Terms and Conditions (USA)

USA / NON-USA

These Terms and Conditions (the “Terms”) govern the purchase, license, and use of Challenger Services. Additional or alternative provisions apply for certain purchases and are included in the applicable Order Form a Company executes to complete its purchase. These Terms, together with any applicable Order Form constitute the valid, complete, and binding contract between Company and Challenger (the “Agreement”). If there is any conflict between these Terms and the Order Form, the Order Form prevails.

In these Terms, “Challenger”, “Us”, “We” or “Our” means “Challenger Performance Optimization, Inc., a Delaware corporation having a principal place of business at 1777 North Kent Street, Suite 500, Arlington, Virginia 22209.

In these Terms, “Company”, “You” or “Your” means an entity that purchases Services from Challenger. If a license is extended to such Company’s Affiliates pursuant to an Order Form, the term “Company” shall include such Company Affiliates and the provisions of the Order Form including these Terms shall also apply to Company’s Affiliates.

  1. 1. DEFINITIONS. Unless otherwise defined in these Terms, capitalized terms have the meanings set forth in Section 15.
  2. 2. SCOPE. In accordance with these Terms, Company may purchase Services from Challenger by executing an Order Form. An Order Form shall be effective when signed by an authorized representative of Company.
  3. 3. FEES AND PAYMENT TERMS.
    1. 3.1 Fees and Payment Terms. Company agrees to pay Challenger all fees for Services set forth in an applicable Order Form and any associated Direct Costs (as defined below) if applicable (collectively, the "Fees"). Unless otherwise specified in an Order Form, Fees are quoted and payable in U.S. dollars and are based on the Services and Materials purchased, not actual usage. Payment obligations may not be cancelled and Fees are not refundable. The number of Participant Licenses and Services purchased cannot decrease and are to be consumed during the Subscription. If Fees greater than ten thousand ($10,000) are paid via credit card, an additional charge equal to three percent (3%) of the invoiced amount shall apply. Challenger reserves the right to increase its Fees by up to five (5) percent each year.
    2. 3.2 Invoices. Challenger will invoice Company in accordance with the payment schedule in an applicable Order Form. Invoices are due and payable net thirty (30) days after the invoice date. Interest will accrue on late payments at a rate of one and one-half percent (1.5%) per month from the due date until paid. If any portion of an invoice is disputed, Company must provide a written description of such dispute within six (6) weeks after the invoice date and pay any undisputed amount in accordance with the original payment terms or Company will waive its rights to dispute such invoice. Company is not entitled to set-off any of its payments against any amounts claimed to be owed by Challenger to Company.
    3. 3.3 Taxes. All sales, value added country specific withholding taxes applicable to foreign suppliers and other taxes on the Services and Materials regardless if they are included on the invoice or by law to be included in the Fees (collectively, "Taxes") are the Company’s responsibility. If Challenger has a legal obligation to pay or collect Taxes for which Company is responsible, Taxes will be invoiced to and paid by Company, unless a valid tax exemption certificate authorized by the appropriate taxing authority is provided annually. Company shall indemnify, defend and hold Challenger harmless from all claims, liability and expense arising out of Company’s failure to pay any such Taxes. Challenger is solely responsible for taxes assessed based on Challenger’s income, property and employees.
    4. 3.4 VAT. If VAT taxes are applicable, in addition to Section 3.3 above, Company must promptly provide to Challenger in writing a valid VAT registration and indicate in which European Union member state applies to the use of Challenger’s Services and Materials and that Company is purchasing the Services for private purposes as well as any other information as is reasonably requested in connection with Challenger’s VAT reporting obligations. Company shall inform Challenger of any change in VAT information previously provided to Challenger as soon as reasonably practicable after any such change. If Company defaults in complying with Company’s obligations under this Section 3.4 and as a result, Challenger incurs any interest or penalties relating to VAT, Company must pay Challenger upon receipt of invoice the amount equal to any applicable interest and penalties.
    5. 3.5 Direct Costs. In addition to the Fees set forth in an Order Form, Company shall reimburse Challenger for direct costs incurred in providing the Services (“Direct Costs”). Direct Costs may include travel expenses for training sessions led by a Challenger facilitator (“Challenger Led Sessions”) and the cost of printing and shipping related to Materials for training sessions led by a Certificate Candidate (“Company Led Sessions”). For Challenger Led Sessions, Fees include the cost of printing and shipping related to Materials.
    6. 3.6 Workshop Commitment. Upon Company’s commitment of dates for a workshop, live training or any related travel necessary to provide Services and Materials to Company (a “Commitment”), Challenger will incur costs. If Company for any reason delays, reschedules or cancels any Commitment within 15 days prior to the scheduled Commitment, Company will pay a reschedule fee of five thousand dollars ($5,000) per rescheduled Commitment. Company must receive delivery of all workshops or other Services contemplated in an applicable Order Form prior to the end of the Term for the applicable Subscription or forfeit remaining Services. Company may extend an individual Subscription on an Order Form for up to three (3) additional months for a monthly extension fee of an additional five thousand dollars ($5,000) per month, provided Company is current on all payments due to Challenger.
    7. 3.7 Collection Costs: If Challenger takes any action to collect any unpaid balance due from Company, and Challenger is awarded any amount or portion of an amount alleged to be due under such action, Challenger is entitled to recover from Company all reasonable costs of collection incurred by Challenger, including reasonable attorney’s fees and litigation expenses. Challenger will invoice Company for such charges, and Company must pay such invoice net 30 days and otherwise in accordance with the payment terms provided in this Section 3.
  4. 4. INTELLECTUAL PROPERTY.
    1. 4.1 Company Property. Challenger acknowledges and agrees that Company and its Affiliates, as applicable, have and own and shall have and own, all rights, title and interest in and to any respective Intellectual Property Rights in any Company Property. Challenger acknowledges and agrees that its access to and use of Company Property will not vest in Challenger any right, title or interest in or to any Company Property.
    2. 4.2 Challenger Property. Company acknowledges and agrees that Challenger and its Affiliates, as applicable, have and own, and shall have and own, all rights, title and interest in and to their respective Intellectual Property Rights in Challenger Property. Company acknowledges that its receipt of the Services and its use of the Materials will not vest in Company any right, title or interest in or to any Challenger Property.
    3. 4.3 Infringement. In the event that any Materials or Services becomes or is reasonably likely to become the subject of an infringement claim then Challenger, at its discretion will: (a) obtain the right for Company to continue using the affected Materials or Services; (b) replace it or modify the affected Materials or Services; or (c) terminate the applicable Order Form by written notice to Company. If an Order Form is terminated under this Section 4.3, Challenger will refund to Company the amount(s) paid to Challenger prorated for Services or Materials that have not yet been delivered or consumed by Company or its Participants.
  5. 5. LICENSES.
    1. 5.1 Materials and Services. Except as otherwise provided in this Section 5, for the Subscription set forth for a particular Service in an Order Form, Challenger grants to Company on behalf of each Participant an individual, personal, non-exclusive, royalty-free, irrevocable (except for failure to pay Fees), non-transferable and non-assignable license for each Participant to use the Materials and receive the Services for the internal business purposes of Company. In the absence of a renewal, the foregoing license terminates at the end of the applicable Subscription; provided, however, individual Participants may continue to use tangible, printed Materials received as part of the Services, such as training workbooks, to support their work for Company. If a Participant leaves the employ of the Company, Company must ensure that Participant returns all Materials received from Challenger to the Company and immediate cease using any Virtual Services.
    2. 5.2 Virtual Services. As part of a particular Service, Participant may have access to Virtual Services and the technical specifications for same are set forth in an Order Form. If so, during the applicable Subscription, Challenger grants to Company on behalf of each Participant an individual, personal, non-exclusive, royalty-free, irrevocable (except for failure to pay Fees), non-transferable and non-assignable license for each Participant to access and use the Virtual Services. Company will not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Virtual Services; or modify, translate, or create derivative works of the Virtual Services. If Company becomes aware of a Participant committing the actions in the immediately foregoing sentence, Company shall immediately notify Challenger.
    3. 5.3 Company Reports. Company may be provided with printed or electronic reports specific to and about Company and/or its Participants that describe the status of Services, training metrics, learning retention, or the results of selection, assessment or survey services (the “Company Reports”). Company shall own the Company Reports; however, because the Company Reports will incorporate Challenger Intellectual Property Rights and will be composed, in part, of Challenger Property, Company agrees that such Company Reports will be used for Company’s internal business purposes only. Challenger grants Company a perpetual, non-exclusive, royalty-free, worldwide, non-transferable and non-assignable license to Challenger Intellectual Property Rights incorporated into any Company Report.
    4. 5.4 Challenger Messaging and Challenger Insights. If Challenger Messaging or Challenger Activation is purchased by Company as a Service on an Order Form, Company may be provided with draft or final Challenger Messages or Challenger Insights specific to Company which are designed to be used internally across Company’s entire organization or externally with Company’s customers, vendors or advertising partners. Company shall own the Challenger Messages or Challenger Insights, as applicable, and Challenger grants Company a non-exclusive, royalty-free, irrevocable (except for failure to pay Fees) license to use Challenger Property, if any, incorporated into such Challenger Messages or Challenger Insights.
    5. 5.5 Certification Candidates. If purchased by Company as a Service on an Order Form, Challenger will conduct train the trainer sessions for Certification Candidates. who upon completion of such sessions are authorized to train other Users at the Company. Upon successful completion of the train the trainer sessions, Challenger grants to each Certification Candidate a personal, non-exclusive, royalty-free, worldwide, revocable, non-transferable and non-assignable license to use, reproduce, and distribute Materials associated with their certification for Company’s internal business purposes. A Certification Candidate license may not be transferred or sold to another person or third party and may not be transferred outside of the Company.
    6. 5.6 Restrictions.
      • (a) The Services and the Materials may not be used for any purpose that is inappropriate, unlawful under applicable law, or otherwise in violation of these Terms.
      • (b) Company acknowledges and agrees that unless otherwise specified in an Order Form or in these Terms, the license to the Services and the Materials is on a per Participant basis and that the Services and the Materials shall not be otherwise shared, copied, distributed, or displayed within the Company. Notwithstanding the foregoing, Certification Candidates may access, copy and reproduce the Materials provided in Virtual Service specifically applicable to their certification during the Term for no additional cost.
      • (c) Company acknowledges and agrees that without advance written permission from Challenger, Company may not sublicense, sell, transfer, assign to, or display the Services, or the Materials for any third-party, including contractors and vendors. For the avoidance of doubt, a third-party may not be named as a Participant without Challenger’s advance written permission and Challenger reserves the right to require such third-party to enter into a standard Non-Disclosure Agreement with Challenger.
      • (d) Company is responsible for keeping accurate Participant records and Challenger may review such Participant records upon reasonable notice in order to determine actual number of Participants who have been allocated a license. If it is determined that unauthorized access has occurred, Challenger will issue a new Order Form based on the Fees outlined on the original applicable Order Form and issue an immediately payable invoice covering (i) the pro rata portion of Fees for the additional Participants from the date such Participants were granted access to the Service or Materials through the Subscription (“Pro Rata Fee”) and (ii) a penalty of twenty percent (20%) assessed in addition to the Pro Rata Fee.
    7. 5.7 License Reallocation. If Effortless Experience Capabilities Builder Services are Purchased by Company, and a Participant terminates employment or other business relationship with the Company, the License associated with that Seat may be reallocated to a new Participant. At no time may a License be assigned to more than one individual at the same time.
  6. 6. RESEARCH DATA, BENCHMARKING, AND FEEDBACK.
    1. 6.1 Research Data and Benchmarks. Company authorizes Challenger to use Company Property disclosed through training diagnostics, surveys, or assessments, or through software or other data collection activities for validation of Participant records, configuration of Services for Company, research and benchmarking purposes and product development (collectively “Research Data”) including creating or updating Benchmarks. “Benchmarks” mean aggregated data received, collected, analyzed, and maintained by Challenger to improve its Services and Materials. Benchmarks may be derived from public information, diagnostic responses, survey data and best practices information that Challenger receives from its clients. Benchmarks are always presented in an aggregated and anonymized form that does not identify a particular individual or company.
    2. 6.2 Feedback. Company acknowledges and agrees that any suggestions, enhancements, requests, recommendations, or other feedback (collectively, “Feedback”) provided by Company or a Participant may be incorporated by Challenger or its Affiliates into Materials and Services, and upon incorporation, such Feedback will become Challenger Property.
  7. 7. SURVEYS, SELECTION, ASSESSMENT AND DIAGNOSTICS. Company acknowledges and agrees that any surveys, candidate selection tools, assessments or diagnostics deployed as part of the Services are a single input into Company’s overall recruitment or development process and shall not be relied upon as statements of fact or as the sole basis for any employment related decisions. Company further acknowledges and agrees that it remains solely responsible for (a) any acts or omissions which may lead to claims of unlawful discrimination; (b) compliance with any applicable employment or applicant records retention requirement; and (c) compliance with the laws and regulations of any applicable governmental authority or regulatory body.
  8. 8. DATA PROTECTION
    1. 8.1 Compliance. During the course of providing the Services and the Materials, Challenger and its Affiliates may collect certain information as described in Challenger’s Privacy Policy, including a Participant’s name, job title, email address, and other information. Challenger and Company both agree that each shall at all times comply with all applicable laws and regulations in relation to the collection, processing, use, and storage of Personal Data. The Data Processing Schedule for compliance with the European Union’s General Data Protection Regulation is available for review, and is incorporated by reference into these Terms, as applicable.
    2. 8.2 Data Transfer. Where Company resides within the European Economic Area (“EEA”), Company agrees that Challenger or its Affiliates may transfer Personal Data outside the EEA to the facilities of Challenger or those of its Affiliates in order to provide Company with the Services. At Company’s request, Challenger (and its appropriate Affiliates or licensors, if applicable) will also enter into the Model Clauses for transferring Personal Data outside the EEA. Where Company resides outside the EEA, Company agrees that Challenger or its Affiliates may transfer Personal Data to the facilities of Challenger or its subcontractors in order to provide Company with the Services and Materials. At all times, Challenger, its Affiliates and its licensors will take appropriate steps to protect Personal Data in accordance with these Terms and all data protection laws applicable to the Data Processor (defined below).
    3. 8.3 Data Processing. Company is the Data Controller of Personal Data. “Data Controller” means a person/entity who determines the purposes for which and the manner in which any Personal Data is, or is to be, processed (collected, used, amended, retained, destroyed, etc.). Challenger or its Affiliates shall act as the Data Processor with respect to the Personal Data. “Data Processor” means a person/entity (other than an employee of the Data Controller) that processes Personal Data on behalf of the Data Controller. As the Data Processor, Challenger shall: (a) process Personal Data in accordance with Company’s reasonable instructions or otherwise as permitted under these Term and (b) implement appropriate administrative, technical, and physical security controls to protect Personal Data from unauthorized access, use, or disclosure, unauthorized modification, or unlawful destruction or accidental loss. Challenger shall cooperate with any Company request for Personal Data provided by or through Company to Challenger, as applicable, provided that such request does not violate any other obligations.
    4. 8.4 Third Parties. Challenger or its Affiliates may disclose Personal Data to Authorized Third Parties (as defined below) in the following limited circumstances: (a) if Challenger or its applicable Affiliate buys or sells any business assets (this does not include any marketing lists or for any marketing purposes); (b) if Challenger or its Affiliates contract with a sub-processor to perform certain activities related to the Services; or (c) if Challenger or any Affiliate is under a duty to disclose or share Personal Data to comply with any legal obligation. Challenger or its applicable Affiliate shall contractually require any buyer of Challenger’s or its Affiliate’s assets that include Personal Data, or any sub-processor performing services on Challenger’s behalf, to provide the same level of protection for Personal Data required in these Terms and under any applicable data protection laws. For purposes of this Section 8.4, “Authorized Third Party” means any person or entity other than Company, Challenger or its Affiliates, authorized to process data for the Data Controller or Data Processor.
    5. 8.5 Data Breach. Challenger shall notify Company of any unauthorized access to or misuse of Personal Data related to a Participant (a “Data Breach”) as soon as reasonably possible after discovery of the Data Breach. If a Data Breach occurs, Challenger shall immediately investigate and take appropriate remedial actions to mitigate the effects of the Data Breach. Such investigation and remediation activities shall be in accordance with applicable laws, regulations, industry standards, and industry best practices. Upon request, Challenger shall provide Company with a summary report of its investigation and remediation activities.
    6. 8.6 Data Retention. Following termination or expiration of a Participant’s License, Challenger has no obligation to maintain or provide any Participant Data to Company and We may at Our option, unless legally prohibited, permanently delete or destroy all Participant Data in Challenger’s systems or otherwise in Challenger’s possession or under Challenger’s control within thirty (30) days after the expiration or earlier termination of the Participant License.
  9. 9. INDEMNIFICATION
    1. 9.1 Indemnification. Challenger and Company (each, the “Indemnifying Party”) agree to indemnify, defend and hold harmless the other Party, its officers, directors, employees, agents, successors and assigns (each, an “Indemnified Party”), from and against all claims, loss, liabilities, damage, settlement, cost and expense, including reasonable legal fees and expenses (“Losses”), incurred by the Indemnified Party as a result of a third party claim, demand, action or proceeding (each, a “Claim”), related to the following, as determined by a final adjudication: (a) failure to comply with applicable laws; (b) any breach of the confidentiality obligations set forth in these Terms ; and (c) infringement of Intellectual Property Rights directly arising out of any Challenger Confidential Information or Company Confidential Information supplied to the Indemnified Party by the Indemnifying Party.
