Effective Date: May 1, 2023 (v. 2.0)
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING THE BOX INDICATING YOUR ACCEPTANCE, EXECUTING A SALES ORDER OR OTHER DOCUMENT THAT REFERENCES THESE ENTERPRISE TERMS, OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING PLURALSIGHT’S PRIVACY NOTICE FOUND AT HTTPS://WWW.PLURALSIGHT.COM/PRIVACY AND CUSTOMER DATA PROCESSING AGREEMENT FOUND AT HTTPS://WWW.PLURALSIGHT.COM/TERMS/DPA (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND PLURALSIGHT’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY PLURALSIGHT AND BY YOU TO BE BOUND BY THESE TERMS.
1.1 Service; Orders. These Enterprise Terms set forth the terms and conditions under which Pluralsight may make available to Customer Pluralsight’s platforms for helping Users (defined below) learn, teach, and connect, provided under the Pluralsight brand (the “Pluralsight Service”) and the A Cloud Guru brand (the “ACG Service”) and other related services (together, the “Service”) each as expressly identified in a sales order that (a) is executed by an authorized representative of each Party and (b) expressly references and incorporates these Enterprise Terms (defined below) (each, an “Order”). Each Order, upon execution by both Parties, is subject to the terms of, and is deemed incorporated into, these Enterprise Terms.
1.2 Addenda. The Service will be provided pursuant to an executed Order. An Order may reference one or more additional documents that contain terms relevant to a particular Service (each, an “Addendum”). All Addenda are deemed incorporated into these Enterprise Terms. Additionally, Pluralsight’s Privacy Notice available at https://www.pluralsight.com/privacy is hereby incorporated by reference into these Enterprise Terms.
1.3 Order Term. Unless earlier terminated in accordance with these Enterprise Terms or the applicable Order, each Order will continue for the initial term specified in such Order (“Initial Order Term”) and, unlesseitherPartyprovidestheotherwithnoticeof non-renewal, upon the date of expiration of the then-current term, such Order will automatically renew for successive twelve-month terms (each, a “Renewal Term”) or such other length of Renewal Term period as stated on the Order (the Initial Order Term and each Renewal Term, if any, collectively, the “Order Term” of such Order). Notice of non-renewal of an Order must be provided by a Party at least 30 days prior to the end of the Initial Order Term or then-current Renewal Term, as applicable (or such other period as expressly specified on the applicable Order). Renewal of any Order may be conditioned on and subject to Customer’s agreement to changes to these Enterprise Terms and applicable Addenda. Orders that are solely for professional services will remain in effect until the professional services are completed (unless earlier terminated in accordance with these Enterprise Terms or the Order) and will not automatically renew, nor will any professional services included on any other Order automatically renew for a Renewal Term unless otherwise expressly specified on the applicable Order. Customer acknowledges that its access to a Service (or certain features thereof) may be automatically disabled upon expiration of the applicable Order Term.
1.4 Order of Precedence. Any conflict between an Order, an Addendum, or Sections 1–9 of these Enterprise Terms will be resolved according to the following order of precedence: (1) the Order or SOW; (2) the Addendum; and (3) the Enterprise Terms.
2. SERVICE RIGHTS AND RESTRICTIONS
2.1 Service Access. If an Order indicates that Customer will receive access to a Service, then Customer may access and use such Service solely (a) for the Order Term set forth in such Order, and (b) in accordance with all applicable Documentation (defined below) and the restrictions set forth in these Enterprise Terms (including the applicable Order).
2.2 Users. Only the employees or contractors of Customer, that Customer allows to use the Service (“Users”), using the mechanisms designated by Pluralsight (“Log-in Credentials”), may access and use the Service, and only in the number set forth in the applicable Order. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with these Enterprise Terms and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Pluralsight’s breach of these Enterprise Terms). Customer will promptly notify Pluralsight if it becomes aware of any compromise of any Log-in Credentials. Pluralsight may process Log-In Credentials in connection with Pluralsight’s provision of the Services or for Pluralsight’s internal business purposes.
