1
EXHIBIT 99.6
FORM OF DATA SERVICES AGREEMENT
BETWEEN
[SERVICE PROVIDER]
AND
[RECIPIENT]
DATA CENTER LOCATION:
SERVICE PROVIDER:
RECIPIENT:
2
SCHEDULES
Schedule A Services and Capacity Levels
Schedule B Service Levels
Schedule C Reports
Schedule D Recipient Software
Schedule E Fees
Schedule F Extended Term Charges
Schedule G Service Provider Software
Schedule H Termination Fees
Schedule I Disaster Recovery
Schedule J Recipient Obligations
3
DATA SERVICES AGREEMENT (this "Agreement"), dated as of
___________, 1996 (the "Agreement Date"), by and between [ ] ("[
]") and [ ] ("[ ]").
W I T N E S S E T H:
WHEREAS, the Board of Directors of The Dun & Bradstreet
Corporation ("D&B") has determined that it is appropriate, desirable and in the
best interests of the shareholders of D&B to reorganize D&B so as to separate
certain businesses to be owned and operated apart from D&B (the "Distribution");
WHEREAS, as part of the Distribution, D&B will be divesting
certain of its businesses, including subsidiaries of [ ] and/or [ ];
WHEREAS, prior to the Distribution Date, [ ]("Service
Provider") a subsidiary of [ ], has provided and [ ] ("Recipient"), a subsidiary
of [ ], 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
Recipient's business for a transitional period after the Distribution Date, [ ],
on behalf of Service Provider, has agreed to provide to Recipient, and [ ], on
behalf of Recipient, has agreed to purchase from Service Provider, the Services
described in this Agreement.
NOW, THEREFORE, in consideration of the agreements as set
forth below, it is agreed as follows:
ARTICLE 1. DEFINITIONS AND CONSTRUCTION.
1.01 Definitions. The following defined terms shall have the
meanings specified below:
"Agreement" shall have the meaning set forth in the Heading.
"Agreement Date" shall have the meaning set forth in the Heading.
"Agreement Disputes" shall have the meaning set forth in Section 12.01.
"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.
"D&B" shall have the meaning set forth in the Recitals.
4
2
"Data Center" shall mean Service Provider's data center located at
------------- --------, and any successor location.
"Data Processing Services" shall mean the data processing services
described in Schedule A.
"Distribution" shall have the meaning set forth in the Recitals.
"Distribution Agreement" shall mean the Distribution Agreement, dated
___________, 1996, by and among D&B, Cognizant Corporation and ACNielsen
Corporation.
"Distribution Date" shall mean the date on which the distributions to
effect the reorganization of D&B are made under the Distribution Agreement.
"Extended Term" shall have the meaning set forth in Article 2.
"Fees" shall mean those charges for the Services set forth in Schedule
E.
"Initial Term" shall have the meaning set forth in Article 2.
"Licensed Documentation" shall mean all documentation that is used in
connection with the operation of the Licensed Software.
"Licensed Software" shall mean the software described in Schedule D.
"Recipient" shall have the meaning set forth in the Recitals.
"Recipient Data" shall mean all data or information supplied by
Recipient to Service Provider for processing or transmission in connection with
the Services.
"Service Provider" shall have the meaning set forth in the Recitals.
"Service Provider Software" shall mean the software and related
documentation (a) owned, acquired or developed by Service Provider that is used
in connection with the provision of the Services or (b) licensed or leased by
Service Provider from a third party which is used in connection with the
provision of the Services. The Service Provider Software includes the software
set forth in Schedule G.
"Services" shall mean the Data Processing Services.
5
3
1.02 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".
1.03 Headings. The article and section headings and the table
of contents are for reference and convenience only and shall not be considered
in the interpretation of this Agreement.
1.04 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 initial term of this Agreement shall commence on the
Distribution Date and shall continue until 12:00 midnight (Eastern Standard
Time) on _____________, 1997 (the "Initial Term"), unless terminated earlier
pursuant to Section 14.01; provided, however, that Recipient may, upon notice to
Service Provider at least 120 days prior to the expiration of the Initial Term
or the Extended Term described in (2) below, extend the term of this Agreement
for either of (1) one additional six-month period or (2) one additional
three-month period (each of (1) and (2), the "Extended Term") at the charges set
forth in Schedule F.
