Last updated: 3rd October 2022
This agreement (“Agreement”) is between
IMPORTANT: BY ELECTING TO USE OR ACCESS BIG TEAM CHALLENGE, THE CLIENT AGREES TO BE BOUND BY THE THEN CURRENT TERMS OF THIS AGREEMENT, TOGETHER WITH ANY ADDITIONAL TERMS REFERENCED IN, AND DEEMED INCORPORATED AS PART OF, THIS AGREEMENT, AND AS MAY BE AMENDED FROM TIME TO TIME BY TEAM CHALLENGE APPS LTD IN ACCORDANCE WITH ITS TERMS. IF THE CLIENT DOES NOT WISH TO ACCEPT THE TERMS OF THIS AGREEMENT, THEN WE ARE UNWILLING TO PROVIDE BIG TEAM CHALLENGE TO YOU AND THE CLIENT MUST NOT USE IT. If you are entering into this Agreement on behalf of the Client, you warrant and represent to Team Challenge Apps Ltd that you have the Client’s authority to do so. If you are not so authorised, you assume sole personal liability for the Client’s obligations and compliance with the terms of this Agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders. A reference to a statute, legislation, statutory provision or legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include any subordinate legislation made under that statute, legislation, statutory provision or legislative provision. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. A reference to “writing” or “written” includes email.
2.1 Subject to your compliance with the terms and conditions of this Agreement, we hereby grant to you a limited, non-exclusive, non-transferable right and licence, without the right to grant sub-licences, to use Big Team Challenge during the Term solely for the purpose of purchasing the ability to set up and publish Challenges for your Users in accordance with the functionality made available to you and for your internal business operations (the “Permitted Purpose”).
2.2 The Services provided to you under this Agreement are on a non-exclusive basis. This Agreement shall not prevent us from entering into similar agreements with, or granting the ability to create step/exercise challenges to, third parties (including clients similar to you), or from independently developing, using, selling or licensing documentation, software, products and/or services which are similar to those provided under this Agreement.
2.3 Whilst we provide you with the infrastructure from which to set up, launch and manage Challenges, you and the Account Holder are ultimately responsible for the general management of your Challenge and ensuring that Users are appropriately informed about the Challenge and are given sufficient time to register, organise their teams (where applicable) and participate in the Challenge prior to its commencement.
3.1 You warrant, represent and undertake that:
4.1 We warrant to you that we shall, during the Term, provide the Services to you on and subject to the terms of this Agreement and with reasonable skill and care and we shall use commercially reasonable endeavours to make Big Team Challenge available 24/7, except for planned or emergency maintenance (and we will try to give you as much reasonable notice in advance as we can of such maintenance) except that:
4.2 If the Services do not conform with the warranty in clause 4.1, we will use commercially reasonable endeavours to correct any such non-conformance as soon as reasonably practicable. Such correction or substitution constitutes your sole and exclusive remedy for any breach of that warranty.
4.3 We offer technical support for your Account Holder and Users each Business Day via email only and during regular business hours based on UK time. Any non-technical support (including queries in relation to your Challenge) is the responsibility of you and/or your Account Holder.
4.4 We warrant that we have all necessary right, title and/or licence to Big Team Challenge and your use of the Services in accordance with this Agreement shall not infringe a third party’s Intellectual Property Rights. However, we are not liable for any Intellectual Property Rights infringement claim or allegation made by a third party where: (a) the claim or allegation is in relation to a modification of Big Team Challenge not made by us; (b) the alleged infringement relates to an Unauthorised Use; (c) Big Team Challenge and/or the Services have been combined with other products, materials, data or services where, but for such combination, no infringement would have occurred; or (d) the claim or allegation is in relation to Client Data.
5.1 Each party shall comply with all applicable laws and regulations with respect to its activities under this Agreement
6.1 Both you and we shall adhere to, and comply with the: (a) Data Protection Legislation; and (b) terms of our data processing addendum document, as amended by us from time to time, which forms part, and is incorporated into the terms, of this Agreement and sets out, among other things, each party’s obligations with respect to the processing of personal data under this Agreement, the latest version of which can be found at https://app.bigteamchallenge.com/static/documents/btc-dpa-v2-2022.pdf.
8.1 In consideration of the Services provided to you under this Agreement, you agree to pay the Fees to us in accordance with clause 8. For the avoidance of doubt, you, the Client, are responsible for payment of the Fees, not your Users.