(a) Managing Users and Subscription Plans
(i). Registration of Individual Users. Depending on the Service that Customer purchases, registers for, orders, or renews, Customer may designate one or more of its employees to act as plan manager(s) (each, a “Plan Manager”). Any Plan Manager Customer authorizes will have the ability to view user data and content, purchase additional subscriptions, invite Users to utilize the features included in the Service, including assigning and authorizing Users via the Platform’s administrative functionalities. By purchasing a Service, a specific number of individuals may register as Pluralsight Users and receive access to the Service. Users must be designated and assigned by the business purchasing the Service or by such business’s designated Plan Manager, after which Users will be invited to register for a Pluralsight account and receive access to the Service.
(ii). Changing the Number of Users. Customer or its Plan Manager may add additional Users during the Initial Term or any Renewal Term, as applicable. Access to the Service is conditioned upon timely payment for each User added, which will be prorated for the number of days remaining in Customer’s then-current Term and paid by Customer. The number of individual Users permitted in Customer’s Plan may not be reduced during the Term, nor will refunds be given for unused or unassigned licenses.
(iii). Transfer of Access Not Permitted. Customer acknowledges that User access is specific to the individuals designated by Customer or its Plan Manager. Except as set forth in an Order, access granted under these Enterprise Terms are not transferable to any other individual for any reason, and Customer will take all commercially reasonable steps to prevent its Users from granting access to the Platform to any other individuals, both in and outside of Customer’s organization.
2.3. Additional Features. Customer acknowledges that not all of the features or functionality of a Service may be available at Customer’s subscription level irrespective of whether such feature or functionality is described in the Documentation, and that access to such features or functionality may require payment of additional fees or the purchase of additional licenses.
2.4 Evaluation Services. If an Order indicates that Customer will receive access to a Service for evaluation or proof-of-concept purposes, then Customer may use the Service only for the purpose of evaluating the functions and performance of the Service, solely for the designated time period for the evaluation or trial, and subject to any additional usage restrictions specified on the applicable Order. Customer acknowledges that evaluation or proof-of-concept versions of the Service may be disabled automatically upon expiration of the designated trial period (at the end of which Customer’s right to use the Service under the applicable Order also expires), and that any data stored in such Service may become unavailable at that time.
2.5 Use Restrictions. Except as otherwise explicitly provided in these Enterprise Terms or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize Users or other third parties to:
(a) use the Service for any illegal purpose or in violation of any local, state, national, or international law;
(b) harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
(c) violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
(d) access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Pluralsight;
(e) interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing, or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
(f) interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting or sharing personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
(g) use or access any server instances that provide interactive environments as a part of the ACG Service and the API and materials related thereto (“Interactive Sessions”);
(h) use any data or information other than simulated, anonymous, non-live data when using the Interactive Sessions (i.e., Customer must not use real customer data or information or real transactions);
(i) use the Service to transmit any bulk unsolicited commercial communications or as a mail sender, or use any automated process or service to access or use the Service such as a BOT, a spider, or periodic caching of information stored by Pluralsight or its licensors;
(j) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
(k) exceed the usage limitations (including but not limited to, any time, Interactive Session number, or user number limitations) applicable to Customer’s use of the Service;
(l) sell or otherwise transfer the access granted under these Enterprise Terms or any right or ability to view, access, or use any materials made available via the Service; or
(m) attempt to do any of the acts described in this Section or assist or permit any person in engaging in any of the acts described in this Section.
2.6 Documentation. To the extent that a Service is accompanied by any Pluralsight-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to a Service (“Documentation”), Pluralsight hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable (unless otherwise specified in an Order) right and license under Pluralsight’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights under the applicable license to or grant of access and usage rights for such Service set forth in Section 2.1.
2.7 Third-Party Services. To the extent that a Service includes or is accompanied by third-party software or other products (e.g., cloud hosting instances or data analysis tools) that Pluralsight provides to Customer or that is otherwise identified in the Documentation as being required to use such Service (“Third-Party Products”), the Third-Party Products and their use by Customer are subject to all license and other terms that accompany such Third-Party Products. Customer will abide by and comply with all such terms. Without limiting the foregoing, if Pluralsight enables Customer to access a hosted environment offered by a third-party cloud or platform service provider, then Customer must agree to the applicable service provider’s terms and conditions prior to accessing such hosted environment, and Customer will comply at all times with such terms and conditions.
