Last modified: September 13th,2024
These CreationSpace Online Platform Terms and Conditions (this “Agreement”), effective as of 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 entity which executed a Contract (“CreationSpace”) and the other entity which executed such Contract (“Customer”). By signing a Contract, Customer agrees to the terms of this Agreement, which apply to Customer’s use of the Services and/or when CreationSpace utilizes the Services to provide work to Customer. 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. CreationSpace and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
a. “Anonymized Statistics” means data and metrics related to or derived from Customer’s use of the Services or Customer Data (including transformed versions thereof and analytical outputs) that is used by CreationSpace in an anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services or anonymized key performance indicators or benchmarks.
b. “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.
c. “Contract” means an Order Form or other agreement incorporating this Agreement.
d. “Customer Data” means information, data (including Personal 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 CreationSpace during the course of the Services. Customer Data does not include Anonymized Statistics.
e. “Documentation” means CreationSpace’s user manuals, handbooks, and guides relating to the Services provided by CreationSpace to Customer either electronically or in hard copy form and end user documentation relating to the Services, as well as any reports and information accessible via the Services or otherwise provided to Customer in performance of the Services.
f. “Effective Date” meansthe date Customer signs a Contract.
g. “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, good will 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 through out 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.
h. “Order Form” means an order form, engagement letter or other confirmation entered into between Customer and CreationSpace setting forth the product(s) licensed, the scope of Services and pricing.
i. “CreationSpace IP” means the Intellectual Property Rights in the Services, the Documentation, and any materials or deliverables contained on, or communicated via the Services, or otherwise provided to Customer or any Authorized User pursuant to this Agreement or the Contract, including but not limited to proprietary processes, code, software, documentation, frameworks, analytical tools and analysis, industry data and insights, methodology, survey questions, approach and configurations, visualizations, reports, including any and all modifications, improvements, and derivative works pertaining thereto. For the avoidance of doubt, CreationSpace IP includes Anonymized Statistics and any information, data, or other content derived from CreationSpace’s monitoring of Customer’s access to or either Party’s use of the Services, but does not include Customer Data (except in a strictly anonymized and/or aggregated form).
j. “Services” means the CreationSpace online platform, as further described in the applicable Contract or documentation provided by CreationSpace to Customer, and any ancillary CreationSpace services provided by CreationSpace.
k. “Third-Party Products” means any third-party products incorporated into the Services.
a. 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, CreationSpace hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable right to access and use the Services and Documentation during the Term, solely for use by Authorized Users and for Customer’s internal use. Customer acknowledges and agrees that access to the Services by contractors of Customer may require prior approval by CreationSpace.
b. Provision of Access. CreationSpace shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
c. 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 CreationSpace immediately if their access to the Services is or potentially could be compromised.
d. 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.
e. Reservation of Rights. CreationSpace 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 CreationSpace IP.
f. 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 CreationSpace. CreationSpace is not responsible for examining or evaluating the content or accuracy of, and CreationSpace does not warrant and will not have any liability or responsibility for, any third-party materials, websites or services. CreationSpace 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.
g. Suspension. Notwithstanding anything to the contrary in this Agreement, CreationSpace may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) CreationSpace reasonably determines that (A) there is a threat or attack on any of the CreationSpace IP; (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to CreationSpace or to any other customer or vendor of CreationSpace; (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) CreationSpace’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of CreationSpace has suspended or terminated CreationSpace’s access to or use of any Third-Party Products that form part of the Services and/or are required to enable Customerto access the Services; or (iii) in accordance with Section 4(b)(iii) (any such suspension described in sub clauses 2(g) (i), (ii), or (iii), a “Service Suspension”). CreationSpace 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. CreationSpace 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. CreationSpace 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.
h. Anonymized Statistics. Notwithstanding anything to the contrary in this Agreement, CreationSpace may monitor Customer’s use of the Services and collect and compile Anonymized Statistics. As between CreationSpace and Customer, all right, title, and interest in Anonymized Statistics, and all Intellectual Property Rights there in, belong to and are retained solely by CreationSpace. Customer agrees that CreationSpace may use the Anonymized Statistics to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other CreationSpace offerings, and disclose the Anonymized Statistics to customers and other third parties as part of the services offered by CreationSpace or otherwise in connection with its business.
a. General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by CreationSpace 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.
b. Third-Party Products. CreationSpace 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.
a. Fees. Customer shall pay CreationSpace the fees for Services as set forth in the Contract (the “Fees”), net of any discounts provided (“Discounts”).
b. Payment Terms. Unless otherwise set out in the Contract, 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 CreationSpace’s other rights and remedies: (i) CreationSpace 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 CreationSpace for all reasonable costs incurred by CreationSpace 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, CreationSpace may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
c. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer will pay CreationSpace’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 CreationSpace 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.
d. Fee Changes. Customer acknowledges that Discounts provided may decrease if Customer elects to incorporate additional or newly developed product features in their Services. Further, CreationSpace shall be entitled to increase the Fees set forth in Contract on an annual basis by giving no fewer than thirty(30) days' prior notice to Customer. The applicable section of Contract shall be deemed to have been amended accordingly.
e. Audit Rights. Customer shall maintain records regarding the use of the Services and shall make such information available to CreationSpace upon request. Upon reasonable request, CreationSpace 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 CreationSpace’s then-current price list, plus interest.
a. 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 CreationSpace, Confidential Information also includes CreationSpace IP.
b. 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 here under.
c. 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.
d. 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.
e. 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.
f. Customer will ensure that all Authorized Users comply fully with this Section 5.
g. 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.
a. CreationSpace IP. Customer acknowledges that, as between Customer and CreationSpace, CreationSpace owns all rights, title, and interest, including all Intellectual Property Rights, in and to the CreationSpace 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 CreationSpace IP; (ii) copy, alter, modify, translate, reverse engineer, decompile or disassemble the CreationSpace IP; (iii) create derivative works based upon the CreationSpace IP; (iv) destroy or otherwise remove any proprietary notices or labels on or embedded within the CreationSpace IP; or (v) show or demonstrate the CreationSpace IP to a third party.
b. Customer Data. CreationSpace acknowledges that, as between CreationSpace and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to CreationSpace 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 CreationSpace to provide the Services to Customer.
c. Feedback. If Customer or any Authorized User sends or transmits any communications or materials to CreationSpace by mail, email, telephone, or otherwise, suggesting or recommending changes to the CreationSpace IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions (“Feedback”), CreationSpace is free to use such Feedback as it sees fit. Customer hereby assigns to CreationSpace on Customer’s behalf, and on behalf of its Authorized Users, all right, title, and interest in, and CreationSpace 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 CreationSpace is not required to use any Feedback.
a. Limited Warranty. CreationSpace warrants to Customer that the Services will operate in substantial conformity with the applicable Documentation. CreationSpace does not warrant that Customer’s use of the Services will be uninterrupted or error-free. CreationSpace’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in CreationSpace’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to correct the reported non-conformity, or if CreationSpace 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.
b. 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.
c. AI Technology Acknowledgment.
(i) Due to the nature of artificial intelligence technology, (a) output from the Services (“Output”) may not be unique across customers and the Services may generate the same or similar Output for Customer and other users of the Services, (b) Output does not represent CreationSpace’s views and does not constitute professional advice or represent CreationSpace’s opinion, and (c) Output will not be deemed as Confidential Information. To the extent that Customer has any right, title or interest in Output, Customer hereby grants to CreationSpace a worldwide, non-exclusive, perpetual license to access, use, copy, perform, store, transmit, modify, and display Output in order to provide the Services to Customer. By using the Services, Customer hereby acknowledges and agrees that all Output will be reviewed separately by and used under the direction of a human, and Customer assumes sole responsibility for the Output and any conclusions drawn from such use.
(ii) CreationSpace may use technology provided by third party service providers (such as Open AI) to provide the Services. By using the Services (including any output from the Services), Customer acknowledges and agrees to comply with, and to require Authorized Users to comply with the following terms and policies of such third party service provider(s): Open AI(https://openai.com/policies/usage-policies).
(iii) CUSTOMER ACKNOWLEDGES THATOUTPUT MAY BE GENERATED OR AUGMENTED BY ARTIFICIAL INTELLIGENCE AND MACHINELEARNING TECHNOLOGIES, AND CREATIONSPACE MAKES NO WARRANTY OR GUARANTEE AS TOTHE ACCURACY, COMPLETENESS OR RELIABILITY OF THE OUTPUT OF THE SERVICES. CREATIONSPACE DISCLAIMS ANY WARRANTY WITHRESPECT TO, AND CUSTOMER AGREES THAT CREATIONSPACE SHALL NOT BE LIABLE FOR, ANYUSE OF ANY ARTIFICAL INTELLIGENCE TECHNOLOGY INCLUDED IN THE SERVICES,INCLUDING ANY OUTPUT GENERATED BY AI TECHNOLOGY.
d. Warranty Disclaimer. THE SERVICES AND ALL CREATIONSPACE IP ARE PROVIDED “AS IS” AND CREATIONSPACEHEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OROTHERWISE. CREATIONSPACE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT,AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CREATIONSPACEMAKES NO WARRANTY OF ANY KIND THAT THE CREATIONSPACE IP, OR ANY SERVICES ORRESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’SREQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BECOMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE,ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
a. CreationSpace Indemnification.
(i) CreationSpace 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 CreationSpace in writing of the claim, cooperates with CreationSpace, and allows CreationSpace sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit CreationSpace, at CreationSpace’s sole discretion, to (A) modify or replace the Services, or component or part there of, to make it non-infringing, or (B) obtain the right for Customer to continue use. If CreationSpace determines that neither alternative is reasonably available, CreationSpace 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.
(iii) 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 CreationSpace or authorized by CreationSpace in writing; (C)modifications to the Services not made by CreationSpace; (D) Customer Data; or (E) Third-Party Products, or (ii) if CreationSpace is providing the Services at no cost to Customer.
b. Customer Indemnification. Customer shall indemnify, hold harmless, and, at CreationSpace's option, defend CreationSpace 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 or data privacy 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 CreationSpace unless CreationSpace consents to such settlement, and further provided that CreationSpace 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.
c. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND CREATIONSPACE’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.
IN NO EVENT WILL CREATIONSPACE 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, FORANY: (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 GOOD WILL OR REPUTATION; (d)INABILITY TO USE, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA; (e) DISCRIMINATION, RETALIATION OR OTHER VIOLATION OF ANY EMPLOYMENT LAWS,REGULATIONS OR STANDARDS COVERING CUSTOMER’S BUSINESS OR OPERATIONS IN ANY JURISDICTION; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CREATIONSPACE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CREATIONSPACE’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 CREATIONSPACE UNDER THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
a. Term. This Agreement takes effect on the Effective Date and will remain in effect for the duration of the Services unless terminated in accordance with this Section 10 (the “Term”).
b. Termination. In addition to any other express termination right set forth in this Agreement:
(i) CreationSpace 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 CreationSpace’s delivery of written notice thereof; or (B)breaches any of its obligations under Section 5;
(ii) either Party may terminate this Agreement or any Order Form for any reason by giving thirty (30) days’ written notice to the other Party;
(iii) 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
(iv) 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.
c. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the CreationSpace IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the CreationSpace IP and certify inwriting to CreationSpace that the CreationSpace 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.
d. Survival. This Section 10(d) and Sections 1, 2(h), 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.
a. Role of the Parties. The Parties acknowledge the use of the Services might involve the processing of data that can identify an individual by CreationSpace 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, CreationSpace and Customer shall each comply with applicable data privacy legislation and this Section 11. In providing CreationSpace with Personal Data, Customer will be acting as the data controller and CreationSpaceas a data processor. Customer confirms that it has complied with relevant laws, it has all appropriate notices in place and obtained all necessary consents for lawful processing, including in connection with any transfers of Personal Data to Creation Space and its sub-processors and use of the Services.
b. Obligations of CreationSpace. For any Personal Data that CreationSpace processes on behalf of the Customer in order to provide the Services, CreationSpace agrees to:
(i) only process such Personal Data in accordance with Customer’s written instructions and for the sole purpose of providing the Services to Customer;
(ii) implement and maintain appropriate technical and organizational measures to protect the Personal Data;
(iii) notify Customer promptly (where permitted under applicable law) if CreationSpace 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;
(iv) provide reasonable assistance, cooperation and information to enable Customer to demonstrate its compliance with the applicable data protection laws;
(v) notify Customer promptly if CreationSpace suffers any incident that may impact the Personal Data;
(vi) 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 Exhibit B without providing prior notice to Customer. CreationSpace shall remain fully liable to Customer for the acts, errors, and omissions of sub-processors as if they were CreationSpace’s own acts, errors and omissions;
(vii) except as set out in Section 11(c) below, not transfer the Personal Data to another country unless it has ensured that appropriate safeguards are in place; and
(viii) delete the Personal Data at the end of the Term.
c. Location of the Processing and Sub-processors. Customer agrees that the Personal Data may be shared with the sub-processors listed in Exhibit B.
d. CreationSpace is permitted to make changes to the sub-processors 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, CreationSpace shall be allowed to make such change.
e. Where required and where Customer is located in the European Economic Area or Switzerland, CreationSpace(on its behalf and on behalf of its affiliates) and Customer agree to enter into the Standard contractual clauses for the transfer of personal data to processors established in third countries (Commission Implementing Decision(EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council 2021/914), which are hereby incorporated into this Agreement in Exhibit B (the “SCCs”).
f. Where Customer is located in the UK, the SCCs will apply together with the Information Commissioner's Office's (ICO) International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, as issued by the ICO under section 119(1) of the UK Data Protection Act 2018 and as incorporated into this Agreement in Exhibit B.
g. Where Customer is located in any other jurisdiction, which imposes restrictions on the transfer of personal data to third countries, the Parties shall comply applicable laws and ensure that adequate safeguards are provided.
h. 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.
a. Entire Agreement. This Agreement, together with any Contract, 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 Contract referencing this Agreement; and (iv) fourth, any other documents incorporated herein by reference. Notwithstanding the foregoing, where Contract specifically states the intent to supersede a specific portion of this Agreement or an Exhibit, the applicable clause in the Contract shall prevail.
b. 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.
c. Force Majeure. In no event shall CreationSpace 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 CreationSpace’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.
d. Amendment and Modification; Waiver. CreationSpace has the right to vary this Agreement from time to time on giving the Customer at least 30 days’ written notice. 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 CreationSpace 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 CreationSpace policy. CreationSpace will provide Customer with prior notice before any revisions to this Agreement take effect.
e. 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.
f. 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.
g. 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 CreationSpace, 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.
h. 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.
i. 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.
j. Marketing. Customer agrees that CreationSpace may disclose Customer as a customer of CreationSpace and use Customer’s name and logo on CreationSpace’s public facing website and in CreationSpace’s marketing materials.
1.For the purposes of Section 11(e)of the Agreement, Customer and CreationSpace (on its behalf and/or on behalf of its affiliates) agree to enter into the SCCs (module two: Transfer controller to processor), which are hereby incorporated by reference, for transfers of EU Personal Data to CreationSpace outside of the EEA, as follows:
a. Customer shall be the data exporter, and CreationSpace and its affiliates shall be the data importers;
b. Clauses 7(a) – (c) shall apply;
c. Option 1 of Clause 9(a) shall apply, and the data importer shall submit the request for specific authorization at least 14 days prior to the engagement of the sub-processor;
d. Clause 11(a) shall not include an additional redress mechanism for data subject, as set out in the second optional paragraph of Clause 11(a);
e. Clause 17 shall state: “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”;
f. Clause 18(b) shall state: “The Parties agree that those shall be the courts of Germany”;
g. The Annexes of the SCCs shall be populated with the relevant information set out in Exhibit A to the Agreement, Annex 1 and Annex 2 to this Exhibit B; and
h. If and to the extent the SCCs conflict with any provision of this Agreement, the SCCs will prevail to the extent of such conflict.
2. For the purpose of Section 11(e)of the Agreement, and in order to allow the parties to lawfully transfer Swiss Personal Data in accordance with the Swiss Federal Act on Data Protection(“FADP”), the version of the SCCs referenced in Section 1 above shall apply and shall include all necessary amendments to make them legally effective in Switzerland, including but not limited to the following:
a. References to the GDPR will be deemed to be references to the FADP;
b. The competent Supervisory Authority in Annex I.C of the SCCs under Clause 13 is the Federal Data Protection and Information Commissioner of Switzerland;
c. The applicable law for contractual claims under Clause 17 of the SCCs is Swiss law or the law of a country that allows and grants rights as a third party beneficiary;
d. The term “member state” used in the SCCs shall not be interpreted in such a way as to exclude data subjects in Switzerland form the possibility of suing for their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c).
3. For the purpose of Sections 11(f)of the Agreement and in order to allow the parties to lawfully transfer UK Personal Data in accordance with the UK GDPR, the version of the SCCs referenced in Clause 1 above shall apply together with the UK Addendum, which is hereby incorporated by reference. The parties further agree that for the purpose of the Addendum:
a. Customer shall be the data exporter and CreationSpace and its affiliates shall be the data importers, and the parties’ details as set out in the Agreement shall be incorporated into Table 1 of Part 1 of the Addendum (Parties);
b. The first option of Table 2 of Part 1 of the UK Addendum (Selected SCCs, Modules and Selected Clauses) shall be selected and the date shall be the date of this Agreement;
c. Table 3 of Part 1 of the UK Addendum (Appendix Information) shall be populated with the relevant information set out in Exhibit A to the Agreement, Annex 1 and Annex 2 to this Exhibit B; and
d. Either the importer or the exporter may end the UK Addendum, and Table 4 of Part 1 of the UK Addendum shall be completed accordingly.
ANNEX 1
TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
The measures include:
· Measures of encryption of personal data: Encryption measures are used when storing data; data is also encrypted in transit using TLS 1.3 encryption.
· Measures for the protection of data during storage: Data stored in AWS S3, databases or virtual disks are encrypted leveraging AWS’ default 256-bit AES server-side encryption
· Measures for ensuring physical security of locations at which personal data are processed: Services are hosted on Amazon Web Services Infrastructure with state-of-the-art security in place to strictly control physical access to the areas where CreationSpace data is stored
· Measures for ensuring data minimization: Services are set up to only collect personal data that is necessary and relevant to provide services under the Agreement.
· Measures for user identification and authorization: Multi-factor authentication is enabled for CreationSpace admin accounts for privileged activities.
· Measures for assurance of processes and products: CreationSpace has a dedicated team for Information Security Risk and Compliance, this team is responsible for the ongoing security governance of CreationSpace and CreationSpace provided applications.
Same measures as above
ANNEX 2
LISTOF SUB-PROCESSORS
1. Name: EnLume, Inc. (https://www.enlume.com/).
Address: 1900 Camden Ave, Suite 101, San Jose, CA 95124,USA.
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): support and development services
2. Name: Vikara, Inc. (https://www.vikara.ai/)
Address: Palo Alto, CA (remote org)
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): support and development services
3. Name: York IE, Inc. (https://york.ie/)
Address: 175 Canal Street, 6th Floor, Manchester, NH 03101, USA.
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): support and development services
4. Name: Auth0 (by Okta).
Address: 10900 NE 8th Street, Bellevue, WA98004, USA.
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized): user management services.
5. Name: Microsoft Corporation
Address: Microsoft Corporation, Americas Operations Center 6100 Neil Rd., Reno, Nv 89511, USA.
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized):hosting services.
6. Name: Druva, Inc.
Address: 800 West California Ave., Suite 100, Sunnyvale CA 94086, USA.
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized):storage and back-ups for business continuity purposes.
7. Name: Amazon Web Services, Inc.
Address: 2021 7th Avenue, Seattle, WA 98121, USA.
Description of processing (including a clear delimitation of responsibilities in case several sub-processors are authorized):hosting services, storage and back-ups for business continuity purposes.
8. CreationSpace’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 authorized):support and administration services.