    2. 9.2 Requirements. Any indemnification obligation under these Terms requires that the Indemnified Party: (a) provide the Indemnifying Party prompt written notice of any Claim, or upon reasonable suspicion of a Claim; (b) cooperate with the Indemnifying Party’s reasonable request for information or other assistance (at the Indemnifying Party’s expense); (c) grant control of the defense and settlement of the Claim to the Indemnifying Party; and (d) not settle or make any offer to settle the Claim or make any admission of guilt or fault without first obtaining the Indemnifying Party’s prior written approval.
    3. 9.3 Exclusions. This indemnification obligation in this Section 9 shall not apply to: (a) use of the Challenger Confidential Information or Company Confidential Information, as applicable, in a manner not contemplated by these Terms ; or (b) Company’s use of Challenger Confidential Information in combination with any services, materials, products, or information not provided to Company by Challenger or its Affiliates.
  10. 10. LIMITATION OF LIABILITY
    1. 10.1 Damages. Neither Party shall be liable for any of the following losses or damages (whether or not foreseen, direct, indirect, foreseeable, known or otherwise): (i) loss of profits (whether actual or anticipated), (ii) loss of revenue, (iii) loss of contracts, (iv) loss of anticipated savings, (v) loss of business, (vi) loss of opportunity, (vii) loss of goodwill, or (viii) any indirect, special or consequential loss or damage.
    2. 10.2 Liability. Each Party’s total aggregate liability arising out of or in connection with the performance or contemplated performance under an applicable Order Form (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the price paid or payable by Company to Challenger or its Affiliates under such Order Form within the twelve (12) month period immediately before the date of the event giving rise to the applicable Claim. In all such cases, a Party’s liability shall be limited to the greatest extent permitted by applicable law. Other than Section 10.1, nothing shall exclude or limit either Party’s liability for: (a) death or personal injury caused by its or its Affiliate’s negligence; (b) fraud or fraudulent misrepresentation; or (c) any other matter for which it would be prohibited by applicable law to limit or exclude or attempt to limit or exclude liability.
    3. 10.3 Virtual Services. Access to the Virtual Services are dependent on third parties such as internet service providers. Challenger will have no liability to Company for any loss suffered resulting directly or indirectly from: (a) failures of performance on the part of a third party internet service provider or Company or Participant’s technical or computer equipment; (b) scheduled systems upgrades or maintenance; or (c) any security breach of the Virtual Services other than solely due to Challenger’s gross negligence.
  11. 11. CONFIDENTIAL INFORMATION.
    1. 11.1 Protection. During the Term of the Agreement and throughout the Parties relationship with each other, each Party will have access to certain Confidential Information of the other Party. Each Party agrees: (a) not to disclose the Confidential Information of the other Party except to its employees, advisors, Affiliates, or licensors on a need to know basis and only if each is bound by confidentiality obligations at least as restrictive as those contained in these Terms ; (b) to use the Confidential Information strictly for the performance of the Services or receipt of the Services; and (c) to use the greater of (i) commercially reasonable endeavors to protect the confidentiality of the other Party’s Confidential Information or (ii) the same degree of care it employs in maintaining its own Confidential information. The confidentiality obligations of each Party shall continue in force and survive the termination or expiration of the Agreement for a period of three (3) years after the expiration or earlier termination of the Agreement.
    2. 11.2 Exclusions. Confidential Information does not include information which: (a) was already known by the receiving Party at the time of the disclosure by the disclosing Party; (b) has otherwise become publicly available other than as a result of disclosure by the receiving Party in breach of these Terms ; (c) was disclosed to the receiving Party on a non-confidential basis from a third party source other than the disclosing Party, which the receiving Party reasonably believes is not prohibited from disclosing such information; (d) is developed by the receiving Party independently of any disclosure as evidenced by written records; or (e) is required to be disclosed by order of a court of competent jurisdiction, or by subpoena, summons or any other legal process; provided that, the receiving Party shall (i) so long as legally permissible, promptly notify the disclosing Party of such order and (ii) at the written request of the disclosing Party, diligently contest such order at the sole expense of the disclosing Party.
    3. 11.3 No License. Disclosing Party grants no license under any copyright, patent, trademark or trade secret by the disclosure of its Confidential Information. The Parties understand and acknowledge that Confidential Information is being provided by the disclosing Party without any representation or warranty, express or implied, as to the accuracy or completeness of such Confidential Information.
  12. 12. TERMINATION.
    1. 12.1 Term. The term of an applicable Order Form shall commence on the date the Order Form is executed by the Company and will continue in effect through the last date of Subscription provided therein. Except as provided in Section 12.2 below, Order Form(s) are non-cancellable, payment is due in accordance with the payment schedule, and fees already paid are non-refundable.
    2. 12.2 Termination for Cause. Either Party may terminate any Order Form(s) issued hereunder upon written notice to the other Party, if the other Party: (a) materially breaches these Terms or an Order Form(s) and such breach is either incapable of cure or not actually cured within thirty (30) days after receipt of written notice of such breach or five (5) days following written notice for non-payment of fees; (b) becomes insolvent; or (c) makes an assignment for the benefit of creditors. If We terminate due to Company’s breach the total amounts under these Terms and Order Form(s) then in effect will be immediately due in full. If Company terminates due to Challenger’s breach, all prepaid fees under these Terms and any Order form(s) will be refunded on a pro-rata basis up to the termination date. Such termination will be without prejudice to any rights or remedies of either Party which may have accrued up to the date of termination.
    3. 12.3 Termination of Licenses and Return of Materials. Upon the termination or expiration of any Order Form(s), in whole or in part: (a) all Services and Licenses granted by Us will immediately terminate and Company will immediately cease use of the terminated or expired portion of the Materials and Services however, Participants may continue to use tangible, printed Materials received as part of the Services, such as training workbooks, to support their work for Company; (b) any unpaid amounts owed by Company before or at such termination or expiry will become immediately due except as provided for under Section 12.2; and (c) upon request, each Party will promptly destroy or return any Confidential Information of the other Party that remains in its possession or control. We reserve the right to charge Company for continued use of Materials or Services after the expiration or termination an Order Form.
  13. 13. REPRESENTATIONS AND DISCLAIMER OF WARRANTIES.
    1. 13.1 Challenger Representations. Company represents that the Services and the Materials will materially conform to the specifications describing them in the applicable Order Form and that Challenger will perform the Services in good faith and in a professional manner in compliance with all applicable laws. If Company can reasonably demonstrate to Challenger in writing that the Services and Materials do not materially conform to the specifications described in the applicable Order Form or that Services were not performed in good faith and in a professional manner, Challenger, at its sole option, will make good such defect at no charge, replace such Materials or re-perform such Services, or issue a credit for a pro-rata portion of the Fees for such affected Materials or Services, as appropriate. This Section 13.1 does not limit payment obligation under these Terms or Order Form(s).
    2. 13.2 Company Representations. Company represents and warrants that Company: (a) owns or has the right to provide to Us the Company Property and Personal Data; (b) will not store, upload into, or transmit through the Service any financial information or Personal Data other than the minimum necessary to verify the identity of an Participant; (c) is responsible for the conduct of Company’s Participants and their compliance with the terms of these Terms ; (d) will not copy, reproduce, modify or adapt, translate, disassemble or, reverse engineer, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute any portion of the Services or the Materials (as applicable) in any form or media, or by any means, except as permitted under these Terms or an Order Form; (e) will not cause confusion, deception or false associations with programs, products or services that are not Challenger Services or Materials including, without limitation, preparing materials that are identical, or confusingly similar; and (f) shall comply with all applicable laws.
    3. 13.3 DISCLAIMER OF WARRANTIES. THE MATERIALS AND SERVICES ARE PROVIDED “AS IS” AND CHALLENGER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CHALLENGER DOES NOT WARRANT OR GUARANTEE THAT: (A) COMPANY WILL REALIZE ANY RESULTS BY VIRTUE OF ITS USE OF THE MATERIALS OR THE SERVICES; (B) THE MATERIALS OR THE SERVICES WILL BE ACCURATE, OR COMPLETE STATEMENTS OF FACT OR RELIABLE OR THAT ANY ERRORS WILL BE CORRECTED; OR (C) THE MATERIALS OR SERVICES OR THEIR USE BY COMPANY WILL BE IN COMPLIANCE WITH ANY APPLICABLE EMPLOYMENT LAWS. CHALLENGER FURTHER DOES NOT WARRANT OR GUARANTEE COMPANY’S USE OF ANY OF THE VIRTUAL SERVICES OR ANY LINKS OR MATERIALS CHALLENGER PROVIDES FROM CHALLENGER LICENSORS WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION, TECHNICAL INACCURACIES, VIRUSES OR OTHER HARMFUL CODE. THIS DISCLAIMER IS INTEGRAL TO ESTABLISHING PRICING AND CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. NOTWITHSTANDING ANYTHING IN THESE TERMS OR ANY ORDER FORM TO THE CONTRARY, WE SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY OR ARISING AS A RESULT OF RELIANCE BY COMPANY UPON THE MATERIALS OR SERVICES.
  14. 14. MISCELLANEOUS.
    1. 14.1 Marketing. Company agrees that Challenger may use its company name and logo as a reference for marketing or promotional purposes on our Challenger website and in other public or private communications, subject to Company’s standard trademark usage guidelines as provided to Challenger. Company further agrees to work with Challenger if Challenger wishes to develop a case study based on the Company’s experience with Challenger.