2.8 Compliance with Laws. Customer will use the Service and Documentation in compliance with all applicable laws and regulations.
Further, in performing its obligations under the Agreement, Pluralsight shall, and shall require that each of its subcontractors, suppliers, and other participants in its supply chain, to comply with all applicable modern slavery laws, regulations, rules and codes including, but not limited to, the Modern Slavery Act 2015 and the Modern Slavery Act 2018 (collectively, the “Acts”). Pluralsight has and shall maintain throughout the Term of these Enterprise Terms, its own policies and procedures to ensure its compliance with these Acts.
2.9 Protection against Unauthorized Use. Customer will prevent any unauthorized use of the Service and Documentation and will promptly notify Pluralsight in writing of any unauthorized use of which Customer becomes aware, but in no event later than 24 hours following awareness of such unauthorized use. Customer will immediately terminate any unauthorized use by persons having access to a Service or Documentation through Customer.
2.10 Ownership; Content. As between Pluralsight and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to any data, information, audio, video, or other works of authorship or other works that Customer uploads or inputs into a Service or otherwise makes available to Pluralsight (“Customer Content”). Customer hereby grants Pluralsight a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to host, store, transfer, publicly display, publicly perform, communicate to the public, reproduce, modify, create derivative works of, and distribute Customer Content: (a) during the Term, for the purpose of exercising Pluralsight’s rights and performing its obligations under these Enterprise Terms and (b) in perpetuity, in a form that does not identify Customer as the source thereof, for its business purposes, including to develop and improve Pluralsight’s and its Affiliates’ (defined below) products and services. Customer represents and warrants that Customer has all rights necessary to grant Pluralsight the licenses set forth in this section and to enable Pluralsight to exercise its rights under the same without violation or infringement of the rights of any third party. As between the Parties, Pluralsight owns all right, title, and interest, including all intellectual property rights, in and to the Service, Documentation, and any improvements to any Pluralsight products or services made as a result of Pluralsight’s use, processing, or generation of Customer Content or arising out of these Enterprise Terms.
2.11 Feedback. If Customer provides any feedback to Pluralsight concerning the functionality and performance of the Service or any Documentation (including identifying potential errors and improvements), Customer hereby assigns, transfers, and conveys to Pluralsight all right, title, and interest in and to the feedback, and Pluralsight is granted a perpetual, irrevocable, royalty free right to use the feedback without payment or restriction, and without any obligation to provide attribution to Customer.
2.12 Modification of the Service. Pluralsight reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to Customer. Pluralsight will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of Customer’s access to or use of the Service. Customer should retain copies of any Customer Content that it uploads or inputs into a Service or otherwise makes available to the Service so that Customer has permanent copies in the event the Service is modified in such a way that Customer loses access to the Customer Content on the Service.
2.13 Professional Services.
(a) Customer and Pluralsight may enter into an Order or Statement of Work (“SOW”) that describe specific professional services to be performed by Pluralsight (“Professional Services”). The scope and features of the Professional Services may be determined by the subscription Customer has purchased under the Order or by way of the description of Professional Services set forth on an Order or SOW executed by the parties.
(b) Unless otherwise specified in an Order or SOW, all Professional Services must be utilized by Customer within one (1) year of purchase. Customer shall have a revocable, non-transferable, term license to use the copy of the materials provided by Pluralsight in connection with the Professional Services for its internal use only. All other rights in the materials remain in and/or are assigned to Pluralsight.
(c) Customer acknowledges that Pluralsight may develop for itself, or for others, content similar to the materials and processes developed in performing the Professional Services, and nothing contained herein precludes Pluralsight from developing or disclosing such materials and information, provided that the same does not contain or reflect Customer Confidential Information.
