EasyLlama Reseller-End User Terms of Service
SECTION 17 OF THIS AGREEMENT REQUIRES THE PARTIES TO SUBMIT ANY CLAIM ARISING UNDER THIS AGREEMENT TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS – WHICH INCLUDES A WAIVER OF A RIGHT TO A JURY TRIAL OR A RIGHT TO FILE A CLASS ACTION.
Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
Anonymous Reporting Services. A secure tool to enable individuals to provide feedback and/or report or disclose information about misconduct or violations of applicable law through a confidential whistleblowing channel.
Authorized Users. Customer’s designated administrator(s) and participating employees authorized to access and use the Subscription Services.
Content. The term “Content” shall mean any and all text, data, information, images, graphics, audio, video, and/or audiovisual combinations.
Course Upload Services. The Course Upload Services is 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 Addendum 1, attached hereto and hereby expressly incorporated by reference.
Customer Course. The term “Customer Course” means the SCORM video, image, text, and other files owned and/or licensed by Customer and uploaded within the Course Upload Services.
Customer Data. The term “Customer Data” refers to any Content 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” means 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.
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 EasyLlama website located at easyllama.com.
Seat. The term “Seat” means a single Authorized User that may access and use the Subscription Services pursuant to the Seat count applicable to Customer’s Subscription Plan during the applicable Subscription Term.
Service Data. The term “Service Data” means 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.
Services Plan. The applicable Services Plan provided by Reseller governing Customer’s purchase of the Services from Reseller, including all Reseller terms and conditions. All terms and conditions of this Agreement are expressly incorporated by reference within the applicable Services Plan.
Services. The term “Services” refers to the cloud-based software as a service subscription services made available to Customer through the applicable Services Plan.
Unused Seat. The term “Unused Seat” means a Seat which has not been used by an assigned Authorized User to access any of the Services in any manner, including any de-minimis activity, access and/or use (e.g., in excess of 1%).
Access and Use of the Services. EasyLlama hereby grants to Customer a non-exclusive, non-transferable, non-assignable (except as otherwise permitted pursuant to Section 20(f)), worldwide right to access and use the Services pursuant to the terms of this Agreement and applicable Services Plan.
Authorized Users. The Services are provided on a per-Seat, subscription basis. Authorized Users shall access the 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 Reseller if it learns of any unauthorized use of any access credentials. A Seat may only be assigned to one (1) Authorized User and are 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 Services Term and will not carry over to the next subscription Services Term.
Customer Data License. Customer grants to EasyLlama a limited, non-exclusive license to use Customer Data solely as necessary for providing the Services pursuant to this Agreement. Except for the limited license granted herein, Customer has and will retain all right, title and interest, including, without limitation, all intellectual property rights, in and to any Customer Data.
Reservation of Rights.
Customer IP. Customer shall retain all right, title and interest, including, without limitation, all intellectual property rights, in and to any Customer Data, Customer Courses, and Customer Trademarks (collectively “Customer IP”) and all copies, modifications and derivative works thereof.
EasyLlama IP. EasyLlama has and will retain all right, title and interest, including, without limitation, all intellectual property rights, in and to the Platform, 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 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.
Customer Support. Customer should email Reseller for Customer support and assistance in accordance with the terms of the Service Plan.
Security. EasyLlama will maintain administrative, physical, and technical safeguards reasonably designed to protect the security, confidentiality and integrity of the Services and Customer Data in accordance with prevailing industry practices and standards.
Privacy. Each Party shall be responsible for ensuring their 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 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 and administering the 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 applicable Data Processing Addendum., 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. incorporated herein. 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 Services in accordance with the Agreement and for no other purposes. Each Party agrees that Customer’s use of the Services to process such Personal Data shall be deemed a written instruction to EasyLlama to process such Personal Data.
Termination. This Agreement shall terminate in accordance with the terms of the Services Plan. The following Sections survive termination of this Agreement: Binding Arbitration, Customer Feedback License, Customer Name and Trademark Licenses, Reservation of Rights, Confidentiality & Non-Disclosure, Disclaimers in Section 10-14, Indemnity, Limitation of Liability, and Governing Law.
DISCLAIMER – NO LEGAL OR PROFESSIONAL ADVICE. THE PLATFORM, SERVICES, EASYLLAMA CONTENT AND/OR EASYLLAMA COURSES ARE NOT INTENDED TO PROVIDE LEGAL OR OTHER PROFESSIONAL ADVICE. FEDERAL AND STATE LAWS ARE UPDATED ON AN ONGOING BASIS AND IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE STATE AND FEDERAL TRAINING COMPLIANCE REQUIREMENTS HAVE BEEN SATISFIED. NEITHER THE PLATFORM, SERVICES, CONTENT AND/OR EASYLLAMA COURSES PROVIDED PURSUANT TO THIS AGREEMENT SHOULD BE CONSTRUED AS, OR SHOULD BE USED AS A SUBSTITUTE FOR, THE ADVICE OF COMPETENT LEGAL OR APPLICABLE PROFESSIONAL COUNSEL.
DISCLAIMER - NO GUARANTEE OF RESULTS OR OUTCOME: EASYLLAMA DOES NOT GUARANTEE OR WARRANT ANY RESULTS OR OUTCOME WITH RESPECT TO THE SERVICES, CUSTOMER COURSES, EASYLLAMA COURSES AND/OR EASYLLAMA CONTENT PROVIDED THROUGH THE PLATFORM.
ANONYMOUS REPORTING DISCLAIMER; CUSTOMER WARRANTY.
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.
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.
DISCLAIMER OF WARRANTIES. UNLESS OTHERWISE STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM, 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, 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 SERVICES, INCLUDING ALL CUSTOMER COURSE(S). 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. EASYLLAMA WILL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL EASYLLAMA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
INDEMNITY. Customer agrees to defend, indemnify and hold EasyLlama and its officers, directors, shareholders, employees, representatives, agents, and each of their respective successors and assigns (the "EasyLlama Indemnified Parties") harmless from and against any and all damages, losses, liabilities, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) arising out of or relating to a third party claim alleging that: (a) Customer IP infringes the copyrights, trademarks, trade secrets, patents or other intellectual property rights of any third party, (b) the acts or omissions of Customer and/or its Authorized Users, (c) Customer and/or its Authorized Users’ violation of applicable laws, rules and regulations, and/or (d) Customer’s breach of its representation, warranties and obligations pursuant to Section 12(b) with respect to the Anonymous Reporting Services.
Binding Arbitration. Any claim or controversy with EasyLlama arising out of or relating to the Platform, Courses, Services, EasyLlama IP, Customer Content, Services Plan 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. The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org.
Class Action & Jury Trial Waiver. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ON AN INDIVIDUAL BASIS ONLY. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS. EACH PARTY IS EXPRESSLY WAIVING ITS RIGHTS TO A TRIAL BY AJUDGE OR JURY.
IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.
Future Functionality. Customer’s acceptance of this Agreement and use of the 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.
Updates.
Course Updates. EasyLlama may from time to time provide updates to Courses available through the Services, including updates to Course Content in conformance with updated state and federal compliance requirements. Such updates shall be implemented automatically without any additional notice to Customer. Customer shall be solely responsible for ensuring its Authorized Users are assigned to updated Course Content to ensure compliance with applicable state and federal laws and regulations.
Platform Updates. EasyLlama may provide updates to the Services at any time in the form of bug fixes, patches, and maintenance, provided such updates do not materially degrade the Services in any way.
Miscellaneous.
Force Majeure. Except with respect to Customer’s payment obligations, neither Party shall be liable or responsible for any delays, 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, terrorism, 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.
Modifications. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of EasyLlama or posted by EasyLlama on the Platform.
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 jurisdiction of the State of Delaware and venue 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. Except as otherwise set forth in the applicable Services Plan, Customer shall not assign any of the rights or obligations under this Agreement without the prior written consent of EasyLlama, which consent shall not unreasonably be withheld.
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 licenses, renewal changes, or notices of non-renewal shall be made in writing to Easy Llama 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 provided in connection with Customer’s Service Plan or as otherwise specified in writing by Customer.
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 ADDENDUM
This Course Upload Services Addendum (the “Addendum”) governs the Course Upload Services purchased as part of Customer’s Services Plan . In the event of a conflict between this Addendum and the Agreement, this Addendum will govern in connection with the Course Upload Services. 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. All right, title and interest in and to the Course Upload Services, excluding any Customer Course(s) contained therein, is owned by EasyLlama.
License. Subject to Customer’s compliance with the terms and conditions set forth herein, EasyLlama hereby grants to Customer a non-exclusive, non-assignable, limited right during the Services Plan term to access and use the Course Upload Services solely for Customer’s internal business operations, and up to the maximum number of Seats applicable to Customer’s Subscription Plan during the applicable Subscription Term. Except as set forth in Section 3 of the Agreement, Seats are not reassignable.
Disclaimer. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE COURSE UPLOAD SERVICES IS AT CUSTOMER’S SOLE RISK. EASYLLAMA MAKES NOT WARRANTIES AND DISCLAIMS ALL OBLIGATIONS AND LIABILITIES, AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND AVAILABILITY OF THE CUSTOMER COURSES.
Use Restrictions. 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. To the extent the Services Plan provides for a thirty (30) day notice to cure, such provision 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 15 of the Agreement shall expressly not apply to Customer’s violation of this Section.
Customer Responsibilities. Customer is solely responsible, and EasyLlama disclaims all responsibility, for ensuring that the Customer Courses (a) do not violate or infringe the intellectual property rights of a third party, and (b) are not offensive, profane, obscene, libelous, defamatory, objectionable, discriminatory, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise objectionable, inappropriate or illegal. 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.
Representations and Warranties.
Customer represents and warrants that it has all necessary licenses, rights, consents, and permissions to authorize EasyLlama to use and distribute the Customer Courses as necessary to provide the Course Upload Services pursuant to the terms of this Agreement.
Customer represents and warrants that the Customer Courses do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any 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.
LAST UPDATED JANUARY 22, 2024