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EXHIBIT 10.6
DATA SERVICES AGREEMENT
between
THE DUN & BRADSTREET CORPORATION
and
THE NEW D&B CORPORATION
Dated as of September 30, 2000
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DATA SERVICES AGREEMENT (this "Agreement"), dated as of
September 30, 2000 (the "Agreement Date"), by and between THE DUN & BRADSTREET
CORPORATION (the "Corporation") and THE NEW D&B CORPORATION ("New D&B").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Corporation has
determined that it is appropriate, desirable, and in the best interests of the
Corporation and its businesses, as well as of the holders of shares of common
stock, par value $0.01 per share, of the Corporation ("Corporation Common
Stock"), to take certain steps to reorganize Corporation's subsidiaries and
businesses and then to distribute to the holders of the Corporation Common Stock
all the outstanding shares of common stock of New D&B (the "Distribution");
WHEREAS, prior to the Distribution Date, Dun & Bradstreet,
Inc. ("Service Provider") a subsidiary of New D&B, has provided and Moody's
Investors Service, Inc. ("Recipient"), a subsidiary of the Corporation, has
purchased, pursuant to various written and oral agreements, the Data Processing
Services described in this Agreement; and
WHEREAS, in order to facilitate the orderly continuation of
Recipient's business for a transitional period after the Distribution Date, New
D&B, on behalf of Service Provider, has agreed to provide to Recipient, and the
Corporation, on behalf of Recipient, has agreed to purchase from Service
Provider, the Data Processing Services described in this Agreement.
NOW, THEREFORE, in consideration of the agreements as set
forth below, it is agreed as follows:
ARTICLE 1. DEFINITIONS AND CONSTRUCTION
1.1 Definitions. The following defined terms shall have the
meanings specified below:
(1) "Agreement" shall have the meaning set forth in the
Heading.
(2) "Agreement Date" shall have the meaning set forth in the
Heading.
(3) "Alternative Provider" shall mean any alternative external
service provider selected by Recipient for the provision of services similar to
the Data Processing Services following the expiration or termination of this
Agreement.
(4) "Corporation" shall have the meaning set forth in the
preamble.
(5) "Data Center" shall mean Service Provider's data center
located at Berkeley Heights, New Jersey and any successor location.
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(6) "Data Processing Services" shall mean the data processing
services described in Schedule A.
(7) "Distribution" shall have the meaning set forth in the
Recitals.
(8) "Distribution Agreement" shall mean the Distribution
Agreement, dated as of September 30, 2000, between the Corporation and New D&B.
(9) "Distribution Date" shall mean the date on which the
Distribution is made under the Distribution Agreement.
(10) "Fees" shall mean those charges for the Data Processing
Services set forth in Schedule B.
(11) "New D&B" shall have the meaning set forth in the
preamble.
(12) "Recipient" shall have the meaning set forth in the
Recitals.
(13) "Party" shall mean either the Corporation or New D&B.
(14) "Recipient Data" shall mean all data or information
supplied by Recipient to Service Provider for processing or transmission in
connection with the Data Processing Services.
(15) "Recipient Hardware" shall mean the hardware described on
schedule A and related documentation owned or leased by Recipient and housed at
the Data Center on which is installed the Recipient Software.
(16) "Recipient Software" shall mean the software and related
documentation owned or licensed by Recipient which is installed on the Recipient
Hardware.
(17) "Service Provider" shall have the meaning set forth in
the Recitals.
(18) "Term" shall have the meaning set forth in Article 2.
1.2 References. In this Agreement and the Schedules to this
Agreement:
(1) the Schedules to this Agreement shall be incorporated in
and deemed part of this Agreement and all references to this Agreement shall
include the Schedules to this Agreement; and
(2) references to the word "including" or the phrase "e.g." in
this Agreement shall mean "including, without limitation".
1.3 Headings. The article and section headings and the table
of contents are for reference and convenience only and shall not be considered
in the interpretation of this Agreement.