    2. 14.2 Non-Solicitation of Employees. During the Term of the Agreement, and for a period of one (1) year immediately following its expiration or earlier termination, each Party agrees not to solicit or induce any current employee or independent contractor of the other Party or terminate or breach an employment, contractual or other relationship with the other Party. Any solicitations directed to the general population and the hiring of employees who may respond to such solicitations are excluded from this Section 14.2.
    3. 14.3 Compliance with Laws. Each Party will comply with all applicable laws relating to performance of these Terms and the Order Form in the countries where it operates, including all securities, anti-corruption, and anti-bribery laws, and with the US Foreign Corrupt Practices Act and the UK Bribery Act. Any breach of this Section 14.3 is a material breach of these Terms and any applicable Order Form for which no cure period shall apply.
    4. 14.4 Governing Law. These Terms will be governed and construed in accordance with the laws of the State of Delaware, excluding its choice of law principles, and the Parties agree to submit to jurisdiction of courts located in the State of Delaware to resolve all disputes. Each Party also hereby waives any right to jury trial in connection with any action or litigation arising out of or related to these Terms. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees. Notwithstanding the above, either Party shall have the right to commence and prosecute any legal action before a court in Delaware to obtain injunctive or other relief against the other Party if such action is necessary.
    5. 14.5 Equitable Relief. Each Party agrees that a breach by the other Party of its obligations under these Terms may result in irreparable harm to the other Party for which monetary damages would be an inadequate remedy. Consequently, in the event of a breach, or threatened breach, of any such obligations, the non-breaching Party shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief (including injunctive relief and specific performance) in addition to any and all other rights and remedies that may be available to it in respect of such breach.
    6. 14.6 Third Party Beneficiaries. These Terms do not confer any rights or remedies upon any third party, except that Challenger Performance Optimization, Inc., a Delaware corporation in the United States, will be an express beneficiary of any Order Form to which any of Challenger Affiliates is a Party, with full power to enforce such Affiliate’s rights thereunder. Nothing in these Terms will create or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the Parties.
    7. 14.7 Trade Sanctions. Challenger Materials and Services may be subject to US sanctions laws and may not be sold or licensed to nor do We do business with any party listed on the Specially Designated Nationals List maintained by the U.S. Department of the Treasury (“Restricted Party”) or in US sanctioned countries. Company agrees not to use, transfer, or provide access to the Materials or the Services (a) to any Restricted Party or (b) in (or for the benefit of individuals or entities from) US sanctioned countries. Company confirm that it is not directly or indirectly owned by, controlled by, owning or controlling or named as a Restricted Party and that Company does not do business in a US sanctioned country. Any breach of this Section 14.7 is a material breach of these Terms for which no cure period shall apply.
    8. 14.8 Force Majeure. Save and except for Company’s obligation to pay the Fees, neither Party will have any liability to the other if the affected Party does not fulfil its obligations to the other due to an event outside the affected Party’s reasonable control.
    9. 14.9 Notice. Except as otherwise set forth herein, all notices under these Terms will be to the email address associated with Company’s account or to the mailing address identified on the applicable Order Form. Notices to Challenger should be emailed to Legal@Challengerinc.com. Notices by either Party will be deemed to have been duly given the day after it is sent.
    10. 14.10 Severability and Waiver. If any provision of these Terms or an Order Form is held to be invalid or legally unenforceable under applicable law, such provision will not affect the validity or enforceability of the remaining terms of these Terms or an Order Form. The Parties shall, in such case, replace the invalid provision with a valid one that best expresses their original intent. Failure to enforce these Terms or any Order Form does not waive a Party’s rights.
    11. 14.11 Entire Agreement. The Agreement sets out the entire agreement between the Parties and overrides any prior correspondence or representations, and all other terms and conditions, including without limitation any other terms contained within a purchase order or any document supplied by Company. The Parties acknowledge that the Agreement has not been entered into in part or in whole in reliance on any warranty, statement, promise or representation by the other Party, except as set out in the Agreement. No amendment to or modification of the Agreement, or action, or delay, will be binding unless in writing and signed by both Parties.
    12. 14.12 Assignment. Neither Party will assign or otherwise transfer its rights or responsibilities under these Terms or an Order Form to any third party without the other Party’s prior written consent; provided, however, We may assign or otherwise transfer Our rights and obligations to (i) any of Challenger’s Affiliates provided that Challenger and the Challenger assigned Affiliate will remain at all times responsible to Company for Challenger’s obligations under these Terms; or (ii) in connection with a change of control, or sale or other disposition of substantially all the assets of any of Challenger’s business or product lines.
    13. 14.13 Survival. The provisions contained in these Terms that by their sense and context are intended to survive the expiration or termination of the Agreement will survive such cancellation and termination.
  15. 15. DEFINITIONS
    1. 15.1 “Administrator” means a Subscription granted to a User to assist Challenger in managing and maintaining the Services and Materials and Participant access to the Services.
    2. 15.2 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means the power, directly or indirectly, to direct the management and policies of the subject entity, whether through the ownership of voting securities, by contract, or otherwise.
    3. 15.3 “Certification Candidate” means a Subscription granted to a User who, upon successful completion of train the trainer sessions, may train other Users at the Company.
    4. 15.4 “Challenger Property” means Challenger Confidential Information, and without limitation any data, information, or other material owned or created by Challenger, regardless of confidentiality or public disclosure and in any form whether written, oral, electronic, visual or otherwise.
    5. 15.5 “Company Property” means Company Confidential Information, and without limitation any data, information or other material owned or created by Company, regardless of confidentiality or public disclosure and in any form whether written, oral, electronic, visual or otherwise.
    6. 15.6 “Confidential Information” means all nonpublic information relating to a Party, that should reasonably be understood by the circumstances of disclosure, or by the nature of the information itself, to be proprietary and/or confidential including, but not limited to business plans and strategies; financial, pricing, product, or services information; technologies and software; and information concerning current, former or prospective employees, customers, vendors, licensees, licensors and relationships with each. For the avoidance of doubt, (a) Challenger Confidential Information includes the Materials and the details of delivery, methods, and other information provided as part of the Services and (b) Company Confidential Information includes any information provided to Challenger by Participants during their use of the Services and to the extent allowed by applicable law, any Participant Personal Data.
    7. 15.7 “Intellectual Property Rights” means all copyrights, patents, trade names, trademarks, service marks, logos, trade dress, trade secrets, mask works, rights in technology or software, know-how, rights in content, or any other intellectual property rights that are in each case protected under the laws of any governmental authority, whether or not registered, and all applications, renewals and extensions of the same.
    8. 15.8 “License” means the licenses set forth in Section 5 of these Terms unless otherwise modified in an Order Form.
    9. 15.9 “Materials” means without limitation all materials provided by Challenger, its Affiliates or licensors to Company as part of the Services, regardless of delivery method including, but not limited to, training materials, documents, information, virtual learning content, research, case studies, templates, selection or assessment content, survey content, or scoring protocols. Company must use the Materials only as expressly permitted in these Terms.
    10. 15.10 “Order Form” means a written agreement between Company and Challenger (or with an Affiliate of either Party, as applicable) specifying the Services purchased and referencing these Terms.
    11. 15.11 “Participants” means collectively Seats, Users, Certification Candidates and Administrators for each of whom a license from Challenger is required to access the Services and the Materials and on whose behalf Company purchases such access pursuant to an Order Form.
    12. 15.12 “Personal Data” means any data or information that relates to a living individual who can be identified from that data or information used in performing the Services.
    13. 15.13 “Seat” means solely for Challenger Effortless Experience Capabilities Builder Services, a User License that may be transferred to another User when the original User leaves the Company during the applicable Subscription.
    14. 15.14 “Services” means the licensed sales optimization, customer service experience, and performance training services provided by Challenger and its Affiliates to Company as described in an applicable Order Form and includes the Virtual Services.
    15. 15.15 “Subscription” means the period of time beginning on the start date and ending on the end date set forth for each Service on an applicable Order Form during which certain Services and Materials may be accessed or used by Company and Company’s Participants unless terminated as set forth in Section 12.
    16. 15.16 “User” means an individual License for a single user to access Challenger Services and Materials during the Subscription that is personal to that user and may not be transferred to or used by another user.
    17. 15.17 “Virtual Services” means password protected access to certain Services and Materials via an online platform.

Terms & Conditions

These Terms and Conditions (the “Terms”) govern the licence and use of Challenger Programs, Products, and Services. Additional or alternative provisions apply for certain purchases and are included (i) in the Additional Provisions applicable to Products or Services purchased (the “Additional Provisions”) or (ii) in the applicable Letter of Agreement or Order (as these terms are defined below) a Company executes to complete its purchase. These Terms, together with any applicable Additional Provisions and the Letter of Agreement or Order, constitute the valid, complete, and binding contract between Company and Challenger, or its Affiliate (the “Agreement”). If there is any conflict between the Terms and the Additional Provisions, the Additional Provisions shall prevail. If there is any conflict between the Additional Provisions and a Letter of Agreement or Order, the Letter of Agreement or Order shall prevail.

In these Terms, "Challenger" means the applicable Challenger Affiliate when a Challenger Affiliate enters into a Letter of Agreement or Order.

DEFINITIONS

Unless otherwise defined in these Terms, capitalised terms have the following meanings:

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" means the power, directly or indirectly, to direct or affirmatively cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise. All SHL companies are Challenger subsidiaries and are Affiliates of Challenger.

"Benchmarks" mean aggregated data received, collected, analysed, and maintained by Challenger and its Affiliates to improve its Programs, Products and/or Services. Benchmarks may be derived from public information, assessment responses, survey data and best practices information that Challenger and/or its Affiliates receive from their customers/clients. Benchmarks are always presented in an aggregated and anonymised form that does not identify a particular individual or company.

"Challenger" means Challenger Performance Optimization UK Limited, a company registered under the laws of England and Wales, or a non-U.S. Affiliate of Challenger Performance Optimization, Inc. designated in the applicable Letter of Agreement.

"Challenger IPR" means all Intellectual Property Rights (i) in and to the Challenger Property or (ii) otherwise owned by or licenced to Challenger or its Affiliates by their respective licensors.

"Challenger Property" means all of the following without limitation created or owned by Challenger or its Affiliates, or its licensors, whether pre-existing or independently created during the Term of the Agreement: all Materials, websites, software, tools, URLs and links, universal competency frameworks, databases, designs, algorithms, user interface designs, architecture, class libraries, objects and documentation, network-design, know how, technology and source code and all portions, subsets or derivatives thereof, any improvements, modifications, upgrades or other changes thereto; and any and all derivative works.

"Company" is an entity that purchases a Program, Product or Service from Challenger or its Affiliates. In the event the licence is extended to such Company's Affiliates pursuant to the Letter of Agreement, the term “Company” shall include such Affiliates and the provisions of the Letter of Agreement including these Terms shall also apply to Company's Affiliates.

"Company Property" means any data, information, or other material provided by or on behalf of Company to Challenger or its Affiliates; provided, however, Company Property shall not include any Challenger Property or Challenger IPR.

"Confidential Information" means all information, in whatever form, furnished by one party or its Affiliates (the "Disclosing Party") to the other party or its Affiliates, as applicable (the "Receiving Party") orally or in writing and identified as confidential or proprietary at the time of disclosure, or that by its nature should reasonably be assumed to be confidential or proprietary, including, but not limited to: business information; financial information; marketing techniques and materials; business plans and strategies; business operation and systems; pricing policies; information concerning employees, customers, and/or vendors; discoveries; improvements; research; development; know-how; designs; products and services; opportunities; methods and procedures; and equipment, physical materials and manufacturing processes. Challenger Property and Challenger IPR are expressly considered Confidential Information.

“Company Research Information” means Company Property that Company, in its sole discretion, voluntarily provides to Challenger and/or its Affiliates for the purpose of Challenger's general use of such information in Challenger Materials (e.g. case studies and white papers) that are available through Challenger's Programs, Products and/or Services and are intended for use and consumption by Challenger member companies and clients.

“Fees” shall mean the fees payable to Challenger for the Programs, Products and/or Services purchased pursuant to the applicable Letter of Agreement.

"Intellectual Property Rights" means all patents (including all reissues, divisions, continuations, and extensions thereof) and patent applications, trade names, trademarks, service marks, logos, trade dress, copyrights, trade secrets, mask works, rights in technology, know-how, rights in content (including performance and synchronization rights), unregistered design, or other intellectual property rights that are in each case protected under the laws of any governmental authority, whether or not registered, and all applications, renewals and extensions of the same.

"Letter of Agreement" means a written agreement between Company and Challenger or a Challenger Affiliate describing the Program, Product or Services that Company is purchasing and may be in the form of a Letter of Agreement, an “Order Form”, a statement of work, or a change request, or other similar instrument. These Terms employ “Letter of Agreement” to refer to any of these forms of ordering document.

“Materials” means any and all documents, information, virtual learning content, research, training manuals, Templates (as defined in Section 2.3.2), technical reports, report formats, research data, selection, assessment and survey content (including survey or test content and scoring protocols), websites, and/or any other materials provided by Challenger or its Affiliates as part of a Program, Product or Service. Challenger and its Affiliates reserve the right to update, replace, delete or modify Materials from time to time in their discretion. For avoidance of doubt, Configured Deliverables are not Materials.

“Order” means a written agreement between Company and Challenger or a Challenger Affiliate describing the Program, Products, and/or Services that Company is purchasing and may be in the form of a Letter of Agreement, an “Order Form”, a statement of work, or a change request, or other similar instrument.

"Product” means the Challenger or Challenger Affiliate products included in a Letter of Agreement.

“Program” means the combination of Products and Services provided as a predefined offering under a Letter of Agreement.

“Services" means the services described in the applicable Letter of Agreement provided by Challenger or one of its Affiliates.

“Subscription Period” means the period of time that commences on the start date and ends on the end date as set forth in a Letter of Agreement for the access to or use of particular Programs, Products, and/or Services.

“Term of Agreement” means the Subscription Period, Services term, or other period of time set forth in a Letter of Agreement during which (i) Company has the right to use the purchased Programs, Products, and/or Services or (ii) Challenger is performing Services in accordance with Company's purchase.

“VAT” means:

(a) any tax imposed in compliance with the Council Directive of 28 November, 2006 on the common system of value added tax (EC Directive 2006/112); and

(b) any other tax of a similar nature, whether imposed in a member state of the European Union in a substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

References to “EU VAT” shall mean VAT chargeable in any member state of the European Union.

1. PURCHASE AND FEES

1.1 Letter of Agreement. Each Letter of Agreement shall be subject to these Terms unless otherwise agreed in writing and will contain: (i) the Programs, Products and/or Services purchased by Company from Challenger or its Affiliate, (ii) the applicable licence, (iii) the Fees and payment schedule, (iv) the Term of the Agreement, and (v) any additional or alternative applicable provisions. Upon Company's signature of a Letter of Agreement, Company's purchase of Challenger Programs, Products, and/or Services will be accepted by Challenger on the earliest of: (a) the date Company is provided access to the Programs, Products, and/or Services in accordance with the Term of the Agreement Company has with Challenger (even if Company does not access such Programs, Products, and/or Services); (b) the first invoice date as set forth in the Letter of Agreement; or (c) if applicable, the date the Letter of Agreement is countersigned by Challenger. All Programs, Products, and/or Services are deemed accepted upon delivery unless otherwise stated in the Letter of Agreement. For certain Programs, Products, and/or Services, electronic or phone purchases may be agreed between the parties and will be deemed to be Letters of Agreement and subject to these Terms.

1.2 Fees. Company shall pay all Fees as specified in the Letter of Agreement. Unless otherwise stated in the Letter of Agreement, (i) Fees are quoted and payable in United States dollars; (ii) Fees are based on Programs, Products, and/or Services purchased and not actual usage; and (iii) with the exception of termination for Cause by Company, or as may otherwise be stated in the Letter of Agreement, all Programs, Products and Services are non-cancellable and all Fees are non-refundable.

Consulting services Fees are estimated based on the time spent. Challenger defines a “work day” as being a maximum of 8 hours during normal working hours for the location where the Services are performed. Other rates may apply for work performed outside a work day. Unless expressly stated in a Letter of Agreement, consulting services Fees do not include travel, subsistence, courier, car travel and other expenses and will be charged to Company at cost.

1.3 Invoicing. Unless otherwise stated in the Letter of Agreement, Challenger will deliver an invoice to Company for the full amount of the Fees, and such invoice shall be due and payable by Company within thirty (30) days of receipt. If any portion of an invoice is disputed, Company will pay the undisputed amounts, and the parties will reconcile the disputed amount in good faith as soon as possible. Late payments will bear interest at a rate of 1.5% per month, or, if lower, the maximum rate allowed by law. Challenger Inc. (a Delaware corporation and Challenger's parent company) serves as invoicing and collection agent on behalf of Challenger and all Affiliates.

1.4 Taxes. All fees are exclusive of taxes, levies, and duties imposed by any governmental or taxing authorities. Company shall pay all sales, use, duties, and other taxes (subject to clause 1.5 below). Challenger shall pay all income and corporation income taxes that are based on, or measured by, Challenger's (i) gross or net income or gross or net receipts (including any capital gains taxes or minimum taxes) or (ii) capital, doing business, excess profits, net worth, or franchise taxes. If Company is required by law to withhold and pay to any taxing authority any withholding tax on any amount payable to Challenger under the Letter of Agreement, then Company will deliver to Challenger the original tax receipt or other proof of payment. Upon request, each party shall promptly provide reasonable support and shall execute and deliver any documents that the other party deems necessary or desirable in connection with any exemption or reduction of, or the contestation of or the defence against, any taxes or withholding taxes.

1.5 VAT. For the avoidance of doubt, all Fees are exclusive of VAT (if any) and, accordingly, if VAT is chargeable on any supply by Challenger to Company and Challenger is required to account to the relevant taxing authority for the VAT, Company must pay to Challenger (in addition to and at the same time as paying the Fees) an amount equal to the amount of the VAT (and Challenger shall provide an appropriate VAT invoice for Company). Company shall promptly, on request, confirm to Challenger in writing (i) if Company is validly registered for VAT in a member state of the European Union (“EU Member State”) and is purchasing the Programs, Products, and/or Services (as the case may be) other than wholly for private purposes; (ii) in which jurisdiction Company has its business establishment for VAT purposes or has its fixed establishment which is most closely connected with receiving and using Challenger's Programs, Products, and/or Services; and (iii) any other information as is reasonably requested in connection with Challenger's VAT reporting obligations. Company shall inform Challenger of any change in the matters confirmed to Challenger as soon as reasonably practicable after any such change. If Company is established in an EU Member State other than the United Kingdom (“UK”) for EU VAT purposes, and registered for VAT in an EU Member State (other than the UK) and purchasing the Programs, Products and/or Services (as the case may be) other than for wholly private purposes, Company shall provide Challenger with its EU VAT registration number and account for EU VAT to the local tax authority in the appropriate jurisdiction under the reverse charge mechanism. If Company is established in the UK, or fails to provide a valid EU VAT registration number to Challenger, it is accepted that Challenger may charge VAT in addition to the Fees. If Company defaults in complying with its obligations under this Clause and as a result Challenger incurs any interest or penalties relating to VAT, Company shall on demand pay to Challenger an amount equal to any interest and penalties.

1.6 Set-Off. Company shall not be entitled to set-off against any rights of Challenger, unless (i) Challenger has confirmed those alleged counter-claims in writing or (ii) they are not being disputed by Challenger within six weeks after being alleged in writing and received by Challenger or (iii) a counter-claim is being held to exist and to be enforceable by a final judgement or arbitration award against Challenger. Challenger Invoices can only be disputed within four weeks after receipt.

2. OWNERSHIP AND INTELLECTUAL PROPERTY

2.1 Company Property. Company shall retain exclusive ownership of all rights, title and interest in and to all Company Property provided to Challenger.

2.2 Challenger Property. Company acknowledges and agrees that Challenger and its Affiliates or its licensors, as the case may be, shall retain exclusive ownership of all rights, title and interest in and to all Challenger Property and Challenger IPR. Company acknowledges that its use of the Challenger Property and Challenger IPR will not vest in Company any right, title or interest in or to the Challenger Property or Challenger IPR, other than the limited licence rights granted under these Terms or a Letter of Agreement and all Intellectual Property Rights arising from such uses will be owned by Challenger and its Affiliates or their respective licensors. The Company warrants and represents that: it will not at any time (i) challenge (a) Challenger's and/or its Affiliates' rights, title and interests in and to the Challenger Property or the Challenger IPR or (b) the validity of any Challenger IPR, or (ii) take any action or engage in any inaction which would impair or tend to impair the Challenger IPR.

2.3 Licenses.

2.3.1 Programs, Products, Services and/or Materials. The licence applicable to particular Programs, Products, Services and/or Materials shall be set forth in a Letter of Agreement or the Additional Provisions. If a licence provision is not included in the Letter of Agreement or otherwise stated in the Additional Provisions, the following default provision shall apply:

During the Term of the Agreement, Challenger grants Company (or a specified number of users) a non-exclusive, royalty-free, worldwide, revocable (for non-payment of Fees or breach), non-transferable and non-assignable licence to access, use, reproduce and distribute the Programs, Products, Services and/or Materials solely for Company's internal business purposes.

Neither Company nor any individual user may sublicence, sell, transfer, assign to, display or otherwise make available (by sharing passwords or by any other means) the Programs, Products, Services and/or Materials to any third party (including (i) a Company service provider, independent contractor, consultant or subcontractor, or any (ii) other Company divisions or Company Affiliates to which the licence has not been extended under the Letter of Agreement) without Challenger's written permission, and any attempted sublicence, sale, transfer or assignment shall be void.

2.3.2 Templates. Certain Programs, Products or Services include access to documents, tools, presentations or templates that are specifically designed to be downloaded and edited by Company for its particular internal business purposes (collectively, “Templates”). Templates are Challenger Property. Company may continue to use the resulting document from its download and editing of the Template after the Term of the Agreement. Challenger grants to Company a perpetual, non-exclusive, royalty-free, worldwide, non-transferable and non-assignable licence to use Templates downloaded and edited during the Term of the Agreement for Company's internal business purposes.

2.4 Configured Deliverables. Challenger or its Affiliates may create and/or provide deliverables to Company pursuant to the specific requirements set forth in the Letter of Agreement and are for Company's sole use and are not for use by any other Challenger client (“Configured Deliverables”).

Upon full and final payment of any Fees, Company will own Configured Deliverables subject to the following: (i) Challenger shall retain exclusive ownership of all rights, title and interest in and to all Challenger Property and Challenger IPR incorporated in the Configured Deliverables, and (ii) unless otherwise agreed to in the Letter of Agreement or Additional Provisions, the Configured Deliverables shall be used for Company's internal business use only and may not be shared with any third party without Challenger's prior written consent. Challenger grants to Company a perpetual, non-exclusive, royalty-free, worldwide, non-transferable and non-assignable licence to use the Challenger Property and Challenger IPR incorporated into any Configured Deliverables to the extent necessary to allow the Company to enjoy the benefit of the Configured Deliverables; provided, however, that Company acknowledges that its access to any online systems on which Configured Deliverables are delivered is limited to the Term of Agreement or such other term agreed to in the Letter of Agreement.

2.5 Company Responsibilities

2.5.1 User Compliance. Company is responsible for: (i) protecting against any unauthorised access to or use of, and (ii) compliance of those individuals allowed to access or use, the Programs, Products, Services, Materials and/or Configured Deliverables. Company shall notify Challenger promptly of any unauthorised access to or use of the Programs, Products, Services, Materials and/or Configured Deliverables. Company shall ensure that it and those individuals allowed to access or use the Programs, Products, Services, Materials and/or Configured Deliverables refrain from using the same in a manner that is libelous, defamatory, obscene, infringing or illegal, or otherwise abusing the material in any manner.

2.5.2 License to Company Research Information. If Company voluntarily discloses Company Research Information to Challenger, Company grants Challenger and its Affiliates a permanent and irrevocable, perpetual, worldwide, freely assignable and transferable, royalty-free licence to use Company Research Information. Such licence includes, without limitation (unless otherwise agreed to by the parties at the time of disclosure), the right to display, perform, sublicence, distribute, prepare derivative works based upon, copy, and use such Company Research Information, including any portions, subsets and derivatives thereof. This licence applies to the distribution of Company Research Information (to the extent incorporated into Challenger's Programs, Products, Services and/or Materials) in any form, medium, or technology now known or later developed. Challenger or its Affiliates will own any derivative works prepared or created by Challenger or its Affiliates, as applicable.

2.5.3 Feedback. Company acknowledges and agrees that any suggestions, enhancement requests, recommendations, or other feedback (collectively, "Feedback") provided by Company or any of its users to Challenger may be incorporated by Challenger or its Affiliates into its Programs, Products, Services and/or Materials, and shall be considered Challenger Property. Company agrees to assign, and hereby assigns to Challenger all right, title and interest throughout the world in and to all Feedback including the Intellectual Property Rights in the Feedback, and shall assist Challenger, at no cost to Company, to obtain and maintain for Challenger such Intellectual Property Rights. Company shall sign or, as applicable, cause its users and related persons to sign such instruments as Challenger deems reasonably necessary for Challenger to obtain and maintain such Intellectual Property Rights.

2.5.4 Research Data and Benchmarking. Notwithstanding anything in these Terms or any Letter of Agreement to the contrary, Company authorises Challenger and its Affiliates to use Company Property disclosed through surveys, assessments, or provided by Company to Challenger or its Affiliates (through software or other data collection activities) for assessment validation, research and benchmarking purposes and product development (collectively “Research Data”) including creating or updating Benchmarks. Challenger or its Affiliates will (i) only use, aggregate and present the Research Data or Benchmarks in an anonymous form and (ii) not include (directly or by inference) any information identifying Company or any identifiable individual as the source of such data in the Research Data or Benchmarks. Challenger and its Affiliates are bound by ethical guidelines and data protection laws in the use of all data. Access to any Research Data will be restricted to only those individuals directly involved in research supporting or related to Challenger Programs, Products and/or Services.

2.5.5 Right to Audit. During the term of this Agreement and for a period of one (1) year following its termination or expiration, Challenger reserves the right to audit Company upon reasonable written notice to verify compliance with this Agreement. Company shall maintain and make available to Challenger accurate records to permit Challenger or an independent auditor retained by Challenger to verify Company's compliance with the terms and requirements of this Agreement

3. DATA PROTECTION

Both parties shall at all times comply with all applicable laws and regulations in relation to the collection, processing, use, and storage of personal data.

4. INDEMNIFICATION

4.1 Company and Challenger (each, the "Indemnifying Party") agree to indemnify and defend the other party, its officers, directors, and employees (each, an "Indemnified Party"), from and against any and all loss, damage, and expense, including reasonable legal fees and expenses ("Losses"), incurred by the Indemnified Party as a result of any third party claim, demand, action or proceeding ("Claim"), directly and proximately arising from or by reason of any actual or alleged infringement of any Intellectual Property Rights arising out of any Challenger Property or Company Property supplied to the Indemnified Party by the Indemnifying Party. This indemnification obligation is provisional on the Indemnified Party: (i) providing the Indemnifying Party prompt written notice of any Claim, or upon reasonable suspicion of a Claim, (ii) cooperating with the Indemnifying Party's reasonable request for information or other assistance, (iii) granting control of the defence and settlement of the Claim to the Indemnifying Party, and (iv) not settling or making any offer to settle the Claim or make any admission of guilt or fault without first obtaining the Indemnifying Party's prior written approval.

4.2 To the extent that Challenger or its Affiliate is the Indemnifying Party under Section 4.1, such provision shall not apply to (i) Company's misuse of Challenger Property provided by Challenger or its Affiliates, (ii) Company's use of Challenger Property in combination with any product or information not provided by Challenger or its Affiliates, or (iii) Company's utilisation of Challenger Property in a manner not contemplated by these Terms or any Letter of Agreement, in each case, whether or not with Challenger's or its Affiliates' consent. The provisions of this section shall also apply to Company's Affiliates.

4.3 In the event that any Challenger Property or Company Property, as applicable, become or are, in the Indemnifying Party's opinion, likely to become the subject of an infringement claim, or use of Challenger Property or Company Property is enjoined, or in the Indemnifying Party's opinion, likely to be enjoined, then, at the Indemnifying party's election, the Indemnified Party will allow the Indemnifying Party to either obtain for the Indemnified Party the right to continue using the affected material, replace it, modify it so it becomes non-infringing, or, in the case of Challenger as the Indemnifying Party (and at Challenger's sole discretion), terminate the applicable Letter of Agreement by written notice to Company, require Company to cease use of Challenger Property, and refund to Company the amount(s) paid to Challenger under the applicable Letter of Agreement prorated for the amount of time left in the Term of the Agreement for which the applicable Challenger Property is no longer available.

4.4 This section shall constitute a party's sole and exclusive remedy at law in connection with any Claim brought against such party by a third party alleging actual or alleged infringement of any Intellectual Property Rights.

4.5 Company shall indemnify and defend Challenger, and its Affiliates, and each of their respective directors, officers, and employees (each a “Challenger Indemnified Party”) from and against any Losses incurred by the Challenger Indemnified Party as a result of any Claim (other than Claims for infringement of Intellectual Property Rights which are addressed in Section 4.1) that arises out of or relates to any Company Property provided by Company to Challenger.

5. LIMITATIONS OF LIABILITY

5.1 Neither party shall be liable for any of the following losses or damages (whether or not foreseen, direct, indirect, foreseeable, known or otherwise): (i) loss of profits (whether actual or anticipated), (ii) loss of revenue, (iii) loss of contracts, (iv) loss of anticipated savings, (v) loss of business, (vi) loss of opportunity, (vii) loss of goodwill, or (viii) any indirect, special or consequential loss or damage. Notwithstanding the foregoing, nothing shall limit Challenger's or its Affiliates' or their respective licensors' rights to damages arising from any infringement or misappropriation of Challenger IPR, regardless of whether such infringement or misappropriation arises in connection with these Terms or any Letter of Agreement.

5.2 Challenger's and its Affiliates' total aggregate liability arising out of or in connection with the performance or contemplated performance under the applicable Letter of Agreement (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the price paid or payable by Company to Challenger or its Affiliates under such Letter of Agreement within the 12 month period immediately before the date of the event giving rise to Company's claim.

5.3 Nothing contained in these Terms or any Letter of Agreement shall exclude or limit either party's liability for (i) death or personal injury caused by its or its Affiliate's negligence, (ii) fraud or fraudulent misrepresentation, or (iii) any other matter for which it would be prohibited by applicable law to limit or exclude or attempt to limit or exclude liability. In all such cases, a party's liability shall be limited to the greatest extent permitted by applicable law.

5.4 Delivery via Online Systems: Access to Programs, Products, Services, Materials and/or Configured Deliverables delivered via online systems is dependent on third parties, such as internet service providers. Challenger will have no liability to Company for any losses Company suffers resulting directly or indirectly from: (i) failures of performance on the part of Challenger's internet service provider; (ii) failure of Company's equipment or, in the event the Services include Challenger Talent Assessment services, those of Company's candidate(s) or third parties; (iii) reasons related to Challenger's provision of system upgrades or maintenance; (iv) any security breach of Challenger's system unless such breach is shown to be the result of Challenger's negligence; or (v) inability to access the Challenger online system in any one country due exclusively to Challenger's software or hardware for any period not exceeding (a) ten (10) consecutive hours or (b) an aggregate of more than twenty-four (24) hours in any calendar month.

6. CONFIDENTIAL INFORMATION

6.1 Each party agrees not to use and/or disclose Confidential Information received from the other party except as allowed under these Terms or otherwise set forth in a Letter of Agreement.

6.2 Each party will not disclose Confidential Information to any third party, other than to its directors, officers, and employees under a duty of confidentiality, without the other party's prior written consent. Each party shall maintain the Confidential Information of the other party in confidence using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care. Challenger shall be allowed to disclose Confidential Information to its Affiliates, consultants, vendors or subcontractors who are necessary to provide Programs, Products, and/or Services to Company, provided that any such Affiliates, consultants, vendors or subcontractors are bound by confidentiality obligations at least as restrictive as those contained in these Terms.

6.3 The confidentiality obligations of each party shall continue in force and survive the termination or expiration of the Term of this Agreement for a period of three (3) years following such termination or expiration. The confidentiality obligations with respect to any Confidential Information subject to trade secret protection will continue indefinitely.

6.4 The Disclosing Party grants no licence under any copyright, patent, trademark or trade secret by the disclosure of the Confidential Information. The parties understand and acknowledge that any and all Confidential Information is being provided by the Disclosing Party without any representation or warranty, express or implied, as to the accuracy or completeness of such Confidential Information.

6.5 Confidential Information shall not include information which (i) was already known by the Receiving Party at the time of the disclosure by the Disclosing Party, (ii) shall have otherwise become publicly available other than as a result of disclosure by the Receiving Party in breach of these Terms, (iii) was disclosed to the Receiving Party on a non-confidential basis from a third party source other than the Disclosing Party, which the Receiving Party reasonably believes is not prohibited from disclosing such information as a result of an obligation in favour of the Disclosing Party, (iv) is developed by the Receiving Party independently of any disclosure of such information made by the Disclosing Party, or (v) is required to be disclosed by order of a court of competent jurisdiction, or by subpoena, summons or any other legal process, or by applicable professional standards; provided that, in the event that the Receiving Party is ordered by a court of competent jurisdiction, administrative agency or governmental body to disclose any Confidential Information, the Receiving Party shall (a) so long as legally permissible, promptly notify the Disclosing Party of such order and (b) at the written request of the Disclosing Party, diligently contest such order at the sole expense of the Disclosing Party as expenses occur.

6.6 Confidentiality of Survey Responses. Company and Challenger agree that neither party will breach any promises of confidentiality made to any survey or assessment candidate or participant. Company shall not ask or induce others to ask Challenger to provide any data, including survey or assessment responses, to Company or any third parties in violation of confidentiality notices presented to candidates or participants.

7. TERMINATION

7.1 General. With the exception of termination for Cause (defined below), or as may otherwise be stated in a Letter of Agreement, Company may not terminate the Letter of Agreement and, except as otherwise stated the Letter of Agreement, any Fee paid or payable by Company are not refundable or cancellable.

7.2 Termination for Cause. Either party may terminate a Letter of Agreement for “Cause” if the other party: (a) becomes or is likely to become insolvent or enters into administration or bankruptcy or (b) materially breaches any provision of an Agreement between the parties (which, in the case of Company, shall include failure to pay any undisputed Fees) and (i) either the breach cannot be cured or, (ii) if the breach is capable of being cured, it is not cured by the breaching party within thirty (30) days after the breaching party's receipt of written notice of such breach by the non-breaching party (stating the specific nature of the breach). Termination for Cause shall not relieve Company of the obligation to pay any undisputed Fees accrued or payable to Challenger in connection with the Letter of Agreement prior to the effective date of termination. Such termination will be without prejudice to any rights or remedies of either party which may have accrued up to the date of termination.

