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EXHIBIT 10.7
FORM OF TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT is dated as of [ ],
1996, among THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"),
COGNIZANT CORPORATION, a Delaware corporation ("Cognizant"), and ACNIELSEN
CORPORATION, a Delaware corporation ("ACN").
W I T N E S S E T H
WHEREAS, D&B, Cognizant and ACN have entered into a
Distribution Agreement dated as of the date hereof (the "Distribution
Agreement") pursuant to which, among other matters, each party has agreed to
provide, or cause one or more of its Subsidiaries to provide, to the other
parties and their respective Subsidiaries certain transitional, administrative
and support services on the terms set forth in this Agreement and the Appendices
hereto. Each party, when providing a service pursuant hereto, shall hereinafter
be referred to as a "Provider", and each party, when receiving a service
pursuant hereto, shall hereinafter be referred to as a "Recipient".
NOW, THEREFORE, subject to the terms, conditions, covenants
and provisions of this Agreement, each of D&B, Cognizant and ACN mutually
covenant and agree as follows:
ARTICLE I
SERVICES PROVIDED
1.1 Transition Services. Upon the terms and subject to the
conditions set forth in this Agreement, with respect to each of those services
set forth in an Appendix hereto, each of which Appendices is made a part of this
Agreement, the relevant Provider will provide to the relevant Recipient the
services indicated in such Appendix (hereinafter referred to individually as a
"Transition Service", and collectively as the "Transition Services") during the
time period for each such Transition Service set forth in such Appendix
(hereinafter referred to as the "Time Periods" for all of the Transition
Services, and the "Time Period" for each Transition Service).
1.2 Personnel. In providing the Transition Services, each
party, in its capacity as a Provider and as it deems necessary or appropriate in
its sole discretion, may (i) use the personnel of such Provider or its
Affiliates, and (ii) employ the services of third parties to the extent such
third party services are routinely utilized to provide similar services to other
businesses of such Provider or are reasonably necessary for the efficient
performance of any of such Transition Services. Each party, in its capacity as a
Recipient, may retain at its own expense its own consultants and other
professional advisers.
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1.3 Representatives. Each of D&B, Cognizant and ACN shall
nominate a representative to act as its primary contact person for the provision
of all of the Transition Services (collectively, the "Primary Coordinators").
The initial Primary Coordinators shall be _____________ for D&B, ____________
for Cognizant and ______________ for ACN. The initial coordinators for each
specific Transition Service shall be the individuals named in the Appendix
relating to such Transition Service (the "Service Coordinators"). Each party may
treat an act of a Primary Coordinator or Service Coordinator of another party as
being authorized by such other party without inquiring behind such act or
ascertaining whether such Primary Coordinator or Service Coordinator had
authority to so act. The relevant Provider and the relevant Recipient of a
Transition Service shall advise each other in writing of any change in the
Primary Coordinators and any Service Coordinator for such Transition Service,
setting forth the name of the Primary Coordinator or Service Coordinator to be
replaced and the name of the replacement, and certifying that the replacement
Primary Coordinator or Service Coordinator is authorized to act for such party
in all matters relating to this Agreement. Each of D&B, Cognizant and ACN agree
that all communications relating to the provision of the Transition Services
shall be directed to the Primary Coordinators.
1.4 Level of Transition Services. (a) Each party, in its
capacity as a Provider, shall perform the Transition Services for which it is
responsible hereunder following commonly accepted standards of care in the
industry and exercising the same degree of care as it exercises in performing
the same or similar services for its own account as of the date of this
Agreement, with priority equal to that provided to its own businesses or those
of any of its Affiliates, Subsidiaries or divisions. Nothing in this Agreement
shall require any party, in its capacity as a Provider, to favor the businesses
of any Recipient over its own businesses or those of any of its Affiliates,
Subsidiaries or divisions.
(b) No Provider of Transition Services shall be required to
provide the Recipient of such Transition Services with extraordinary levels of
Transition Services, special studies, training, or the like or the advantage of
systems, equipment, facilities, training, or improvements procured, obtained or
made after the Distribution Date by such Provider.