1.4 Interpretation of Documents. In the event of a conflict
between this Agreement and the terms of any of the Schedules, the terms of this
Agreement shall prevail.
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ARTICLE 2. TERM OF AGREEMENT
The term of this Agreement shall commence on the Distribution
Date and shall continue until 12:00 midnight (Eastern Standard Time) on December
31, 2002 (the "Term"), unless earlier terminated pursuant to Article 13 hereof.
ARTICLE 3. SERVICES
Service Provider shall provide to Recipient, and Recipient
shall purchase from Service Provider, the Data Processing Services described in
Schedule A. The Data Processing Services shall be of substantially the same type
and shall be provided with substantially the same degree of care and diligence
as such services had been provided to Recipient during the period prior to the
Distribution Date. The Data Processing Services shall be provided at the levels
of service set forth in Schedule A. Recipient shall house the Recipient Software
and Recipient Hardware at the Data Center during the Term.
ARTICLE 4. RECIPIENT OBLIGATIONS
4.1 Recipient Software and Recipient Hardware. With respect to
the Recipient Software and Recipient Hardware, Recipient shall maintain the
Recipient Software and Recipient Hardware and operational features at the same
level that was provided immediately prior to the Distribution Date, and shall
receive maintenance services from those third party service providers that
provided maintenance services to Recipient immediately prior to the Distribution
Date.
4.2 Generally. Recipient shall:
(1) comply with any reasonable instructions provided by
Service Provider that are necessary for Service Provider to adequately provide
the Data Processing Services;
(2) comply with all standards and procedures applicable to the
Data Center;
(3) promptly report any operational or system problem to
Service Provider;
(4) maintain a business recovery plan detailing the
requirements of Recipient in the event of the occurrence of a disaster affecting
the Data Processing Services and periodically test such plan.
4.3 Associated Equipment. Recipient shall maintain and be
responsible for all costs (including personnel, maintenance and repair)
associated with communications equipment (including terminals, communications
hardware, modems and telephone lines) necessary to provide the Data Processing
Services or to transmit the Recipient Data for processing at the Data Center.
4.4 Security. Recipient shall ensure that user accounts shall
only be used by the person for whom such account was created or other authorized
personnel. Recipient shall promptly inform Service Provider of any individual
who is no longer authorized to use the Data Processing Services.
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ARTICLE 5. PROPRIETARY RIGHTS
Recipient shall grant a non-exclusive, nontransferable,
royalty-free right for Service Provider, solely in connection with providing the
Data Processing Services, to have access to and operate the Recipient Software
and the Recipient Hardware to allow Service Provider to perform the Data
Processing Services. Recipient represents and warrants that it has obtained or
will obtain all consents or approvals necessary in connection with Service
Provider's use of the Recipient Software and Recipient Hardware.
ARTICLE 6. DATA
6.1 Form of Data. All data submitted by Recipient to Service
Provider in connection with the Data Processing Services shall be in the form
substantially similar to that submitted before the Distribution Date, unless
otherwise agreed to in writing by the parties.
6.2 Ownership of Data. The Recipient Data is and shall remain
the property of Recipient or its customers.
6.3 Ownership of Media. All media upon which Recipient Data is
stored is and shall remain the property of Recipient. In the event additional
media is needed, it shall be obtained by Recipient, and be the property of
Recipient or its lessor.
ARTICLE 7. FEES
7.1 Fees. Recipient shall pay to Service Provider the fees set
forth in Schedule B in respect of each of the Data Processing Services.
7.2 Time of Payment. The Fees shall be paid by Recipient
monthly in arrears on or before the first business day immediately following the
end of each whole or partial calendar month of the Term.
7.3 Additional Data Processing Services. In the event that
Recipient believes that its use of a Data Processing Service will increase above
that set forth in Schedule A for such Data Processing Service, then Recipient
shall notify Service Provider of the need for such an increase. Service Provider
shall then determine whether any additional Fees will be charged for such
additional Data Processing Service. In the event that the parties agree that
such additional Data Processing Service shall be provided, then, in the event
that additional hardware or software is required, (1) Recipient shall acquire,
and provide to Service Provider, such additional hardware or software (and the
right for Service Provider to use same to provide the Data Processing Services)
and Recipient shall pay to the supplier or third party lessor or licensor, as
may be applicable, the purchase or lease fees in respect of such additional
hardware or software and (2) Service Provider shall implement the agreed-upon
increase to the Fees.
7.4 Taxes. Recipient shall pay any value-added tax and any
tariff, duty, export or import fee, sales tax, use tax, service tax or other tax
or charge subsequently imposed by any government or government agency on
Recipient or Service Provider with respect to the Data Processing Services or
the execution or performance of this Agreement.
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7.5 Late Payments. Any undisputed fees or payments owing to
Service Provider pursuant to this Agreement that are not paid when due (other
than as a result of a delay directly caused by Service Provider or its
affiliates) shall bear interest at the rate of one and one-half (1 1/2) percent
per month, but in no event to exceed the highest lawful rate of interest,
calculated from the date such amount was due until the date payment is received
by Service Provider.
ARTICLE 8. CONFIDENTIALITY
Each of the Parties shall not use or permit the use of
(without the prior consent of the other) and shall keep, and shall cause its
consultants and advisors to keep, confidential all information concerning the
other Party in its possession, its custody or under its control (except to the
extent that (1) such information has been in the public domain through no fault
of such Party or (2) such information has been later lawfully acquired from
other sources by such Party or (3) this Agreement or any other agreement entered
into pursuant to this Agreement permits the use or disclosure of such
information) to the extent such information (a) relates to the period up to the
Distribution Date or (b) is obtained in the course of providing or receiving the
Data Processing Services pursuant to this Agreement, and each Party shall not
(without the prior consent of the other) otherwise release or disclose such
information to any other person, except such Party's auditors and attorneys,
unless compelled to disclose such information by judicial or administrative
process or unless such disclosure is required by law and such Party has used
commercially reasonable efforts to consult with the other Party prior to such
disclosure.
ARTICLE 9. INDEMNITY
Recipient shall indemnify and hold harmless Service Provider
in respect of all claims, costs, expenses, damages and liabilities (including
reasonable attorneys' fees) arising from any claim by a third party licensor
that (a) the Recipient Software or Recipient Hardware infringes such third
party's proprietary rights or otherwise for a breach of Section 5.1 and (b) the
Service Provider does not have the right to use the Recipient Software or
Recipient Hardware as contemplated by this Agreement.
ARTICLE 10. DISCLAIMER AND LIMITATION OF LIABILITY
10.1 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SERVICE
PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE DATA
PROCESSING SERVICES AND THE RECIPIENT SOFTWARE, EXPRESS OR IMPLIED, INCLUDING
THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.2 Limitation of Liability. Neither of the parties shall be
liable to the other (or any claiming under or through the other) for any
indirect, special, incidental or consequential damages, including lost profits
or savings, whether or not such damages are foreseeable, or for any third party
claims relating to the Data Processing Services or a Party's performance under
this Agreement regardless of the form of action (including negligence). Except
as may arise as a result of a Party's gross negligence or willful misconduct,
and as set forth in Section 10 above, each Party's
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liability for direct damages arising in connection with its performance or
failure to perform under this Agreement shall in no event exceed three (3)
months' Fees hereunder.
10.3 Acknowledgement. Recipient acknowledges that Recipient
has licensed, purchased or selected the Recipient Software and the Recipient
Hardware upon which such software is installed to be used by Service Provider in
the provision of the Data Processing Services and has directed Service Provider
to use same. Service Provider shall have no obligation to determine whether or
not the Recipient Software and the Recipient Hardware upon which such software
is installed is adequate for Recipient's purposes.
10.4 Relief From Obligations. Service Provider shall be
relieved of its obligations under this Agreement to the extent that its ability
to perform is limited, hindered or disrupted by the acts or omissions of
Recipient, including Recipient's failure to perform its obligations under this
Agreement in a prompt and timely manner.
ARTICLE 11. DISPUTE RESOLUTION
11.1 Procedure. Any disputes arising out of or in connection
with this Agreement shall be settled in accordance with the dispute resolution
mechanisms set forth in Article VI and Section 8.17 of the Distribution
Agreement.
11.2 Continuity of Services and Performance. Unless otherwise
agreed in writing, the Parties shall continue to provide the Data Processing
Services and honor all other commitments under this Agreement during the course
of dispute resolution pursuant to the provisions of this Article 11 with respect
to all matters not subject to such dispute, controversy or claim.
ARTICLE 12. CONTINUED PROVISION OF SERVICES
12.1 Force Majeure. Service Provider shall not be in default
of its obligations hereunder for any delays or failure in performance resulting
from any cause or circumstance beyond the reasonable control of Service
Provider, provided that Service Provider exercises commercially reasonable
efforts to perform its obligations in a timely manner. If any such occurrence
prevents Service Provider from providing any of the Data Processing Services,
Service Provider shall cooperate with Recipient in obtaining, at Recipient's
sole expense, an alternative source for the affected Data Processing Services,
and Recipient shall be released from any payment obligation to Service Provider
in respect of such Data Processing Services during the period of such force
majeure.
12.2 Disaster Recovery. Recipient shall maintain a disaster
recovery coverage plan, including coverage for the Data Processing Services.
Upon the occurrence of a disaster affecting the Data Processing Services,
Service Provider shall assist Recipient in the implementation of the disaster
recovery procedures and Recipient shall be responsible for all fees incurred by
Service Provider in connection with implementing such procedures. Recipient
shall provide Service Provider with a copy of the plan at the beginning of each
contract year and promptly after each change thereto.
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ARTICLE 13. TERMINATION
13.1 For Convenience. Recipient may terminate this Agreement
at any time after April 1, 2002 upon one hundred eighty (180) days' notice to
Service Provider, which notice may be given at any time on or after October 1,
2001.
13.2 Other. (a) New D&B may terminate this Agreement as set
forth in Section 15.16 hereof.
(b) The Corporation may terminate this Agreement as set forth
in Section 15.17 hereof.
ARTICLE 14. TERMINATION ASSISTANCE SERVICES
Upon the expiration of this Agreement or the effective date of
termination of this Agreement, Service Provider shall have no further obligation
to provide the Data Processing Services to Recipient and for a period of up to
(a) sixty (60) days prior to the expiration or the effective date of termination
of this Agreement and (b) thirty (30) days following the expiration or the
effective date of termination of this Agreement, Service Provider shall use
reasonable efforts to cooperate, at Recipient's expense, with (i) the
Alternative Provider or (ii) Recipient, in connection with the transfer of the
Data Processing Services, the Recipient Data, the Recipient Software and the
Recipient Hardware, from Service Provider to the facilities of (x) the
Alternative Provider or (y) Recipient, as requested by Recipient.
ARTICLE 15. MISCELLANEOUS PROVISIONS
15.1 No Waivers. No failure on the part of either Party to
exercise and no delay in exercising any right or remedy hereunder shall operate
as a waiver thereof nor shall any single or partial exercise by a Party of any
right or remedy hereunder preclude any other right or remedy or further exercise
thereof or the exercise of any other right.
15.2 Consents, Approvals and Requests. Unless otherwise
specified in this Agreement, all consents and approvals, acceptances or similar
actions to be given by either Party under this Agreement shall not be
unreasonably withheld or delayed and each Party shall make only reasonable
requests under this Agreement.
15.3 Partial Invalidity. In the event any of the provisions of
this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected or impaired.
15.4 Notices. All notices, designations, approvals, consents,
requests, acceptances, rejections or other communications required or permitted
by this Agreement shall be in writing and shall be sent via telecopy to the
telecopy number specified below. A copy of any such notice shall also be sent by
registered express air mail on the date such notice is transmitted by telecopy
to the address specified below:
If to New D&B or the Service Provider:
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The Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, New Jersey 07974
Telecopy No.: (908) 665-1409
Attention: Chief Legal Counsel
If to the Corporation or the Recipient:
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Telecopy No.: (212) 553-0084
Attention: Chief Legal Counsel
Any Party may at any time, by notice to the other Party transmitted or sent in
the manner described above, change the address or telecopy number to which
communications to it are to be sent.
15.5 Relationship. The performance by Service Provider of its
duties and obligations under this Agreement shall be that of an independent
contractor and nothing herein contained shall create or imply an agency
relationship between the Parties, nor shall this Agreement be deemed to
constitute a joint venture or partnership between the Parties.
15.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK.
15.7 Covenant of Further Assurances. The Parties covenant and
agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of the Parties will execute and
deliver any further legal instruments and perform any acts which are or may
become reasonably necessary to effectuate this Agreement.
15.8 Assignment. This Agreement may not be assigned by either
Party, other than to an affiliate of such Party or pursuant to a corporate
reorganization or merger, without the consent of the other Party. Any assignment
in contravention of this Section 15.8 shall be void.
15.9 Entire Understanding. This Agreement represents the
entire understanding of the Parties with respect to the Data Processing Services
and supersedes all previous writings, correspondence and memoranda with respect
thereto, and no representations, warranties, agreements or covenants, express or
implied, of any kind or character whatsoever with respect to such subject matter
have been made by either Party to the other, except as expressly set forth
herein.
15.10 Successors. Subject to the restrictions on assignment
set forth in Section 16.8, this Agreement shall be binding upon and inure to the
benefit of an be enforceable against the Parties hereto and their respective
successors and assigns.
15.11 Amendments. This Agreement can be modified or amended
only by a written amendment executed by both Parties.
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15.12 Survival. The provisions of Article 5, Article 8,
Article 9, Article 10, Article 11, Article 14, Section 6.2, Section 6.3, Section
13.2, Section 15.6, this Section 15.12 and Section 15.15 shall survive
termination of this Agreement.
15.13 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
15.14 Third Party Beneficiaries. Each Party intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than Recipient and Service Provider.
15.15 Good Faith and Fair Dealing. Each Party hereby agrees
that its performance of all obligations and exercise of all rights under this
Agreement shall be governed by the fundamental principles of good faith and fair
dealing.
15.16 Subcontractors and Outsourcing. Except as set forth
herein, Service Provider shall have the right to subcontract or outsource any of
its obligations hereunder, provided that the Corporation consents to such
subcontracting or outsourcing, which consent shall not be unreasonably withheld.
The Corporation shall respond to any such request by Service Provider within
thirty (30) days of receipt of such request. In the event that the Corporation
does not consent to such request, then New D&B shall have the right to terminate
this Agreement on one hundred fifty (150) days' written notice; provided that in
no event shall such termination be effective prior to June 30, 2001.
Corporation's failure to respond to such request within the time period set
forth above shall be deemed to indicate Corporation's consent to such request.
15.17 Relocation of Data Center. In the event that Service
Provider desires to relocate the Data Center from its current location at 100
Locust Avenue, Berkeley Heights, New Jersey, Service Provider shall give written
notice thereof to Corporation. The Corporation shall have the right to terminate
this Agreement on one hundred fifty (150) days' written notice given within
thirty (30) days of receipt of the aforementioned notice from D&B.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
THE DUN & BRADSTREET CORPORATION
By: /s/ David J. Lewinter
Name: David J. Lewinter
Title: Vice President and Corporate
Secretary
THE NEW D&B CORPORATION
By: /s/ David J. Lewinter
Name: David J. Lewinter
Title: President and Secretary