Last Modified: 10 April 2023

These Terms and Conditions (these “Terms”) govern the purchase, license and use of Challenger Services. “Challenger”, “Us”, “We” or “Our” means “Challenger Performance Optimization UK Limited, company organized under the laws of England and Wales, having a principal place of business at Labs House, 15-19 Bloomsbury Way, London, United Kingdom, WC1A 2TH. “Company”, “You” or “Your” means the entity stated on an applicable Order Form that purchases Services from Challenger.  Each of Challenger and Company may be referred to in these Terms as a Party or collectively as the Parties.

1. DEFINITIONS. Unless otherwise defined in these Terms, capitalized terms have the meanings set forth in Section 15.
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. FEES AND PAYMENT TERMS.

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 pounds, sterling or euros 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. 

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 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.

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.

3.5 Direct Costs. In addition to the Fees set forth in an Order Form, Company shall reimburse Challenger for non-standard direct costs incurred in providing the Services (“Direct Costs”). Direct Costs will be processed through an additional Order Form and may include: 

1. travel expenses for additional Challenger employees, at Company’s request, to attend workshops or other sessions led by a Challenger facilitator (“Challenger Led Sessions”); 
2. travel expenses for Challenger Led Sessions outside of the contiguous United States, United Kingdom, or mainland Europe (which shall include the Republic of Ireland, Andorra, Austria, Belgium, Bosnia Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, Finland, France, Germany, Gibraltar, Greece, Hungary, Italy, Liechtenstein, Luxembourg, Monaco, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, Spain (excluding Ceuta and Melilla), Sweden and Switzerland);
3. travel expenses to accommodate special Company requests for Challenger Led Sessions, such as sending a Company-preferred facilitator to another country where Challenger already has a local facilitator;
4. travel expenses to accommodate workshop requests made under the required lead time for workshop scheduling detailed in an individual Order Form; and
5. the cost of printing and shipping related to Materials for training sessions led by a Certification Candidate (“Company Led Sessions”).  For Challenger Led Sessions, Fees include the cost of printing and shipping related to Materials. 

3.6 Workshop Scheduling. 

(a) Upon Company’s commitment of dates for a live or virtual workshop (a “Commitment”), Challenger will incur costs. If Company for any reason delays, reschedules or cancels any Commitment that is intended to be delivered in-person (a “Live Commitment”) within fifteen (15) days prior to the scheduled Live Commitment, Company will pay a reschedule fee equivalent to five thousand U.S. dollars ($5,000) per rescheduled Live Commitment. If Company for any reason delays, reschedules or cancels any Commitment to be delivered virtually (a “Virtual Commitment”) within fifteen (15) days prior to the scheduled Virtual Commitment, Company will pay a reschedule fee equivalent to two thousand five hundred U.S. dollars ($2,500) per rescheduled Virtual Commitment. Company must receive delivery of all workshops, sessions 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 amount equivalent to five thousand U.S. dollars ($5,000) per month, provided that the Services being extended are not Challenger Activation or Challenger Selection and Company is current on all payments due to Challenger.

(b) If Company requires a purchase order for payment of invoices, no live or virtual workshop or any related travel will be scheduled or delivered by Challenger until the applicable purchase order is received. If the purchase order is not received by Challenger within twenty-eight (28) business days after the applicable Order Form Effective Date future invoices for that Order Form will be payable upon receipt.

 

(c) For Challenger’s review and approval, Company may request that certain Services  be replaced with or converted to another Service;  provided that the following requirements are met: (i) Company provides the request to Challenger in writing at least thirty (30) days prior to the date of the scheduled Service delivery, (ii) changes are formalized through a change order form signed by both parties, and (iii) Company is current on all payments due to Challenger..  If the Fees for the replacement Service are equal to the Fees of the originally purchased Service, no additional charges shall apply.  If the Fees  for the replacement Service are greater than the Fees for the originally purchased Service, Company shall pay the difference in Fees. If the Fees for the replacement Service are lower than the Fees for the originally purchased Service, the difference in Fees may be applied as a credit to the purchase of a future Service; provided, however, the future Service must be purchased prior to the end of the Subscription for the originally purchased Service.

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. INTELLECTUAL PROPERTY.

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.

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.

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. LICENSES.

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 or tools, presentations or templates that are specifically designed to be downloaded and edited by the Participant (collectively, “Templates”), to support their work for Company.  Under no circumstances may Company use the Services, Materials or Templates to create  training or to enable another service provider to create or deliver training and all copyright notices and restrictive legends must be retained.  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.

