Last modified: July 23, 2025.

These Experimentation at Scale (EaS) Terms and Conditions (this “Agreement”), effective as of the date Customer signs an Order Form incorporating these terms (the “Effective Date”), are by and between Bain & Company, Inc., a Massachusetts corporation with a principal place of business at 131 Dartmouth Street, Boston, MA 02116, or such other Bain entity which executed an Order Form ("Bain”) and the other entity which executed this Agreement or an Order Form (“Customer” or “Client”). By signing an Order Form that references this Agreement, Customer agrees to the terms of this Agreement, which governs Customer’s use of the Services. If an individual is entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term “you”, “your” and “Customer” shall refer to such entity. Bain and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

1. Definitions.
   1. “Aggregated Statistics” means data and metrics related to or derived from Customer’s use of the Services or Customer Data that is used by Bain in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services or aggregated and anonymized key performance indicators or benchmarks.
   2. “Authorized User” means Customer’s employees, directors, officers and individual contractors (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and an Order Form and (ii) for whom access to the Services has been purchased hereunder.
   3. “Bain IP” means the Intellectual Property Rights in the Services, the Documentation, any Extractable Data, and any materials or deliverables contained on, or communicated via the services, or otherwise provided to Customer or any Authorized User pursuant to this Agreement, including but not limited to proprietary processes, code, software, documentation, frameworks, analytical tools and analysis, industry data and insights, methodology, survey questions, approach and configurations, visualizations, reports, including any and all modifications, improvements, and derivative works pertaining thereto. For the avoidance of doubt, Bain IP includes (i) any configurations, data refreshes, and additional visualizations performed at Customer’s request pursuant to an Order Form, and (ii) Aggregated Statistics and any information, data, or other content derived from Bain’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data (except in a strictly aggregated form).
   4. “Customer Data” means information, data, and other content, in any form or medium, that is transmitted by or on behalf of Customer or an Authorized User through the Services, or that is otherwise provided to Bain during the course of the Services. Customer Data does not include Aggregated Statistics.
   5. “Documentation” means Bain’s user manuals, handbooks, and guides relating to the Services provided by Bain to Customer either electronically or in hard copy form and end user documentation relating to the Services, as well as any reports and information accessible via the Services or otherwise provided to Customer in performance of the Services.
   6. “Intellectual Property Rights” means: (i) patents, inventions, including statutory invention registrations or certificates of invention; (ii) trademarks, service marks, domain names, trade dress, logos, and other brand source distinctions, goodwill and the right to sue for passing off or unfair competition; (iii) copyrights, works of authorship and moral rights; (iv) rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of confidential information including trade secrets and know-how; and (v) all other intellectual property rights of any type throughout the world, pre-existing, used or developed during the course of the Services, whether registered or unregistered and including all applications and rights to apply for and be granted, divisions, continuations, renewals, re-issuances or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future.
   7. “Order Form” means an order form, statement of work, managed service agreement or other confirmation entered into between Customer and Bain setting forth the product(s) licensed, the scope of Services, the number of Authorized Users and pricing.
   8. “Services” means the Experimentation at Scale online platform, as further described in the applicable Order Form, and any related services set out in the Order Form.
   9. “Third-Party Products” means any third-party products incorporated into the Services.
2. Access and Use.
   1. License. Subject to and conditioned on Customer’s payment of Fees (as defined in Section 4 below) and compliance with the terms and conditions of this Agreement, Bain hereby grants Customer a non-exclusive, non-sublicensable and non-transferable right to access and use the Services and Documentation during the Term, solely for use by Authorized Users and for Customer’s internal use. Customer acknowledges and agrees that access to the Services by contractors of Customer may require prior approval by Bain.
   2. Provision of Access. Bain shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
   3. Authorized Users. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder. Authorized Users will receive access credentials to access the Services. These credentials are granted to individual, named persons and may not be shared. Customer will ensure that all Authorized Users keep these credentials strictly confidential. Authorized Users must notify Bain immediately if their access to the Services is or potentially could be compromised. Authorized Users may be reassigned only on termination of the Authorized User’s employment or other contract with Customer.
   4. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users or other persons to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) insert any malicious code, including viruses, malware or harmful data, into the Services; or (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Customer may extract or download data or information available via the Services if the Services provide such functionality (“Extractable Data”). Customer may use the Extractable Data for its internal use only and may not disclose the Extractable Data to anyone outside of Customer.