ARTICLE 3. SERVICES.
3.01 Services. Service Provider shall provide to Recipient,
and Recipient shall purchase from Service Provider the Data Processing Services
described in Schedule A. The Services shall be provided with substantially the
same degree of care and diligence as such services had been provided to
Recipient during the period prior to the Distribution Date. The Services shall
be provided at the levels of service set forth in Schedule B.
3.02 Priority. Service Provider shall provide the Services to
Recipient with respect to prioritizing, processing and recovery in accordance
with Schedule B.
3.03 Reports. Service Provider shall provide Recipient with
the reports set forth in Schedule C according to the schedule set forth in
Schedule C.
3.04 New Releases and Versions of the Software. Except as
provided in Schedule A, Service Provider shall not be required to provide,
install or maintain any new releases or versions of the systems software or the
applications software. In the event that Schedule A includes Service Provider's
provision, installation and maintenance of the systems software or the
applications software, Service Provider shall, at the fees set forth in Schedule
6
4
E, after any such release or version is commercially available, provide, install
on the machines used to provide the Services after sufficient testing, and
maintain new releases and versions of the systems software and applications
software in use as of the Agreement Date. In the event that Service Provider
fails to provide, install or maintain any new releases or versions of the
systems software or the applications software in accordance with Schedule A,
Service Provider shall be responsible for the payment of any incremental expense
incurred by Recipient in connection with such failure.
ARTICLE 4. RECIPIENT OBLIGATIONS.
4.01 Recipient Equipment. With respect to that equipment owned
or leased by Recipient, Recipient shall:
(1) maintain all equipment, software and operational features at the same level
that was provided immediately prior to the Distribution Date, and shall
receive maintenance services from those third party service providers that
provided maintenance services to Recipient immediately prior to the
Distribution Date; and
(2) upon notice from Service Provider (which notice shall include Service
Provider's estimate of the costs, if any, of the enhancement or
modification) as soon as possible after it has been determined that an
enhancement or modification is necessary, but in any event upon at least 30
days' notice, enhance or modify such equipment, software and operational
features as may be necessary to remain compatible with any systems used by
Service Provider in connection with the Services; provided, however, in the
event such enhancement or modification results in Service Provider
incurring any incremental expense or providing any additional resources,
Recipient shall be responsible for the payment of such incremental expense
or the costs of such additional resources.
4.02 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 Data Center;
(3) promptly report any operational or system problem to Service Provider;
(4) maintain a business recovery plan detailing the requirements of Recipient
in the event of the occurrence of a disaster affecting the Services and
periodically test such plan;
(5) provide the working environment, including space, furniture, electricity,
telephones and other infrastructure requirements for Service Provider's
employees located at Recipient's premises; and
7
5
(6) except as provided in Schedule J, after any such release or version is
commercially available, provide, install after sufficient testing, and
maintain new releases and versions of the systems software and applications
software in use as of the Agreement Date. In the event that Recipient fails
to provide, install or maintain any new releases or versions of the systems
software or the applications software in accordance with Schedule J,
Recipient shall be responsible for the payment of any incremental expense
incurred by Service Provider in connection with such failure.
4.03 Associated Equipment. Except to the extent otherwise
provided in this Agreement or any Schedule to this Agreement, 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 and that is not located at the Data Center necessary to provide the
Services or to transmit the Recipient Data for processing at the Data Center.
4.04 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.
4.05 Business Planning. During the Initial Term and, if any,
the Extended Term, Recipient shall, within a reasonable period of time after
such plans are available, provide Service Provider with a detailed plan
identifying any changes in Recipient's business that may affect the Services or
result in additional capacity being required in order for Service Provider to
provide the Services to Recipient, and what action, if any, may be necessary to
adjust the level of Services. Recipient's business plan provided to Service
Provider pursuant to this Section 4.05 shall be deemed confidential information
of Recipient.
ARTICLE 5. PROPRIETARY RIGHTS.
5.01 Recipient Software. Recipient shall grant a
non-exclusive, non-transferable, royalty-free right for Service Provider, solely
in connection with providing the Services, to (1) have access to and (a) operate
the Licensed Software set forth in Schedule D and (b) use the Licensed
Documentation and (2) use any
8
6
other hardware, software and documentation owned by Recipient that is necessary
to allow Service Provider to perform the Services. Recipient shall obtain any
consents or approvals necessary in connection with Service Provider's use of the
Licensed Software, the Licensed Documentation and any other such hardware,
software and documentation.
5.02 Service Provider Software. All Service Provider Software
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 to the
Service Provider Software, except as described in this Section 5.02. Service
Provider shall obtain, at its expense, any consents or approvals necessary in
connection with Service Provider's use of the Service Provider Software to
provide the Services to Recipient.
ARTICLE 6. DATA.
6.01 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.
6.02 Ownership of Data. The Recipient Data is and shall remain
the property of Recipient or its customers.
6.03 Ownership of Media. All media upon which Recipient Data
is stored is and shall remain the property of Recipient. In the event additional
media is needed, it shall be obtained by Recipient, and be the property of
Recipient or its lessor.
6.04 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.
9
7
ARTICLE 7. FEES.
7.01 Fees. Recipient shall pay to Service Provider the fees
set forth in Schedule E in respect of each of the Services.
7.02 Time of Payment. The Fees shall be paid by Recipient
monthly in arrears on or before the first business day immediately following the
end of each whole or partial calendar month of the Initial Term and, if any, the
Extended Term.
7.03 Additional Services. In the event that Recipient's use of
a Service increases above that set forth in Schedule A for such Service, and/or
Recipient notifies Service Provider of the need for such an increase, Service
Provider shall determine whether any additional hardware or software is
necessary in order for Service Provider to provide the Service and, in the event
that Service Provider and Recipient determine, pursuant to this Section 7.03,
that additional hardware or software is required, (1) Service Provider shall
acquire, upon Recipient's request, such additional hardware or software on
behalf of Recipient and Recipient shall pay to Service Provider or to the
supplier or third party lessor, as may be applicable, the purchase or lease fees
in respect of such additional hardware or software, (2) Service Provider shall
implement an appropriate increase to the Fees and (3) the Parties shall
establish a mechanism for determining the costs to Service Provider of
maintaining such additional hardware or software beyond the Initial Term and, if
any, the Extended Term and any impact on the Fees. Except as otherwise agreed in
writing by the Parties, all rights in and title to any hardware or software
acquired by Service Provider on behalf of Recipient and paid for by Recipient
shall belong to Recipient.
7.04 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.
7.05 Late Payments . Any undisputed fees or payments owing to
Service Provider pursuant to this Agreement that are not paid when due 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.
7.06 Transition/Termination Fees. Upon the termination of this
Agreement, Recipient shall pay to Service Provider the fees set forth in
Schedule H.
ARTICLE 8. AUDITS.
Recipient shall have the right during normal business hours
and upon reasonable advance notice, to review the computer printouts and reports
and other records of Service Provider to the extent such books and records
relate to the provision by Service Provider of the Services. Any such review
shall be conducted at Recipient's sole expense.
10
8
ARTICLE 9. 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.
ARTICLE 10. INDEMNITY.
10.1 Service Provider shall indemnify and hold harmless Recipient in
respect of all claims, costs, expenses, damages and liabilities (including
reasonable attorneys' fees) arising from any claim by a third party licensor
that the Service Provider Software made available to Recipient by Service
Provider infringes such third party's proprietary rights.
10.2 Recipient shall indemnify and hold harmless Service Provider in
respect of all claims, costs, expenses, damages and liabilities (including
reasonable attorneys' fees) arising from any claim by a third party licensor
that the Recipient Software made available to Service Provider by Recipient
infringes such third party's proprietary rights.
ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY.
11.01 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE
SERVICES, THE LICENSED SOFTWARE, THE SERVICE PROVIDER SOFTWARE OR THE LICENSED
DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
11.02 Limitation of Liability. Neither of the parties shall be
liable to the other (or any claiming under or through the other) for any
indirect, special, incidental or consequential damages, including lost profits
or savings, whether or not such damages are foreseeable, or for any third party
claims relating to the Services or a Party's performance under this Agreement
regardless of the form of action (including negligence). Except as may
11
9
arise as a result of a party's gross negligence or willful misconduct, and as
set forth in Section 10 above, each party's liability for direct damages arising
in connection with its performance or failure to perform under this Agreement
shall in no event exceed six (6) months' Fees hereunder.
ARTICLE 12. DISPUTE RESOLUTION.
12.01 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 of the Distribution Agreement.
12.02 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 12 with respect to all
matters not subject to such dispute, controversy or claim.
ARTICLE 13. CONTINUED PROVISION OF SERVICES.
13.01 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.
13.02 Disaster Recovery. Service Provider shall maintain a
mainframe computer disaster recovery coverage plan, including coverage for the
Services. Upon the occurrence of a disaster affecting the Services relating to
mainframe computing, Service Provider shall implement the mainframe computer
disaster recovery procedures and Recipient shall be responsible for its
proportionate share of any fees incurred by Service Provider in connection with
implementing such procedures. Service Provider shall provide Recipient with a
copy of the plan upon request.
ARTICLE 14. TERMINATION.
14.01 For Convenience. Recipient may terminate this Agreement
at any time during the Initial Term upon 90 days' notice to Service Provider.
14.02 Effect of Termination. Upon the termination of this
Agreement pursuant to Section 14.01, Recipient shall pay to Service Provider, no
later than the effective date of
12
10
such termination, the balance of the Fees due for the Initial Term and, if any,
the Extended Term.
ARTICLE 15. 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:
(1) for a period of up to (a) 60 days prior to the expiration or the effective
date of termination of this Agreement and (b) 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, with (i) the Alternative Provider or (ii) Recipient,
in connection with the transfer of the Services, the Recipient Data, the
Licensed Software and the Licensed Documentation, from Service Provider to
the facilities of (x) the Alternative Provider or (y) Recipient, as
requested by Recipient; and
(2) the rights granted to Service Provider in Section 5.01 shall immediately
terminate and Service Provider shall deliver to Recipient (a) a current
copy of the Licensed Software in the form in use as of that time and (b) a
current copy of the Licensed Documentation in the form in use as of that
time.
ARTICLE 16. MISCELLANEOUS PROVISIONS.
16.01 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.
16.02 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.
16.03 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.
16.04 Notices. All notices, designations, approvals, consents,
requests, acceptances, rejections or other communications required or permitted
by this Agreement shall be in writing and shall be sent via telecopy to the
telecopy number specified below. A copy of any such notice shall also be sent by
registered express air mail on the date such notice is transmitted by telecopy
to the address specified below:
13
11
If to Service Provider:
Telecopy No.:
Attention: General Counsel
If to Recipient:
Telecopy No.:
Attention: General 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.
16.05 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.
16.06 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
16.07 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.
16.08 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 16.08 shall be void.
16.09 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, express or implied, of any
kind or character whatsoever with respect to such subject matter have been made
by either Party to the other, except as expressly set forth herein.
14
12
16.10 Successors. Subject to the restrictions on assignment
set forth in Section 16.08, 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.
16.11 Amendments. This Agreement can be modified or amended
only by a written amendment executed by both Parties.
16.12 Survival. The provisions of Article 5, Article 8,
Article 9, Article 10, Article 11, Article 12, Article 15, Section 6.02, Section
6.03, Section 7.06, Section 14.02, Section 16.06, this Section 16.12 and Section
16.15 shall survive the expiration or termination of this Agreement.
16.13 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.
16.14 Third Party Beneficiaries. Each Party intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than Recipient and Service Provider.
16.15 Good Faith and Fair Dealing. Each Party hereby agrees
that its performance of all obligations and exercise of all rights under this
Agreement shall be governed by the fundamental principles of good faith and fair
dealing.
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.
[ ]
By:______________________________
Name:
Title:
[ ]
By:______________________________
Name:
Title: