EasyLlama Terms of Service

SECTION 26 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.

1. Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:

   1. 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.

   2. Authorized Users. The term “Authorized Users” shall mean customer’s designated administrator(s) and participating employees authorized to access and use the Subscription Services.

   3. Content. The term “Content” shall mean any and all text, data, information, images, graphics, audio, video, and/or audiovisual combinations.

   4. Course Upload Services. The term “Course Upload Services” shall mean the Course Upload Services 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 Addendum 1, attached hereto and hereby expressly incorporated by reference.

   5. Customer Course. The term “Customer Course” shall mean the SCORM video, image, text, and other files owned and/or licensed by Customer and uploaded within the Course Upload Services.

   6. Customer Data. The term “Customer Data” shall mean any Content submitted, uploaded, imported, integrated, and/or communicated by Customer through the Subscription Services, including Personal Data of Authorized Users.

   7. 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.

   8. HR Compliance Tools. The range of add-on services available to Customer and its Authorized Users, as specified in Customer’s Subscription Plan, 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 28.

   9. 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.

   10. Platform. The term "Platform" shall mean the EasyLlama website located at easyllama.com.

   11. 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.

   12. 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.

   13. 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.

   14. 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.

   15. 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.

   16. 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%)

2. Access and Use of the Subscription Services. 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 30(f)), worldwide right to access and use the Subscription Services pursuant to the terms of this Agreement.

3. 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.

4. 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) and branded to incorporate Customer’s Trademarks. Any EasyLlama Course customization scope set forth in the Proposal applies to the initial set of provided files only. However, updates to EasyLlama Course Content for the purposes of incorporating changes in state and federal compliance requirements (“EasyLlama Course Updates”) are implemented automatically, at no additional charge to Customer, and will include any pre-existing customizations. To the extent Customer elects to upgrade to a newly released EasyLlama Course version, incorporation of pre-existing customizations shall only be made pursuant to Customer’s request and a separate scope of work mutually agreed to by the Parties (email sufficient). Customization of new EasyLlama Course versions shall be subject to additional fees. 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.

5. 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.

6. Limited Promotional License. Customer agrees that EasyLlama may use Customer’s name and logo on our website and in other marketing materials for purposes of marketing and promoting the Subscription Services. This promotional license may be terminated at any time upon Customer’s written notice to support@easyllama.com.

7. Customer Feedback License. Customer grants to EasyLlama a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as otherwise permitted pursuant to Section 30(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.

8. 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. 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.

9. Reservation of Rights.

   1. 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.

   2. 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.

   3. 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.

10. Subscription Fees.

    1. Payment. Customer agrees to pay the fees for the Subscription Services pursuant to the terms of Customer’s Subscription Plan. Customer authorizes EasyLlama to process payment of all fees to the credit card, or other payment method, associated with Customer’s account. 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 charge Customer’s applicable credit card or other payment method associated with Customer’s account for any outstanding fees for use of the Subscription Services during the Subscription Term.

    2. Upgrades and Downgrades. Any upgrades, downgrades or overages are subject to the EasyLlama Upgrade and Downgrade Policy in effect at the time of such upgrade, downgrade or overage.

    3. Renewal. In any renewal Subscription Term, the Subscription Fees will reflect any applicable upgrades, downgrades or overages. 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.

    4. 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.

    5. 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 payment terms of this Agreement.

    6. No Refunds - Early Termination. Customer shall be responsible for all fees for the entire Initial, and any Renewal, Term. Fees will not be prorated upon cancellation and/or early termination all fees paid through the date of termination are nonrefundable. In the event of any early termination by Customer other than for EasyLlama’s material breach, Customer shall within ten (10) days of the effective termination date pay to EasyLlama a termination fee equal to 100% of the remaining fees due and payable pursuant to Subscription Plan that would have been paid had the Subscription Services been provided for the entire duration of the then-current Subscription Term (“Termination Fee”). EasyLlama and Customer acknowledge and agree that the Termination Fee reflects a reasonable measure of the actual damages incurred by EasyLlama and do not intend for it to be a penalty for early termination.

11. Subscription Term. The term of this Agreement will commence on the Effective Date and shall continue for the term identified in the Subscription Plan, and any renewal thereof (“Subscription Term”), unless earlier terminated pursuant to the terms of this Agreement.

12. Subscription Renewal. Subscription Plans will automatically renew for subsequent Subscription Terms equal to the expiring Subscription Term, unless either Party provides written notice of non-renewal at least sixty (60) days before the end of the applicable Subscription Term. Customer may provide notice of non-renewal either within the dashboard (as available) or to sales@easyllama.com. EasyLlama shall provide notice to Customer of any renewal fee increase before the end of the applicable Subscription Term. Unless otherwise non-renewed by Customer, Customer shall be responsible for payment of the applicable Subscription Services fees in effect at the time of renewal. All renewal fees shall be paid and automatically charged pursuant to the credit card, or other payment method, associated with Customer’s account.

13. Confidentiality & Non-Disclosure.

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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.

14. Customer Support. Customer should 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.

15. 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.

16. 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 Subscription Services and the performance of its obligations under this Agreement

    1. 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 applicable Data Processing Addendum, incorporated herein.

    2. To the extent Customer enables SMS messaging within Customer’s dashboard to provide 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 Course 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.

    3. 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. 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.

17. Representations and Warranties.

    1. Each Party represents and warrants that it (i) is duly organized, validly existing and in good standing under the laws of the place of its origin, (ii) possesses all the necessary authority to enter into and perform its obligations under this Agreement, and (iii) 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: (y) to any country or territory subject to export control embargo or economic sanctions implemented by any agency of the U.S. Government; or (z) to any person or entity on any of the U.S. Government’s Lists 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. Customer represents that it is not named on any U.S. government denied-party list.

    2. 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.

18. Termination.

    1. 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.

    2. 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.

    3. Effect of Termination. EasyLlama will, upon written request within sixty (60) days following expiration or termination of the Agreement, make Authorized User Course 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 Course completion data.

    4. Survival. The following Sections survive termination of this Agreement: Promotional License, Customer Feedback License, Reservation of Rights, Confidentiality & Non-Disclosure, LMS Disclaimer – Sections 19, General Release – Section 20, Disclaimers – Sections 21-23, Limitation of Liability, Indemnity, Binding Arbitration, and Miscellaneous.

19. DISCLAIMERS

    1. 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, 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. 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 TOOLSARE NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE.

    2. 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. CUSTOMER HAS READ AND UNDERSTANDS THE FOREGOING DISCLAIMER AND EXPRESSLY WAIVES ANY CLAIMS AGAINST EASYLLAMA ARISING OUT OF THE SELECTION AND ASSIGNMENT OF COURSES

    3. 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.

20. GENERAL RELEASE. Customer hereby voluntarily releases, forever discharges and covenants not to sue EasyLlama, its subsidiaries, affiliates, officers, directors, shareholders, employees, and each of their respective successors and assigns (“the Released Parties”) from any and all liability, claims, demands, actions or causes of action, damages, suits in equity of whatever kind or nature which are related to, arise out of, or are in any way related to (a) acts or omissions of Customer and/or its Authorized Users, (b) Customer and its Authorized Users’ access to and/or reliance on the Platform, Subscription Services, and/or EasyLlama Content provided pursuant to this Agreement, and (c) Customer and/or its Authorized Users’ violation of applicable laws, rules and regulations. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

21. 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.

22. 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.

23. 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.

24. 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.

25. INDEMNITY.

    1. 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.

    2. By Customer. 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 Losses arising out of or relating to a third party claim alleging that: (i) Customer IP infringes the copyrights, trademarks, trade secrets, patents or other intellectual property rights of any third party, (ii) the acts or omissions of Customer and/or its Authorized Users, (iii) Customer and/or its Authorized Users’ violation of applicable laws, rules and regulations, and (iv) Customer’s breach of its representation, warranties and obligations pursuant to Section 17(b) with respect to the Anonymous Reporting Services.

26. Binding Arbitration. Any claim or controversy arising out of or relating to the Platform, Courses, Subscription Services, EasyLlama IP, 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. The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org.

    1. 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 A JUDGE OR JURY.

    2. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.

27. 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.

28. 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.

29. Updates.

    1. Course Updates. EasyLlama may from time to time provide updates to Courses available through the Subscription 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.

    2. 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.

30. Miscellaneous.

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. Assignment. 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.

    7. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.

    8. No Waiver. No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.

    9. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.

    10. 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.

31. 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.

32. CALIFORNIA CONSUMER COMPLAINTS. If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Affairs of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

33. DMCA - NOTICE OF CLAIMED COPYRIGHT INFRINGEMENT. If you have a good faith belief that your copyright has been infringed, you can download and submit a Notice of Claimed Infringement to EasyLlama’s Designated Agent by email at support@easyllama.com

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COURSE UPLOAD SERVICES ADDENDUM

This Course Upload Services Addendum (the “Addendum”) governs the Course Upload Services purchased as part of Customer’s Subscription 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.

1. Ownership. All right, title and interest in and to the Course Upload Services, excluding any Customer Course(s) contained therein, is owned by EasyLlama.

2. License. Subject to Customer’s compliance with the terms and conditions set forth herein, 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 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.

3. 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 NO WARRANTIES AND DISCLAIMS ALL OBLIGATIONS AND LIABILITIES AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND AVAILABILITY OF THE CUSTOMER COURSES.

4. 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. 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 26 of the Agreement shall expressly not apply to Customer’s violation of this Section.

5. 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.

6. Representations and Warranties.

   1. 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.

   2. Customer represents and warrants that 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.

7. 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 NOVEMBER 6, 2024