This Terms of Use agreement is between Pryor Learning, LLC, a Delaware limited liability company with Fred Pryor Seminars, CareerTrack and Evelyn Wood operating divisions, and having a principal place of business at 5700 Broadmoor, Suite 300, Mission, Kansas 66202 (hereinafter “Pryor”) and “Customer”. As used here, “Customer” means an organization, employer and/or individual who purchases: 1) subscription(s) for access to Pryor Training Resources; or 2) access to Pryor Training Resource(s) other than by subscription; “Pryor Training Resource(s)” includes all types of training and means of delivery offered by Pryor, whether created by Pryor or by a third party information service provider (ISP), and products (books, electronic media, etc.) related to a Pryor Training Resource
1. Access to Training Resources and Training. Pryor will provide to Customer, for a previously agreed upon price, a non-exclusive, nontransferrable right of access to the purchased Pryor Training Resource(s). Access to the online portion of Pryor’s Training Resources may be through individual user ID’s and passwords to Pryor’s Learning Management System (LMS), available on Pryor’s training website. The training resources may be those developed and provided by Pryor or by ISPs. The Customer, at its own expense, shall obtain, maintain, and operate suitable and fully compatible terminal equipment, communications devices, and services required to access Pryor’s onlinetraining
2. Proprietary Rights. Pryor’s LMS, training website, training resources and services, documentation, and all other property relating to Pryor’s Training Resources, including but not limited to copyrights, service marks, trademarks, patent rights, and trade secrets are proprietary and owned by Pryor or its ISPs. The Customer acknowledges Pryor’s and its ISPs’ proprietary rights, and that no such proprietary rights pass to the Customer by virtue of the access granted. The Customer further agrees that any Pryor Training Resource, including but not limited to any information or data received through Pryor’s LMS, training website or that of an ISP made available pursuant to this Agreement, regardless of form, is not to be transferred, sold, or in any manner commercially exploited by Customer.
3. Modification. . Pryor may without notice, modify, delete, supplement, revise or update the Pryor Training Resources, from the offering set forth at the time this access was granted. In addition, Pryor may modify or otherwise change its LMS or training site (including features) without notice.
4. Disclaimer. Pryor does not guarantee uninterrupted working of the Pryor Training Resources provided via its LMS on the pryor.com or other website and/or equipment.
5. Disclaimer of Warranties.
PRYOR, ITS RELATED AND SUBSIDIARY COMPANIES, AND THE ISPs MAKE NO REPRESENTATION OR WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, NOR ARE ANY SUCH WARRANTIES TO BE IMPLIED WITH RESPECT TO THE GOODS, DATA OR SERVICES FURNISHED UNDER THIS AGREEMENT. PRYOR EXPRESSLY EXCLUDES ANY REPRESENTATION OR WARRANTY THAT THE CONTENT OF ANY MATERIAL FURNISHED TO CUSTOMER UNDER THIS AGREEMENT IS COMPLETE, ACCURATE OR CURRENT, AND NEITHER CUSTOMER NOR THOSE TO WHICH THE MATERIAL IS FURNISHED MAY RELY ON ANY CONTENT PRESENTED THEREIN.
6. Indemnification.
THE CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD PRYOR, ITS RELATED AND SUBSIDIARY COMPANIES, OFFICERS EMPLOYEES AND DIRECTORS AND THE ISP’S HARMLESS FROM ANY CLAIM, EXPENSES, AND DAMAGES RESULTING FROM THE VIOLATION BY THE CUSTOMER OF ANY RIGHTS OF THIRD PARTIES, INCLUDING COPYRIGHT INFRINGEMENT, PRIVACY OR PROPRIETARY RIGHTS. THIS INDEMNIFICATION OBLIGATION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
7. Limitation of Liability.
PRYOR’S TOTAL LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF THE PURCHASE PRICE PAID BY THE CUSTOMER OR $25,000. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS ON POTENTIAL LIABILITIES SET FORTH IN THIS PARAGRAPH WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
8. Limitation on Consequential Damages.
PRYOR WILL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PROPERTY OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), REPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOSS OF REVENUE, PROFIT, SAVINGS OR BUSINESS ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF A PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THESE EXCLUSIONS OF POTENTIAL DAMAGES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
9. Assignment. Pryor’s rights and obligations herein are fully transferrable. Customer may not assign or otherwise transfer its rights and obligations herein or in the Proposal without the prior written consent of Pryor.
10. Hosting Customer Content. If Customer desires Pryor to host on Pryor’s LMS both content and materials owned and/or licensed by Customer from third-parties (collectively, “Customer Content”), the following additional provisions shall apply:
a. License - Customer grants to Pryor a non-exclusive, royalty free right and license to (i) host Customer Content along with the online Pryor Training Resources; (ii) modify the Customer Content to the extent necessary to host it with the online Pryor Training Resources for the sole purpose of facilitating the display and distribution of the both contents; and (iii) display the Customer Content along with online Pryor Training Resources, for accessibility and use by Customer‘s employees on and through Pryor’s LMS (“Customer License”).
b. Representations and Warranties - Customer represents and warrants that it has full authority to enter into this Agreement, that the Customer Content, as delivered to Pryor, does not infringe the rights of others (including but not limited to patent, trademark, copyright, trade secrets, breach of confidentiality, right of privacy or right of publicity), nor will Pryor’s use, modification or display of the Customer Content as contemplated in this Agreement infringe any such third-party rights, and Customer has or will obtain any necessary licenses from any and all third parties to permit Pryor to use and display Customer Content as provided in the Customer License. If Customer learns that any Customer Content may be the subject of any infringement claim, Customer shall immediately notify Pryor inwriting.
c. Waiver and Release - Customer agrees to release and discharge Pryor (and all affiliates, employees, agents, representatives, successors and assigns) from any and all claims or causes of action (known or unknown) arising out of Pryor’s negligence in hosting the Customer Content. This Waiver and Release of liability includes, without limitation, damages which may occur as a result of Pryor’s negligently: (a) misplacing the Customer Content on the LMS; or (b) allowing access to the Customer Content by persons other than Customer’s employees Customer acknowledges that it has carefully read this Waiver and Release and fully understands that it is a release of liability. Customer is waiving any right that it may have to bring a legal action to assert a claim against Pryor for negligence in connection with this hosting Customer Content.
11. Loading on Customer's LMS. If Customer desires Pryor to load the online Pryor Training Resources and/or Customer Content on Customer’s LMS, the following additional provisions shall apply:
a. Customer represents and warrants that it has full authority to enter into this Agreement.
b. Waiver and Release - Customer agrees to release and discharge Pryor (and all affiliates, employees, agents, representatives, successors and assigns) from any and all claims or causes of action (known or unknown) arising out of Pryor’s negligence in loading online Pryor Training Resources and/or Customer Content on Customer’s LMS. This Waiver and Release of liability includes, without limitation, damages whichmay occur as a result of Pryor’s negligently: (a) erasing Customer’s LMS content or records; or (b) damaging the Customer’s hardware or software. Customer acknowledges that it has carefully read this Waiver and Release and fully understands that it is a release of liability. Customer is waiving any right that it may have to bring a legal action to assert a claim against Pryor for negligence in connection with loading online Pryor Training Resources and/or Customer Content on Customer’s LMS.
12. In-Person Services During Pandemics and Other Outbreaks of Illness. For Customers who choose to engage Pryor to provide in-person training (“In-Person Services”), the following additional provisions shall apply:
a. Customer's Responsibilities - If any In-Person Services take place at Customer’s place of business, Customer agrees to take all reasonable and appropriate actions in furtherance of providing a safe environment for conducting such training in accordance with guidance from the Centers for Disease Control, the Occupational Safety and Health Administration, the applicable State Health Department, and other applicable regulatory authorities.
b. Assumption of Risks - Customer understands and agrees that Pryor is not responsible for any risks, damages, or harm relating to the transmission of any illnesses, including but not limited to any serious, life-threatening diseases arising from global pandemics such as the COVID-19 pandemic (collectively, “Illnesses”) in connection with the provision of In-Person Services. Customer understands that the attendance of Customer’s owners, employees, contractors, representatives, and agents (collectively referenced as “Customer's Employees and Agents”) at In-Person Services, including any related travel, involves risks that cannot be eliminated regardless of the care taken to avoid such risks, including but not limited to risks of Customer’s Employees and Agents (1) coming into direct or close contact with individuals who have contracted an Illness or might otherwise be contagious; (2) coming into direct or close contact with objects that may transmit the Illness; (3) otherwise being exposed to an Illness; (4) directly or indirectly transmitting an Illness to or contracting an Illness from other individuals; and (5) experiencing physical or psychological injury, Illness, pain, suffering, contagiousness, temporary or permanent disability, economic or emotional loss, death, damage, and expense resulting directly or indirectly from exposure to, contraction or transmission of, or treatment for an Illness (collectively, “Illness Risks”). . In light of the value to Customer of utilizing In-Person Services rather than Pryor’s online training offerings, Customer hereby voluntarily, expressly, and without qualification, accepts and assumes all known and unknown Illness Risks associated with or attributable to the attendance of Customer’s Employees and Agents at In-Person Services, including all risks arising from the actions, omissions, or negligence of Pryor or any of Pryor’s affiliates, employees, agents, representatives, successors, and assigns, and other individuals who are present during any In-PersonServices.
c. Agreement Not to Sue, Waiver, and Release - Customer hereby covenants not to sue Pryor, and fully waives, releases and discharges Pryor and all of Pryor’s affiliates, employees, agents, representatives, successors, and assigns from any and all claims, damages, injuries, losses, liability, causes of action, litigation, or demands whatsoever (collectively “Claims”),, including but not limited to Claims for personal injury, illness, death, or property damages that directly or indirectly arise out of or relate to any Illnesses or Illness Risks associated with or attributable to the attendance of any Customer’s Employees and Agents at any In-Person Services, including any and all Illnesses and/or any Illness Risks arising from the actions, omissions, or negligence of Pryor and/or Pryor’s affiliates, employees, agents, representatives, successors, and assigns, Customer’s Employees and Agents, and any other individuals attending In-Person Services at the same time as any of Customer’s Employees andAgents.
d. Acknowledgement - Customer acknowledges that it has carefully read the provisions set forth in this section of the Agreement concerning In-Person Services, and fully understands that these provisions constitute a release of liability for Claims relating to any Illness Risks. Customer intentionally waives any right that it may have to bring a legal action or otherwise assert any Claims against Pryor and/or any of Pryor’s affiliates, employees, agents, representatives, or assigns for actions, omissions, or negligence in connection with any Illnesses or Illness Risks arising from the attendance of Customer’s Employees and Agents at any In-Person Services.
13. Marketing - Pryor may use the Customer’s name and logo in its advertising and marketing materials to identify the Customer as a Pryor customer. Marketing services are only provided in the English language unless indicated otherwise. Textual training resources may be translated into alternative languages for an additional fee.
14. Severability / Complete Agreement. If any provision of this Agreement is found to be invalid or unenforceable, then the remainder of this Agreement will have full force and effect, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the original objective. These Terms of Use and any matters incorporated by reference, including any Proposals, Supplementary Conditions or other notices provided by Pryor in printed form or otherwise published on Pryor’s training website, constitute the entire agreement between the parties and there are no conditions, representations, or warranties, express or implied, applicable to the matter hereof
15. Governing Law and Jurisdiction. These Terms of Use shall be governed and construed in accordance with the laws of Kansas, both as to performance and interpretation, and Pryor and Customer agree that this Agreement was entered into in the state of Kansas. In the event of any formal legal claim by Customer, any legal proceedings relating to such claim shall take place in the state of Kansas.