYLLAMA MAKES NO WARRANTIES REGARDING SUCH THIRD PARTY CONTENT, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CUSTOMER’S VIOLATION OF SECTION 9(C), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST REVENUE, LOST PROFITS, LOST DATA, LOSS OF GOODWILL, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CUSTOMER’S VIOLATION OF SECTION 9(C), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO EASYLLAMA IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S AGGREGATE LIABILITY SHALL EXCEED THE GREATER OF 5X FEES PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR $500,000.00.
INDEMNITY.
By EasyLlama. Except to the extent any claim results from the gross negligence or willful misconduct of Customer, EasyLlama agrees to indemnify, defend and hold harmless Customer, and its subsidiaries, officers, directors, shareholders, employees, and each of their respective successors and assigns from and against all damages, losses, liabilities, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) (“Losses”) incurred in connection with a third party claim alleging that the Subscription Services infringe or misappropriate any third party intellectual property right. If a claim of infringement or misappropriation under this Section occurs, or if EasyLlama reasonably determines that such a claim is likely to occur, EasyLlama shall, at its option: (i) obtain a right for Customer to continue using the Subscription Services for no additional fee; (ii) modify the Subscription Services to make it and/or them non-infringing; (iii) replace the Subscription Services with a non-infringing replacement with materially equivalent functionality, features, and performance; or (iv) terminate this Agreement and refund on a pro-rata basis any unused fees paid by Customer for the remainder of the Subscription Term. EasyLlama will not have any indemnification obligation for a claim of infringement or misappropriation to the extent such claim would not have occurred but for (x) any Customer IP, (y) any combination or use of the Subscription Services with any other product or system or technologies not supplied or approved by EasyLlama, and/or (z) any refusal by Customer to accept or use a materially equivalent non-infringing replacement. The remedies provided herein shall be the sole and exclusive legal remedies of Customer for any claim of infringement of the Subscription Services.
By Customer. Except to the extent any claim results from the gross negligence or willful misconduct of EasyLlama, Customer agrees to indemnify, defend and hold harmless EasyLlama, and its subsidiaries, officers, directors, shareholders, employees and each of their respective successors and assigns from and against all Losses incurred in connection with any third party claim alleging (i) any Customer IP infringes or misappropriates a third party’s intellectual property right, (ii) Customer’s violation of applicable laws, (iii) the failure of a Customer Course, or the modifications to or removal of any Content from an EasyLlama Course as requested by Customer, to satisfy any training, compliance, regulatory or other legal requirement under applicable laws, (iv) Customer’s breach of its representation, warranties and obligations pursuant to Section 16(b) with respect to the Anonymous Reporting Services, and (v) Customer or its Authorized User’s gross negligence or willful misconduct.
Notice. A Party’s indemnification obligations under this Agreement are conditioned on the indemnified Party providing prompt written notice to the indemnifying Party of any claim, action, or demand for which indemnification is claimed, provided, however, that any delay in such notice will relieve the indemnifying Party of its indemnification obligations only to the extent such delay materially prejudices the indemnifying Party’s defense. The indemnifying Party shall be entitled to assume control of the defense and any settlement negotiations. In the event the indemnifying Party assumes control of the defense and negotiations, the indemnified Party shall be entitled, at its sole cost and expense, to participate in the defense and negotiations. In the event the indemnifying Party does not assume control of the defense and negotiations, then the indemnified Party may take control of the defense and negotiations, and its reasonable costs and expenses shall be subject to indemnification. The indemnified Party will reasonably cooperate, at the indemnifying Party’s expense, in the defense of such claim as the indemnifying Party may request. The indemnifying Party will not enter into or agree to any settlement that requires any action or admits any liability by the indemnified Party or imposes any restrictions on the indemnified Party, in each case without the prior written consent of the indemnified Party, such consent shall not unreasonably be withheld.
Miscellaneous.
Force Majeure. Any delay in the performance of any duties or obligations of a Party will not be considered a breach of this Agreement if the delay is caused by an event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, terrorism, labor disruptions, strikes, lockouts, freight, government ordered closures, embargoes, natural disaster, denial of service attacks, war or acts of God.
Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created herein between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.
Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
Amendments. No amendment, modification, or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to or application of conflict of law principles. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the State of Delaware with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof.
Assignment. Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, consolidation, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
No Waiver. No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
Notices. All notices from Customer regarding additional Seats, renewal changes, or notices of non-renewal shall be made in writing to EasyLlama at sales@easyllama.com. All legal notices required or permitted to be given under this Agreement by Customer will be in writing and delivered to EasyLlama at 440 N Barranca Ave #3753, Covina, CA 91723 with a copy to legal@easyllama.com and Customer at the billing address on the Proposal or as otherwise specified in writing by Customer.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement.
Execution. Either Party may execute this Agreement with either a manual or digital signature. “Digital signature” means an electronic identifier that is intended by the Party using it to have the same force and effect as the use of a manual signature. A signed copy of this Agreement delivered via facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement.
Entire Agreement. This Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the Parties regarding the subject matter contained herein.
COURSE UPLOAD SERVICES AND COURSE AUTHORING TOOLS ADDENDUM
This Course Upload Services and Course Authoring Tools Addendum (the “Addendum”) governs the Course Upload Services and Course Authoring Tools specified within the Proposal. In the event of a conflict between this Addendum and the Agreement, this Addendum will govern in connection with the Course Upload Services and Course Authoring Tools. All capitalized terms contained in this Addendum shall have the same meaning assigned to them in the Agreement, unless otherwise defined or modified herein.
Ownership and Use Restrictions.
EasyLlama IP. All right, title and interest in and to the Course Upload Services and Course Authoring Tools, is owned by EasyLlama.
Customer Courses Uploaded within Course Upload Services. All right, title and interest in and to any Customer Courses uploaded by Customer within the Course Upload Services, excluding Customer Courses generated in connection with the Course Authoring Tools, is owned by Customer.
Content and Output Generated by Course Authoring Tools.
All right, title and interest in and to any Customer Content input within the Course Authoring Tools is owned by Customer. All right title and interest in and to any EasyLlama Content made available through the Course Authoring Tools (e.g., fonts, templates, etc.) is owned by EasyLlama.
All right, title and interest in and to any Output generated by the Course Authoring Tools is owned by EasyLlama.
The Parties agree that any and all Output generated, developed, or otherwise arising in connection with the Course Authoring Services is for the exclusive use as part of the Subscription Services only. Customer acknowledges and agrees that Customer may not export, remove, or access the Output for use outside of the Subscription Services and EasyLlama has no obligation to export such Output to Customer at any time. Upon the termination or expiration of this Agreement, Customer's access to the Output shall immediately cease. Subject to Section 3.b. of this Addendum, EasyLlama shall not use any such Output for any purpose other than providing the Subscription Services to Customer.
License. To the extent Course Upload Services and/or Course Authoring Tools are offered to Customer as part of the Subscription Services pursuant to a Proposal:
Course Upload Services. Subject to Customer’s compliance with the terms and conditions set forth in this Agreement and satisfaction of Customer’s payment obligations, EasyLlama hereby grants to Customer a non-exclusive, non-transferable, limited right to access and use the Course Upload Services solely for Customer’s internal business operations, and up to the maximum number of Seats set forth in the applicable Proposal during the applicable Subscription Term. Except as set forth in Section 3 of the Agreement, Seats are not reassignable.
Course Authoring Tools. Subject to Customer’s compliance with the terms and conditions set forth in this Agreement and satisfaction of Customer’s payment obligations, EasyLlama hereby grants to Customer a non-exclusive, non-transferable, limited right to access and use the Course Authoring Tools and Output solely for the purposes of creating e-learning courses for internal business purposes to be published to Authorized Users solely within the Platform.
Disclaimer.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE COURSE UPLOAD SERVICES AND AI FUNCTIONALITY AS PART OF THE COURSE AUTHORING TOOLS IS AVAILABLE “AS IS” AND AT CUSTOMER’S SOLE RISK. EASYLLAMA MAKES NOWARRANTIES AND DISCLAIMS ALL OBLIGATIONS AND LIABILITIES, AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND AVAILABILITY OF THE CUSTOMER COURSES.
USE OF OUTPUT. Customer is solely responsible for all use of the Output and evaluating the Output for accuracy and appropriateness for Customer’s use case. Customer acknowledge that due to the nature of artificial intelligence generally, Output may not be unique and other users may receive similar content from the use of the AI Functionality.
Use Restrictions - Course Upload Services.Customer is expressly prohibited from importing any EasyLlama Courses within the Course Upload Services for any purpose. Any violation of this Addendum Section 4 shall constitute a material breach of the Agreement and EasyLlama shall have the right, without waiving any other rights, remedies, or defenses it may have whether at law or in equity, to immediately terminate this Agreement upon written notice to Customer. The thirty (30) day notice to cure set forth in Section 18(a) of the Agreement is expressly waived for purposes of this Section. In the event of termination under this Section, all fees are non-refundable. The limitation of liability terms in Section 28 of the Agreement shall expressly not apply to Customer’s violation of this Section.
Content and Use Restrictions. Customer is solely responsible, and EasyLlama disclaims all responsibility, for ensuring that Customer Courses uploaded within the Course Upload Services and Customer Content input within the Course Authoring Tools (a) do not violate or infringe the intellectual property rights of a third party, (b) are not offensive, profane, obscene, libelous, defamatory, objectionable, discriminatory, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise objectionable, inappropriate or illegal, or (c) do not contain any Personal Data of persons under the age of 16. EasyLlama does not have any obligation to prescreen, monitor, edit or remove any Customer Courses. EasyLlama may, however, at any time and without prior notice, screen, remove, edit, or block any Customer Courses that in its sole judgment violates this Section. EasyLlama shall not be liable for any losses, liability, damages or claims arising or relating to the uploading, posting, submitting, accessing or removing of any Customer Courses. Use of AI functionality is subject to compliance with the applicable OpenAI Usage Policy and Anthropic Usage Policy, as may be updated from time to time.
Representations and Warranties.
Customer represents and warrants that it has all necessary licenses, rights, consents, and permissions to (i) upload and distribute Customer Courses within the Course Upload Services, and/or (ii) input Customer Content in connection with the Course Authoring Tools, for purposes of creating and publishing Customer Courses within the Platform.
Customer represents and warrants that any Customer Content input within the Customer Courses do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, patent, trademark, or other intellectual property rights; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause EasyLlama to violate any law or regulation.
Authorized User Certificates. EasyLlama shall provide to Customer certificates of completion to validate an Authorized User’s successful completion of a Customer Course. Certificates are solely an acknowledgment of completion of the Customer Course itself.EasyLlama expressly disclaims any warranty that an Authorized User has satisfied any compliance and/or training and/or any other legal requirements mandated under applicable laws as a result of the completion of any Customer Course.
Termination; Suspension. EasyLlama reserves the right to suspend or terminate Customer's access to AI functionality immediately upon written notice under the following circumstances: (a) misuse or abuse of the AI Functionality by Customer; (b) violation of any customer restrictions, acceptable use policies, or content restrictions as outlined in this Agreement or otherwise made available to Customer; (c) non-payment of fees when due; or (d) excessive usage of AI functionality beyond reasonable limits as determined by the EasyLlama in its sole discretion. EasyLlama shall not be liable for any loss or damage arising from such suspension or termination of access to AI Functionality.