Terms & Conditions

These Terms and Conditions (the “Terms”) govern the license 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, capitalized 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.

"Benchmarks" mean aggregated data received, collected, analyzed, 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 anonymized form that does not identify a particular individual or company.

"Challenger" means Challenger Performance Optimization, Inc., or a 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 licensed 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 license 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.

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 license, (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.

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 including, without limitation, Value Added Taxes (VAT) or Goods and Services Taxes (GST) that are lawfully imposed (and for which no exemption is available), and if Challenger pays any such taxes on behalf of Company, then Company shall reimburse Challenger for such payments. Challenger shall pay all 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 to withhold and pay 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 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 defense against, any taxes.

1.5 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 judgment 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 license 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 license applicable to particular Programs, Products, Services and/or Materials shall be set forth in a Letter of Agreement or the Additional Provisions. If a license 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 license 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 sublicense, 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 license has not been extended under the Letter of Agreement) without Challenger's written permission, and any attempted sublicense, 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 license 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 license 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 unauthorized 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 unauthorized 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 license to use Company Research Information. Such license includes, without limitation (unless otherwise agreed to by the parties at the time of disclosure), the right to display, perform, sublicense, distribute, prepare derivative works based upon, copy, and use such Company Research Information, including any portions, subsets and derivatives thereof. This license 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 authorizes 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 defense 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 utilization 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 license 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 favor 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 REALIZE 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 licensed 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 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.

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 and 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.

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

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.

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