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EXHIBIT 10.1
(MATERIAL DENOTED *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
MASTER SERVICE AGREEMENT
This Master Service Agreement ("Agreement") sets forth the terms and conditions
under which Dun & Bradstreet, Inc. ("D&B") licenses its information and
software, including services and documentation associated therewith
(collectively, "Information") to Customer. The Information to be licensed by D&B
is set forth on the information schedule, including the initial information
schedule on the reverse side hereof (collectively, "Schedule[s]"), to be
executed from time to time by D&B and Customer. The terms of each Schedule are
incorporated herein by reference and the terms of this Agreement shall apply to
all Schedules that are in effect at any time and all references herein to "this
Agreement" shall be deemed to include all such Schedules.
1. LICENSE GRANT - D&B grants Customer a non-exclusive license to use the
Information as set forth on the applicable Schedule(s) subject to these terms.
2. DURATION AND LOCATION OF LICENSE - Where Information is licensed for
one-time use, Customer agrees to use such Information to generate a single
mailing and for no other purpose. Except for information provided for one-time
use, and except as otherwise set forth on any Schedule, Information may be used
by Customer throughout the continuous twelve (12) month period commencing the
sooner of the date of the initial shipment of any Information or thirty (30)
days after the signing of the applicable Schedule, unless this Agreement is
terminated earlier as provided below. Unless otherwise specified on the
applicable Schedule or agreed in writing, Customer is permitted to use
Information only at the "▇▇▇▇ To" (or "Ship To", if applicable) address on such
Schedule. Upon the expiration of the term of any Schedule, Customer shall
immediately return to D&B (if requested by D&B) all Information (including
copies) provided pursuant to that Schedule, or, if D&B has not requested their
return within thirty (30) days of such expiration. Immediately destroy all of
such Information (including copies).
3. RESTRICTIONS ON USE - All Information licensed to Customer pursuant to this
Agreement is provided for the exclusive use of Customer. None of the Information
may be available in whole or in part to any third party except that Customer may
furnish information to a third party for handling or processing upon the signing
by Customer and the third party of D&B's Processor's Agreement and its
acceptance by D&B. Unless otherwise specified on the applicable Schedule or
agreed in writing, Customer may not provide information to, or permit its use by
or for, any parent, subsidiary, affiliated entity or franchise of or dealer for
Customer. If Customer is a publisher, however, Information may be made available
to independent audit bureaus solely as an aid in auditing Customer's
circulation. Customer is expressly prohibited from using Information as a factor
in establishing an individual's eligibility for (i) credit or insurance to be
used primarily for personal, family or household purposes, or (ii) employment.
Customer is further prohibited from using Information to engage in unfair or
deceptive practices. Customer shall not copy any software licensed hereunder
except for backup/archival purposes. Except for mailing records and software or
unless otherwise agreed in writing, Customer may use Information in the medium
in which it is delivered or may, at Customer's expense, copy information into
any one or more other media. Customer agrees that pressure-sensitive or Cheshire
mailing records on which Information is provided may be used only once and may
not be duplicated in whole or in part in any form or manner whatsoever.
4. LIMITED WARRANTY - Customer acknowledges that the amounts to be paid to D&B
for the Information will in most instances represent a small portion of
Customer's overall costs of the project, task or function for which the
Information will be used. Customer also acknowledges that the type of
Information
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licensed by D&B will contain a degree of error. Finally, Customer acknowledges
that the prices that D&B charges its customers for the information are based, in
part, upon D&B's expectation that the risk of any loss or injury that might be
incurred by a user of the Information in reliance upon the Information will be
borne by Customer. For these reasons, Customer agrees that it is responsible for
determining that all Information licensed by D&B is sufficiently accurate for
Customer's purposes. If Customer finds that the Information is not sufficiently
accurate for its purposes following receipt by Customer and Inspection of the
same, then it must so notify D&B within fifteen (15) days after receipt. Upon
its receipt of such notice D&B shall, at its option, either correct the defect
at D&B's expense or refund any amounts paid by Customer for defective
Information. D&B DOES NOT GUARANTEE OR WARRANT THE CORRECTNESS, COMPLETENESS,
CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
INFORMATION OR OF THE MEDIA ON WHICH THE INFORMATION IS PROVIDED AND SHALL NOT
BE LIABLE TO CUSTOMER FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED IN WHOLE
OR IN PART, BY D&B'S NEGLIGENT ACTS OR OMISSIONS IN PROCURING, COMPILING,
COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING THE
INFORMATION OR IN OTHERWISE PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT.
CUSTOMER AGREES THAT D&B WILL NOT BE LIABLE FOR CONSEQUENTIAL DAMAGES, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH STATES D&B'S ENTIRE
LIABILITY AND CUSTOMER'S REMEDY FOR BREACH OF THIS AGREEMENT.
5. LIMITATION OF LIABILITY - IF, NOTWITHSTANDING PARAGRAPH 4 ABOVE, LIABILITY
CAN BE IMPOSED ON D&B, THEN CUSTOMER AGREES THAT D&B'S AGGREGATE LIABILITY FOR
ANY AND ALL LOSSES OR INJURIES TO CUSTOMER ARISING OUT OF ANY ACTS OR OMISSIONS
OF D&B IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED UNDER THIS AGREEMENT,
REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY (INCLUDING NEGLIGENCE) AND
REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN
VIOLATED, SHALL NEVER EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE INFORMATION
FURNISHED UNDER THE SUBJECT SCHEDULE OR $25,000.00, WHICHEVER IS GREATER, AND
CUSTOMER COVENANTS AND PROMISES THAT IT WILL NOT ▇▇▇ D&B FOR AN AMOUNT GREATER
THAN SUCH SUM AND THAT IT WILL NOT SEEK PUNITIVE DAMAGES IN ANY SUIT AGAINST
D&B.
6. USE OF D&B'S NAME - Neither D&B, Dun & Bradstreet nor any of their trade
names, trademarks or service marks may be used for any purpose as the
identification of Customer's source or reference.
7. RIGHTS - Customer acknowledges that the Information is proprietary to D&B
and comprises: (a) works of original authorship, including compiled information
containing D&B's selection, arrangement and coordination and expression of such
information or pre-existing material it has created, gathered or assembled; (b)
confidential and trade secret information; and (c) information that has been
created, developed and maintained by D&B at great expense of time and money such
that misappropriation or unauthorized use by others for commercial gain would
unfairly and irreparably harm D&B. Customer shall not commit or permit any act
or omission that would impair D&B's rights in the Information. Customer shall
reproduce D&B's copyright notice on all authorized copies of the Information.
8. ACCEPTANCE AND TERMINATION - This Agreement and any Schedule hereto shall not
be binding upon D&B until accepted by it. D&B may elect to terminate this
Agreement and any Schedule prior to expiration upon written notice in the event
of a breach thereof by Customer, and otherwise upon thirty (30) days written
notice. The termination of this Agreement or any Schedule shall, at D&B's
option, be deemed to terminate all
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Schedules then in effect. In the event of termination, Customer shall
immediately return to D&B all Information provided by D&B (including copies)
and, if the termination is elected by D&B in the absence of a breach by
Customer, then D&B shall refund the unearned portion of any consideration paid
by Customer.
9. CUSTOMER INFORMATION - If in connection with this Agreement D&B is provided
with proprietary information from Customer (such as customer lists), then D&B
agrees to treat that information in the same manner as D&B treats its own
proprietary information that it does not wish to be disclosed to anyone else and
D&B agrees not to use that information except for the purpose of performing its
obligation under this Agreement.
10. GENERAL - This Agreement contains the entire and only agreement between
Customer and D&B regarding the subject matter hereof, and there are merged
herein all prior and collateral representations, warranties, promises and
conditions. Any representation, warranty, promise or condition not incorporated
herein shall not be binding upon either party. Paragraph headings are for
convenience only and shall not be used in construing this Agreement. In the
event of a conflict between the terms and conditions of this Agreement and the
terms and conditions of any Schedule, the terms and conditions of this Agreement
shall control. This Agreement and each Schedule shall be binding upon and shall
inure to the benefit of the parties and their respective successors and
permitted assigns except that neither this Agreement nor any Schedule may be
assigned by Customer without the prior written consent of D&B. If any provision
of this Agreement or any Schedule is held invalid by a court of competent
jurisdiction, the remainder of this Agreement or any Schedule shall remain in
effect and the invalid provision shall be deemed amended to the extent necessary
to make it valid while still giving effect to the agreement of the parties. No
waiver or amendment of this Agreement or any Schedule shall be binding on either
part unless it is in writing and is signed by an authorized official of D&B and
Customer.
BY SIGNING ON THE FRONT SIDE HEREOF, D&B AND CUSTOMER AGREE TO AND INTEND TO BE
BOUND BY THE MASTER SERVICE AGREEMENT ABOVE.
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INFORMATION PROVIDER AGREEMENT
(ELECTRONIC DIRECTORIES)
This Information Provider Agreement ("Agreement") is entered into the
27 day of April, 1999 by and between Pro Net Link Corporation ("Company"), with
its office at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Dun &
Bradstreet, Inc. ("Provider"), with its office at one ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
1. DEFINITIONS. The definition of terms set forth in this Section shall
apply in this Agreement.
(a) "D&B Data" means Provider's proprietary information on
individual businesses and made up of the data elements (if available) and
containing the number of records set forth on Schedule A.
(b) "Company Directory" means an electronic directory of
businesses using D&B Data as the source of such information to be accessed via a
graphical interface on the "Internet" commonly known as the "world wide web",
which directory is not intended to be used as a source of marketing or
telemarketing lists.
(c) "Company Directory Users" means users of the Company
Directory. A user (member) is further defined as a paying member and not a free
tour guest. Members will have full access to the database.
2. LICENSE.
(a) ***
(b) ***
(c) ***
3. ROYALTIES, BILLING, PAYMENT AND AUDIT RIGHTS.
(a) ***
(b) ***
(c) Provider shall have the right at its expense on reasonable notice
to enter Company's offices to audit Company's records to determine its
compliance with any of the terms and
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conditions of this Agreement,
4. OBLIGATIONS AND RESTRICTIONS.
(a) Company shall only use D&B Data in the Company Directory in the
manner set forth herein and will only permit access and searching of D&B Data
as set forth herein. Downloading of D&B Data from the Company Directory shall
not be permitted.
(b) Company will provide Provider with an opportunity to review the
format and functionality of the Company Directory to determine its compliance
with the terms of this Agreement prior to and after implementation and will
incorporate changes necessary to bring the Company Directory into compliance
with this Agreement.
(c) D&B Data may only be displayed in "hypertext markup language".
(d) Company will monitor access to the Company Directory by Company
Directory Users and shall provide written notice (which notice shall contain the
IP address and the number of searches executed) to Provider on a weekly basis
when any single IP address has executed over one hundred (100) searches in any
one (1) calendar week. Provider may then request that Company deny further
access to such Company Directory User and Company shall promptly deny access.
(e) Data or information may be added to the D&B Data by Company or
Company may update the D&B Data in cases of data correction, as long as D&B
branding is not used in association with the site.
(f) Search results displayed to Company Directory Users will be
limited to 15 (fifteen) candidates per search. The parties agree to discuss
such limitation in good faith during the term of this Agreement and to modify it
if mutually agreed to. The list of candidates will be presented on two (2)
sequential screens. The first screen will contain a list of all candidates and
for each candidate will display company name, street address, city and state or
province. Any additional data on a candidate will be contained and displayed on
the second screen and will only be accessible on a one-at-a time basis. Such
additional candidate data will be telephone number and ZIP code and will be
accessible only via hypertext link or check box.
(g) Company shall have the right to cosmetically reformat the D&B
Data via using bold type, producing candidate lists in the order specified by
Company and by other reasonable cosmetic means.
(h) Company shall have the right to link the D&B Data to the
advertisements of the subject of such D&B Data record and display such
advertisement adjacent to the D&B Data.
(i) The D&B Data shall be housed at Company locations and web site
host only. Company may make one (1) copy of the D&D Data for backup purposes
only.
(j) The first screen of the Company Directory will prominently
display the following language: "The information contained in the Company
Directory ("Information") is provided for business lookup purposes and is not be
to used for marketing or telemarketing applications. The information may not
be, copied or redistributed and is provided "AS IS" without warranty of any
kind. In no event will Pro Net Link Corporation or its suppliers be liable in
any way with regard to such information. Your use of the Company Directory
indicates your agreement to these terms. If you do not agree to these terms,
please exit the Company Directory now."
(k) Company agrees to develop and implement, prior to the commercial
availability of the Company Directory, and on an ongoing basis thereafter,
reasonable technical devices to protect the D&B Data from unauthorized access
and use.
(l) Company represents and warrants that its use of the D&B Data
delivered hereunder by Provider shall in all cases comply with all federal,
state and local laws, statutes, rules, regulations and ordinances. Company
further represents that all mail or other marketing program using any D&B Data
delivered hereunder shall conform to generally recognized standards of high
integrity and good taste.
5. DELIVERY. Provider shall provide Company with a copy of the D&B Data
on a date to be agreed upon by the parties. When Provider provides Company with
the D&B Data, Company agrees to promptly load same into its copy of such file
and to make same commercially available in the Company Directory.
6. DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY, INDEMNITY.
(a) PROVIDER DOES NOT GUARANTEE OR WARRANT THE CORRECTNESS,
COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OF THE D&B DATA AND SHALL NOT BE LIABLE TO COMPANY OR COMPANY DIRECTORY USERS
FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY
PROVIDER'S NEGLIGENT ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING,
INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING THE D&B DATA OR IN
OTHERWISE PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT. PROVIDER WILL HAVE NO
LIABILITY WHATSOEVER FOR CONSEQUENTIAL, PUNITIVE, INDIRECT OR INCIDENTAL
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) PROVIDER'S LIABILITY FOR ANY AND ALL LOSSES OR INJURIES TO
COMPANY ARISING OUT OF ANY ACTS OR OMISSIONS OF PROVIDER IN CONNECTION WITH
ANYTHING TO BE DONE OR FURNISHED UNDER THIS AGREEMENT, REGARDLESS OF THE CAUSE
OF THE LOSS OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE
LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED (WHETHER IN CONTRACT OR
IN TORT), SHALL NOT EXCEED THE AMOUNT OF ROYALTIES RECEIVED BY PROVIDER
HEREUNDER.
(c) Notwithstanding anything to the contrary set forth herein,
Company agrees to fully indemnify, defend and hold Provider harmless from
liability resulting from or bearing on any and all claims, suits and causes of
action asserted or brought against Provider by a Company Directory User or any
third party based on any allegation regarding the Company Directory but
unrelated to the D&B Data contained in the Company Directory.
(d) Notwithstanding anything to the contrary set forth herein, each
party shall defend, indemnify and save the other harmless from and against all
costs, losses, damages and liabilities, including without limitation reasonable
attorneys' fees, which may be incurred by such party on account of the breach by
the other of any of such party's warranties contained in this Agreement, as
applicable. In addition, (i) Provider shall indemnify Company under this
paragraph from and against any claim that the D&B Data infringes on the United
States copyright, trade secret or trademark rights of any third party (provided
that the D&B Data is used as permitted by this Agreement) and (ii) Company shall
indemnify Provider under this paragraph from any claim that the Company
Directory (except for the D&B Data contained therein) or any of the technology
utilized by Company in developing, creating or distributing the Company
Directory infringes the copyright, patent, trademark or trade secret rights of
any third party.
(e) The foregoing indemnities are conditioned upon prompt written
notice to the indemnifying party by the indemnified party of any claim or
proceeding subject to indemnity; reasonable cooperation by the indemnified party
in the defense and settlement of such claim at the expense of the indemnifying
party; and prior written approval by both parties of any settlement or
compromise of the claim, which approval shall not be unreasonably withheld. An
indemnified party may elect to take control of the defense of a claim or
proceeding at its expense.
7. PROPRIETARY RIGHTS OF PROVIDER. Company acknowledges that the D&B
Data is proprietary to Provider and comprises: (a) works of original authorship,
including compiled information containing the Provider's selection, arrangement
and coordination and expression of such information or pre-existing material it
has created, gathered or assembled; (b) confidential and trade secret
information; and (c) information that has been created, developed and maintained
by the Provider at its expense such that misappropriation or unauthorized use by
others for commercial gain would harm Provider. Company shall not commit, nor
assist Company Directory Users to commit any act or omission that would impair
Provider's rights in the D&B Data.
8. USE OF PROVIDER'S NAME. Company shall not use the Provider's name or
trademarks in any way under this Agreement without Provider's prior written
consent.
9. TERM AND TERMINATION.
(a) This Agreement and the license granted herein shall commence on
the date of execution and shall continue in force for a period of one (1) year
from such date.
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(b) This Agreement may be terminated as follows:
(i) by either party in the event of the default by the other
party as provided in Paragraph 12.
(ii) by either party immediately upon written notice to the
other party if the other party becomes insolvent, makes an assignment for the
benefit of creditors, suffers or permits the appointment of a receiver for its
business or assets, files or otherwise becomes the subject of any proceeding
under any bankruptcy or insolvency law, or has wound up or liquidated its
business.
(iii) by Provider upon ten (10) days written notice to
Company if Company becomes affiliated through common ownership or control with
any of the entities set forth on Schedule C.
(iv) by Provider on ten (10) days notice if Provider has
reasonable evidence that Company Directory Users are accessing and downloading
D&B Data for use in direct marketing or telemarketing applications.
(v) by Provider immediately if Company charges Company
Directory Users for accessing, searching or obtaining D&B Data. Both parties
agree that the charge to Company Directory Users is for an annual membership fee
to subscribe to the Company Directory and entitles the user to certain
membership privileges, which privileges do not include accessing, searching or
obtaining the D&B Data as a stand-alone service.
(vi) by either party on written notice if the other party is
indicted or subject to adverse publicity such that the terminating party
reasonably believes that it is no longer in its interest to maintain this
relationship.
(c) Termination of this Agreement in accordance with its terms shall
not affect the rights or obligations of either Party that are vested as of the
effective date of such termination or intended by the parties to survive such
termination.
(d) upon expiration or termination of this Agreement, Company shall
immediately stop using the D&B Data and shall return it and all copies thereof
to Provider.
10. PROTECTION OF PROPRIETARY RIGHTS.
(a) Provider acknowledges that the tangible and intangible
information specifically designated by Company as confidential, including the
design, Plans, specifications, software manuals, customer lists, supplier data,
customer data, cost and price data, marketing information (other than D&B Data)
and other information relating to the Company Directory that is designated as
confidential, whether disclosed to Provider in connection with this Agreement or
otherwise, constitutes valuable confidential and proprietary information of
Company (collectively, "Company Confidential Information"). Notwithstanding the
foregoing, Company Confidential Information shall not include information that
was lawfully disclosed to Provider free of any obligation to keep it
confidential, information that is or that becomes publicly available by other
than unauthorized disclosure and information that is independently developed by
Provider. Provider shall not use or disclose and shall not suffer or permit its
employees, agents or any other parties to use or disclose such Company
Confidential Information other than as contemplated by this Agreement without
Company's prior written consent. Provider shall inform Company promptly after
discovery
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of any unauthorized use or disclosure of any of the Company Confidential
Information and shall furnish to Company all available information and
reasonably cooperate with Company regarding such disclosure.
(b) Company acknowledges that the tangible and intangible information
specifically designated by Provider as confidential, including data, formats and
layouts, the terms of this Agreement, and other information relating to the D&B
Data, whether disclosed to Company in connection with this Agreement or
otherwise, constitutes valuable confidential and proprietary information of
Provider (collectively, "Provider Confidential Information"). Notwithstanding
the foregoing, Provider Confidential Information shall not include information
that was lawfully disclosed to Company free of any obligation to keep it
confidential, information that is or that becomes publicly available by other
than unauthorized disclosure and information that is independently developed by
Company. Company shall not use or disclose and shall not suffer or permit its
employees, agents or any other parties to use or disclose such Provider
Confidential Information other than as contemplated by this Agreement without
Provider's prior written consent. Company shall inform Provider promptly after
discovery of any unauthorized use or disclosure of any Provider Confidential
Information and shall furnish to Provider all available information and
reasonably cooperate with Provider regarding such disclosure.
(c) Each party recognizes and agrees that its breach of the provisions
of this Paragraph 10 may cause immediate and irreparable harm to the other
party, and that in the event of such breach, the other party, in addition to any
damages to which it may be entitled, shall have the right to seek injunctive
relief against the other party.
11. ENTIRE AGREEMENT. This Agreement, including all Schedules, embodies
the entire understanding between the parties with respect to the subject matter
hereof and supersedes any and all prior understandings and agreements, oral or
written, relating thereto. Any amendment to this Agreement, including its
Schedules, must be in writing and signed by each party.
12. DEFAULT. Upon the breach of any material obligation under this
Agreement by either party, the aggrieved party may give to the defaulting party
written notice of such breach, which notice shall specify the exact nature of
the breach and shall expressly state the aggrieved party's intention to
terminate this Agreement in the event the breach is not remedied and any damages
to be paid within ten (10) days after the receipt of such notice. If, after the
expiration of such period, the defaulting party has filed or refuses to remedy
such breach and to pay the damages caused thereby, this Agreement may be
terminated forthwith effective upon dispatch of notice by the aggrieved party to
the defaulting party. The right of either party to terminate this Agreement on
default is not an exclusive remedy, and an aggrieved party shall be entitled
alternatively or cumulatively to seek damages for breach of this Agreement, to
seek an order requiring performance of the obligations of this Agreement, or to
seek any other appropriate remedy.
13. NOTICES. Every notice or other communication required or
contemplated by this Agreement by either party shall be delivered in person or
sent by postage prepaid mail, which shall
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be air mail if posted in a country other than that of the addressee, telex,
facsimile transmission, express delivery or courier, addressed to the party for
whom intended at the address specified at the beginning of this Agreement or at
such other address as the intended recipient previously shall have designated by
written notice to the other party. Notice shall be effective on delivery. Notice
not given in writing shall be effective only if explicitly or implicitly
acknowledged in writing by the party to whom it was given.
14. ASSIGNMENT. This Agreement shall not be assigned by either party
without the other party's prior written consent, except that Provider may assign
this Agreement to a successor corporation that results from a merger or
corporate reorganization, or to its parent or any affiliate, without such
consent.
15. SEVERABILITY. Should any provision of this Agreement be held to be
void, invalid, unenforceable or illegal by a court, the validity and
enforceability of the other provisions shall not be affected thereby.
16. NO WAIVER. Failure of either party at any time to require
performance by the other party of any obligation under this Agreement shall not
affect the right of such party to require performance of that obligation. Any
waiver by either party of any breach of any provision of this Agreement shall
not be construed as a waiver of any continuing or succeeding breach of such
prevision, a waiver or modification of the provision itself or a waiver of
modification of any right under this Agreement.
17. GOVERNING LAW. This Agreement shall be governed by and construed
under the law of the State of New Jersey.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
PRO NET LINK CORPORATION DUN & BRADSTREET, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By:
------------------------- --------------------------------
Title: Chief Operating Officer Title:
------------------------- --------------------------------
Date: 4/27/99 Date:
------------------------- --------------------------------
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SCHEDULE A
List of Data Elements
Approximately 3 million worldwide business records comprised of the
following data elements:
Top Contact Name
Company Name
Address
City, State, ZIP Code
Country Code
Telephone Number
FAX Number (International records only, where available)
Line of Business description
SIC Code (Primary, 4-digit)
URL (U.S. records only)
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SCHEDULE B
Royalties
***
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SCHEDULE C
List of Restricted Entities
***
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SCHEDULE D
PROCESSOR'S AGREEMENT
This D&B/Processor Data Processing Agreement Is entered into this ___
day of __________, 1999, by and among Dun & Bradstreet, Inc., acting for itself
and on behalf of all other companies of The Dun & Bradstreet Corporation, ▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("D&B"), Rare Medium, Inc.,
having an address at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Processor")
and Pro Net Link Corporation ("Customer").
This D&B/Processor Data Processing Agreement is based upon the
following:
A. D&B is the owner of a valuable, proprietary and copyrighted database
containing information on businesses that D&B licenses to third parties for use
in their credit, marketing and other business decision-making.
B. D&B and Customer are parties to an Agreement dated April _, 1999
(the "License Agreement") under which D&B is licensing information from its
database to Customer. The "Licensed Information"), as that term is used herein,
means all or any portion of the information that is licensed to Customer
pursuant to the License Agreement.
C. Customer wishes to provide the Licensed Information to Processor
solely for processing and handling for and on behalf of Customer. D&B is willing
to permit Customer to provide the Licensed Information to Processor for this
purpose subject to Customers and Processor's joint and several agreement to the
terms and conditions of this D&B/Processor Data Processing Agreement.
NOW, THEREFORE, in consideration of the foregoing, and with the intent
to be legally bound hereby, the parties agree as follows:
1. As between Processor and D&B, all Licensed Information provided to
Processor is and shall remain the property of D&B and is and shall be subject to
the copyright of D&B that covers the gathering of large amounts of information,
the selection therefrom and the rendition thereof into usable forms and formats,
Processor shall do nothing inconsistent with the copyright or other proprietary
rights of D&B In and to the Licensed Information.
2. No Licensed Information, whether provided directly to Processor by
D&B or provided to Processor by Customer, shall be either duplicated by
Processor or integrated with information belonging to Processor or any parent,
subsidiary or affiliate of Processor for the benefit of Processor, or any
parent, subsidiary or affiliate of Processor or any third party other than
Customer or be made available by Processor to any parent, subsidiary or
affiliate of Processor or any third party other than Customer.
3. All Licensed information, including all copies thereof, shall be
returned to D&B or otherwise destroyed at the expiration or earlier termination
of the License Agreement and none of
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the Licensed information shall be retained by Processor. In addition, if
Customer is provided with one (1) or more periodic updates of the Licensed
Information during the term of the License Agreement, then Processor shall
promptly return all previously-provided Licensed Information, including all
copies thereof, upon its receipt of an update thereof.
4. Upon the expiration or earlier termination of this D&B/Processor
Data Processing Agreement, Processor shall provide D&B with a letter, signed by
an officer of Processor, certifying that Processor has fully complied with all
of the terms and conditions of Sections 2 and 3 hereof.
5. a. Except as expressly authorized by subparagraph 5(b) below,
Processor shall not analyze or otherwise use the Licensed Information to
familiarize itself with the nature, character or quality of the Licensed
Information nor shall Processor use any information it obtains as a result of
its handling, processing or possession of the Licensed Information for its
benefit, for the benefit of any parent, subsidiary or affiliate or for the
benefit of any third party other than Customer. Without limiting the generality
of the foregoing, Processor shall not use the Licensed Information or
Information obtained as a result of its handling, processing or possession of
the Licensed Information in connection with the creation, testing, enhancement,
promotion, marketing, selling and/or licensing of products or services offered
by Processor, any parent, subsidiary or affiliate of Processor or any third
party other than Customer.
b. Notwithstanding the prohibitions contained in subparagraph 5(a)
above, D&B agrees that Processor may analyze the Licensed Information for the
sole benefit of Customer, provided that Customer promptly provides D&B with
copies of all reports that Processor provides Customer that in any way refer to
or reflect upon the results of such analysis.
6. During the term of this D&B/Processor Data Processing Agreement, and
for a period of one (1) year thereafter, D&B shall have the right, no more than
three (3) times per year, and upon five (5) business days written notice, to
enter Processor's premises during normal business hours to conduct an audit to
determine if Processor has complied with the material terms of this
D&B/Processor Data Processing Agreement. Such audit shall be limited to an
examination of files In Processor's possession, including all hard copy and
machine readable databases which D&B reasonably believes pertinent to
Processor's uses of the Licensed Information. D&B agrees that it shall use best
efforts to minimize any adverse impact such audit may have upon Processor's
normal business operations. Processor agrees to reasonably cooperate with D&B in
connection With such audit and to make the pertinent files in its possession
accessible to D&B and its auditors.
7. Customer agrees to Indemnify D&B from any losses or damages that D&B
may incur as a result of Processor's failure or refusal to comply with any of
the material terms and conditions of this D&B/Processor Data Processing
Agreement provided that D&B: (a) provides Customer and Processor with prompt
notice of any Such claim, (b) allows Customer the ability to participate, at
Customer's expense, in the defense of any such claim and (c) does not settle or
otherwise dispose of any such claim without the prior written consent of
Customer. Processor agrees to indemnify Customer from any losses, damages or
expenses (including, without limitation, attorneys', accountants' and outside
advisors' fees and disbursements) that Customer may incur as a result of
14
Processor's failure or refusal to comply with any of the material terms and
conditions of this D&B/Processor Data Processing Agreement; provided that
Customer (a) provides Processor with prompt notice of any such claim, (b) allows
Processor the ability to participate, at Processor's expense, in the defense of
such claim and (c) does not settle or otherwise dispose of any such claim
without the prior written consent of the Processor. Notwithstanding the
foregoing, Processor shall not be liable to Customer for any losses, damages or
expenses in excess of the amount actually paid by Customer to Processor pursuant
to the terms of that certain Development Agreement, dated as of August 28, 1998,
between Customer and Processor (the "Development Agreement") and nothing
contained herein is intended to amend or modify any limitation on the aggregate
amount payable by Processor to Customer pursuant to the Indemnification
provisions of the D&B/Processor Data Processing Agreement.
8. D&B and Customer hereby represent and warrant that, as of the date
hereof, D&B has not asserted any claim that Processor has failed to comply with
material terms and conditions hereof and Customer is not otherwise aware of any
facts constituting a basis for such claim.
9. Processor may terminate this D&B/Processor Data Processing Agreement
upon written notice to Customer who shall promptly notify D&B of Processor's
termination. This D&B/Processor Data Processing Agreement shall also terminate
automatically upon the expiration or earlier termination of the underlying
contract or other arrangement under which Customer engages Processor to process
the Licensed Information. Customer shall give D&B prompt written notice of any
such expiration or earlier termination. No termination of this D&B/Processor
Data Processing Agreement shall be effective, however, until Processor has
compiled with its obligations under paragraphs 3 and 4 above.
10. This D&B/Processor Data Processing Agreement represents the entire
agreement among Customer, Processor and D&B with regard to the subject matter
hereto and there are merged herein all prior and collateral promises, terms and
conditions. D&B and Customer acknowledge that they are parties to another
Agreement that also concerns the subject matter hereof but that the two-party
agreement is not affected by the foregoing "merger" provision. This
D&B/Processor Data Processing Agreement shall bind and inure to the benefit of
the parties and their successors and permitted assigns. This D&B/Processor Data
Processing Agreement may not be assigned, nor may any party's obligations
hereunder be subcontracted, without the prior written consent of the other
parties which shall not be unreasonably withheld or delayed, except that no
consent shall be required for either an assignment of this D&B/Processor Data
Processing Agreement by D&B to another company of The Dun & Bradstreet
Corporation as a subcontractor. This D&B/Processor Data Processing Agreement may
not be amended, nor shall any waiver of rights hereunder be effective, unless
the amendment or waiver is in writing and is signed by all of the parties
hereto. If any provision of this Agreement is found by a court of competent
jurisdiction to be unenforceable, then the court is hereby authorized to modify
that provision to make it enforceable and, failing that, to
15
reform the contract by removing the unenforceable provision. This Agreement
shall be governed by the law of the State of New Jersey, without giving effect
to its conflicts of laws provisions.
Customer: Processor:
---------------------------------- -----------------------------------
[Type or print legal name] [Type or print legal name]
By: By:
--------------------------- -----------------------------
Name: Name:
--------------------------- -----------------------------
Title: Title:
--------------------------- -----------------------------
Accepted By:
DUN & BRADSTREET, INC.
By:
-------------------------------
Name:
-------------------------------
Date:
-------------------------------
16
MASTER SERVICE AGREEMENT AND DUN & BRADSTREET
INITIAL INFORMATION SCHEDULE INFORMATION SERVICES
No. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ - (▇▇▇) ▇▇▇-▇▇▇▇
The undersigned ("Customer") hereby employs Dun & Bradstreet, Inc. to furnish
the information listed below pursuant to this Schedule:
Description of Information:
3,000,000 Telemarketing Records Geography Worldwide
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Price: ***
--------------------------------------------------------------------------------
Prices may be based upon an estimated yield. If such yield does not meet the
estimate, Customer will accept any yield and price within the following ranges:
MINIMUM QUOTED ESTIMATE MAXIMUM
Yield:
-------- --------------------------- -------------
Price: ***
-------- --------------------------- -------------
SHIPPING: Method of shipping will be as requested by Customer and will be billed
accordingly.
SALES TAX: Customer shall pay all applicable state and local taxes.
TERMS OF PAYMENT: Promptly, but no later than 30 days
after receipt of invoice.
/ / Check if use is one-time only.
CUSTOMER BILLING INFORMATION: Circle one for credit card charges:
MasterCard / Visa / Amercian Express
Card No: Exp. Date: Card Holder's Name:
---------------- -------- --------------
--------------------------------------------------------------------------------
Company Name P R O N E T L I N K C O R P
--------------------------------------------------------------------------------
Address 6 4 5 5 T H A V E N U E -
S U I T E 3 0 3
--------------------------------------------------------------------------------
City N E W Y O R K STATE N Y
ZIP 1 0 0 2 2 SIC 4 8 1 3
--------------------------------------------------------------------------------
Attention D A V E W A L K E R
--------------------------------------------------------------------------------
Telephone 2 1 2 - 6 8 8 - 8 8 3 8
--------------------------------------------------------------------------------
FAX 2 1 2 - 3 1 9 - 4 5 9 8
--------------------------------------------------------------------------------
CUSTOMER SHIPPING INFORMATION:
--------------------------------------------------------------------------------
Company Name P R O N E T L I N K C O R P
--------------------------------------------------------------------------------
Address 6 4 5 5 T H A V E N U E -
S U I T E 3 0 3
--------------------------------------------------------------------------------
City N E W Y O R K STATE N Y
ZIP 1 0 0 2 2 SIC 4 8 1 3
--------------------------------------------------------------------------------
Attention D A V E W A L K E R
--------------------------------------------------------------------------------
Telephone 2 1 2 - 6 8 8 - 8 8 3 8
--------------------------------------------------------------------------------
FAX 2 1 2 - 3 1 9 - 4 5 9 8
--------------------------------------------------------------------------------
A.E. Name ▇▇▇▇ ▇▇▇▇▇
Center 1 1 1 1 4 SID 3 5 6
--------------------------------------------------------------------------------
A.E. Telephone ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
IMPORTANT: THIS SCHEDULE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE MASTER
SERVICE AGREEMENT ON THE REVERSE SIDE, WHICH TERMS AND CONDITIONS ARE
INCORPORATED HEREIN.
AGREED BY: ACCEPTED BY:
Company Name: Pronetlink Corp. DUN & BRADSTREET, INC.
--------------------------
Authorized Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By:
------------------ --------------------------------
Name (Please Print): ▇▇▇▇▇ ▇▇▇▇▇▇ Title:
------------------- -----------------------------
Title: Chief Operating Officer Date:
--------------------------------- ------------------------------
Date: April 27, 1999
----------------------------------
REVIEWED: By:___________________ Title:__________________ Date:______________
By:___________________ Title:__________________ Date:______________
▇▇
▇▇
▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
04/28/99
▇▇▇▇ ▇▇▇▇▇▇
PRO NET LINK CORP.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ #▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear ▇▇▇▇ ▇▇▇▇▇▇:
We have enclosed the business information you requested and we thank you for
your order that includes the following items:
ITEM # QUANTITY DESCRIPTION OUTPUT MATERIALS
------ -------- ----------- ----------------
1 3,225,636 Worldbase Telemarketing Floppy Disk
If you have any questions about this information or if you would like to hear
about other D&B Sales, Marketing or Credit solutions, please don't hesitate to
call ▇▇▇▇ ▇▇▇▇▇, your Account Executive at ▇▇▇-▇▇▇-▇▇▇▇. For technical support,
contact our Customer Service Center at 800-234-3867.
Please refer to order number 0000654613 when calling.
Again, thank you for choosing Dun & Bradstreet. We appreciate your business.
Regards,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
Marketing