(d) Professional Services provided by Pluralsight are for use by Customer only and for the purposes described in the Order or SOW. Pluralsight is not liable for any loss or injury of Customer or its Users arising out of or caused, in whole or in part, by Customer’s or its Users’ use or application of the knowledge gained from the Professional Services. In no event will Customer allow third parties to access or use the materials provided by Pluralsight in connection with the Professional Services provided. Pricing for Professional Services is based on the number of Users and is subject to change. Professional Services are non-cancelable and associated fees paid or payable are non-refundable and cannot be used as a credit towards any other amounts due to Pluralsight.
3. FEES AND PAYMENT TERMS
3.1 Fees and Payment Terms. Customer will pay Pluralsight the fees and any other amounts owing under these Enterprise Terms as specified in the applicable Order, including, where applicable, any early termination fees specified on the Order. Unless otherwise specified in such Order, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Pluralsight to collect any amount that is not paid when due. Amounts due from Customer under these Enterprise Terms may not be withheld or offset by Customer against amounts due to Customer for any reason. In the event your purchase is denominated in a currency other than USD, and in the event the foreign exchange rate varies by more than 5% from the date of Customer’s signature on the Order to the date of payment, Pluralsight may require payment in USD. If Customer files a chargeback disputing charges made by Pluralsight and the chargeback is granted, Customer’s account will be deactivated.
3.2 Excess Usage. If Customer uses the Service in violation of the scope granted hereunder, including but not limited to unauthorized rotation of user subscriptions or adding active Users in excess of those outlined in your Order (“Excess Use”), Pluralsight may, in its sole discretion, invoice Customer for the Excess Use, at the rates set forth in the applicable Order or, in the absence thereof, Pluralsight’s current list price for the features included in Customer’s plan for such Excess Use.
3.3 Taxes. Other than net income taxes imposed on Pluralsight, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from these Enterprise Terms. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by Pluralsight after all such Taxes are paid are equal to the amounts to which Pluralsight would have been entitled in accordance with these Enterprise Terms if such additional Taxes did not exist.
4. TERM AND TERMINATION
4.1 Term. These Enterprise Terms will remain in effect until terminated in accordance with this Section 4 (the “Term”).
4.2 Termination for Convenience. Either Party may terminate these Enterprise Terms for convenience immediately upon notice to the other Party at any time that no Order is in effect.
4.3 Termination for Material Breach. Either Party may terminate these Enterprise Terms or one or more Orders if the other Party does not cure its material breach of these Enterprise Terms or the applicable Order(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 4.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, Pluralsight may immediately terminate these Enterprise Terms upon notice to Customer, suspend one or more authorized Users’ access to the Service, or take appropriate legal action, including without limitation referral to law enforcement, if Pluralsight reasonably believes that Customer has made or distributed any unauthorized copies of any Service, has violated Section 2.5, has attempted to assign or sublicense any right granted by these Enterprise Terms except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Pluralsight’s intellectual property rights, including rights in and to any Service. Without limiting any other provision of this section, if Customer fails to timely pay any fees, Pluralsight may, without limitation to any of its other rights or remedies, suspend access to the Service under all Orders until it receives all amounts due.
4.4 Termination for Bankruptcy or Insolvency. Either Party may terminate these Enterprise Terms or one or more Orders if the other Party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within one hundred twenty (120) days or makes any assignment for the benefit of creditors.
4.5 Post-Termination Obligations. If these Enterprise Terms are terminated for any reason, (a) Customer will pay to Pluralsight any fees or other amounts that have accrued prior to the effective date of the termination, and (b) any and all liabilities accrued prior to the effective date of the termination will survive.
4.6 Survival. Notwithstanding anything to the contrary herein, Sections 1, 2.10, 2.11, 2.12, 3, 4.5, 4.6, 5, 6, 7, 8, and 9 will survive termination or expiration of these Enterprise Terms.
5.1 Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. Without limiting the foregoing, Pluralsight’s “Confidential Information” includes the Service, all Documentation, all Pluralsight technical information, and all information concerning Service-related database structure information and schema. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
5.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) protect the Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Enterprise Terms; and (c) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with these Enterprise Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Pluralsight is permitted to disclose Confidential Information of Customer on a need-to-know basis to employees, contractors, and agents of its Affiliates. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. “Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock, or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.
6. WARRANTIES AND DISCLAIMER
6.1 Mutual Warranties. Each Party represents and warrants to the other that: (a) these Enterprise Terms have been duly executed and delivered and constitute a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of these Enterprise Terms.
6.2 Disclaimer. EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6 OR AN ORDER OR ADDENDUM, PLURALSIGHT MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. PLURALSIGHT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. PLURALSIGHT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. PLURALSIGHT DOES NOT WARRANT THAT THE SERVICE, DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. PLURALSIGHT DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY THE SERVICE OR DOCUMENTATION IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. PLURALSIGHT EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE SERVICE OR DOCUMENTATION.
7.1 By Pluralsight. Pluralsight will: (a) at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Service as permitted and used pursuant to these Enterprise Terms infringes or misappropriates patents, copyrights, or trademarks, subject to Section 7.4 (an “IP Claim”) , and (b) indemnify Customer from and pay the applicable Losses (defined below). Pluralsight will have no obligation under this section for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (i) use of the Service in combination with other products, services, or content not provided by Pluralsight if such infringement or misappropriation would not have arisen but for such combination; (ii) the Service having been provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (iii) use of the Service by Customer for purposes not intended or outside the scope of the license granted to Customer; (iv) Customer’s failure to use the Service in accordance with instructions provided by Pluralsight, if the infringement or misappropriation would not have occurred but for such failure; or (v) any modification of the Service not made or authorized in writing by Pluralsight where such infringement or misappropriation would not have occurred absent such modification.
7.2 Mitigation; Limited Remedy. If Pluralsight becomes aware of, or anticipates, an IP Claim, Pluralsight may, at its option: (a) modify the Service so that it becomes non-infringing or substitute a functionally equivalent product; (b) obtain a license to the third-party intellectual property rights that may give rise to any Claim; or (c) terminate the affected Order(s) on written notice and refund to Customer any prepaid Fees. Sections 7.1 (with respect to IP Claims) and 7.2 state Pluralsight’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement, misappropriation, or other violation of any third-party intellectual property right by the Service.
7.3 By Customer. Except to the extent Pluralsight has a duty to defend Customer under Section 7.1, Customer will: (a) at its expense, defend Pluralsight from any actual or threatened third-party Claim arising out of or based upon Customer’s use of a Service (including Customer’s breach of the terms governing any Third-Party Products) or provision of the Customer Content or that is an Excluded Claim, subject to Section 7.4, and (b) indemnify Pluralsight from and pay the applicable Losses.
7.4 Procedures. A party’s obligations as the indemnifying party (“Indemnitor”) with respect to a Claim for which the indemnified Party (“Indemnitee”) is indemnified under this Section 7 (an “Indemnified Claim”) are subject to Indemnitee doing the following: (a) providing Indemnitor prompt written notice of the Indemnified Claim; (b) granting Indemnitor full and complete control over the defense and settlement of the Indemnified Claim; (c) providing assistance in connection with the defense and settlement of the Indemnified Claim as Indemnitor may reasonably request; and (d) complying with any settlement or court order made in connection with the Indemnified Claim. Indemnitee will not defend or settle the Indemnified Claim without Indemnitor’s prior written consent. Indemnitee will have the right to participate in the defense of the Indemnified Claim at its own expense and with counsel of its own choosing, but Indemnitor will have sole control over the defense and settlement of the Indemnified Claim. “Losses” means: (i) all damages, costs, and attorneys’ fees awarded against Indemnitee pursuant to the Indemnified Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Indemnitee in connection with the defense of the Indemnified Claim (other than attorneys’ fees and costs incurred without Indemnitor’s consent after Indemnitee has accepted defense of the Indemnified Claim); and (iii) all amounts that Indemnitor agrees to pay to any third party to settle the Indemnified Claim.
8. LIMITATIONS OF LIABILITY
8.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE ENTERPRISE TERMS, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THESE ENTERPRISE TERMS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL PLURALSIGHT BE LIABLE FOR ANY LOSS OF DATA STORED IN, OR IN CONNECTION WITH, A SERVICE.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL PLURALSIGHT’S TOTAL LIABILITY OF ALL KINDS, IN AGGREGATE, ARISING OUT OF OR RELATED TO THESE ENTERPRISE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR OWED BY CUSTOMER TO PLURALSIGHT UNDER THE ORDER WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 3 MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM.
8.3 Independent Allocations of Risk. EACH PROVISION OF THESE ENTERPRISE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE ENTERPRISE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PLURALSIGHT TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE ENTERPRISE TERMS. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE ENTERPRISE TERMS.
9.1 Relationship. Pluralsight will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of these Enterprise Terms.
9.2 Use of Brand Name. Pluralsight may use the name, brand, or logo of Customer (or Customer’s parent company) solely for the purpose of identifying Customer as a licensee or customer of Pluralsight in a “customer” section of Pluralsight’s website, brochures, or other promotional materials, or as part of a list of Pluralsight’s customers in a press release or other public relations materials. Pluralsight will cease any use of Customer’s name if such use violates any of Customer’s written guidelines. Any such limited use by Pluralsight shall include proper attribution to Customer or its parent company of any trademark or logo of Customer or its parent company and shall in no way suggest that Pluralsight is affiliated with, or speaking on behalf of, Customer or Customer’s parent company. Any other press releases or marketing materials referring to the trademarks or logos of Customer shall require mutual approval in writing prior to public dissemination thereof. If Pluralsight, in the course of exercising its rights hereunder, acquires any goodwill or reputation in any of the Customer’s trademarks or logos, all such goodwill or reputation will automatically vest in Customer.
9.3 Assignability. Neither Party may assign its right, duties, or obligations under these Enterprise Terms without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Pluralsight may assign these Enterprise Terms to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which these Enterprise Terms relates. A Change of Control shall be deemed to cause an assignment of these Enterprise Terms. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
9.4 Export. Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer’s activities under these Enterprise Terms. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and re-export the Service. The Service, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that the Service is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
9.5 U.S. Government Restricted Rights. The Service is commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the U.S. Government or any contractor therefor, Customer will receive only those rights with respect to the Service and Documentation as are granted to all other end users under license, 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 U.S. Government licensees and their contractors.
9.6 Subcontractors. Pluralsight may utilize subcontractors or other third parties to perform its duties under these Enterprise Terms so long as Pluralsight remains responsible for all of its obligations under these Enterprise Terms.
9.7 Notices. Any notice required or permitted to be given in accordance with these Enterprise Terms will be effective if it is in writing and sent by email, certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth below and on the applicable Order and with the appropriate postage affixed. In addition, Customer’s Plan Manager may be provided notice via email. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and the same date if sent via email.
42 Future Way
Draper, Utah 84020
9.8 Force Majeure. Neither Party will be liable for or be considered to be in breach of or default under these Enterprise Terms (except for failure to make payments when due) on account of, any delay or failure to perform as required by these Enterprise Terms as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
9.9 Governing Law. These Enterprise Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in the State of Utah in connection with any action arising out of or in connection with these Enterprise Terms.
9.10 Waiver. The waiver by either Party of any breach of any provision of these Enterprise Terms does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with these Enterprise Terms will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Enterprise Terms.
9.11 Severability. If any part of these Enterprise Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Enterprise Terms will remain in full force and effect. If any material limitation or restriction on the use of the Service under these Enterprise Terms is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate.
9.12 Interpretation. For purposes of these Enterprise Terms, (a)the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;”; (b) the words “such as,” “for example,” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Enterprise Terms as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in these Enterprise Terms will include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in these Enterprise Terms are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of these Enterprise Terms or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified, or supplemented, including (in the case of statutes) by succession of comparable successor laws.
Effective Date: May 1, 2023 (v. 2.0)
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING PLURALSIGHT’S PRIVACY NOTICE FOUND AT HTTPS://WWW.PLURALSIGHT.COM/PRIVACY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND PLURALSIGHT’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY PLURALSIGHT AND BY YOU TO BE BOUND BY THESE TERMS.
1. SERVICE OVERVIEW
The “Service” includes platforms and hands-on experiences for helping users learn, teach, and connect provided under the Pluralsight brand, the A Cloud Guru brand, or others described in Additional Terms (as defined below).
