Last modified: 26^th June 2023.

These Fast FRWD Tool 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 on behalf of Bain (“Bain”) and the other entity which executed this Agreement or an Order Form (“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.

1. 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 contractors (i) who are authorized 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 Intellectual Property Rights in the Services, the Documentation, and any materials or deliverables 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, 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 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.

   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, engagement letter or other confirmation entered into between Customer and Bain setting forth the product(s) licensed, the scope of Services and pricing.

   8. “Services” means the Fast FRWD web and mobile application, as further described in the applicable Order Form.

   9. “Third-Party Products” means any third-party products incorporated into the Services.

2. Access and Use.

1. 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-sub licenseable, 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. 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.

   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.

   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. Third Party Links. Certain content, products and services available via the Services may include materials from third parties. Third-party links on the Services may direct Customers or Authorized Users to third-party websites or content that is not affiliated with Bain. Bain is not responsible for examining or evaluating the content or accuracy of, and Bain does not warrant and will not have any liability or responsibility for, any third-party materials, websites or services. Bain is not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.

   7. 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 subclauses 2(g) (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.

   8. 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.

   9. 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): Snowflake, AWS, Sigmoid, Adverity, dbt Labs, Cumul.io, Auth0; 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.

2. 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.

3. 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. 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. 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 will ensure that all Authorized Users comply fully with this Section 5.

   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.

6. Intellectual Property Ownership; Feedback.

1. 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. 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.

   4. Customer acknowledgment. It is important to note - and Customer hereby acknowledges that - neither the use of the Services nor the output that is produced by or in conjunction with the use of the Services constitutes legal or any other advice. The Services are intended for analytical and illustrative purposes only. By using the Services, Customer hereby acknowledges and agrees that all work done within the Services and any work product that results from use of the Services will be reviewed separately by Customer before being implemented within any organization, and Customer assumes sole responsibility for the output that is produced by or in conjunction with the use of the Services and any conclusions drawn from such use.

8. Indemnification.

1. 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 resulting from 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 any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; or (ii) 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. 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”). If no expiry date has been indicated in the applicable Order Form, the Agreement takes effect on the Effective Date, and, unless terminated in accordance with the Agreement, shall continue for the initial 12 months (“Initial Term”) and, thereafter, the Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless Customer provides Bain with at least 30 days prior written notice (to be provided before the end of the Initial Terms or any Renewal Period) informing Bain about the intention not to renew. If such notice is provided by Customer to Bain, the Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period.

   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. either Party may terminate this Agreement or any Order Form for any reason by giving thirty (30) days’ written notice to the other Party;

      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. 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. If Customer does not object on reasonable grounds within fourteen (14) days of such notification, Bain shall be allowed to make such change. 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;

      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. As per Clause 2(i) of this Agreement, Customer agrees that the Personal Data may be shared with the following subprocessors:

      1. Snowflake, AWS, Sigmoid, Adverity, dbt Labs, Cumul.io, Auth0; and

      2. Bain’s affiliates around the world for support and administration services.

   4. 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 third countries as set out in Commission Implementing Decision (EU) 2021/914 of 4 June 2021 (Module two controller to processor), as attached in Exhibit B to this Agreement.

   5. 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. 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 clause 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 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

Data exporter	Customer
Data importer	Bain
Purpose of the processing	To provide the Services under the Agreement
Data subjects	Employees and other members of personnel of Customer
Categories of personal data	Name, email address, job title, mobile phone and information as required to provide the Services
Special categories of data	N/A
Processing operations	Storing, analyzing, sharing, amending, aggregating, anonymizing, and other activities as required to provide the Services
Duration of the processing	The Term of the Agreement

EXHIBIT B

STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1

Purpose and scope

1. The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.

2. The Parties:

1. 1. the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

2. 2. the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)

have agreed to these standard contractual clauses (hereinafter. ‘Clauses’).

3. These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

4. The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

1. These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

2. These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

1. Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

1. 1. Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
   2. Clause 8.1(b), 8.9(a), (c), (d) and (e);
   3. Clause 9(a), (c), (d) and (e);
   4. Clause 12(a), (d) and (f);
   5. Clause 13;
   6. Clause 15.1(c), (d) and (e);
   7. Clause 16(e);
   8. Clause 18(a) and (b).

2. Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

1. Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

3. These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7 – Optional

Docking clause

1. An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

2. Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

3. The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

SECTION II – OBLIGATIONS OF THE PARTIES

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

1. Instructions

1. The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.

2. The data importer shall immediately inform the data exporter if it is unable to follow those instructions.

2. Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.

3. Transparency

On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

4. Accuracy

If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.

5. Duration of processing and erasure or return of data

Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).

6. Security of processing

1. The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

2. The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

3. In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

4. The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.

7. Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.

8. Onward transfer

The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:

1. the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

2. the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;

3. the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

4. the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

9. Documentation and compliance

1. The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.

2. The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.

3. The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.

4. The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.

5. The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

1. The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 14 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

2. Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (8) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.

3. The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.

4. The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.

5. The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

Clause 10

Data subject rights

1. The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

2. The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.

3. In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.

Clause 11

Redress

1. The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

2. In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

3. Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

1. lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
2. refer the dispute to the competent courts within the meaning of Clause 18.

4. The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

5. The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

6. The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

1. Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

2. The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.

3. Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.

4. The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

5. Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

6. The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

7. The data importer may not invoke the conduct of a sub-processor to avoid its own liability.

Clause 13

Supervision

1. The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

2. The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14

Local laws and practices affecting compliance with the Clauses

1. The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

2. The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

1. the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
2. the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12);
3. any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

3. The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

4. The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

5. The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

6. Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

1. Notification

1. The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

1. receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
2. becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

2. If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

3. Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

4. The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

5. Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

2. Review of legality and data minimization

1. The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

2. The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

3. The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16

Non-compliance with the Clauses and termination

1. The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

2. In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

3. The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

1. the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
2. the data importer is in substantial or persistent breach of these Clauses; or
3. the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

4. Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data.] The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

5. Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of the EU Member State in which the data exporter is established. Where such law does not allow for third-party beneficiary rights, they shall be governed by the law of another EU Member State that does allow for third-party beneficiary rights. The Parties agree that this shall be the law of Germany.

Clause 18

Choice of forum and jurisdiction

1. Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

2. The Parties agree that those shall be the courts of courts of the country where the data exporter is established.

3. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

4. The Parties agree to submit themselves to the jurisdiction of such courts.

APPENDIX

EXPLANATORY NOTE:

It must be possible to clearly distinguish the information applicable to each transfer or category of transfers and, in this regard, to determine the respective role(s) of the Parties as data exporter(s) and/or data importer(s). This does not necessarily require completing and signing separate appendices for each transfer/category of transfers and/or contractual relationship, where this transparency can achieved through one appendix. However, where necessary to ensure sufficient clarity, separate appendices should be used.

ANNEX I

A. LIST OF PARTIES

1. Data exporter(s):

Name: Customer, as specified in the Order Form

Address: Customer’s address, as specified in the Order Form

Contact person’s name, position and contact details: as specified in the Order Form

Activities relevant to the data transferred under these Clauses: the provision of the Services Role (controller/processor): controller

2. Data importer(s):

Name: Bain & Company, Inc.

Address: 131 Dartmouth Street, Boston, MA 02116, USA

Contact person’s name, position and contact details: Harry Karaolou, Global Data Protection Officer, DataPrivacy@Bain.com

Activities relevant to the data transferred under these Clauses: the provision of the Services

Role (controller/processor): processor

B. DESCRIPTION OF TRANSFER

Categories of data subjects whose personal data is transferred

Employees and other members of personnel of Customer

Categories of personal data transferred

Name, email address, job title, mobile phone and information as required to provide the Services

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

N/A

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

Continuous

Nature of the processing

Storing, analyzing, sharing, amending, aggregating, anonymizing, and other activities as required to provide the Services

Purpose(s) of the data transfer and further processing

Providing the Services

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

The duration of the Agreement

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

• Snowflake, AWS, Sigmoid, Adverity, dbt Labs, Cumul.io, Auth0 for functionality of the Fast FRWD tool
• Bain’s affiliates around the world for support and administration services

C. COMPETENT SUPERVISORY AUTHORITY

Identify the competent supervisory authority/ies in accordance with Clause 13

The supervisory authority of the country where the data exporter is established.

ANNEX II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

EXPLANATORY NOTE:

The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.

See “Protecting Your Data - Bain & Company’s Approach to Data Protection and Information Security, Version 11.0”. The measures include:

• Measures of encryption of personal data
• Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
• Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
• Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
• Measures for user identification and authorisation
• Measures for the protection of data during transmission
• Measures for the protection of data during storage
• Measures for ensuring physical security of locations at which personal data are processed
• Measures for ensuring events logging
• Measures for ensuring system configuration, including default configuration
• Measures for internal IT and IT security governance and management
• Measures for assurance of processes and products
• Measures for ensuring data minimisation
• Measures for ensuring data quality
• Measures for ensuring limited data retention
• Measures for ensuring accountability
• Measures for allowing data portability and ensuring erasure

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter. Details of the specific security measures implemented can be provided by Bain upon Customer’s request.

Same measures as above

ANNEX III

LIST OF SUB-PROCESSORS

EXPLANATORY NOTE:

This Annex must be completed for Modules Two and Three, in case of the specific authorisation of sub-processors (Clause 9(a), Option 1).

The controller has authorised the use of the following sub-processors:

1. Name: SNOWFLAKE

Address: 450 Concar Drive, San Mateo, CA 94402, USA

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): Cloud data warehousing services

2. Name: Amazon Web Services, Inc.

Address: 410 Terry Avenue North, Seattle, WA 98109-521, USA

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): Cloud hosting services

3. Name: SIGMOID

Address: 100 Pine St #1250, San Francisco, CA 94111, USA

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): Subcontracting services for software engineers

4. Name: Adverity GmbH.

Address: Rathausstraße 1/2nd floor, 1010 Vienna, Austria

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): Data extraction and transformation

5. Name: dbt Labs

Address: 915 Spring Garden St Suite 500, Philadelphia, Pennsylvania, 19123, USA

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): Data transformation and analysis

6. Name: Cumul.io Services

Address: Tiensevest 102 box 201, B-3000 Leuven, Belgium

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): Data visualization

7. Name: Auth0 (Parent company Okta Inc)

Address: 100 1St St Ste 600 San Francisco California 94105, USA

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): Login authorization and account creation

8. Bain’s affiliates around the world for support and administration services

Address: see a list of our offices at www.bain.com/offices

Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorised): support and administration services