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Master Service Agreement 

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Master Service Agreement

Last modified 10.30.23

This Master Service Agreement (this "Agreement"), effective as of the date of execution of this Agreement (the "Effective Date"), is by and between ALWAYS VISIBLE SIGNS, LLC, a Florida limited liability company doing business as LONE ARMADILLO LEARNING with an address at located at 1576 Bella Cruz Drive #271, Lady Lake, FL 32159 ("Lone Armadillo Learning", “we/us/our” ), and the entity described in the Order Form ("Customer" or “you/your”). Lone Armadillo Learning and Customer may be referred to herein collectively as the "Parties" or individually as a "Party." In consideration of the terms and conditions set forth herein, the Parties agree as follows:

  1. Definitions. Capitalized terms shall have the meanings as set forth in Exhibit A.
  2. Access and Use.
    1. Provision of Access. Subject to and conditioned on your compliance with all terms and conditions of this Agreement, we grant you a non-exclusive, non-transferable (except in compliance with Section 13.g.) right to access and use the Services during the Term, to be used only by your Authorized Users in accordance with this Agreement. We will provide the necessary passwords and network links or connections to allow you and your Authorized Users to access the Services. The Order Form shall accurately reflect the number of Authorized Users you will have, except if we agree otherwise in writing (including any appropriate adjustment of the Fees). No Authorized User profile or credentials may be used by more than one individual person unless such profiles has been reassigned in its entirety to a different individual. You acknowledge and understand that the Services do not include an audit trail, validated electronic signatures, or version retention, and therefore we make no representation that the Services shall be performed in any manner that would be considered to be “validated.”
    2. Documentation License. Subject to the terms and conditions contained in this Agreement, we grant you a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.g) license to use the Documentation during the Term solely for your internal business purposes.
    3. Use Restrictions. You understand and acknowledge that the Services are only permitted to be used by lawful commercial enterprises and/or not-for-profit organizations operating within the United States, and you hereby represent that you are using the Services only for the advancement and benefit of your legal, validly-existing, and legitimate business and not in furtherance of any criminal, fraudulent, deceptive, or otherwise illegal activity. You shall not use the Services for any purposes beyond the scope of the access granted in this Agreement, and shall at all times comply with the attached Exhibit B, incorporated herein. You shall not, and you shall not permit any of your Authorized Users, to: (i) copy, modify, or create derivative works of any part of the Services or Documentation; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    4. Some industries have higher than average abuse complaints, which can directly impact our ability to provide the Services to other customers. To protect other Lone Armadillo Learning customers, we reserve the right to discontinue your use of the Services if you are in one of these industries. Some examples include:
      1. Cryptocurrency
      2. Non-fungible tokens (NFTs)
      3. Escort and dating services
      4. Pharmaceutical products
      5. Work from home, make money online, and lead generating opportunities
      6. Gambling services or products
      7. Multi-level marketing or affiliate marketing
      8. List brokers or list rental services
      9. Selling 'Likes' or followers for a social media platform
    5. Linked Content. You understand and acknowledge that the content may contain text, pictures, videos, graphics, animation information, data, including any advertisements, hyperlinked materials or content, or suggested materials or content, or otherwise lead to services or websites which are not created by, owned by, or controlled by Lone Armadillo Learning (collectively, the “Linked Content”). No judgment or warranty is made with respect to any Linked Content and Lone Armadillo Learning is not responsible for, and not liable for, any of the Linked Content included in, embedded in, or otherwise associated with the Customer Materials or the LMS Content. Moreover, you agree that Lone Armadillo Learning shall not be responsible for injury to any person or property arising out of the actions or omissions of any Authorized User in any way arising out of or otherwise resulting from access to or the viewing of the Linked Content.
    6. Reservation of Rights. We reserve all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Lone Armadillo Learning IP.
    7. Suspension. Notwithstanding anything to the contrary in this Agreement, we may temporarily suspend your access to any portion or all of the Services (including for any of your Authorized Users) if: (i) we reasonably determine that (A) there is a threat or attack on any of the Lone Armadillo Learning IP; (B) Customer's or any Authorized User's use of the Lone Armadillo Learning IP disrupts or poses a security risk to the Lone Armadillo Learning IP or to any other customer or vendor of Lone Armadillo Learning; (C) Customer, or any Authorized User, is using the Lone Armadillo Learning IP for fraudulent or illegal activities; (D) subject to applicable law, you have ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) the Services, or our provision of the Services, becomes or is prohibited by applicable law; (ii) any of our vendors suspends or terminates our access to or use of any third-party services or products required to provide you with the Services; or (iii) in accordance with Section 5.a.iii (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). We shall use reasonable efforts to provide written notice of any Service Suspension to you and to provide updates regarding resumption of access to the Services following any Service Suspension, and shall make reasonable efforts to restore the Services after the underlying issue is resolved. You agree that we will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences you or your Authorized Users incur as a result of a Service Suspension.
    8. Aggregated Statistics; Individual Statistics. Notwithstanding anything to the contrary in this Agreement, we may monitor and analyze your use of the Services, including through both the analysis of specific individual statistics, and the collection and compilation Aggregated Statistics. Additionally, providers of any Third-Party Products incorporated into the Services may also collect and compile Aggregated Statistics or individual statistics related to the use of the Services, or may request that we provide those statistics, and you authorize us to do so. As between Lone Armadillo Learning and Customer, we own all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein. You agrees that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law. The foregoing shall not limit our access to, or ability to use, assess, or analyze specific individual statistics so that we may perform the Services and/or to monitor and improve the Services.
    9. Changes and Updates. You hereby acknowledge and agree that we may change the Fees or other material terms in effect, to reflect factors such as changes to our product offerings, changes to our business, or changes in economic conditions. In the event that such changes involve an increase in Fees or a material degradation in functionality, we will provide written notice to you no less than 30 days in advance of these changes via a message to the email address associated with your account and will have the opportunity to cancel your subscription before such changes come into effect. You hereby approve and agree to such changes without any further signed writings to authorize or approve of same.
    10. Right to Publicize. You agree that we will have the right to use your name and branding in print, on-line, and in other multimedia advertising and marketing materials to identify you as a client of Lone Armadillo Learning.
    11. No Grouping with Customer Affiliates. You understand and agree that Lone Armadillo Learning is only providing the license as described herein to the legal entity that is identified on the Order Form. No affiliates, including parents, subsidiaries, or other entities with common ownership or management, may be provided with a license pursuant to this Agreement, and any such entity would need to enter into a separate agreement with Lone Armadillo Learning to be given access to the Services (including the Content and access to the LMS).
  3. Customer Responsibilities.
    1. General. You are responsible for all acts and omissions of your Authorized Users, and any act or omission by an Authorized User that would (if taken by you) constitute a breach of this Agreement will also be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement, and cause your Authorized Users to comply with this Agreement.
    2. LMS Content. Unless otherwise agreed in writing (whether included in Exhibit A or in a separate written agreement of the Parties), Lone Armadillo Learning shall be responsible for providing LMS Content for the benefit of the Authorized Users relating to training, teaching, courses, and instruction material on the LMS. We will work together to determine whether and to what extent you will be providing the LMS Content, including what is provided in the Order Form. You understand that once any LMS Content is made available to your Authorized Users via the LMS, we is unable to control the acts of any Authorized User, and for example we cannot prevent the copying, downloading, screenshotting, or creating of derivative works of said LMS Content.
    3. Third-Party Content. If you engage us to install, enable, or provide you with access to any courses or content created by or owned by any third party, then you (i) are solely responsible for obtaining and maintaining the license or other rights necessary for the use of such content and (ii) hereby consent for us (including our vendors and technology providers) to disclose any information necessary to work with such third-party provider for the purpose of providing the Services. If you elect to use such third-party content, you bears all risk associated with the use of, or reliance upon, such content. You shall be solely responsible for any disclosure, modification, deletion, loss, or unauthorized use of content arising from your (and your Authorized Users’) acts or omissions associated with such third-party content.
    4. Third-Party Products. You understand that we may use and integrate certain Third-Party Products into the Services. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions referred to in Exhibit B. If you do not agree to abide by the terms as set forth in Exhibit B, then you should not use the Services.
    5. Restrictions. Customer acknowledges that the Services are only intended to be used for Authorized Users that are residents of the United States of America. Customer shall not provide or otherwise include in any Customer Materials any information that may be considered “personal data” of any “data subject” pursuant to GDPR.
    6. Content Standards. Customer agrees not to use the Services to send, knowingly receive, upload, download, use, or re-use any Customer Materials which: (i) contains any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable; (ii) promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (iii) infringes any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person; (iv) violates the legal rights (including the rights of publicity and privacy) of others or contains any material that could give rise to any civil or criminal liability under applicable laws or regulations; (v) likely to deceive any person; (vi) promotes any illegal activity, or advocates, promotes, or assists any unlawful act; (vii) causes annoyance, inconvenience, or needless anxiety or is likely to upset, embarrass, alarm, or annoy any other person; (viii) impersonates any person, or misrepresents your identity or affiliation with any person or organization; (ix) involves commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising; or (x) gives the impression that they emanate from or are endorsed by Lone Armadillo Learning or any other person or entity, if this is not the case.
  4. User Management; Changes. You shall promptly notify us of any changes to the number or identity of Authorized Users via a form that will be accessible to Customer on the Website. You acknowledge that you are solely responsible for communicating any such notification, and that we are not be responsible for any delays in processing any activations or deactivations caused by connectivity issues. You acknowledge that the activation or deactivation of Authorized Users may take up to 72 hours from the time that Lone Armadillo Learning receives such notification, and may be extended by reason of any circumstances beyond Lone Armadillo Learning's reasonable control (each a “Force Majeure”), and will be confirmed to Customer via an automatically-generated message. Therefore, you shall remain responsible for all of any Authorized User’s activity for 72 hours following your notification to Lone Armadillo Learning that such Authorized User shall be deactivated using the specific form authorized by Lone Armadillo Learning. Such time frame may be extended in the event that we are unable to deactivate within such 72-hour period by reason of a Force Majeure for so long as that Force Majeure persists. We may also require you to participate in one or more separate strategy sessions, at your expenses, if you have any significant changes to the number of Authorized Users or license requirements, or if you have new branding, new requirements, or changes to applicable timelines and/or deadlines, content, strategy, or use of technology.
    Support.
    1. Service Scope. We shall use reasonable endeavors to respond to any request for support in connection with the Services or the LMS. We do not guarantee correction of any error within any given timeframe.
    2. Customer Obligations. You are responsible for (i) providing information and authorizations as required for our performance of the Services; (ii) adhering to our policies and processes for reporting service failures and incidents; (iii) making a representative available for regular meetings to review the Services, and to consult with Lone Armadillo Learning for resolving service-related incidents or requests; and (iv) paying fees and costs as required by this Agreement.
    3. Dependencies. Our performance of the Services under this Section 4 is dependent upon several factors, including without limitation: (i) whether information that is to be provided by you in order for us to perform the Services is accurate and timely; and (ii) our procedures and delivery of Services may be affected by changes in your internal policies or in applicable laws or regulations.
  5. Fees and Payment.
    1. Payment of Fees. You shall pay Lone Armadillo Learning the fees ("Fees") in U.S. Dollars and as set forth in the Order Form without offset or deduction by electronic payment. You hereby authorize Lone Armadillo Learning to process payment in the method that you designate on the Order Form. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING US WITH VALID CREDIT CARD OR PAYMENT ACCOUNT DETAILS FOR PAYMENT OF ALL FEES. Except to the extent that the Fees are adjusted solely to account for the number of Authorized Users, Lone Armadillo Learning will provide advance notice in writing if the amount to be charged varies from those Fees as they appear on the Order Form. You understand and acknowledge that Lone Armadillo Learning may provide certain integrations with payment processors to allow you to make payments of Fees easily; provided however, that you shall be obligated to pay all Fees as described herein regardless of whether any such payment processor is used to facilitate such payment, and your failure to use or termination of any such payment processor’s services does not constitute a rescission of this Agreement or otherwise obviate your obligations as provided herein.
    2. Late Payments. If you fail to make any payment when due, without limiting our other rights and remedies: (i) we may charge you interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) you shall reimburse Lone Armadillo Learning for all costs incurred by us in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, we may suspend your access (including access by your Authorized Users) to any portion or all of the Services until such amounts are paid in full.
    3. Taxes. All Fees and other amounts payable under this Agreement are exclusive of taxes and similar assessments. You responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges related to this engagement, except for any income tax imposed on Lone Armadillo Learning.
    4. Reporting Changes; Auditing Rights and Required Records. You are responsible for confirming that the number of Authorized Users is accurate and complete, and you shall promptly advise us via the form(s) provided by Lone Armadillo Learning of any changes to the number of Authorized Users. For the removal of doubt, the submission of such forms is not subject to the notice requirements as provided in Section 13.b. Further, you agree to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. During the Term and for two (2) years following termination or expiration of the Agreement, we may (at our own expense) periodically inspect and audit your records with respect to matters covered by this Agreement, and you agree to cooperate with any such inspection or audit. If such inspection and audit reveals that you have underpaid Lone Armadillo Learning, you agree to promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5.a. You agree to pay for the costs of the audit if the audit determines that your underpayment equals or exceeds five percent (5%) for any quarter.
    5. Costs. You shall be responsible for payment of costs incurred by Lone Armadillo Learning arising out of any act or omission (by you or your Authorized User) that results in Lone Armadillo Learning, or causes any of our other customers, having its license or access to use any hardware, software, or other technology, content and materials (including those included in the LMS Content and/or the Customer Materials), by a third-party provider to be suspended or terminated.
    6. Disputes. You shall notify us in writing of any dispute as to the amounts charged by Lone Armadillo Learning To the extent permitted by applicable law, you shall not initiate a dispute with its payment method’s issuing bank or payment processor, nor shall it cause a chargeback to be filed against Lone Armadillo Learning alleging that the payment of any Fee as described herein was unauthorized. In the event that a chargeback is initiated, we: (a) reserve the right to represent such payment; (b) may elect to terminate this Agreement for cause; and (c) may request additional information from you regarding the circumstances of the underlying dispute. You acknowledge that you have willingly entered into this Agreement, and therefore, to the extent permitted by applicable law, waive your right to initiate a dispute or cause a chargeback to be filed by claiming any payment in accordance with this Agreement was the result of fraud or was purchased in error. In the event that you cause a chargeback to be filed against Lone Armadillo Learning, we shall have the right, in our sole discretion, to elect to terminate this Agreement for cause.
  6. Confidential Information; Data Retention.
    1. During the Term, either Party may disclose or make available to the other Party information about its business affairs and other sensitive or proprietary information, in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. These obligations shall continue for expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
    2. Within 30 days after your request, we shall return or destroy, as applicable, all Customer Materials, including Confidential Information provided to our employees, subcontractors, agents, or other affiliated persons or entities. Customer acknowledges and understands that any Aggregated Statistics are not considered Customer Materials and we are under no obligation to return or destroy any document or information containing such Aggregated Statistics.  
    3. Notwithstanding the foregoing, we may retain Customer Materials (including any notes, reports or other documents prepared by Lone Armadillo Learning which contain Confidential Information of the Customer) to the extent required by (a) applicable laws, regulations, or professional obligations or (b) the Recipient’s routine document retention and electronic backup procedures. Any such retained information shall remain subject to the obligations of confidentiality set forth herein.
  7. Intellectual Property Ownership; Feedback.
    1. Lone Armadillo Learning IP. You acknowledges that, as between Customer and Lone Armadillo Learning, we own all right, title, and interest, including all intellectual property rights, in and to the Lone Armadillo Learning IP. Nothing in this Agreement shall be construed to sell, transfer, assign, or otherwise convey ownership of any Lone Armadillo Learning IP to you. With respect to Third-Party Products, the applicable third-party providers shall own all right, title, and interest, including all intellectual property rights, in and to their respective Third-Party Products.
    2. Customer Materials. We acknowledge that as between Customer and Lone Armadillo Learning, you own all right, title, and interest, including all intellectual property rights, in and to the Customer Materials. You grant us a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Materials and perform all acts with respect to the Customer Materials as may be necessary to provide the Services or as incorporated within the Aggregated Statistics.
    3. Feedback. If you or any of your employees or contractors sends us any communications suggesting or recommending changes to the Lone Armadillo Learning IP, ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between the Parties. You hereby assigns to Lone Armadillo Learning all right, title, and interest in the Feedback, and Lone Armadillo Learning is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. We are not required to use any of your Feedback.
  8. Limited Warranty and Disclaimer.
    1. We warrant that the Services will conform in all material respects to the descriptions set forth herein when accessed and used in accordance with the Documentation. We do not make any representations or guarantees regarding uptime or availability of the Services. THE FOREGOING WARRANTY DOES NOT APPLY, AND LONE ARMADILLO LEARNING STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR SERVICES. ADDITIONALLY, THE FOREGOING WARRANTY DOES NOT APPLY IN ANY OF THE FOLLOWING SCENARIOS: (i) THE SERVICES ARE USED IN COMBINATION WITH DATA, SOFTWARE, HARDWARE, EQUIPMENT, OR TECHNOLOGY THAT IS NOT PROVIDED BY OR NOT AUTHORIZED BY LONE ARMADILLO LEARNING; OR (ii) THE SERVICES ARE MODIFIED OR ALTERED BY ANY INDIVIDUAL OR ENTITY OTHER THAN LONE ARMADILLO LEARNING.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT TO SECTION 8(a), LONE ARMADILLO LEARNING MAKES NO OTHER WARRANTY, REPRESENTATION OR GUARANTEE, WHETHER EXPRESS OR IMPLIED: (i) AS TO THE USEFULNESS OF THE SERVICES OR MATERIALS, NOR ANY OF THE PRODUCTS AND SERVICES PROMOTED ON THE WEBSITE OR VIA LINKED WEBSITES OR OTHERWISE COMMUNICATED BY LONE ARMADILLO LEARNING; AS TO THE APPROPRIATENESS OF THE LMS CONTENT OR MATERIALS PROVIDED BY LONE ARMADILLO LEARNING OR ITS EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, OR VENDORS; (ii) AS TO THE QUALITY, ACCURACY, RELIABILITY, CURRENCY, PERFORMANCE, COMPLETENESS OR FITNESS FOR PURPOSE OF ANY PART OF THE SERVICES, THE LMS CONTENT AND OTHER INFORMATION COMMUNICATED BY LONE ARMADILLO LEARNING OR ITS EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, OR VENDORS; (iii) THAT USE OF THE LMS OR THE SERVICES WILL BE UNINTERRUPTED; (iv) AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES; OR (v) THAT THE LMS, SERVICES, LMS CONTENT, OR THE FACILITIES THAT MAKE THE LMS, SERVICES, OR LMS CONTENT AVAILABLE, WILL NOT CAUSE DAMAGE, OR ARE FREE FROM ANY MALICIOUS CODE OR ANY OTHER DEFECTS OR ERRORS.
    3. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITIONS THAT CANNOT BE EXCLUDED IS RESTRICTED, AT LONE ARMADILLO LEARNING’S OPTION, TO THE RE-PERFORMANCE OF THE RELEVANT SERVICES, OR TO THE PROVISION OF A CREDIT FOR THE PROPORTIONAL AMOUNT PAID BY CUSTOMER TO LONE ARMADILLO LEARNING IN RESPECT OF THE RELEVANT SERVICES.
  9. Indemnification.
    1. Lone Armadillo Learning Indemnification.
      1. We shall indemnify you, defend you, and hold you harmless from and against any and all losses, damages, or costs (including reasonable attorneys' fees) ("Losses") that you incur resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") alleging that the Services or your use thereof (in accordance with this Agreement), infringes or misappropriates such third party's U.S. patents, copyrights, or trade secrets, provided that Customer promptly notifies us in writing of such Third-Party Claim, cooperates with us, and allows us the sole authority to control the defense and settlement of such Third-Party Claim.
      2. If a Third Party-Claim is made or appears possible, you agree to permit us, at our sole discretion, to (A) modify or replace any component of the Services, to make it non-infringing, or (B) obtain the right for you to continue use of the Services. If we determine, in our sole discretion, that neither alternative is reasonably available, we may terminate all or part of this Agreement effective immediately on written notice to you and without penalty.
      3. This Section 9.a will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Lone Armadillo Learning or authorized by Lone Armadillo Learning in writing; (B) modifications to the Services not made by Lone Armadillo Learning; or (C) Customer Materials; or (D) Third-Party Products.
    2. Customer Indemnification. You shall indemnify, hold harmless, and, at our option, defend Lone Armadillo Learning from and against any Losses resulting from any Third-Party Claim that the Customer Materials, or the use thereof, infringes or misappropriates such third party's intellectual property rights, along with any Third-Party Claims alleging your (or your Authorized User’s) (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement, including in any manner that violates the restrictions in Exhibit B or any other terms of service or agreement existing between Customer and any other provider of hardware, equipment, or technology authorized by us; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by or authorized in writing by us; (iv) modifications to the Services not made by us; or (v) use of or reliance upon the Linked Content. You may not settle any Third-Party Claim against us unless we consent to the terms of such settlement. Lone Armadillo Learning will have the right, at our option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of our own choice.
    3. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND LONE ARMADILLO LEARNING'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  10. Limitations of Liability.
    1. IN NO EVENT WILL LONE ARMADILLO LEARNING BE LIABLE IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER YOU WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
    2. IN NO EVENT WILL LONE ARMADILLO LEARNING'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO LONE ARMADILLO LEARNING UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  11. Term and Termination.
    1. Term. The term of this Agreement shall commence upon the date any of the Services are activated and continue for a period of one year (“Initial Term”), unless earlier terminated in accordance with Section 11.b of this Agreement. Thereafter, the term of this Agreement shall renew automatically for successive one-year terms (each a “Renewal Term”, and collectively with the Initial Term, the “Term”).
    2. Termination. In addition to any other express termination right set forth in this Agreement:
      1. Either Party may terminate a Renewal Term by providing no less than thirty (30) days’ written notice to the other Party;
      2. We may terminate this Agreement, effective immediately upon written notice to you, if you: (A) failto pay any amount when due hereunder, and such failure continues more than ten (10) business days after delivery of written notice thereof; or (B) breach any of your obligations under Section 2.c or Section 6;
      3. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement (for reasons other than those provided in Section 11.b (ii) above), and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for a period of thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
      4. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, you shall immediately stop using the Services and, without limiting your obligations under Section 6, you shall delete, destroy, or return all copies of any Lone Armadillo Learning IP and certify in writing to us that the Lone Armadillo Learning IP has been deleted or destroyed. No expiration or termination will affect your obligation to pay all Fees that became due before such expiration or termination, or entitle you to any refund.
    4. Survival. This Section 11.d and Sections 1, 5, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
  12. Security and Data Protection.
    1. Security. We shall maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Materials. We will not access or use the Customer Materials except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body.
    2. Data Protection. If Lone Armadillo Learning processes any personal data, each Party shall duly comply with its obligations under the Data Protection Legislation that arise in connection with this Agreement.
    3. Compliance Audits. In the event that Lone Armadillo Learning is required to participate in or contribute to an audit pursuant to Article 28 of the GDPR, then such inspection or audit shall be agreed in advance and carried out upon reasonable notice during normal business hours at Customer’s sole expense.
  13. Miscellaneous.
    1. Entire Agreement. This Agreement, together with the Order Form and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the Agreement and the documents incorporated herein, the following order of precedence governs: (i) first, the Order Form; (ii) second, this Agreement, excluding its Exhibits; (iii) third, the Exhibits to this Agreement as of the Effective Date; and (iii) fourth, any other documents incorporated herein by reference.
    2. Notices. All notices required to be made in writing hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). A Notice is effective only upon receipt by the receiving Party, and only if the Party giving the Notice has complied with the requirements of this Section.
    3. Force Majeure. In no event shall we be deemed to have breached this Agreement for any failure or delay in performing our obligations under this Agreement, if such failure or delay is caused by any Force Majeure, including but not limited to acts of God, floods, hurricanes, tropical storms, fire, earthquakes, explosions, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, power outages, internet outages, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any rights arising from this Agreement will operate or be construed as a waiver thereof.
    5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal or state courts having jurisdiction in Orlando, Florida, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    7. Assignment. You may not assign any of its rights or delegate any of its obligations hereunder without our prior written consent, except in any case in which you assign to your affiliate or successor entity in the event of any merger, acquisition, corporate restructuring, or upon the sale of substantially all of Customer’s assets to such affiliate or successor. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    8. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Materials outside the US.
    9. US Government Rights. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
    10. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach of either Party’s obligations would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

 

 

EXHIBIT A

DEFINITIONS

  1. "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Lone Armadillo Learning in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
  2. "Authorized User" means Customer's actual or potential employees, consultants, contractors, agents, and/or customers, (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
  3. "Customer Materials" means any information, data, and other content, in any form or medium, that is owned solely by Customer and submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
  4. “Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the General Data Protection Regulation 2016/679 (“GDPR”), any local legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced and in force from time to time. The terms “controller”, “processor”, “process” and “personal data” shall have the meanings given to those terms in such data protection laws and regulations.
  5. "Documentation" means end user documentation relating to the Services available at the Website or as otherwise provided to Customer.
  6. “LMS Content” means all information (including without limitation any text, music, sound, photographs, video, graphics, data or software), which is provided to Authorized Users through the LMS, irrespective as to the source of such information.
  7. “LMS” means the online learning services provided to Customer, including all Documentation and software in or accessible through the LMS, but excluding the Customer Materials.
  8. "Lone Armadillo Learning IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing, including without limitation all writings, works of authorship, technology, inventions, discoveries, ideas, methods, and processes of any nature whatsoever that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by Lone Armadillo Learning, or that Lone Armadillo Learning has a license to provide in connection with the Services or the Documentation. For the avoidance of doubt, Lone Armadillo Learning IP includes Aggregated Statistics and any information, data, or other content derived from Lone Armadillo Learning's monitoring of Customer's access to or use of the Services, but does not include Customer Materials.
  9. "Services" means the service offering(s) described in the Order Form.
  10. "Third-Party Products" means any third-party products described in Exhibit A provided with or incorporated into the Services.
  11. “Website” means the Lone Armadillo Learning website located at http://www.lonearmadillo.com and http://www.lonearmadillolearning.com

    EXHIBIT B

USE RESTRICTIONS

In addition to those conditions and restrictions on use as contained within the Agreement, Customer also agrees to the following with respect to the Services. Capitalized terms used but not defined in this document B shall have the meanings set out in the Agreement. Except as expressly permitted by the terms of the Agreement, neither Customer nor its respective Authorized Users shall:

  1. Share your log-in credentials or otherwise allow any person who is not an Authorized User to use or access the LMS or any LMS Content or otherwise bypass any security or authentication methods;
  2. Copy, modify, adapt, translate, distribute, sub-license, market, lease, make available, resell, make derivative works of, disassemble, reverse compile or reverse engineer or otherwise reduce to human-perceivable form any part of the Services or the LMS or any intellectual property related thereto, including the recording of any of the content; attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Services or the LMS; or discover or disclose the source code, methods and concepts embodied therein, except as may be allowed by any applicable law notwithstanding contractual prohibition;
  3. Store, distribute, post, upload or transmit any Customer Materials through the Services or the LMS that is or is reasonably perceived to be infringing, unlawful or in violation of any third-party privacy rights;
  4. Access or allow anyone to access the LMS or the Services from an embargoed country, or allow access to the LMS or the Services to anyone included in the U.S. Commerce Department's Denied Persons List, Entry List, the U.S. Treasury Department's list of Specially Designated Nationals, or other similarly sanctioned individuals;
  5. Introduce any virus, worm, malware, spyware, Trojan horse or other harmful or malicious code to the LMS;
  6. Intentionally interfere with or disrupt the functionality, integrity, or performance of the LMS;
  7. Access and use the Services or the LMS in order to:
    1. build a product or service competitive with the Services or the LMS, or any portion thereof;
    2. copy any ideas, features, functions or graphics of the Services or the LMS;
    3. create any internet hyperlinks to Lone Armadillo Learning or any of its third party technology or service providers of “frame” or “mirror any content on any other server or wireless or internet-based device;
    4. determine whether any substantial aspect of the Services or the LMS is within the scope of any patent;
    5. provide or transmit any misleading or false names, addresses, email addresses, or other false or misleading information;
    6. conduct security or vulnerability tests of the LMS or any portion of the Services, interfere with its operation or circumvent its access restrictions
    7. participate in any financial or monetary fraud or other schemes, computer fraud or other computer crimes, or the funding, encouraging, or facilitating of any criminal activity or other illegal activities;
    8. defame, discriminate against, stalk, threaten, abuse, harm, or harass anyone;
    9. promote any products or services on social media platforms or other websites where such actions violate the terms of use or community guidelines of such platforms or websites;
  8. Use the Services or the LMS for the purposes of direct marketing or promotion to anyone other than Authorized Users and their customers, to email any purchased, rented, or borrowed email lists, or to participate in any email solicitation, mass emailing, spamming, phishing, any other activity that violates the CAN-SPAM Act, or similar activities;
  9. Suggest or state that Lone Armadillo or any of its affiliates, vendors, software or technology providers, or any representative or agent thereof endorses or supports the Customer Materials or any training or other course Customer is running;
  10. Use the Services or the LMS to store or transmit:
    1. personal data which could be considered to be special category data pursuant to the Data Protection Legislation, as defined by the GDPR,
    2. any protected health data, as defined in the Health Insurance Portability and Accountability Act of 1996 as amended and supplemented;
    3. financial information protected under the Gramm-Leach-Bliley Act;
    4. credit card, debit card, banking and payment information, including information that is subject to Payment Card Industry Data Security Standards;
    5. Customer Materials that could otherwise be subject to governmental regulation or may require security measures beyond those specified herein; or
    6. the personal information of any third party for which you do not have permission of such third party to provide;
    7. any third party’s copyrighted or trademarked content or trade secrets within such third party’s permission;
    8. violent, pornographic, obscene, vulgar, or sexually explicit content in your form(s), as determined solely in our discretion;
  11. Use any automated process or service (such as a bot, a spider, data scraping or extraction tool, or periodic caching of information stored in the LMS) to access or use the Services or the LMS;
  12. Overload, flood, spam, or mail-bomb the Services; or otherwise use the Services in a manner that interferes with or creates an undue burden on the Services, including by using the Services to send unsolicited communications, promotions, advertisements, or spam;
  13. Use the Platform for any illegal, unauthorized, or otherwise improper purposes.

You agree that we have the absolute and unconditional right to remove any information, content, or materials that we believe is being or has been used or offered in connection with any of the above prohibited purposes or activities, or that we believe may be construed by others as doing any of these things. In cases where we remove such information, content, or materials, we may at our sole discretion also disable your access to any past or future submissions.

If you make any content “public”, or set your account settings to allow the content to become public, or you don’t change a default setting that would allow a form, a table or other content that is generated as you use the Platform to be made public, you acknowledge and agree that the content will in fact be available to the public on our websites. By allowing such content to become public, you grant Lone Armadillo Learning and its technology and service providers a worldwide and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display such content on our websites.

Organizations or individuals who promote, encourage, or facilitate hate speech, violence, discrimination, either through their own content or through distribution of user generated content, are prohibited from using the Services or the LMS, regardless of whether the Service is used specifically for the prohibited activities. Violation of these standards may result in termination of your use of the LMS and the Services.