You must be at least 16 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 16 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. ACCOUNTS AND REGISTRATION
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information such as your name, email address, payment information if applicable, location, or other contact information. We strictly prohibit you from providing any sensitive personal data to us. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at firstname.lastname@example.org.
4. GENERAL PAYMENT TERMS
Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Fees are in one of several currencies, depending on location, including USD, EUR, GBP, or INR and are non-refundable unless otherwise specifically provided for in these Terms. By using our Service, you are granting us or our authorized vendor(s) permission to retain your account information and use it for the purpose of charging any outstanding amounts owed.
4.1 Price. Pluralsight reserves the right to determine pricing for the Service. Pluralsight will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing and plan information pages at www.pluralsight.com or acloudguru.com (“Plans”) periodically for current pricing information. Pluralsight may change the fees for any feature of the Service, including additional fees or charges, if Pluralsight gives you advance notice of changes before they apply. Pluralsight, at its sole discretion, may make promotional offers with different features and different pricing to any of Pluralsight’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.3 Authorization. You authorize Pluralsight to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Pluralsight, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Pluralsight may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase, and you authorize Pluralsight to charge $1 for purposes of verifying your credit card. The $1 charge may be refunded to users on a free or trial plan.
4.4 Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate the Subscription Service. If you activate a Subscription Service, then you authorize Pluralsight or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee,” please see our Plans. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Pluralsight or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service via your user account settings page, by calling +1 (801) 784-9007, or by emailing email@example.com. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
4.5 Excess Usage. If you use the Service in violation of the scope granted hereunder, including but not limited to unauthorized sharing of user credentials (“Excess Use”), Pluralsight may, in its sole discretion, invoice you for the Excess Use, at the rates set forth in your Plan or, in the absence thereof, Pluralsight’s current list price for the features included in your Plan for such Excess Use.
4.6 Delinquent Accounts. Pluralsight may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then Pluralsight reserves the right to terminate and delete your account and to delete any information or User Content (defined below) associated with your account without any liability to you.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Pluralsight grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on a mobile device that you own or control; and (b) access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
5.3 Feedback. We respect and appreciate the thoughts and comments from our users If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Pluralsight an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to use the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
Proprietary Rights. The Service is owned and operated by Pluralsight. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Pluralsight (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Pluralsight or its third-party licensors. Except as expressly authorized by Pluralsight, you may not make use of the Materials. There are no implied licenses in these Terms and Pluralsight reserves all rights to the Materials not granted expressly in these Terms.
7. THIRD-PARTY TERMS
7.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8. USER CONTENT
8.1 User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including messages, reviews, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
8.2 Limited License Grant to Pluralsight. By Posting User Content to or via the Service, you grant Pluralsight a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Pluralsight’s exercise of the license set forth in this Section.
8.3 Specific Rules for Photographs and Images. When posting a photograph or image on the Service, it is important to ensure that you have the right to do so and that you do not violate any copyright or other laws, such as those related to pornography. We strictly prohibit the posting of any illegal content, including but not limited to pornography, hate speech, and any other material that is offensive or violates any laws or regulations (“Illegal Content”). Pluralsight does not take liability for any posting, but we do reserve the right to investigate and take action, such as shutting down your account, or reporting Illegal Content to law enforcement, if we find that you have violated someone’s copyright or posted Illegal Content. If you Post a photograph or image to the Service that includes one or more persons, you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Service, Facebook, Instagram, LinkedIn, and Twitter, but not to promote any third-party product, good, or service. The license contained in this Section does not permit the subject of any photo or their administrators, guardians, heirs, or trustees to sell that image or photograph, whether on a standalone basis or as embodied in any product.
8.4 You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content, including in all ambient music and underlying musical works embodied in any sound recording. Pluralsight disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Pluralsight and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Pluralsight, the Service, and these Terms;
(b) your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Pluralsight to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Pluralsight may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Pluralsight with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Pluralsight does not permit infringing activities on the Service.