(a) Following completion of certain training services, Participants may opt-in to receive a digital badge which whey can share to their social profiles. Digital badges are only a representation of an individual Participant’s completion of a training course. Challenger does not certify or guarantee an individual Participant’s competency or skill level through the receipt of a digital badge. In the absence of renewal or if a Participant leaves the employ of the Company, such Participant may continue to display any claimed digital badges on their social profiles.

5.2 Virtual Services. As part of a particular Service, Participant may have access to Virtual Services delivered via an online eLearning platform. 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. 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 Virtual Services to support their work for Company.  Under no circumstances may Company use the Services, Materials, or Templates to create training or to enable another service provider to create or deliver training and all copyright notices and restrictive legends must be retained.  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.

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.

5.4 Challenger Messaging and Challenger Insights. If Challenger Messaging or Challenger Activation that includes the insight design process is purchased by Company, Challenger Materials are used to create Company specific messages or insights that reframe its customers’ perception of a relevant business issue, and such messages or insights 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 Company specific Challenger Messages or Challenger Insights and Challenger grants Company a perpetual, non-exclusive, royalty-free, worldwide, non-transferable and non-assignable license to use Challenger Property incorporated into any Challenger Messages or Challenger Insights. With respect to any Materials used in the creation of Challenger Messages or Challenger Insights, the license and restrictions set forth in Section 5.1 shall apply.

5.5   Certification Candidates.

(a) If purchased by Company as a Service, Challenger will conduct train the trainer Services for Certification Candidates.  Upon successful completion of such Services, Certification Candidates are authorized to train other Participants at the Company. Notwithstanding the foregoing, appropriate Licenses must be purchased by Company for Participants in any workshop led by a Certification Candidate (“Company Led Workshops”) and for any distribution of Materials to such Participants. Challenger grants to Company on behalf of each Certification Candidate an individual, personal, non-exclusive, royalty-free, non-transferable and non-assignable license for each Certification Candidate to use the Materials for the purposes set forth in this paragraph.  A Certification Candidate license may not be assigned, transferred or sold to another person or third party and is void for any use whatsoever outside of the employment of the Certification Candidate by the Company.

Following successful completion of Certification Candidate Services, a Certification Candidate may opt-in to receive a digital badge which they can share to their social profiles.  Digital badges are only a representation of an individual Participant’s completion of the certification Service.  Challenger does not guarantee an individual Participant’s competency or skill level through the receipt of a digital badge.

(b)   With respect to Materials for Participants in Company Led Workshops, the following shall apply:

(i) For live delivery of Company Led Workshops for Effortless Experience Services or Challenger Activation Enterprise License Services, the Certification Candidate will arrange for the purchase and shipping of Materials from a Challenger approved vendor. Company shall directly pay to such vendor all associated purchase, printing and shipping charges.

(ii)  For live delivery of Company Led Workshops for Challenger Services not associated with a Challenger Activation Enterprise License Service, the Certification Candidate will arrange for the Materials to be sent from Challenger prior to the date of such workshop.

(iii) For virtual delivery of Company Led Workshops, Challenger will arrange for the Certification Candidate to access the Materials via the Virtual Services.  Once the purchased Participant Licenses have been consumed or the applicable Subscription for the Participant Licenses ends (whichever is earlier), the foregoing access shall terminate.

 

5.6 License Reallocation.  With respect to Participant Licenses for workshop sessions or for Virtual Services, Licenses may be reallocated to new Participants as Participants leave the employ of Company or end their business relationship with Company.  The foregoing is subject to any overall limitations on the number of Participants for that Service as set forth in an applicable Order Form.  Notwithstanding the foregoing, Licenses may not be reallocated for individual workshops if the first session of that workshop has occurred. At no time may a License be assigned to more than one individual at the same time.  

5.7 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) Challenger reserves the right to revoke any License granted hereunder for non-payment, breach of the provisions of this Agreement or of an Order Form or any conduct that may result in a material detrimental impact on Challenger’s business.

(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.

(e) Company is responsible for keeping accurate Participant records and Challenger may review such Participant records upon reasonable notice in order to determine the actual number of Participants who have been allocated a License. For Company Led Workshops delivered by a Certification Candidate, unless an enterprise-wide license is purchased, if Participants are trained without the appropriate purchase of Licenses in accordance with Section 5.5a, Challenger will issue a new Order Form and an immediately payable invoice covering the Fees for the additional Participants.

6. RESEARCH DATA, BENCHMARKING, AND FEEDBACK.

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.

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. 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. DATA PROTECTION.

8.1 Compliance. During the course of providing the Services and the Materials, Challenger and its Affiliates may collect Personal Data from Participants as described in Challenger’s Privacy Policy. The terms of this linked Data Processing Agreement are incorporated by reference into this Agreement (the “DPA”). The DPA sets out how We will Process Personal Data on Company’s behalf in connection with the Services.