8.2 To publish a Challenge, and make it available for your Participants, you will be required to complete the Challenge order within Big Team Challenge (the “Challenge Order”). You are required to pay us a fee for each Challenge that you publish. Immediately prior to publishing a Challenge, we will prompt you to pay an upfront fee (the “Base Fee”) as stated in the Challenge Order. The Base Fee covers a specified number of Participants in respect of that Challenge (the “Base Participant Number”) and such number is set out in the Challenge Order. A Challenge will not be able to go live, and Participants will not be able to participate in that Challenge, until you have paid to us the Base Fee in full. When paid, the Base Fee shall be non-refundable irrespective of whether the Challenge continues or completes or the number of Participants who end up participating in it.
8.3 You may, from time to time during a Challenge, add Participants to that Challenge in excess of the Base Participant Number. If that is the case:
8.4 You may have opted to pay Additional Fees at the time of paying the Base Fee or prior to completion of the Challenge. You acknowledge, however, that any Fees paid to us shall be non-refundable.
8.5 Whenever we send you an invoice for the Fees, or a proportion of the Fees where applicable, you shall, unless otherwise agreed in writing, pay to us the full amount set out in each invoice no later than 14 days from the date of issue of such invoice. All amounts due under this Agreement shall be paid by you to us in full without any set-off, counterclaim, deduction or withholding. Unless otherwise stated, sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes.
8.6 If we do not receive any payment from you after the date such payment has become due, without prejudice to any of our other rights and remedies, interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then-current base lending rate of NatWest Group plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement.
8.7 We shall be entitled, from time to time during the Term, to revise the rates used to calculate our fees going forward. If we do, such revised rates will become applicable, and communicated, to you in respect of any subsequent Challenge you opt to launch, and any subsequent Challenge Order you opt to pay for, under this Agreement. Current rates can be found on our website.
8.8 Under no circumstance shall your failure to use the Services, or go ahead with the Challenge, affect the start or duration of the Term or Challenge, or any of your payment obligations set forth under this agreement.
8.9 Any discount granted by us in relation to a Challenge does not guarantee that any such or similar discounts will be available for any subsequent Challenges.
9.1 You acknowledge and agree that all Intellectual Property Rights in and to the Services and Big Team Challenge belong, and shall continue to belong, to Team Challenge Apps Ltd and/or its licensors.
9.2 We acknowledge that all Intellectual Property Rights in and to the Client Data belong, and shall continue to belong to, you and/or your licensors. You grant to us the following rights in relation to the Client Data:
9.3 Other than the licences expressly granted under this Agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this Agreement, you shall have no rights in respect of Big Team Challenge, the Services or their associated goodwill, and you acknowledge that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in us.
10.1 The term Confidential Information does not include any information that: (a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause 10); (b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; (c) was, is, or becomes, available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; (d) was known to the receiving party before the information was disclosed to it by the disclosing party; or (e) the parties agree in writing is not confidential or may be disclosed.
10.2 Each party shall keep the other party's Confidential Information confidential and shall not: (a) use any Confidential Information for any purpose other than to perform its obligations under the Agreement; or (b) disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
10.3 A party may disclose the other party's Confidential Information:
10.4 Provided we do not use Confidential Information other than in accordance with the aforementioned provisions in this clause, unless otherwise agreed, we can mention you in our marketing materials in order to demonstrate our relationship with you. Otherwise, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by applicable law.
10.5 The provisions of this clause 10 shall continue to apply after termination of this Agreement.
11.1 Notwithstanding any other provision of this Agreement, neither party excludes or limits liability to the other party for: (a) fraud or fraudulent misrepresentation; (b) death or personal injury caused by its negligence; or (c) any matter for which it would be unlawful for the parties to exclude liability.
11.2 Except as expressly and specifically provided in this Agreement:
11.3 We shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
11.4 Our total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement any collateral contract shall in all circumstances be limited to the total amount of the Fees paid by you to us for your Challenge that was most recently active during the time the cause of action first arose.
12.1 Without effecting any other right or remedy available to us, we have the right, at any time, to suspend provision of the Services or availability of Big Team Challenge to you and/or your Users (including the right to disable your and/or your Users’ passwords and accounts) without liability if:
and a suspension may continue until such time as the relevant issue is remedied to our reasonable satisfaction.