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McKinsey & Company, Inc. United States
and its affiliates (“McKinsey”) offers a wide range of proprietary data- and
analytics-driven tools and solutions across functions and industries (each a
“Solution”), including those described at http://www.mckinsey.com/solutions. This McKinsey Solutions Agreement (the “agreement”) is
an agreement between McKinsey and the legal entity (along with such entity’s
affiliates, the “Client”) that executes or accepts this agreement or, if
applicable, that executes the corresponding Proposal (as defined below) and
governs the Client’s access to and use of the Solutions, including Solutions
provided in connection with consulting services that McKinsey may have provided
in the past, may be providing currently, and may provide in the future to the
Client (the “Services”). With respect to either party, the term “affiliates”
means any entities that directly or indirectly control, are controlled by, or
are under the same control as, such party or any other entities affiliated with
such party or entities.
1.
COVERED SOLUTIONS. Subject to the conditions and limitations of this
agreement and any applicable Proposal, McKinsey grants to Client a limited,
revocable, non-exclusive, non-transferable right and license to access and use
each Solution identified in such Proposal for the Client’s internal business
purposes, including in connection with any related Services provided by
McKinsey in connection with such Solution. The foregoing license shall apply
for each applicable Solution for the term set forth in the applicable Proposal
or, if no such term is provided, for the duration of McKinsey’s provision of
Services in connection with such Solution; provided that such license may be
immediately terminated and the Client’s use of such Solution suspended in the
event of the Client’s material breach of this agreement. The scope of the
Solutions and any related Services may be further described in McKinsey’s
proposals, statements of work and/or confirming memoranda submitted to the
Client or as otherwise agreed by the parties, including one or more commercial
agreements referencing the Solutions (each a “Proposal”). The Services shall
include the evaluation or discussion of potential services and McKinsey’s
preparation of Proposals, and the parties may meet at mutually agreed times to
discuss the progress of the Services and to exchange feedback. In order to be
able to provide the Solutions and Services within the agreed timeframe and
budget and to fulfill its responsibilities on a timely basis, McKinsey will
rely on the Client’s timely cooperation, including making available relevant data, information
and personnel, performing any tasks or responsibilities assigned to the Client
and notifying McKinsey of any issues or concerns the Client may have relating
to the Services.
2.
COMPENSATION. The Client shall compensate McKinsey for its professional
fees and expenses in connection with the Services, if any, as set forth in the
applicable Proposal. The Client agrees that it will not, without McKinsey’s
prior written permission, disclose the terms of this agreement or any Proposal
(including McKinsey’s fees, expenses and other commercial terms) to any third
parties (including the Client’s external procurement and other service
providers). McKinsey will invoice the Client for professional fees and expenses
in connection with the Services monthly or as otherwise set forth in the
applicable Proposal. All invoices are due and payable immediately on
presentation. Should any invoice remain unpaid for more than 30 days after
presentation, interest will accrue on the outstanding amount at the rate of 1%
per month, calculated from the 31st day after presentation until the date of
payment.
3.
CONFIDENTIALITY. McKinsey will keep
confidential any confidential information, including any personal data (as
defined below), furnished by or on behalf of the Client to McKinsey in
connection with the Services (“Confidential Information”). Confidential Information shall not include
information that is or becomes publicly available, already known to McKinsey,
independently acquired or developed by McKinsey or legally required to be
disclosed. McKinsey will disclose
Confidential Information only to its employees, agents and contractors who have
a need to know and are bound to keep it confidential, will use Confidential
Information only for purposes of performing the Services, including preparing
Proposals and evaluating potential Services, providing and maintaining the
Solutions, including evaluating and improving Solution usage, or as otherwise
requested or authorized by the Client, and will protect Confidential Information
in accordance with the McKinsey Data Protection Protocols available at https://solutions.mckinsey.com/msd/data-protocols.pdf (the
“Protocols”). Subject to its
confidentiality obligations, where the agreed upon Services include
benchmarking services McKinsey may also incorporate Confidential Information
into its benchmarking databases for use in reporting on sanitized or aggregate
trends and metrics without attribution to the Client. To bring the best of McKinsey’s global
resources to serve the Client, the Client agrees that McKinsey may transfer
Confidential Information to geographies other than those in which it was
collected or received, including to McKinsey affiliates and sub-processors that
comprise or support McKinsey’s infrastructure and maintenance functions as set
forth in the Protocols, to facilitate any activities authorized by the Client,
provided that at all times Confidential Information will be treated as confidential
and protected in accordance with the terms of this agreement. McKinsey will reasonably cooperate with the
Client, at its expense, in responding to any legally required disclosure. In performing the Services, McKinsey will use
and rely primarily on information available from public sources and the
Confidential Information and the Client warrants that (i) McKinsey
will have no obligation to verify such information, (ii) it is authorized to
provide McKinsey with all such Confidential Information, and (iii)
McKinsey’s use of such information in
connection with the agreed Services will not violate any law or contractual
right of any third party. At the Client’s election and notification to
McKinsey, McKinsey shall promptly return or destroy any Confidential
Information, including any personal data, in its possession or control when the
same is no longer necessary for the provision of the Services, provided that
McKinsey may retain such Confidential Information only as required by
applicable law, regulation or documented professional archival policy or as
otherwise authorized or instructed by the Client. Any Confidential Information so retained
shall at all times remain subject to the terms and conditions of this agreement,
including with respect to confidentiality, security and non-disclosure.
4.
DATA SECURITY. Without limiting the
foregoing, if McKinsey processes data as part of the Services and on behalf of
the Client which relates to an identified or identifiable person (“personal
data”), McKinsey shall (i) only process such personal data, including
with respect to McKinsey’s use of subcontractors or sub-processors, as set
forth in this agreement and the Protocols, as otherwise authorized in writing
by the Client, or as required by applicable law, (ii) implement appropriate
technical and organizational measures to protect such personal data as set
forth in the Protocols, (iii) promptly notify the Client of any incident in
which the confidentiality, integrity or security of the personal data has been compromised,
and (iv) collaborate with the Client as required by applicable law or the
Client’s request to document the personal data, data subjects and processing
activities related to the Services, including as part of an applicable
Proposal.
With respect to transfers of personal data from the
Client to McKinsey, where required by law to ensure an adequate level of data
protection, the Parties agree that such standard contractual clauses as
applicable to the respective transfer and to McKinsey’s Services and as
available at https://solutions.mckinsey.com/msd/sccs.pdf shall be deemed
automatically incorporated into this agreement and binding upon the parties
hereto, including their affiliates, unless an alternate data transfer
arrangement authorized by applicable law is agreed by the parties. McKinsey will comply with the Client’s
reasonable requests to furnish information regarding McKinsey’s processing
activities as is reasonably necessary to enable the Client to verify that
McKinsey is complying with its obligations under this agreement, including by
making its Director of IT Security or person of comparable knowledge and
position available to provide information about the Protocols and McKinsey’s
processing in connection with the Services, and the foregoing shall apply in
full satisfaction of any Client audit or inspection rights of McKinsey, but
shall not limit or restrict the ability of any legal or regulatory authority to
conduct such audit or inspection pursuant to applicable law.
6.
DISCLOSURE OF McKINSEY MATERIALS; PUBLICITY. McKinsey’s work for the Client is confidential and
for the Client’s internal use only. McKinsey will not disclose the Deliverables
to any third parties without the Client’s prior written permission. Similarly,
the Client agrees that it will not disclose any materials or information that
McKinsey furnishes to the Client, including the Deliverables, to any third
parties without McKinsey’s prior written permission. Each party further agrees
not to use the other party’s name or trademarks in any communication with any
third party without the other party’s prior written permission.
7.
SERVING COMPETITORS. It is McKinsey’s long-standing policy to serve
competing clients and clients with potentially conflicting interests as well as
counter-parties in merger, acquisition and alliance opportunities, and to do so
without compromising McKinsey’s professional responsibility to maintain the
confidentiality of client information. Consistent with such practice and
McKinsey’s confidentiality obligations to its other clients, McKinsey is not
able to advise or consult with the Client about McKinsey’s serving the Client’s
competitors or other parties. Nothing in this section shall operate to limit or
reduce McKinsey’s obligations with respect to the Client’s Confidential
Information, including the confidentiality and non-disclosure obligations with
respect thereto.
8.
LIMITATION OF
LIABILITY. The Services shall not be deemed
investment, legal, tax, accounting or other regulated advice. McKinsey does not supplant the Client’s
management or other decision-making bodies and does not guarantee results. The
Client remains solely responsible for its decisions, actions, use of the
Solutions, Deliverables and Services, and compliance with applicable laws,
rules and regulations. The Client agrees
to pay for any costs, including attorney fees, McKinsey incurs as a result of
its participation as a non-party in any legal, regulatory, administrative or
other proceeding relating to the Services.
In no event shall McKinsey’s liability to the Client in connection with
the Solutions and/or Services relating to an engagement for the Client exceed
the fees received by McKinsey from the Client in connection with such
engagement. Neither party will be liable
for any lost profits or other indirect, consequential, incidental, punitive or
special damages.
9.
TERM AND TERMINATION. This agreement takes effect on the date the
Services commenced and shall continue until terminated in accordance with its
terms. Except as otherwise provided in the applicable Proposal, either party
may terminate the Services at any time effective upon written notice to the
other and, in the event of such termination, the Client will pay McKinsey’s
fees and expenses up to the effective date of termination.
10.
EXPORT CONTROL AND SANCTIONS. Neither party, nor any of its respective
directors or officers: (i) is an entity identified
on, or owned or controlled by, or acting on behalf of, any individuals or
entities identified on an applicable restricted party list; or (ii) is organized
under the laws of, ordinarily resident in, located in, or acting on behalf of,
any jurisdiction(s) subject to comprehensive sanctions. Each party agrees to inform the other if any
of the foregoing statements changes. The
Client will not provide McKinsey access to any items (hardware, software, or
technology) or services for which government authorization is required for
import, export, reexport, or transfer without (i)
McKinsey’s prior written consent, and (ii) advance notification to McKinsey of
the applicable trade control laws and the export classification(s) of such
items and/or services.
The Deliverables may not be shared or used with any
restricted parties or comprehensively sanctioned countries and the Client will
not provide any non-public information to McKinsey that is related to such
parties or countries.
11. MISCELLANEOUS. This
agreement and the Proposals constitute the entire agreement between the
parties, and there are no prior or contemporaneous oral or written
representations, understandings or agreements relating to this subject matter
that are not fully expressed herein or therein. In the event of any conflict
between this agreement and any Proposal, the Proposal will govern. This
agreement and the Proposals shall be governed by and construed in accordance
with the laws of the State of New York without regard to conflicts of law
principles and shall inure to the benefit of and be binding on the successors
and assigns of the Client and McKinsey. The following Sections shall survive
the completion or any termination of the Services: 3 (Confidentiality), 4 (Data
Security), 5 (Intellectual Property), 6 (Disclosure of McKinsey Materials;
Publicity), 7 (Serving Competitors), 8 (Limitation of Liability), 9 (Term and
Termination), 10 (Export Control and Sanctions) and 11 (Miscellaneous) and any
other provision which by law or by its nature should survive. Neither party may
assign its rights or obligations under this agreement to any person or entity
without the written consent of the other party, not to be unreasonably
withheld, provided, however, that either party may assign its rights and
obligations under this agreement to its affiliates upon reasonable written
notice to the other party but without the written consent of the other party.
Assignment shall not relieve either party of its obligations hereunder.
McKinsey is an independent contractor and not the Client’s agent or fiduciary.
Notwithstanding any course of dealings of the parties at any time or any
statement to the contrary contained therein, no purchase order, invoice or
other similar document issued by a party shall be construed to modify the terms
of this agreement. Rights and remedies provided in this agreement are
cumulative and not exclusive of any right or remedy provided at law or in
equity. This agreement is strictly a commercial contract and may not be used
for purposes of providing services to government or public sector entities
without the express prior agreement of the parties.