8.2 Protection. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA. At all times, Challenger, its Affiliates and its Sub-Processors will take appropriate steps to protect Personal Data in accordance with the Agreement and all Data Protection Laws.

8.3 Data Transfer. Company acknowledges and agrees that We, our Affiliates and our Sub-Processors may access and Process Personal Data on a global basis and that We and our Affiliates may transfer data (including Personal Data of Participants) to the United States in connection with providing the Services. To the extent We process Personal Data from the European Economic Area, the United Kingdom and/or Switzerland or Personal Data that is subject to the protection of European Data Protection Laws, the applicable Standard Contractual Clauses will apply, as set out in the DPA. With respect to the foregoing, Company or its Affiliates, as applicable, is the Controller of Personal Data Processed pursuant to the Services and Challenger is the Processor.

8.4 Third Parties. Challenger or its Affiliates may disclose Personal Data to third parties 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, with obligations regarding same more fully described in the DPA; 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 this Agreement and under any applicable Data Protection Laws.

9. INDEMNIFICATION

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.

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.

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. LIMITATION OF LIABILITY

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.

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.

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. CONFIDENTIAL INFORMATION

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.

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.

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. TERMINATION

12.1 Term. The term of an applicable Order Form shall commence on the date the Order Form is executed by the Company and Challenger and the Order Form 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.

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.

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. REPRESENTATIONS AND DISCLAIMER OF WARRANTIES.

13.1 Challenger Representations. Challenger 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).

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.

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. MISCELLANEOUS

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.

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.

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.

14.4 Governing Law. These Terms will be governed and construed in accordance with the laws of England and Wales, excluding its choice of law principles, and the Parties agree to submit to jurisdiction of courts located in England and Wales 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.

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.

14.6 Third Party Beneficiaries. These Terms do not confer any rights or remedies upon any third party, except that Challenger Performance Optimization UK Limited 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.

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.

14.8 Force Majeure. If a Force Majeure Event prevents, delays or interferes with the performance of these Terms or any obligation (other than payment obligations), the party claiming the Force Majeure Event (the “Claiming Party”) is excused on a day-by-day basis to the extent of the interference, but only if the:

(a)  Force Majeure Event is beyond the reasonable control of the Claiming Party and without its fault or negligence;

(b) Claiming Party notifies the other party as soon as practicable of the nature and expected duration of the claimed Force Majeure Event; and

(c)  Force Majeure Event could not have been avoided by reasonable precautions or circumvented through the use of commercially reasonable alternative sources, workaround plans or other means.

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.

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.

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.

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.

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. DEFINITIONS

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.

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.

15.3 “CCPA” means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018), or as applicable, the California Privacy Rights Act (CPRA) (effective January 1, 2023).

15.4 “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.

15.5 “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.

15.6 “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. Company Property also includes Personal Data Processed pursuant to the Services.

15.7 “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.

15.8 “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

15.9 “Data Protection Laws” means all applicable worldwide legislation relating to data protection and data privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitation European Data Protection Laws, the CCPA and the data protection and privacy laws of Australia and Singapore; in each case as amended, superseded, repealed, consolidated or replaced.

15.10 “European Data Protection Laws” means data protection laws applicable persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) GDPR as it forms parts of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance (“Swiss DPA”); in each case, as may be amended, superseded, repealed, consolidated or replaced.

15.11 “Force Majeure Event” means the occurrence of a fire, flood, earthquake, hurricane, riot, civil disorder, terrorist act, rebellion or revolution, government embargo, government ordered quarantine or shut down, reasonable determination by Challenger that for health and safety reasons a Live Commitment is not feasible as planned, or other catastrophic event beyond the reasonable control of a Party that makes performing its obligations under these Terms or an Order Form impossible.

15.12 “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.

15.13 “License” means the licenses set forth in Section 5 of these Terms unless otherwise modified in an Order Form.

15.14 “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, frameworks, 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.

15.15 “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. If mutually agreed to in writing by the Parties, an Order Form may take the form of a statement of work, purchase order, a change request, or other similar written instrument.

15.16 “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.

15.17 “Personal Data” means any information relating to an identified or identifiable individual where such information is contained within information disclosed to Challenger by Company or collected pursuant to a Participant’s access to the Services and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.

15.18 “Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.

15.19 “Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.

15.20 “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.

15.21 “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.

15.22 “Sub-Processor” means any Processor engaged by Challenger or its Affiliates to assist in fulfilling obligations with respect to the provision of the Services under the Agreement. Sub-Processors do not include any Challenger employee.

15.23 “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.

15.24 “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.

15.25 “Virtual Services” means password protected access to certain Services and Materials via an online platform.