   5. Reservation of Rights. Bain reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Bain IP.
   6. Suspension. Notwithstanding anything to the contrary in this Agreement, Bain may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Bain reasonably determines that (A) there is a threat or attack on any of the Bain IP; (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to Bain or to any other customer or vendor of Bain; (C) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Bain’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Bain has suspended or terminated Bain’s access to or use of any Third-Party Products that form part of the Services and/or are required to enable Customer to access the Services; or (iii) in accordance with Section 4(b)(iii) (any such suspension described in subsections 2(f) (i), (ii), or (iii), a “Service Suspension”). Bain shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Bain shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Bain will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
   7. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Bain may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Bain and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Bain. Customer agrees that Bain may use the Aggregated Statistics to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and the other Bain offerings, and disclose the Aggregated Statistics to customers and other third parties as part of the Services or otherwise in connection with its business.
   8. Subcontractors. Customer agrees that Bain may use the following subcontractors to fulfill its obligations under this Agreement (which may include the subcontractors having access to Customer Data): Microsoft Corporation and Mendix, Inc. for hosting and technical services; Gurobi Optimization, LLC for data analysis services; and Bain’s affiliates for support and administration services. Bain may make changes to the subcontractors engaged under this Agreement subject to providing prior notice to Customer.
3. Customer Responsibilities.
   1. General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Bain to Customer, whether directly or indirectly, and whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
   2. Third-Party Products. Bain may from time to time make Third-Party Products available to Customer, or the Services may be made available to Customer via Third-Party Products, or the Services may contain features designed to interoperate with Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions. Customer agrees to be bound by the Third Party Products terms and conditions to which it may be required to agree by accessing the Services. Third Party Products shall have no warranty, support or other obligation to Customer.
4. Fees and Payment.
   1. Fees. Customer shall pay Bain the fees as set forth in any applicable Order Form (the “Fees”).
   2. Unless otherwise set out in the applicable Order Form, invoices are due and payable by wire transfer within thirty (30) days of Customer’s receipt of the invoice, without regard to any delay for purchase order or invoice reference. If Customer fails to make any payment when due, without limiting Bain’s other rights and remedies: (i) Bain may charge interest on the past due amount at the rate of one and a half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Bain for all reasonable costs incurred by Bain in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Bain may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
   3. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer will pay Bain’s Fees without any deduction, withholding, or set-off of any kind (such as sales, business, excise, ad valorem, value added, government charges or taxes, however designated). In the event Customer is required by law to make any such deductions, the amount due to Bain will be increased to offset the amount of the proposed deduction. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder.
   4. Fee Changes. Bain shall be entitled to increase the Fees set forth in an Order Form on an annual basis by giving no fewer than thirty (30) days' prior notice to Customer. The applicable Order Form shall be deemed to have been amended accordingly.
   5. Audit Rights. Customer shall maintain records regarding the use of the Services and shall make such information available to Bain upon request. Upon reasonable request, Bain shall have the right to audit Customer’s use of the Services, to verify compliance with the terms of this Agreement, and Customer will promptly pay any underpayment discovered in the course of such audit, based on Bain’s then-current price list, plus interest.
5. Confidential Information.
   1. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). With respect to Bain, Confidential Information also includes Bain IP.
   2. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without reference to disclosing Party’s Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s or its affiliates’ employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder.
   3. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with an order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order (where permitted under applicable law); or (ii) to establish a Party’s rights under this Agreement, including to make required court filings.
   4. On the expiration or termination of this Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed upon the disclosing Party’s request.
   5. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
   6. Customer acknowledges that the Services are subject to United States export control and economic sanctions laws, regulations and requirements and to import laws, regulations and requirements of foreign governments. Customer agrees that (1) all use, exports, and imports related to this Agreement will be in compliance with these laws and regulations and (2) Customer shall not allow any third party to export, re-export, or transfer any part of the Services in violation of these laws and regulations.
   7. Customer will ensure that all Authorized Users comply fully with this Section 5.
   8. Customer agrees that Bain may disclose to third parties that Customer is a customer of Bain and Bain may also reference Customer in its marketing materials or similar publications.
6. Intellectual Property Ownership; Feedback.
   1. Bain IP. Customer acknowledges that, as between Customer and Bain, Bain owns all rights, title, and interest, including all Intellectual Property Rights, in and to the Bain IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Products. Customer shall not: (i) sell, rent, lease, sublicense or otherwise transfer or distribute the Bain IP; (ii) copy, alter, modify, translate, reverse engineer, decompile or disassemble the Bain IP; (iii) create derivative works based upon the Bain IP; (iv) destroy or otherwise remove any proprietary notices or labels on or embedded within the Bain IP; or (v) show or demonstrate the Bain IP to a third party.
   2. Customer Data. Bain acknowledges that, as between Bain and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Bain a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as contemplated by this Agreement or as may otherwise be necessary for Bain to provide the Services to Customer.
   3. Feedback. If Customer or any Authorized User sends or transmits any communications or materials to Bain by mail, email, telephone, or otherwise, suggesting or recommending changes to the Bain IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions (”Feedback”), Bain is free to use such Feedback as it sees fit. Customer hereby assigns to Bain on Customer’s behalf, and on behalf of its Authorized Users, all right, title, and interest in, and Bain is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Bain is not required to use any Feedback.
7. Warranties.
   1. Limited Warranty. Bain warrants to Customer that the Services will operate in substantial conformity with the applicable Documentation. Bain does not warrant that Customer’s use of the Services will be uninterrupted or error-free. Bain’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Bain’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to correct the reported non-conformity, or if Bain determines such remedy to be impracticable, to allow Customer to terminate the applicable subscription Term and receive as Customer’s sole remedy, a refund of any pro-rated Fees Customer has pre-paid for use of the Services which Customer has not received as of the date of the warranty claim.
   2. Exclusions. The above warranty shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared; (ii) if the Services are used with hardware or software not authorized in the Documentation; or (iii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services.
   3. Warranty Disclaimer. THE SERVICES AND ALL BAIN IP ARE PROVIDED “AS IS” AND BAIN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BAIN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BAIN MAKES NO WARRANTY OF ANY KIND THAT THE BAIN IP, OR ANY SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL INFORMATION CONTAINED ON, OR COMMUNICATED VIA THE SERVICES IS PROVIDED FOR GENERAL INFORMATION ONLY AND IS NOT INTENDED TO PROVIDE PROFESSIONAL ADVICE. BAIN DOES NOT ACCEPT RESPONSIBILITY OR LIABILITY TO CUSTOMER OR ANY THIRD PARTIES IN RELATION TO THE USE OF SUCH MATERIAL. ANY ACTION CUSTOMER OR AN AUTHORIZED USER TAKES BASED UPON THE INFORMATION ON THE SERVICES IS STRICTLY AT CUSTOMER’S OR SUCH AUTHORIZED USER’S OWN RISK, AND BAIN WILL NOT BE LIABLE FOR ANY ERRORS OR OMISSIONS, OR ANY LOSSES AND DAMAGES IN CONNECTION WITH THE USE OF OR RELIANCE UPON ANY SUCH INFORMATION, OR FOR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION.
8. Indemnification.
   1. Bain Indemnification.
      1. Bain shall indemnify and defend Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights including but not limited to patents, copyrights, or trade secrets, provided that Customer promptly notifies Bain in writing of the claim, cooperates with Bain, and allows Bain sole authority to control the defense and settlement of such claim.
      2. If such a claim is made or appears possible, Customer agrees to permit Bain, at Bain’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Bain determines that neither alternative is reasonably available, Bain may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and refund of any pro-rated Fees Customer has pre-paid for use of the Services which Customer has not received as of the date of the written notice.
      3. This Section 8(a) will not apply (i) to the extent that the alleged infringement arises from: (A) Customer’s use of the Services in a manner not permitted by this Agreement; (B) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Bain or authorized by Bain in writing; (C) modifications to the Services not made by Bain; (D) Customer Data; or (E) Third-Party Products, or (ii) if Bain is providing the Services at no cost to Customer.
   2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Bain's option, defend Bain from and against any Losses arising or resulting in any way from (i) Customer’s (or an Authorized User’s) breach of its obligations under Section 2 and/or Section 5 of this Agreement, (ii) any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights, and (iii) any Third-Party Claims based on Customer's or any Authorized User's negligence or willful misconduct, or use of the Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Bain unless Bain consents to such settlement, and further provided that Bain will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
   3. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND BAIN’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitations of Liability. IN NO EVENT WILL BAIN BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BAIN WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BAIN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BAIN UNDER THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination.
    1. Term. This Agreement takes effect on the Effective Date and will remain in effect until all applicable Order Forms have expired or been terminated (the “Term”).
    2. Termination. In addition to any other express termination right set forth in this Agreement:
       1. Bain may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Bain’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 5;
       2. Bain may terminate this Agreement or any Order Form for any reason by giving thirty (30) days’ written notice to Customer;
       3. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
       4. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Bain IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the Bain IP and certify in writing to Bain that the Bain IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
    4. Survival. This Section 10(d) and Sections 1, 4, 5, 6, 7(c), 9, 11 and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Data Protection.
    1. Role of the Parties. The Parties acknowledge the use of the Services might involve the processing of data that can identify an individual by Bain on behalf of Customer (“Personal Data”). The details of the processing can be found in Exhibit A (“Personal Data Processing Particulars”). In respect of any such Personal Data, Bain and Customer shall each comply with applicable data privacy legislation and this Section 11. In providing Bain with Personal Data, Customer will be acting as the data controller and Bain as a data processor. Customer confirms that it has complied with relevant laws and obtained all necessary consents for lawful processing, including in connection with any transfers of Personal Data to Bain and its subprocessors and use of the Services.
    2. Obligations of Bain. For any Personal Data Customer provides to Bain in order for Bain to provide the Services, Bain agrees to:
       1. only process such Personal Data in accordance with Customer’s written instructions and for the sole purpose of providing the Services to Customer;
       2. taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement and maintain technical and organizational measures at a level appropriate to the security of the Personal Data, in particular to protect it against any unauthorized or unlawful processing and against the loss or destruction of, or damage to, the Personal Data;
       3. notify Customer promptly (where permitted under applicable law) if Bain receives any request to access the Personal Data by an individual, regulator or government authority, and provide reasonable assistance to Customer to help Customer comply with any such request;
       4. provide reasonable assistance, cooperation and information to enable Customer to demonstrate its compliance with the applicable data protection laws;
       5. notify Customer promptly if Bain suffers any incident that may impact the Personal Data;
       6. not disclose the Personal Data to any third party other than those listed in Section 11(c) without Customer’s prior written consent, save as required by applicable law or in accordance with this Agreement;
       7. upon written request, provide Customer with details of Bain’s processing of the Personal Data, including the technical and organizational measures Bain has employed to protect the Personal Data and reasonable information to demonstrate compliance with this section;
       8. upon reasonable notice and not more than once a year, allow for and contribute to an audit by Customer. Such audit shall be strictly limited to the processing of Personal Data under this Agreement and Customer will agree to any additional confidentiality measures imposed by Bain to protect its data and those of its other customers; and
       9. delete the Personal Data at the end of the Term.
    3. Location of the Processing and Subprocessors. As per Section 2(h) of this Agreement, Customer agrees that the Personal Data may be shared with the following subprocessors:
       1. Microsoft Corporation for hosting services in the USA;
       2. Rubrik, Inc. for storage and back-up services in the USA;
       3. Iron Mountain, Inc. for storage and back-up services in the USA;
       4. Mendix, Inc. for hosting and technical services in the USA; and
       5. Bain’s affiliates around the world for support and administration services.
    4. Changes to Subprocessors. Bain is permitted to make changes to the subprocessors engaged under this Agreement subject to providing prior notice to Customer. If Customer does not object on reasonable grounds within fourteen (14) days of such notification, Bain shall be allowed to make such change.
    5. Bain shall remain fully liable to Customer for the acts, errors, and omissions of subprocessors as if they were Bain’s own acts, errors and omissions.
    6. Where required and where Customer is located in the European Economic Area, Bain (on its behalf and on behalf of its affiliates) and Customer agree to enter into the Standard contractual clauses for the transfer of personal data to processors established in third countries (Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council 2021/914).
    7. Where Customer is located in any other jurisdiction, which imposes restrictions on the transfer of personal data to third countries, the Parties shall comply the applicable laws and endure that adequate safeguards are provided.
    8. Each Authorized User’s use of the Services is subject to the Privacy Policy, a current version of which is available at www.bain.com/about/privacy/. Customer shall ensure that it brings the Privacy Policy to the attention of its Authorized Users before accessing the Services.
12. Miscellaneous.
    1. Entire Agreement. This Agreement, together with any Order Forms, any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; (iii) third, any Order Forms referencing this Agreement; and (iv) fourth, any other documents incorporated herein by reference. Notwithstanding the foregoing, where an Order Form specifically states the intent to supersede a specific portion of this Agreement or an Exhibit, the applicable section in the Order Form shall prevail.
    2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
    3. Force Majeure. In no event shall Bain be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Bain’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Notwithstanding the foregoing, occasionally Bain may, in its discretion, make immaterial changes to its Privacy Policy or to any service level agreement contained in an Order Form, revise this Agreement from time to time to address changes in the functionality of the Services, changes to its subcontractors, or changes in Bain policy. Bain will provide Customer with prior notice before any revisions to this Agreement take effect.
    5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts.
    7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Bain, which consent shall not be unreasonably withheld. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    8. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
    9. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

Exhibit A

PERSONAL DATA PROCESSING PARTICULARS