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Exhibit 99.8
TRANSITION SERVICES AGREEMENT
between
THE DUN & BRADSTREET CORPORATION
and
THE NEW DUN & BRADSTREET CORPORATION
Dated as of ________ __, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I
SERVICES PROVIDED......................... 1
1.1 Transition Services............................................ 1
1.2 Personnel...................................................... 1
1.3 Representatives................................................ 1
1.4 Level of Transition Services................................... 2
1.5 Limitation of Liability........................................ 2
1.6 Force Majeure.................................................. 3
1.7 Modification of Procedures..................................... 3
1.8 Provider Access................................................ 3
ARTICLE II
COMPENSATION............................ 3
2.1 Consideration.................................................. 3
2.2 Invoices....................................................... 4
2.3 Payment of Invoices............................................ 4
ARTICLE III
CONFIDENTIALITY.......................... 4
3.1 Obligation..................................................... 4
3.2 Care and Inadvertent Disclosure................................ 4
ARTICLE IV
TERM AND TERMINATION........................ 5
4.1 Term........................................................... 5
4.2 Termination.................................................... 5
4.3 Termination of Obligations..................................... 5
4.4 Survival of Certain Obligations................................ 5
ARTICLE V
DISPUTE RESOLUTION......................... 6
5.1 Dispute Resolution............................................. 6
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Page
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ARTICLE VI
MISCELLANEOUS............................ 6
6.1 Complete Agreement; Construction............................... 6
6.2 Other Ancillary Agreements..................................... 6
6.3 Counterparts................................................... 6
6.4 Survival of Agreements......................................... 6
6.5 Notices........................................................ 6
6.6 Waivers........................................................ 7
6.7 Amendments..................................................... 7
6.8 Assignment..................................................... 7
6.9 Successors and Assigns......................................... 7
6.10 Subsidiaries.................................................. 7
6.11 Third Party Beneficiaries..................................... 7
6.12 Title and Headings............................................ 7
6.13 Appendices.................................................... 8
6.14 Governing Law................................................. 8
6.15 Consent to Jurisdiction....................................... 8
6.16 Severability.................................................. 8
6.17 Laws and Government Regulations............................... 8
6.18 Relationship of Parties....................................... 8
6.19 Definitions................................................... 9
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TRANSITION SERVICES AGREEMENT
TRANSITION SERVICES AGREEMENT dated as of ________ __, 1998, between
THE DUN & BRADSTREET CORPORATION, a Delaware corporation (the "Corporation"),
and THE NEW DUN & BRADSTREET CORPORATION, a Delaware corporation ("New D&B").
W I T N E S S E T H :
WHEREAS, the Corporation and New D&B have entered into a
Distribution Agreement dated as of the date hereof (the "Distribution
Agreement") pursuant to which, among other matters, New D&B has agreed to
provide, or cause one or more of its Subsidiaries to provide, to the Corporation
certain transitional, administrative and support services on the terms set forth
in this Agreement and the Appendices hereto.
NOW, THEREFORE, subject to the terms, conditions, covenants and
provisions of this Agreement, each of the Corporation and New D&B mutually
covenant and agree as follows:
ARTICLE I
SERVICES PROVIDED
1.1 Transition Services. Upon the terms and subject to the
conditions set forth in this Agreement, with respect to each of those services
set forth in an Appendix hereto, each of which Appendices is made a part of this
Agreement, New D&B will provide to the Corporation the services indicated in
such Appendix (hereinafter referred to individually as a "Transition Service",
and collectively as the "Transition Services") during the time period for each
such Transition Service set forth in such Appendix (hereinafter referred to as
the "Time Periods" for all of the Transition Services, and the "Time Period" for
each Transition Service).
1.2 Personnel. In providing the Transition Services, New D&B as it
deems necessary or appropriate in its sole discretion, may (i) use its personnel
and that of its Affiliates, and (ii) employ the services of third parties to the
extent such third party services are routinely utilized to provide similar
services to other businesses of New D&B or are reasonably necessary for the
efficient performance of any of such Transition Services. The Corporation may
retain at its own expense its own consultants and other professional advisers.
1.3 Representatives. Each of the Corporation and New D&B shall
nominate a representative to act as its primary contact person for the provision
of all of the Transition Services (collectively, the "Primary Coordinators").
The initial Primary Coordinators shall be ________ for the Corporation and
________ for New D&B. The initial coordinators for each
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specific Transition Service shall be the individuals named in the Appendix
relating to such Transition Service (the "Service Coordinators"). Each party may
treat an act of a Primary Coordinator or Service Coordinator of another party as
being authorized by such other party without inquiring behind such act or
ascertaining whether such Primary Coordinator or Service Coordinator had
authority to so act. New D&B and the Corporation shall advise each other in
writing of any change in the Primary Coordinators and any Service Coordinator
for such Transition Service, setting forth the name of the Primary Coordinator
or Service Coordinator to be replaced and the name of the replacement, and
certifying that the replacement Primary Coordinator or Service Coordinator is
authorized to act for such party in all matters relating to this Agreement. Each
of the Corporation and New D&B agree that all communications relating to the
provision of the Transition Services shall be directed to the Primary
Coordinators.
1.4 Level of Transition Services. (a) New D&B shall perform the
Transition Services for which it is responsible hereunder following commonly
accepted standards of care in the industry and exercising the same degree of
care as it exercises in performing the same or similar services for its own
account as of the date of this Agreement, with priority equal to that provided
to its own businesses or those of any of its Affiliates, Subsidiaries or
divisions. Nothing in this Agreement shall require New D&B to favor the
businesses of the Corporation over its own businesses or those of any of its
Affiliates, Subsidiaries or divisions.
(b) New D&B shall not be required to provide the Corporation with
extraordinary levels of Transition Services, special studies, training, or the
like or the advantage of systems, equipment, facilities, training, or
improvements procured, obtained or made after the Distribution Date by New D&B.
(c) In addition to being subject to the terms and conditions of this
Agreement for the provision of the Transition Services, the Corporation agrees
that the Transition Services provided by third parties shall be subject to the
terms and conditions of any agreements between New D&B and such third parties.
New D&B shall consult with the Corporation concerning the terms and conditions
of any such agreements to be entered into, or proposed to be entered into, with
third parties after the date hereof but the Corporation shall have no right to
require New D&B to reject or amend any of such terms and conditions.
1.5 Limitation of Liability. In the absence of gross negligence or
willful misconduct on the part of New D&B, and whether or not New D&B is
negligent, New D&B shall not be liable for any claims, liabilities, damages,
losses, costs, expenses (including, but not limited to, settlements, judgments,
court costs and reasonable attorneys' fees), fines and penalties, arising out of
any actual or alleged injury, loss or damage of any nature whatsoever in
providing or failing to provide Transition Services for which it is responsible
hereunder to the Corporation. Notwithstanding anything to the contrary contained
herein, in the event New D&B commits an error with respect to or incorrectly
performs or fails to perform any Transition Service, at the Corporation's
request, New D&B shall use reasonable efforts and good faith to correct such
error, re-perform or perform such Transition Service at no additional cost to
such Recipient; provided, that New D&B shall have no obligation to recreate any
lost or destroyed data to the extent the same cannot be cured by the
re-performance of the Transition Service in question.
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1.6 Force Majeure. Any failure or omission by a party in the
performance of any obligation under this Agreement shall not be deemed a breach
of this Agreement or create any liability, if the same arises from any cause or
causes beyond the control of such party, including, but not limited to, the
following, which, for purposes of this Agreement shall be regarded as beyond the
control of each of the parties hereto: acts of God, fire, storm, flood,
earthquake, governmental regulation or direction, acts of the public enemy, war,
rebellion, insurrection, riot, invasion, strike or lockout; provided, however,
that such party shall resume the performance whenever such causes are removed.
Notwithstanding the foregoing, if such party cannot perform under this Agreement
for a period of forty-five (45) days due to such cause or causes, the affected
party may terminate the Agreement with the defaulting party by providing written
notice thereto.
1.7 Modification of Procedures. New D&B may make changes from time
to time in its standards and procedures for performing the Transition Services
for which it is responsible hereunder. Notwithstanding the foregoing sentence,
unless required by law, New D&B shall not implement any substantial changes
affecting the Corporation unless:
(a) New D&B has furnished the Corporation notice (which may be the
same notice New D&B shall provide its own businesses) thereof;
(b) New D&B changes such procedures for its own businesses at the
same time; and
(c) New D&B gives the Corporation a reasonable period of time for
the Corporation (i) to adapt its operations to accommodate such changes or
(ii) to reject the proposed changes. In the event the Corporation fails to
accept or reject a proposed change on or before a date specified in such
notice of change, the Corporation shall be deemed to have accepted such
change. In the event the Corporation rejects a proposed change but does
not terminate this Agreement, the Corporation agrees to pay any charges
resulting from New D&B's need to maintain different versions of the same
systems, procedures, technologies, or services or resulting from
requirements of third party vendors or suppliers.
1.8 Provider Access. To the extent reasonably required for personnel
of New D&B to perform the Transition Services hereunder, the Corporation shall
provide personnel of New D&B with access to its equipment, office space, plants,
telecommunications and computer equipment and systems, and any other areas and
equipment.
ARTICLE II
COMPENSATION
2.1 Consideration. As consideration for the Transition Services, the
Corporation shall pay to New D&B the amount specified for each such Transition
Service as set forth in the Appendix relating to such Transition Service.
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2.2 Invoices. After the end of each month, New D&B together with
such party's Affiliates or Subsidiaries providing Transition Services will
submit one invoice to the Corporation for all Transition Services provided to
the Corporation and its Subsidiaries by New D&B during such month. Such monthly
invoices shall be issued no later than the fifteenth day of each succeeding
month. Each invoice shall include a summary list of the previously agreed upon
Transition Service for which there are fixed dollar fees, together with
documentation supporting each of the invoiced amounts that are not covered by
the fixed fee agreements. The total amount set forth on such summary list and
such supporting detail shall equal the invoice total, and will be provided under
separate cover apart from the invoice. All invoices shall be sent to the
attention of Service Coordinator of the Corporation at the address set forth in
Section 6.5 hereof or to such other address as the Corporation shall have
specified by notice in writing to New D&B.
2.3 Payment of Invoices. (a) Payment of all invoices in respect of a
Transition Service shall be made by check or electronic funds transmission in
U.S. Dollars, without any offset or deduction of any nature whatsoever, within
thirty (30) days of the invoice date unless otherwise specified in the Appendix
relating to such Transition Service. All payments shall be made to the account
designated by New D&B, with written confirmation of payment sent by facsimile to
the Service Coordinator or other person designated thereby.
(b) If any payment is not paid when due, New D&B shall have the
right, without any liability to the Corporation, or anyone claiming by or
through the Corporation, to immediately cease providing any or all of the
Transition Services provided by New D&B to the Corporation, which right may be
exercised by New D&B in its sole and absolute discretion.
ARTICLE III
CONFIDENTIALITY
3.1 Obligation. Each party and its Subsidiaries shall not use or
permit the use of (without the prior written consent of the other parties) and
shall keep, and shall cause its consultants and advisors to keep, confidential
all information concerning the other party received pursuant to or in connection
with this Agreement.
3.2 Care and Inadvertent Disclosure. With respect to any
confidential information, each party agrees as follows:
(a) it shall use the same degree of care in safeguarding said
information as it uses to safeguard its own information which must be held
in confidence; and
(b) upon the discovery of any inadvertent disclosure or unauthorized
use of said information, or upon obtaining notice of such a disclosure or
use from the other party, it shall take all necessary actions to prevent
any further inadvertent disclosure or unauthorized use, and, subject to
the provisions of Section 1.5 above, such other party shall be entitled to
pursue any other remedy which may be available to it.
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ARTICLE IV
TERM AND TERMINATION
4.1 Term. This Agreement shall become effective on the Distribution
Date and shall remain in force until the expiration of the longest Time Period
specified in any Appendix hereto, including any extension thereof, unless this
Agreement is terminated under Sections 1.6, 4.2 or 6.16 prior to the end of such
Time Period.
4.2 Termination. If any party (hereafter called the "Defaulting
Party") shall fail to perform or default in the performance of any of its
obligations under this Agreement (other than a payment default), the party
entitled to the benefit of such performance (hereinafter referred to as a
"Non-Defaulting Party") may give written notice to the Defaulting Party
specifying the nature of such failure or default and stating that the
Non-Defaulting Party intends to terminate this Agreement with respect to the
Defaulting Party if such failure or default is not cured within fifteen days of
such written notice. If any failure or default so specified is not cured within
such fifteen day period, the Non-Defaulting Party may elect to immediately
terminate this Agreement with respect to the Defaulting Party; provided,
however, that if the failure or default relates to a dispute contested in good
faith by the Defaulting Party, the Non-Defaulting Party may not terminate this
Agreement pending the resolution of such dispute in accordance with Article V
hereof. Such termination shall be effective upon giving a written notice of
termination from the Non-Defaulting Party to the Defaulting Party and shall be
without prejudice to any other remedy which may be available to the
Non-Defaulting Party against the Defaulting Party.
4.3 Termination of Obligations. The Corporation specifically agrees
and acknowledges that all obligations of New D&B to provide each Transition
Service hereunder shall immediately cease upon the expiration of the Time Period
for such Transition Service, and New D&B's obligations to provide all of the
Transition Services for which New D&B is responsible hereunder shall immediately
cease upon the termination of this Agreement. Upon the cessation of New D&B's
obligation to provide any Transition Service, the Corporation shall immediately
cease using, directly or indirectly, such Transition Service (including, without
limitation, any and all software of New D&B or third party software provided
through New D&B, telecommunications services or equipment, or computer systems
or equipment).