7.3 Effect of Termination. Except as otherwise provided in the Letter of Agreement, upon expiration of the applicable Term of the Agreement Company has with Challenger for any Programs, Products and/or Services, or any termination of the Letter of Agreement, or portion thereof: (i) all licenses granted by Challenger pursuant to the Letter of Agreement or Section 2.3.1 of these Terms shall immediately terminate and (ii) Company shall immediately cease use of the Services, Products, Programs and/or Materials, in each case for such Programs, Products, and/or Services, or that portion thereof, for which such Term of Agreement has expired or the Letter of Agreement has been terminated. Challenger reserves the right to charge Company for continued use of its Programs, Products, or Services after the expiration or termination of the Company's Agreement with Challenger.

8. CONSULTING SERVICES

Company may purchase Services as certain consulting services on a stand-alone basis or in conjunction with a Product purchase. Letters of Agreement will specify timelines for the Products or Services ordered. Dates for Product delivery or Service performance agreed to in a Letter of Agreement are conditional upon Company's timely completion of its obligations, including but not limited to, provision of necessary information and approval of documentation. Company or its agents will provide reasonable assistance to Challenger that is required to facilitate delivery of Products and/or Services to Company. Delays caused by Company's failure to meet its obligations in a timely manner will be at Company's cost and expense, and subsequent delivery or performance dates will be adjusted accordingly proportionate to the delay. Unless expressly stated in the Letter of Agreement, time shall not be of the essence in Challenger's delivery or performance under the Letter of Agreement. Challenger will not be liable in the event that Challenger is not able to deliver the Product or complete the Services due to Company's non-performance. After written notice to Company of any Company delays that prevent Challenger from performing its obligations and after a reasonable time to cure, Challenger will be deemed to have delivered the Products or Services in full satisfaction of its obligations.

If Company fails to meet its obligations or timelines as agreed in a Letter of Agreement or wishes to cancel or postpone the agreed dates for Product or Services delivery, Challenger may incur costs for such delay, cancellation or postponement. The parties may enter a change request to modify or amend the Letter of Agreement and agree on any additional charges. Unless otherwise agreed in the Letter of Agreement, cancellation fees for cancellation of Services are 100% of the agreed Fees if cancelled after the Services commence or with less than one week's notice. The cancellation fees are 50% if cancelled with less than two weeks' notice and 25% with less than three weeks' notice.

9. MARKETING

Company permits Challenger and its Affiliates, as applicable, to use Company's name and logo for their internal and external customer lists and other marketing materials. In addition, if Company discloses Company Property to Challenger or its Affiliates for specific inclusion in materials or for the joint development of a case study or other research, Challenger or its Affiliates may attribute such information with Company's name and logo. Challenger may use Company's plain text name as required in any public reporting or regulatory documents.

10. WARRANTIES

10.1 Challenger Warranties. Challenger represents and warrants that its Programs and Products will materially conform to the specifications describing such Programs and Products and that it will perform the Services in good faith and in a professional manner. During the Subscription Period, if Company reasonably demonstrates that there is a defect in the materials or workmanship of the Programs or Products and/or the Services have not been performed with reasonable care and skill in accordance with good industry practice, Challenger will: (a) repair or make good such defect at no charge to Company; or (b) replace such Programs or Products and/or re-perform such Services; or (c) issue a credit to Company for a pro-rata portion of the fees for such affected Programs, Products and/or Services as appropriate.

10.2 Company Warranties. Company represents and warrants that it: (a) owns or has the right to provide to Challenger all Company Property (b) will not copy, reproduce, modify or adapt, translate, disassemble or, reverse engineer, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Programs, Products, Services, and/or Materials (as applicable) in any form or media or by any means, except as permitted under the Agreement between the parties; (c) will not cause confusion, deception or false associations with programs, products and/or services that are not Programs, Products and/or Services including without limitation preparing materials that are identical with, or confusingly similar to Challenger Property; and (d) will use the Programs, Products, Services, and/or Materials in compliance with all relevant laws, procedures or applicable guidelines.

10.3 DISCLAIMER OF WARRANTIES. CHALLENGER AND EACH OF ITS AFFILIATES PROVIDES THE PROGRAMS, PRODUCTS, SERVICES, MATERIALS, AND/OR CONFIGURED DELIVERABLES “AS IS” AND DISCLAIMS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES FOR PROGRAMS, PRODUCTS, SERVICES, MATERIALS, AND/OR CONFIGURED DELIVERABLES PROVIDED BY CHALLENGER OR ANY OF ITS AFFILIATES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Challenger AND ITS AFFILIATES DO NOT WARRANT OR GUARANTEE THAT COMPANY WILL REALISE ANY RESULTS BY VIRTUE OF THE USE OF THE PROVIDED PROGRAMS, PRODUCTS, SERVICES, MATERIALS, AND/OR CONFIGURED DELIVERABLES. THIS DISCLAIMER IS INTEGRAL TO ESTABLISHING PRICING AND CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. WITH RESPECT TO ANY CHALLENGER ONLINE SERVICES, CHALLENGER DOES NOT WARRANT OR GUARANTEE COMPANY'S USE OF ANY CHALLENGER ONLINE SERVICES WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION, TECHNICAL INACCURACIES, VIRUSES OR OTHER HARMFUL CODE. NOTWITHSTANDING ANYTHING IN THE AGREEMENT BETWEEN THE PARTIES TO THE CONTRARY, CHALLENGER SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY OR ARISING AS A RESULT OF RELIANCE BY COMPANY UPON THE MATERIALS OR CONFIGURED DELIVERABLES AND INFORMATION PROVIDED THROUGH THE ONLINE SERVICES.

11. GENERAL

11.1 Compliance with Laws. Each party will comply with all applicable laws of the countries where it operates, including all securities, anti-corruption, and anti-bribery laws, and with the US Foreign Corrupt Practices Act and the UK Bribery Act. Any breach of this section is a material breach of these Terms and any applicable Letter of Agreement for which no cure period shall apply.

11.2 Trade Sanctions. Challenger's Programs, Products, Services, Materials and Configured Deliverables are subject to US sanctions laws and may not be sold or licenced to any party listed on the Specially Designated Nationals List maintained by the U.S. Department of the Treasury ("Restricted Party") or in US sanctioned countries (currently Cuba, Iran, North Korea, Sudan, and Syria) (The most up-to-date lists can be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx). Company agrees not to use, transfer, or provide access to the Programs, Products, Services, Materials and/or Configured Deliverables (i) to any Restricted Party or (ii) in (or for the benefit of individuals or entities from) such US sanctioned countries. Company confirms that it is not directly or indirectly owned by, controlled by, owning or controlling or named as a Restricted Party. Challenger and its Affiliates may not do business with a Restricted Party under US law (The most up-to-date lists can be found at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx and http://www.bis.doc.gov/index.php/the-denied-persons-list). Any breach of this section is a material breach of these Terms and any applicable Letter of Agreement for which no cure period shall apply.

11.3 Governing Law. This Agreement will be governed and construed in accordance with the laws England and Wales. The parties agree to submit to jurisdiction of courts of England and Wales to resolve all disputes.

11.4 Equitable Relief. Each party agrees that a breach by such party of the obligations in the Agreement between the parties, may result in irreparable harm to the other party for which monetary damages would be an inadequate remedy. Consequently, in the event of a breach, or threatened breach, of any such obligations in the Agreement between the parties, the non-breaching party shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief (including injunctive relief and specific performance) in addition to any and all other rights and remedies that may be available to it in respect of such breach.

11.5 Third Party Beneficiaries. These Terms and any applicable Letter of Agreement shall not confer any rights or remedies upon any third party, except Challenger Performance Optimization, Inc. shall be an express third party beneficiary of these Terms and any Letter of Agreement to which any of its Affiliates is a party, with full power to enforce such Affiliate's rights thereunder. Nothing in these Terms will create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.

11.6 Force Majeure. Neither party will have any liability to the other if the affected party does not fulfil its obligations to the other due to an event outside the affected party's reasonable control.

11.7 Notice. Notice under this Agreement will be in writing and delivered by registered post or other carrier providing a receipt to the address to Challenger or to the Company address stated in the Letter of Agreement.

11.8 Severability/Waiver. Any provision of the Agreement held to be invalid under the applicable law, will not affect the validity of the remaining terms of the Agreement. Failure to enforce the Agreement does not waive a party's right under the Agreement.

11.9 Entire Agreement. The Agreement between the parties sets out the entire agreement between the parties and overrides any prior correspondence or representations, and all other terms and conditions, including without limitation any other terms contained within a purchase order or any document supplied by Company to Challenger. The parties acknowledge that this Agreement has not been entered into in part or whole in reliance on any warranty, statement, promise or representation by the other party, except as set out in this Agreement.

11.10 Assignment. Neither party will assign or otherwise transfer its rights or responsibilities under the Agreement to any third party without the other party's prior written consent, except that Challenger may assign or otherwise transfer its rights and obligations to (i) any Challenger Affiliate provided that Challenger or the relevant Challenger Affiliate will remain at all times responsible to Company for Challenger's obligations under the Agreement; or (ii) in connection with a sale or other disposition of substantially all the assets of any of Challenger's business or product lines.

11.12 Updates. Challenger may from time to time make reasonable updates to these Terms.