(c) In addition to being subject to the terms and conditions
of this Agreement for the provision of the Transition Services, each party, in
its capacity as a Recipient, agrees that the Transition Services provided by
third parties shall be subject to the terms and conditions of any agreements
between the Provider of such Transition Services and such third parties. The
relevant Provider shall consult with the relevant Recipient concerning the terms
and conditions of any such agreements to be
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entered into, or proposed to be entered into, with third parties after the date
hereof.
1.5 Limitation of Liability. [In the absence of gross
negligence or willful misconduct on the part of any party acting in its capacity
as a Provider, and whether or not such Provider is negligent, such Provider
shall not be liable for any claims, liabilities, damages, losses, costs,
expenses (including, but not limited to, settlements, judgments, court costs and
reasonable attorneys' fees), fines and penalties, arising out of any actual or
alleged injury, loss or damage of any nature whatsoever in providing or failing
to provide Transition Services for which it is responsible hereunder to the
Recipient of such Transition Services.] Notwithstanding anything to the contrary
contained herein, in the event such Provider commits an error with respect to or
incorrectly performs or fails to perform any Transition Service, at the relevant
Recipient's request, such Provider shall use reasonable efforts and good faith
to correct such error, re-perform or perform such Transition Service at no
additional cost to such Recipient; provided, that such Provider shall have no
obligation to recreate any lost or destroyed data to the extent the same cannot
be cured by the re-performance of the Transition Service in question.
1.6 Force Majeure. Any failure or omission by a party in the
performance of any obligation under this Agreement shall not be deemed a breach
of this Agreement or create any liability, if the same arises from any cause or
causes beyond the control of such party, including, but not limited to, the
following, which, for purposes of this Agreement shall be regarded as beyond the
control of each of the parties hereto: acts of God, fire, storm, flood,
earthquake, governmental regulation or direction, acts of the public enemy, war,
rebellion, insurrection riot, invasion, strike or lockout; provided, however,
that such party shall resume the performance whenever such causes are removed.
Notwithstanding the foregoing, if such party cannot perform under this Agreement
for a period of forty-five (45) days due to such cause or causes, the affected
party may terminate the Agreement with the defaulting party by providing written
notice thereto.
1.7 Modification of Procedures. Each party, in its capacity as
a Provider, may make changes from time to time in its standards and procedures
for performing the Transition Services for which it is responsible hereunder.
Notwithstanding the foregoing sentence, unless required by law, no party, in its
capacity as a Provider, shall implement any substantial changes affecting a
Recipient of the relevant Transition Services unless:
(a) such Provider has furnished such Recipient notice (which
shall be the same notice such Provider shall provide its own businesses)
thereof;
(b) such Provider changes such procedures for its own
businesses at the same time; and
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(c) such Provider gives such Recipient a reasonable period of
time for such Recipient (i) to adapt its operations to accommodate such changes
or (ii) to reject the proposed changes. In the event such Recipient fails to
accept or reject a proposed change on or before a date specified in such notice
of change, such Recipient shall be deemed to have accepted such change. In the
event such Recipient rejects a proposed change but does not terminate this
Agreement, such Recipient agrees to pay any charges resulting from such
Provider's need to maintain different versions of the same systems, procedures,
technologies, or services or resulting from requirements of third party vendors
or suppliers.
1.8 No Obligation to Continue to Use Services. No party, in
its capacity as a Recipient, shall have any obligation to continue to use any of
the Transition Services and may delete any Transition Service from the
Transition Services that the Provider thereof is providing to such Recipient by
giving the Provider notice thereof in accordance with the notice provisions
herein and in the Appendix relating to such Transition Service.
1.9 Provider Access. To the extent reasonably required for
personnel of a Provider to perform the Transition Services for which such
Provider is responsible hereunder, the Recipient of such Transition Services
shall provide personnel of such Provider with access to its equipment, office
space, plants, telecommunications and computer equipment and systems, and any
other areas and equipment.
ARTICLE II
COMPENSATION
2.1 Consideration. As consideration for the Transition
Services, each party, in its capacity as a Recipient of Transition Services,
shall pay to the Provider of such Transition Services the amount specified for
each such Transition Service as set forth in the Appendix relating to such
Transition Service.
2.2 Invoices. After the end of each month, each party, in its
capacity as a Provider, together with such party's Affiliates or Subsidiaries
providing Transition Services will submit one invoice to the Recipient of such
Transition Services for all Transition Services provided to such Recipient and
its Subsidiaries by such Provider during such month. Such monthly invoices shall
be issued no later than the fifteenth day of each succeeding month. Each invoice
shall include a summary list of the previously agreed upon Transition Service
for which there are fixed dollar fees, together with documentation supporting
each of the invoiced amounts that are not covered by the fixed fee agreements.
The total amount set forth on such summary list and such supporting detail shall
equal the invoice total, and will be provided under separate cover apart from
the invoice. All
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invoices shall be sent to the applicable Recipient at the following address or
to such other address as such Recipient shall have specified by notice in
writing to the Provider of the Transition Services referenced on each such
invoice:
To D&B:
The Dun and Bradstreet Corporation
[address]
Attention:
Fax: (___) ___-____
To Cognizant:
Cognizant Corporation
[address]
Attention:
Fax: (___) ___-____
To ACN:
ACNielsen Corporation
[address]
Attention:
Fax: (___) ___-____
2.3 Payment of Invoices. (a) Payment of all invoices in
respect of a Transition Service shall be made by check or electronic funds
transmission in U.S. Dollars, without any offset or deduction of any nature
whatsoever, within thirty (30) days of the invoice date unless otherwise
specified in the Appendix relating to such Transition Service. All payments
shall be made to the account set forth below with written confirmation of
payment sent by facsimile to the person set forth below.
Account:
To D&B:
The Dun and Bradstreet Corporation
[City and State]
Account No.
ABA Routing No.
To Cognizant:
Cognizant Corporation
[City and State]
Account No.
ABA Routing No.
To ACN:
ACNielsen Corporation
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[City and State]
Account No.
ABA Routing No.
Written Confirmation:
To D&B:
The Dun and Bradstreet Corporation:
[address]
Attention:
Fax: (___) ___-____
To Cognizant:
Cognizant Corporation
[address]
Attention:
Fax: (___) ___-____
To ACN:
ACNielsen Corporation
[address]
Attention:
Fax: (___) ___-____
(b) If any payment is not paid when due, the Provider of the
relevant Transition Service shall have the right, without any liability to the
Recipient of such Transition Service, or anyone claiming by or through such
Recipient, to immediately cease providing any or all of the Transition Services
provided by such Provider to such Recipient, which right may be exercised by
such Provider in its sole and absolute discretion.
ARTICLE III
CONFIDENTIALITY
3.1 Obligation. Each party and its Subsidiaries shall not use
or permit the use of (without the prior written consent of the other parties)
and shall keep, and shall cause its consultants and advisors to keep,
confidential all information concerning the other parties received pursuant to
or in connection with this Agreement.
3.2 Care and Inadvertent Disclosure. With respect to
any confidential information, each party agrees as follows:
(a) it shall use the same degree of care in
safeguarding said information as it uses to safeguard its
own information which must be held in confidence; and
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(b) upon the discovery of any inadvertent disclosure
or unauthorized use of said information, or upon obtaining notice of
such a disclosure or use from any other party, it shall take all
necessary actions to prevent any further inadvertent disclosure or
unauthorized use, and, subject to the provisions of Section 1.5 above,
each such other party shall be entitled to pursue any other remedy
which may be available to it.
ARTICLE IV
TERM AND TERMINATION
4.1 Term. This Agreement shall become effective on the
Distribution Date and shall remain in force until the expiration of the longest
Time Period specified in any Appendix hereto, including any extension thereof,
unless all of the Transition Services are deleted by each Recipient in
accordance with Section 1.8 above, or this Agreement is terminated under
Sections 1.6, 4.3 or 6.16 below prior to the end of such Time Period.
4.2 Extension. Subject to the earlier termination of this
Agreement in accordance with Sections 1.6, 4.3 or 6.16 below, each Recipient of
a Transition Service may extend each Time Period for such Transition Service for
the time period, if any, set forth in the relevant Appendix by giving the
Provider of such Transition Service the period of prior written notice set forth
in such Appendix prior to the end of the Time Period in question.
4.3 Termination. If any party (hereafter called the
"Defaulting Party") shall fail to perform or default in the performance of any
of its obligations under this Agreement (other than a payment default), the
party entitled to the benefit of such performance (hereinafter referred to as a
"Non-Defaulting Party") may give written notice to the Defaulting Party
specifying the nature of such failure or default and stating that the
Non-Defaulting Party intends to terminate this Agreement with respect to the
Defaulting Party if such failure or default is not cured within ______ days of
such written notice. If any failure or default so specified is not cured within
such ______ day period, the Non-Defaulting Party may elect to immediately
terminate this Agreement with respect to the Defaulting Party; provided,
however, that if the failure or default relates to a dispute contested in good
faith by the Defaulting Party, the Non-Defaulting Party may not terminate this
Agreement pending the resolution of such dispute in accordance with Article V
hereof. Such termination shall be effective upon giving a written notice of
termination from the Non-Defaulting Party to the Defaulting Party and shall be
without prejudice to any other remedy which may be available to the
Non-Defaulting Party against the Defaulting Party.
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4.4 Termination of Obligations. Each party, in its capacity as
a Recipient, specifically agrees and acknowledges that all obligations of each
Provider to provide each Transition Service for which such Provider is
responsible hereunder shall immediately cease upon the expiration of the Time
Period (and any extension thereof in accordance with Section 4.2) for such
Transition Service, and each Provider's obligations to provide all of the
Transition Services for which such Provider is responsible hereunder shall
immediately cease upon the termination of this Agreement. Upon the cessation of
such Provider's obligation to provide any Transition Service, the Recipient of
such Transition Service shall immediately cease using, directly or indirectly,
such Transition Service (including, without limitation, any and all software of
such Provider or third party software provided through such Provider,
telecommunications services or equipment, or computer systems or equipment).
4.5 Survival of Certain Obligations. Without prejudice to the
survival of the other agreements of the parties, the following obligations shall
survive the termination of this Agreement: (a) the obligations of each party
under Articles III and IV, and (b) each Provider's right to receive the
compensation for the Transition Services provided by it hereunder provided in
Section 2.1 above incurred prior to the effective date of termination.
ARTICLE V
DISPUTE RESOLUTION
5.1 Dispute Resolution. Any disputes arising out of or in
connection with this Agreement shall be settled in accordance with the dispute
resolution mechanisms set forth in Article VI of the Distribution Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Complete Agreement; Construction. This Agreement,
including the Appendices hereto, shall constitute the entire agreement between
the parties with respect to the subject matter hereof and shall supersede all
previous negotiations, commitments and writings with respect to such subject
matter. In the event of any inconsistency between this Agreement and any
Appendix hereto, the Appendix shall prevail. In the event and to the extent that
there shall be a conflict between the provisions of this Agreement and the
provisions of any other Ancillary Agreement, this Agreement shall control.
6.2 Other Ancillary Agreements. This Agreement is not
intended to address, and should not be interpreted to address,
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the matters specifically and expressly covered by the other Ancillary
Agreements.
6.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
6.4 Survival of Agreements. Except as otherwise contemplated
by this Agreement, all covenants and agreements of the parties contained in this
Agreement shall survive the Distribution Date.
6.5 Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice) and will be deemed given on the date on which such
notice is received:
To D&B:
The Dun & Bradstreet Corporation
[address]
Attn: General Counsel
To Cognizant:
Cognizant Corporation
[address]
Attn: General Counsel
To ACN:
ACNielsen Corporation
[address]
Attn: General Counsel
6.6 Waivers. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
6.7 Amendments. Subject to the terms of Section 4.3 hereof,
this Agreement may not be modified or amended except by an agreement in writing
signed by each of the parties hereto.
6.8 Assignment. This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any
party hereto without the prior written consent of the other
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parties hereto, and any attempt to assign any rights or obligations arising
under this Agreement without such consent shall be void.
6.9 Successors and Assigns. The provisions to this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and permitted assigns.
6.10 Subsidiaries. Each of the parties hereto shall cause to
be performed, and hereby guarantees the performance of, all actions, agreements
and obligations set forth herein to be performed by any Subsidiary of such party
or by any entity that is contemplated to be a Subsidiary of such party on and
after the Distribution Date.
6.11 Third Party Beneficiaries. This Agreement is solely for
the benefit of the parties hereto and their respective Subsidiaries and
Affiliates and should not be deemed to confer upon third parties any remedy,
claim, liability, reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
6.12 Title and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
6.13 Appendices. The Appendices shall be construed with and as
an integral part of this Agreement to the same extent as if the same had been
set forth verbatim herein. In the event of any inconsistency between the terms
of any Appendix and the terms set forth in the main body of this Agreement, the
terms of the Appendix shall govern.
6.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
6.15 Consent to Jurisdiction. Each of the parties irrevocably
submits to the exclusive jurisdiction of (a) the Supreme Court of the State of
New York, New York County, and (b) the United States District Court for the
Southern District of New York, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the parties agrees to commence any action, suit or proceeding relating
hereto either in the United States District Court for the Southern District of
New York or if such suit, action or other proceeding may not be brought in such
court for jurisdictional reasons, in the Supreme Court of the State of New York,
New York County. Each of the parties further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party's respective
address set forth
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above shall be effective service of process for any action, suit or proceeding
in New York with respect to any matters to which it has submitted to
jurisdiction in this Section 6.15. Each of the parties irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) the Supreme Court of the State of New York, New York County, or
(ii) the United States District Court for the Southern District of New York, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
6.16 Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
6.17 Laws and Government Regulations. Each party, in its
capacity as a Recipient, shall be responsible for (i) compliance with all laws
and governmental regulations affecting its businesses and (ii) any use such
Recipient may make of the Transition Services to assist it in complying with
such laws and governmental regulations. While no party, in its capacity as a
Provider, shall have any responsibility for the compliance by the Recipient of
such Transition Services with such laws and regulations, each party, in its
capacity as a Provider, agrees to use reasonable efforts to cause the Transition
Services to be provided by such party to be designed in such manner that such
Transition Services shall be able to assist the Recipient of such Transition
Services in complying with applicable legal and regulatory responsibilities.
6.18 Relationship of Parties. Nothing in this Agreement shall
be deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being understood and agreed that no provision contained herein, and
no act of the parties, shall be deemed to create any relationship between the
parties other than the relationship of buyer and seller of services nor be
deemed to vest any rights, interests or claims in any third parties. The parties
do not intend to waive any privileges or rights to which they may be entitled.
6.19 Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Distribution Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Transition Services Agreement to be executed the day and year first above
written.
THE DUN & BRADSTREET CORPORATION
By:___________________________
Name:
Title:
COGNIZANT CORPORATION
By:___________________________
Name:
Title:
ACNIELSEN CORPORATION
By:___________________________
Name:
Title:
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[FORM OF APPENDIX TO TRANSITION SERVICES AGREEMENT]
Description of Transition Service (including the identity of the Provider and
Recipient(s) of such Transition Service):
Payment:
Time Period (including terms of extension, if any):
Service Coordinator for Provider:
Service Coordinator for each Recipient:
Notice Period for Deletion of Transition Services:
Any Other Terms:
