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EXHIBIT 10.5
SHARED TRANSACTION SERVICES AGREEMENT
BETWEEN
THE DUN & BRADSTREET CORPORATION
AND
THE NEW D&B CORPORATION
Dated as of ___________ __, 2000
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SHARED TRANSACTION SERVICES AGREEMENT (this "Agreement"), dated
as of________ __, 2000 (the "Agreement Date"), by and between The New D&B
Corporation, a Delaware corporation ("New D&B") and The Dun & Bradstreet
Corporation, a Delaware corporation (the "Corporation").
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 holders of
shares of common stock, par value $0.01 per share, of 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 ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's"), a subsidiary of the Corporation, has
purchased, pursuant to various written and oral agreements, the Services
described in this Agreement; and
WHEREAS, in order to facilitate the orderly continuation of
Moody's business for a transitional period after the Distribution Date and to
provide certain services to Moody's and the Corporation after the Distribution
Date, New D&B, on behalf of Service Provider, has agreed to provide to Moody's
and the Corporation (collectively, Moody's and the Corporation are referred to
herein as the "Recipient"), and the Corporation, on behalf of itself and
Moody's, has agreed to purchase from Service Provider, the Services described in
this Agreement.
NOW, THEREFORE, in consideration of the agreements 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) "Additional Services" shall mean those services, in addition to the
Services, requested by Recipient pursuant to Section 3.2.
(2) "Agreement" shall have the meaning set forth in the Heading.
(3) "Agreement Date" shall have the meaning set forth in the preamble.
(4) "Alternative Provider" shall mean any alternative external service provider
selected by Recipient for the provision of services similar to the Services
following the expiration or termination of this Agreement.
(5) "Corporation" shall have the meaning set forth in the preamble.
(6) "Distribution" shall have the meaning set forth in the Recitals.
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(7) "Distribution Agreement" shall mean the Distribution Agreement dated as of
________ __, 2000, between the Corporation and New D&B.
(8) "Distribution Date" shall mean the date on which the Distribution is made
under the Distribution Agreement.
(9) "Fees" shall mean those charges for the Services set forth in Schedule C.
(10) "Moody's" shall have the meaning set forth in the Recitals.
(11) "New D&B" shall have the meaning set forth in the preamble.
(12) "Parties" shall mean Service Provider and Recipient, collectively.
(13) "Party" shall mean either of Service Provider or Recipient, as the case may
be.
(14) "Recipient" shall have the meaning set forth in the Recitals.
(15) "Recipient Data" shall mean all data or information supplied by Recipient
to Service Provider for processing or transmission in connection with the
Services.
(16) "Service Provider" shall have the meaning set forth in the Recitals.
(17) "Service Provider Service Location" shall mean any location from which
Service Provider provides or performs the Services.
(18) "Service" shall mean the Shared Transaction Services.
(19) "Shared Transaction Services" shall mean the services described in Schedule
A.
(20) "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 are for reference
and convenience only and shall not be considered in the interpretation of this
Agreement.
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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.
ARTICLE 2. TERM OF AGREEMENT.
The term of this Agreement shall commence on the Distribution
Date and shall continue until the earlier of the date on which all services to
be provided hereunder have been completed (the "Term") and, with respect to any
particular service, the termination date applicable to such service as set forth
in Schedule A, in each case unless terminated earlier pursuant to Article 13.
ARTICLE 3. SERVICES.
3.1 Services. Service Provider shall provide to Recipient, and
Recipient shall purchase from Service Provider, the Shared Transaction Services.
The Services shall be of substantially the same type, quantity, quality and
utilization levels and 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.
3.2 Additional Services. In the event that Recipient desires to
receive Additional Services or requires an increase in volume of Services,
Recipient shall notify Service Provider. Service Provider shall provide
Additional Services or a requested increase in volume of Services, if Service
Provider and Recipient agree to the terms and conditions, including the fees,
for such additional services or increased volume of Services. Service Provider
and Recipient shall execute a written amendment to this Agreement setting forth
any additional terms and conditions applicable thereto, including any additional
fees.
ARTICLE 4. RECIPIENT OBLIGATIONS.
4.1 Generally. Recipient shall:
(1) comply with any reasonable instructions provided by Service Provider
that are necessary for Service Provider to adequately provide the
Services;
(2) comply with all standards and procedures applicable to the Service
Provider Service Location;
(3) promptly report any operational or system problem to Service Provider;
and
(4) maintain a business recovery plan detailing the requirements of
Recipient in the event of the occurrence of a disaster affecting the
Services and periodically test such plan.
4.2 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) that Recipient owns or operates
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and that are not located at the Service Provider Service Location necessary to
provide the Services or to transmit the Recipient Data for processing at the
Service Provider Service Location.
4.3 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 Services.
ARTICLE 5. PROPRIETARY RIGHTS.
5.1 Exclusive Property. All software and hardware used by Service
Provider to provide the Services is, or shall be, and shall remain, the
exclusive property of Service Provider or its third party licensor and Recipient
shall have no rights or interests in same.
5.2 Third-Party Licenses. With regard to any software set forth
on Schedule B used by Service Provider to provide the Services, in the event
that any licensor of such software to Service Provider does not permit Service
Provider to use such software or any portion thereof to provide the Services,
Recipient shall obtain a license for such software at its own cost (which
permits Service Provider to use such software to provide the Services) and
Service Provider shall reduce the Fees to reflect such reduction in its costs,
or in the event that Service Provider itself obtains the right to the software
set forth on Schedule B to provide the services, Service Provider shall have the
right to increase the Fees to reflect fifty percent (50%) of the increase in its
costs, and Service Provider shall not be responsible for the loss of the right
to use such software to provide the Services or for any failure or delay of
Recipient in procuring such license provided that Service Provider gives notice
to Recipient and reasonably assists Recipient in procuring such license.