8.6 Monitoring Content. Pluralsight does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Pluralsight reserves the right to, and may from time to time, monitor any and all information (including User Content) transmitted or received through the Service for operational and other purposes. If at any time Pluralsight chooses to monitor the information or User Content, then Pluralsight still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Notice (defined below). Pluralsight may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Service without Pluralsight having any liability to the user who Posted such User Content to the Service or to any other users of the Service.
9.1 Text Messaging & Phone Calls. You agree that Pluralsight and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Service. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM PLURALSIGHT, YOU CAN EMAIL SUPPORT@PLURALSIGHT.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM PLURALSIGHT, YOU CAN EMAIL SUPPORT@PLURALSIGHT.COM OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request.
9.2 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. PROHIBITED CONDUCT
BY USING THE SERVICE, WHETHER OR NOT YOU ARE REQUIRED TO PAY ANY SUBSCRIPTION FEES, YOU AGREE NOT TO:
10.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
10.2 harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
10.3 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party or Pluralsight, including by infringing or misappropriating any third-party intellectual property right;
10.4 access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Pluralsight;
10.5 interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
10.6 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting or sharing personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
10.7 perform any fraudulent activity including without limitation impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
10.8 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
10.9 attempt to do any of the acts described in this Section or assist or permit any person in engaging in any of the acts described in this Section.
11. INTELLECTUAL PROPERTY RIGHTS PROTECTION AND RESPECT FOR THIRD PARTY RIGHTS
Pluralsight respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service. If you would like to report a potential case of infringement, please report it to us promptly by way of the procedures published at http://www.pluralsight.com/copyright-procedure.
12. MODIFICATION OF TERMS
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service.
13. TERM, TERMINATION, AND MODIFICATION OF THE SERVICE
3.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2 (Termination).
13.2 Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Pluralsight may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. In the event there is no Subscription Service in effect, you may terminate your account and these Terms at any time by contacting customer service at firstname.lastname@example.org.
13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Pluralsight any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3 (Feedback), 6 (Ownership; Proprietary Rights), 8.2 (Limited License Grant to Pluralsight), 13.3 (Effect of Termination), 14 (Indemnity), 15 (Disclaimers; No Warranties by Pluralsight), 16 (Limitation of Liability), and 17 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
13.4 Modification of the Service. Pluralsight reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Pluralsight will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Pluralsight, its affiliates, and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Pluralsight Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute orissue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. DISCLAIMERS; NO WARRANTIES BY PLURALSIGHT
15.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PLURALSIGHT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PLURALSIGHT DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PLURALSIGHT DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR PLURALSIGHT ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PLURALSIGHT ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
15.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Pluralsight does not disclaim any warranty or other right that Pluralsight is prohibited from disclaiming under applicable law.
16. LIMITATION OF LIABILITY
16.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PLURALSIGHT ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PLURALSIGHT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
16.2 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PLURALSIGHT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO PLURALSIGHT FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
16.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17.1 General Terms. These Terms, including the Privacy Notice and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Pluralsight regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
17.2 Governing Law. These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Pluralsight submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the State of Utah for resolution of any lawsuit or court proceeding permitted under these Terms.
17.3 Privacy Notice. Please read the Pluralsight Privacy Notice available at http://www.pluralsight.com/privacy (the “Privacy Notice”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Pluralsight Privacy Notice is incorporated by this reference into, and made a part of, these Terms.
17.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.5 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our PrivacyNotice. Please read our Privacy Noticeto learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
17.6 Contact Information. The Service is offered by Pluralsight, LLC, located at 42 Future Way, Draper, Utah, 84020. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
17.7 Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
17.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
17.9 Export Controls. The Service is subject to United States export controls. No Service content or materials may be downloaded or exported by or to any person or entity on the United States Treasury Department’s list of Specially Designated Nationals (SDN) or the United States Commerce Department’s Consolidated Screening List (CSL). By accessing or using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. Although the Service may be accessible worldwide, we make no representation that the Service is appropriate or available for use in locations outside the United States, and accessing the Service from territories where its contents or materials are illegal, is prohibited. Those who choose to access the Service from other locations do so at their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Service is void where prohibited.
18. NOTICE REGARDING APPLE
This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Pluralsight only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.