TalentLMS Course Store Terms
Last Updated: 2 September 2020
These Talent LMS Course Store Terms (these “Terms”) are entered into by Epignosis LLC (“Epignosis”) and you (“Customer”) pursuant to the Software as a Service Terms and Conditions available at www.talentlms.com/terms or other Software as a Service Terms and Conditions entered into by the parties (the “CustomerAgreement”) and govern Customer’s participation in the LMS Course Store (defined below). Capitalized terms not defined below have the meanings ascribed to them in the Customer Agreement.
DEFINITIONS
“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as owned (or licensed) by such party from time to time.
“Customer Course Store Course” means a Course and related materials Customer wishes to make available to third parties via the LMS Course Store.
“Listing” means the content provided for listing Customer Course Store Courses on the LMS Course Store, including the Customer Course Store Course itself as well as any required background materials.
“LMS Course Store” means the proprietary online Course Store site operated by Epignosis where Customer Course Store Courses and related materials may be promoted and made available to subscribers.
PURPOSE AND LICENSE GRANT
If Customer wishes to make a Customer Course Store Course available via the LMS Course Store, Customer will submit such request to Epignosis along with any additional materials Epignosis requires, which may include course title, description, image, completion rules, and price. Epignosis may disapprove such request in Epignosis’ sole discretion.
These Terms set forth the terms and conditions pursuant to which Customer may publish Listings on the LMS Course Store for subscribers to purchase licenses to Customer Course Store Courses. These Terms are applicable to both Customer Course Store Courses distributed for free and Customer Course Store Courses for which subscribers are charged a fee. Customer agrees to use the LMS Course Store solely for purposes permitted by these Terms or as otherwise allowed by applicable law. As between Epignosis and Customer, Customer is solely responsible for Customer Course Store Courses.
Customer grants to Epignosis a non-exclusive, worldwide, transferable, sublicensable, fully paid-up, royalty-free license to (a) host, link to, reproduce, modify, publicly perform, publicly display, test, distribute, make available, license, and otherwise use the Listing; (b) reproduce, perform, display, use, and access the Listing for administration and demonstration purposes in connection with the operation and marketing of the LMS Course Store; and (c) reproduce, display, distribute, and otherwise use any Brand Features furnished by Customer to Epignosis under these Terms solely for use in connection with the LMS Course Store and in order to fulfill its obligations under these Terms.
In addition to the licenses granted above, Epignosis may include Brand Features furnished by Customer to Epignosis pursuant to these Terms in any presentations, communications, marketing materials, press releases, customer lists (including, without limitation any customer lists, posted to Epignosis websites), publicity campaigns, and other advertising collateral for purposes of marketing the LMS Course Store. If Customer discontinues the distribution of specific Customer Course Store Courses on the LMS Course Store, Epignosis will, after a commercially reasonable period of time, cease use of the discontinued Customer Course Store Course’s Brand Features. Nothing in these Terms gives Customer a right to use any Brand Features of Epignosis.
Except for the license rights granted in these Terms and Epignosis’ rights to its Services, (a) Customer retains all rights in the Customer Course Store Courses; (b) each party retains all rights it has independent of this these Terms, including rights under the U.S. Copyright Act or similar laws of other jurisdictions; and (c) as between the parties, each party owns all rights, title, and interest in its respective Brand Features. Each party is responsible for protecting and enforcing its own respective rights and neither party has an obligation to do so on the other’s behalf.
Epignosis is entitled to provide Customer’s name, address, and other contact details to any third party that reasonably, in Epignosis’ sole determination, claims that Customer does not possess all of the necessary intellectual property rights in or to the Customer Course Store Courses.
RESTRICTIONS AND RESPONSIBILITIES
Customer’s use of the LMS Course Store is explicitly conditioned on Customer’s adherence to these Terms, including without limitation, the restrictions and compliance requirements set forth in this Section 3.
Customer is solely responsible, and Epignosis has no responsibility or liability of any kind, for the content, development, or support of Customer Course Store Courses. Without limiting the foregoing, Customer is solely responsible for: (a) ensuring that its Customer Course Store Courses do not violate or infringe the intellectual property rights of any third party; (b) ensuring that Customer Course Store Courses are not offensive, profane, obscene, libelous or otherwise illegal; and (c) ensuring that its Customer Course Store Courses do not contain or introduce malicious software into the LMS Course Store or data stored or transmitted using the LMS Course Store.
Epignosis reserves the right to terminate these Terms immediately if Epignosis determines that Customer has breached this Agreement.
Nothing in these Terms shall prevent either party from developing and/or publishing Courses that are similar to or otherwise compete with the other party’s applications.
TAKEDOWNS
Upon providing Epignosis with 30 days’ written notice in advance of the first day of the succeeding calendar month, Customer may remove its Customer Course Store Courses from future distribution via the LMS Course Store, but Customer must comply with these Terms for any Customer Course Store Courses through the LMS Course Store, including but not limited to refund requirements. Removing a Customer Course Store Course from future distribution via the LMS Course Store does not affect the license rights of third parties who have previously purchased or downloaded a Customer Course Store Course.
Notwithstanding the foregoing, Epignosis will use commercially reasonable efforts to cease displaying on any portion of the LMS Course Store any Listing that Customer has removed or attempted to remove from the LMS Course Store and provided written notice to Epignosis that such removal was due to: (a) an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent, or other intellectual property right of any person, (b) an allegation of defamation or actual defamation, (c) an allegation of violation, or actual violation, of any third party’s right of publicity or privacy, or (d) an allegation or determination that such Customer Course Store Course does not comply with applicable law.
While Epignosis is not obligated to monitor any Listing or its content, Epignosis may at any time review or test a Listing for compliance with these Terms, the LMS Course Store program policies, and any other applicable terms, obligations, laws, or regulations. Epignosis retains the right to refuse or cease to include a Listing on the LMS Course Store in its sole discretion. Customer may be required to provide information about Customer (such as identification or contact details) as part of the registration process for the LMS Course Store, or as part of Customer’s continued use of the LMS Course Store. Customer agrees that any information Customer provides via the LMS Course Store will always be accurate, correct, and up to date. As part of the specification for a Listing, Epignosis may ask that Customer include in the file for a Listing information such as Customer’s name and email address. Epignosis may use this information when featuring the Listing in our directory or for other uses.
If Epignosis is notified by Customer or otherwise becomes aware and determines in its sole discretion that a Listing or any portion thereof or Customer’s Brand Features: (a) violates the intellectual property rights or any other rights of any third party; (b) violates any applicable law or is subject to an injunction; (c) is pornographic, obscene or otherwise violates Epignosis’ hosting policies or other terms of service as may be updated by Epignosis from time to time in its sole discretion; (d) is being distributed by Customer improperly; (e) may create liability for Epignosis or any third party; (f) is deemed by Epignosis to be malicious or defective; (g) violates these Terms or the LMS Course Store program policies; (h) impact the integrity of Epignosis’ servers (e.g., users are unable to access such content or otherwise experience difficulty); (i) is deemed by Epignosis to add undue risk to LMS Course Store users’ data or impair the user experience for the LMS Course Store; (j) is subject to user complaints in regards to Customer’s breach of Customer’s EULA (if applicable); or (k) otherwise violates the Customer Agreement or these Terms, Epignosis may: prevent the Listing from being made available on LMS Course Store; remove the Listing from LMS Course Store; flag, filter, or modify related materials (including but not limited to descriptions, screenshots, or metadata); or reclassify the Listing at its sole discretion. Epignosis reserves the right to suspend or bar any Listing from the LMS Course Store at its sole discretion.
In the event that a Listing for a Customer Course Store Course is involuntarily removed because it is defective, malicious, infringes intellectual property rights of another person, defames, violates a third party’s right of publicity or privacy, or does not comply with applicable law, and an end user purchased such Customer Course Store Course within a year before the date of takedown: (a) Customer must refund to the affected buyer all amounts paid by such buyer during the year before the date of takedown for such affected Customer Course Store Course; and (b) Epignosis may, at its sole discretion, withhold from Customer’s future sales the amount in subsection (a).
If an end user uses a Customer Course Store Course in a way that violates these Terms or other terms applicable to the end user or the Customer Course Store Course, then Epignosis has the right to suspend or terminate that end user’s access to the LMS Course Store and any Customer Course Store Course without any liability to Customer.
In the event that a Customer Course Store Courses is not purchased by an end user during a 12 month period, Epignosis may remove such Customer Course Store Course from the LMS Course Store.
REPRESENTATIONS, WARRANTIES, AND COVENANTS.
Customer represents, warrants, and covenants that: (a) each of the Customer Course Store Courses and Customer Brand Features do not and will not violate, misappropriate, or infringe upon the intellectual property rights of any third party; (b) Customer will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to create and distribute its Customer Course Store Courses; (c) its Customer Course Store Courses do not and will not contain or introduce into the LMS Course Store or data stored or transmitted using the LMS Course Store, any malicious software; (d) it has all right, power and authority to grant the licenses granted to Epignosis and end users herein; (f) it acknowledges Epignosis’ right to charge transaction and/or listing fees as provided in Section 6 herein; and (g) any images and text that are used to market the Customer Course Store Courses or that Customer has uploaded to the LMS Course Store are truthful, accurate and not intended to mislead or confuse any end user.
PRICING AND PAYMENT TERMS.
Supplier shall be entitled to a listing commission of twenty five percent (25%) of ongoing revenue generated by Supplier’s Course Store Courses. Pricing and payment with respect to any Customer Course Store Course available via the Course Store is governed by the Customer Agreement.