4.4 Survival of Certain Obligations. Without prejudice to the
survival of the other agreements of the parties, the following obligations shall
survive the termination of this Agreement: (a) the obligations of each party
under Articles III and IV, and (b) New D&B's right to receive the compensation
for the Transition Services provided by it hereunder provided in Section 2.1
above incurred prior to the effective date of termination.
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ARTICLE V
DISPUTE RESOLUTION
5.1 Dispute Resolution. 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 of the Distribution Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Complete Agreement; Construction. This Agreement, including the
Appendices hereto, shall constitute the entire agreement between the parties
with respect to the subject matter hereof and shall supersede all previous
negotiations, commitments and writings with respect to such subject matter. In
the event of any inconsistency between this Agreement and any Appendix hereto,
the Appendix shall prevail. In the event and to the extent that there shall be a
conflict between the provisions of this Agreement and the provisions of any
other Ancillary Agreement, this Agreement shall control.
6.2 Other Ancillary Agreements. This Agreement is not intended to
address, and should not be interpreted to address, the matters specifically and
expressly covered by the other Ancillary Agreements.
6.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other parties.
6.4 Survival of Agreements. Except as otherwise contemplated by this
Agreement, all covenants and agreements of the parties contained in this
Agreement shall survive the Distribution Date.
6.5 Notices. All notices and other communications hereunder shall be
in writing and hand delivered or mailed by registered or certified mail (return
receipt requested) or sent by any means of electronic message transmission with
delivery confirmed (by voice or otherwise) to the parties at the following
addresses (or at such other addresses for a party as shall be specified by like
notice) and will be deemed given on the date on which such notice is received:
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To the Corporation:
The Reuben H. Donnelley Corporation
One Manhattanville Road
Purchase, New York 10577
Telecopy: (914) 933-6899
Attn.: Chief Legal Counsel
To New D&B:
The New Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, New Jersey 07974
Telecopy: (908) 665-5827
Attn.: Chief Legal Counsel
6.6 Waivers. The failure of any party to require strict performance
by any other party of any provision in this Agreement will not waive or diminish
that party's right to demand strict performance thereafter of that or any other
provision hereof.
6.7 Amendments. This Agreement may not be modified or amended except
by an agreement in writing signed by each of the parties hereto.
6.8 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 6.8 shall be void.
6.9 Successors and Assigns. The provisions to this Agreement shall
be binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns.
6.10 Subsidiaries. Each of the parties hereto shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any Subsidiary of such party or
by any entity that is contemplated to be a Subsidiary of such party on and after
the Distribution Date.
6.11 Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and should not be deemed to confer upon third
parties any remedy, claim, liability, reimbursement, claim of action or other
right in excess of those existing without reference to this Agreement.
6.12 Title and Headings. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
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6.13 Appendices. The Appendices shall be construed with and as an
integral part of this Agreement to the same extent as if the same had been set
forth verbatim herein. In the event of any inconsistency between the terms of
any Appendix and the terms set forth in the main body of this Agreement, the
terms of the Appendix shall govern.
6.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
6.15 Consent to Jurisdiction. Each of the parties irrevocably
submits to the exclusive jurisdiction of (a) the Supreme Court of the State of
New York, New York County, and (b) the United States District Court for the
Southern District of New York, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the parties agrees to commence any action, suit or proceeding relating
hereto either in the United States District Court for the Southern District of
New York or if such suit, action or other proceeding may not be brought in such
court for jurisdictional reasons, in the Supreme Court of the State of New York,
New York County. Each of the parties further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party's respective
address set forth above shall be effective service of process for any action,
suit or proceeding in New York with respect to any matters to which it has
submitted to jurisdiction in this Section 6.15. Each of the parties irrevocably
and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the Supreme Court of the State of New York, New York
County, or (ii) the United States District Court for the Southern District of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
6.16 Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions,
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
6.17 Laws and Government Regulations. The Corporation shall be
responsible for (i) compliance with all laws and governmental regulations
affecting its businesses and (ii) any use the Corporation may make of the
Transition Services to assist it in complying with such laws and governmental
regulations. New D&B shall not have any responsibility for the compliance by the
Corporation of such Transition Services with such laws and regulations.
6.18 Relationship of Parties. Nothing in this Agreement shall be
deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being understood and agreed that no provision
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contained herein, and no act of the parties, shall be deemed to create any
relationship between the parties other than the relationship of buyer and seller
of services nor be deemed to vest any rights, interests or claims in any third
parties. The parties do not intend to waive any privileges or rights to which
they may be entitled.
6.19 Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the
Distribution Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Transition
Services Agreement to be executed the day and year first above written.
THE DUN & BRADSTREET CORPORATION
By:
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Name:
Title:
THE NEW DUN & BRADSTREET
CORPORATION
By:
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Name:
Title: