Last modified: June 3, 2022

These Partner Sonar Platform Terms and Conditions (this “Agreement”), effective as of the date Customer signs an SOW incorporating these terms (the “Effective Date”), is 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 SOW (“Customer”). 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.
2. 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 (i) who are uniquely identified to Bain in an SOW or otherwise in writing by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
   3. “Bain IP” means the Services, the Data and Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing, including but not limited to proprietary processes, code, software, documentation, frameworks, analytical tools and analysis, industry data and insights, methodology, know how, trade secrets, trademarks and/or other Intellectual Property Rights, survey questions, approach and configurations, reports, including any and all modifications, improvements, and derivative works pertaining thereto. For the avoidance of doubt, Bain IP includes 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, other than Aggregated Statistics, 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.
   5. “Data and Documentation” means the data, information and reports accessible or downloadable via the Services, or otherwise provided to Customer in performance of the Services, as well as Bain’s user manuals, handbooks, and guides relating to the Services provided by Bain to Customer either electronically or in hard copy form.
   6. “Intellectual Property Rights” means a party’s worldwide and common law rights associated with: (i) inventions, including patents, patent applications and statutory invention registrations or certificates of invention, and any divisions, continuations, renewals or re-issuances of any of the foregoing; trademarks, service marks, domain names, trade dress, logos, and other brand source distinctions; (iii) copyrights and works of authorship; (iv) trade secrets and know-how; and (v) other intellectual property rights of any type throughout the world, pre-existing, used or developed during the course of the Services.
   7. “Services” means Bain’s online platform offering and the database underlying such platform offering which provides a variety of information on Channel Partners operating in the technology industry, based on data collection at scale from public sources as well as give-to-get exchanges from subscribers to this service, as further detailed in an SOW entered into between the Parties.
   8. “SOW” shall mean the initial statement of work, order form or other confirmation entered into between the Parties for provision of the Services and any additional statements of work covering further provision of the Services or additional analytical services or customizations which may be entered into by the Parties and which shall be subject to all of the terms and conditions of this Agreement.
   9. “Third-Party Products” means Alteryx, Tableau or any other platform on which the Services operate as well as any additional Third-Party Products which may be detailed in an Exhibit.

2. Access and Use.

1. 1. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement and the applicable SOW, Bain hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the term of the applicable SOW, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Bain shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
   2. Authorized Users. 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.
   3. Data and Documentation License. Subject to the terms and conditions contained in this Agreement, Bain hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable license to use the Data and Documentation for Customer’s internal business purposes only. Notwithstanding any termination of this Agreement, the Services or any other term of this Agreement, Customer may retain a copy of any Insubstantial Data for archival purposes, subject to the confidentiality obligations herein.
   4. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Except as otherwise provided for in Section 2(c), Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Data and Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Data and 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 Data and Documentation; or (v) use the Services or Data and 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.
   5. 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) Customer’s or any Authorized User’s material breach of any terms of this Agreement related to the use of the Services or Data and Documentation; or (ii) any vendor of Bain has suspended or terminated Bain’s access to or use of any Third-Party Products; ((i) or (ii), a “Service Suspension”). Bain shall provide 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.
   6. 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.
   7. Give to Get Protocol. In connection with the provision of the Services, Bain may collect from Customer data regarding Customer’s channel partners. Customer data so collected will be used to perform analyses and the results of the analyses will be delivered to Customer. As a condition of accessing the Services, Customer agrees that Customer Data shall be aggregated in Bain’s database with the data of other customers. Bain shall treat Customer Data as the Confidential Information of Customer if the information is segregated from the aggregated data or otherwise identified as the responses of Customer. Results will be published only in an anonymous way so that no conclusions about the source of the data will be possible. Customer consents that any data provided to Bain may be transferred, used and stored in Bain’s database for the purposes and in the way described herein above. All results derived from the Customer Data or any response(s) which are not identified as belonging to Customer shall be treated as part of Bain’s Data and Documentation and Bain shall be entitled to use the foregoing without remuneration of any kind to Customer.

3. Customer Responsibilities.

1. 1. General. Customer is responsible and liable for all uses of the Services and Data and Documentation resulting from access provided by Customer, directly or indirectly, 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 and the Services may be made available to Customer via Third-Party Products. Third Party Products shall have no warranty, support or other obligation to Customer.

4. Fees and Payment.

1. 1. Fees. Customer shall pay Bain the fees (“Fees”) as set forth in a SOW without offset or deduction. The Fees are non-refundable even if this Agreement or any SOW is terminated earlier than the expiration of the relevant SOW, except as otherwise provided for in Section 7(a). Unless otherwise provided for in a SOW, Fees will be invoiced annually and due within thirty (30) days after Customer’s receipt of such invoice. After 30 days, interest may be charged at a rate of 1% per month. Bain may change the Fees at any time; however, any such change shall only take effect on the next renewal term of an SOW. All invoices are payable by ACH transfer, in US dollars.
   2. 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, other than any taxes imposed on Bain’s income.
   3. 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 over any underpayment discovered in the course of such audit, based on Bain’s then-current price list, plus interest.

5. Confidential Information.

1. 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. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s 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 the 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; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings.
   4. On the expiration or termination of the 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 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’s use of the Services is subject to the Tableau Online Privacy Policy, a current version of which is available here: https://www.tableau.com/privacy.
   7. 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.
   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. 1. Bain IP. Customer acknowledges that, as between Customer and Bain, Bain owns all right, 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 Bain IP; (ii) copy, alter, modify, translate, reverse engineer, decompile or disassemble Bain IP; (iii) create derivative works based upon 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. Feedback. Bain welcomes feedback to help us continuously improve the quality of our products and services. If Customer or any of its employees or contractors 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, or the like (”Feedback”), Bain is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Bain on Customer’s behalf, and on behalf of its employees, contractors and/or agents, 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. 1. Limited Warranty. Bain warrants to Customer that the Services will operate in substantial conformity with the SOW. 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; or (ii) 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.

8. Indemnification.

1. 1. Bain Indemnification.
      1. Bain shall indemnify Customer from and against all claims losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) which Customer may incur or be subject to as a result of Bain’s infringement upon the intellectual property rights of a third party, 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.
      3. This Section 8(a) will not apply, and Bain shall not have indemnification obligations to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Bain or authorized by Bain in writing; (B) modifications to the Services not made by Bain; (C) use of the Services (or Data and Documentation) in a manner inconsistent with the terms of this Agreement or (D) Third-Party Products.
   2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Bain’s option, defend Bain its successors, parents, subsidiaries, affiliates, shareholders, attorneys, officers, agents, directors and employees (each a “Bain Indemnified Party”) from and against all Losses which such Bain Indemnified Party may incur, arising out of, relating to or resulting in any way from Customer’s (or an Authorized User’s) breach of its obligations under Section 2 and/or Section 5 of this Agreement.
   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. 1. Term. This Agreement shall commence on the Effective Date, shall continue for a period of twelve (12) months and will, thereafter, automatically renew for additional twelve (12) month terms every year unless otherwise terminated hereunder ("Term"). Unless stated otherwise, SOWs shall automatically renew for additional twelve (12) month terms unless either Party provides notice of non-renewal to the other Party no later than thirty (30) days prior to the renewal date.
   2. Termination. In addition to any other express termination right set forth in this Agreement:
      4. Bain may terminate this Agreement or any SOW hereunder, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due, and such failure continues more than 10 days after Bain’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2 or Section 5 of this Agreement;
      5. either Party may terminate this Agreement or any SOW hereunder, effective on written notice to the other Party, if the other Party materially breaches this Agreement or an SOW, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
      6. either Party may terminate this Agreement or any SOW hereunder, 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. Termination of this Agreement shall be deemed termination of all SOWs entered hereunder. Termination or expiration of any SOW shall not be deemed termination of this Agreement. In the event of termination, Bain shall be entitled to payment for Services up to the effective date of 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 the Bain that the Bain IP has been deleted or destroyed, except as otherwise provided under Section 2(c). 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 2-6, 8, 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. 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 that Bain processes on behalf of the Customer in order 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. implement and maintain appropriate technical and organizational measures to protect 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. save as required by applicable law or in accordance with this Agreement, not disclose the Personal Data to any third party other than those listed in Clause 11(c) without providing prior notice to Customer;
      7. except as set out in (c) below, not transfer the Personal Data to another country unless it has ensured that appropriate safeguards are in place; and
      8. delete the Personal Data at the end of the Term.
   3. Location of the Processing and Subprocessors. Customer agrees that the Personal Data may be shared with the following subprocessors:
      1. Amazon Web Services, Inc. for hosting services in the United States;
      2. InterWorks, Inc. for support services in the United States; and
      3. Bain’s affiliates around the world for support and administration services.
   4. 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 Customer is located in the United Kingdom or the European Economic Area, Bain (on its behalf and on behalf of its affiliates) and Customer agree to enter into the respective Standard contractual clauses for the transfer of personal data to processors established in third countries as approved by the applicable regulatory bodies (the “SCC”), which are hereby incorporated by reference, for transfers of Personal Data to Bain’s affiliates outside of the United Kingdom or EEA. Appendix 1 of the SCC is as described in Exhibit A to this Agreement
   7. 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. 1. Reference. 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.
   2. Entire Agreement. This Agreement, together with any SOWs, 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 SOWs referencing this Agreement; and (iv) fourth, any other documents incorporated herein by reference. Notwithstanding the foregoing, where an SOW specifically states the intent to supersede a specific portion of this Agreement or an Exhibit, the applicable clause in the SOW shall prevail.

1. 1. 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 in the SOW (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.
   2. Force Majeure. In no event shall either party be liable, 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 such party’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.
   3. 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.
   4. 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.
   5. 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.
   6. 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. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
   7. Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
   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 or, in the case of Customer, Section 2, 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.

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