ARTICLE 6. DATA
6.1 Form of Data. All data submitted by Recipient to Service
Provider in connection with the 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. Unless furnished to Service Provider by
Recipient, all media upon which Recipient Data is stored is and shall remain the
property of Service Provider. Recipient may, upon Service Provider's consent,
(1) provide Service Provider with a replacement for the media upon which the
Recipient Data is stored or (2) purchase such media from Service Provider at the
price specified by Service Provider.
6.4 Responsibility for Data. Recipient is responsible from the
Agreement Date for (1) the accuracy and completeness of the data submitted by
Recipient in connection with the Services and (2) any errors in and with respect
to data obtained from Service Provider because of any inaccurate or incomplete
data submitted by Recipient to Service Provider.
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ARTICLE 7. FEES
7.1 Fees. Recipient shall pay to Service Provider the fees set
forth in Schedule C in respect of each of the Services.
7.2 Time of Payment. The Fees shall be paid by Recipient as set
forth on Schedule C.
7.3 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 Services or the execution or
performance of this Agreement.
7.4 Late Payments. Any 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 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.
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ARTICLE 9. DISCLAIMER AND LIMITATION OF LIABILITY.
9.1 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SERVICE
PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE SERVICES,
EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
9.2 Limitation of Liability. Recipient acknowledges that the
Services are provided by Service Provider (1) at the request of Recipient in
order to accommodate the Distribution, (2) at Service Provider's cost and that
no profit is being made by Service Provider and (3) with the expectation that
Service Provider is not assuming any financial or operational risks, including
those usually assumed by a service provider. Except as may arise as a result of
a the gross negligence or willful misconduct of Service Provider, Recipient
agrees that Service Provider shall not be liable for any direct, indirect,
special, incidental, consequential or other damages, of any nature whatsoever,
including lost profits or savings, whether or not such damages are foreseeable,
or for any third party claims relating to the Services or Service Provider's
performance under this Agreement.
ARTICLE 10. DISPUTE RESOLUTION.
10.1 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.
10.2 Continuity of Services and Performance. Unless otherwise
agreed in writing, the Parties shall continue to provide the 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 11. CONTINUED PROVISION OF SERVICES.
11.1 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 Services, Service Provider
shall cooperate with Recipient in obtaining, at Recipient's sole expense, an
alternative source for the affected Services, and Recipient shall be released
from any payment obligation to Service Provider in respect of such Services
during the period of such force majeure.
11.2 Disaster Recovery. Service Provider shall maintain a
disaster recovery policy in accordance with Schedule A. Upon the occurrence of a
disaster affecting the Services, Service Provider shall implement the disaster
recovery policy and Recipient shall be responsible for its
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proportionate share of any fees incurred by Service Provider in connection with
implementing the disaster recovery policy.
ARTICLE 12. TERMINATION.
12.1 For Convenience. Recipient may terminate this Agreement at
any time during the Term upon one hundred eighty (180) days' notice to Service
Provider without any obligation to pay the Fees after such one hundred eighty
(180) day period. In the event that Recipient terminates this Agreement upon
less than one hundred eighty (180) day's notice, Recipient shall be required to
pay the Fees until the expiration of such one hundred and eighty (180) day
period.
12.2 Other. (a) Service Provider may terminate this Agreement as
set forth in Section 15.16 hereof.
ARTICLE 13. 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 Services to Recipient and for a period 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 of this Agreement or the
effective date of termination of this Agreement, Service Provider shall use
reasonable efforts to cooperate, at Recipient's expense (which shall not be
greater than Service Provider's costs related thereto), with (i) the Alternative
Provider or (ii) Recipient, in connection with the transfer of the Services and
the Recipient Data, from Service Provider to the facilities of (x) the
Alternative Provider or (y) Recipient, as requested by Recipient.
ARTICLE 14. MISCELLANEOUS PROVISIONS.
14.1 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.
14.2 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.
14.3 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.
14.4 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
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also be sent by registered express air mail on the date such notice is
transmitted by telecopy to the address specified below:
If to Service Provider:
The Dun & Bradstreet Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Legal Counsel
If to Recipient:
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
14.5 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.
14.6 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.
14.7 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.
14.8 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.
14.9 Entire Understanding. This Agreement represents the entire
understanding of the Parties with respect to the Services and supersedes all
previous writings, correspondence and memoranda with respect thereto, and no
representations, warranties, agreements or covenants,
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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 herein
expressly set forth.
14.10 Successors. Subject to the restrictions on assignment set
forth in Section 15.8, this Agreement shall be binding upon and inure to the
benefit of and be enforceable against the Parties hereto and their respective
successors and assigns.
14.11 Amendments. This Agreement can be modified or amended only
by a written amendment executed by both Parties.
14.12 Survival. The provisions of Article 5, Article 8, Article
9, Article 10, Article 11, Article 14, Section 6.2, Section 6.3, Section 7.2,
Section 13.2, Section 15.6, this Section 15.12 and Section 15.14 shall survive
the expiration or termination of this Agreement.
14.13 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.
14.14 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.
14.15 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.
14.16 Subcontractors and Outsourcing. 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 the Service Provider shall have the right to terminate this Agreement upon
one hundred fifty (150) days written notice without any obligation to pay the
Fees after such one hundred fifty (150) day period. Failure by the Corporation
to respond to such request within the time period set forth above shall be
deemed to indicate the Corporation's consent to such request.
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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 NEW D&B CORPORATION
By:
Name:
Title:
THE DUN & BRADSTREET CORPORATION
By:
Name:
Title: