Exhibit 10.2
Confidential portions of this
document have been omitted
pursuant to a request for confidential treatment
and filed
separately with the Securities and Exchange
Commission
STATEMENT OF WORK NUMBER
9
under
GLOBAL MASTER SERVICES
AGREEMENT
by and between
DUN & BRADSTREET,
INC.
and
ACXIOM CORPORATION
May 6, 2009
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1.
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BACKGROUND
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1
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1.1.
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Contractual
Background
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1
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1.2.
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Goals and
Objectives of this SOW
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1
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1.3.
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Construction
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3
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2.
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GENERAL
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3
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2.1.
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Coordination of
Documents
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3
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2.2.
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Use of Defined
Terms
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3
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3.
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SERVICES
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4
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3.1.
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General
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4
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3.2.
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Location of
Services
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5
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3.3.
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Service
Levels
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5
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3.4.
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Disaster
Recovery
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6
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3.5.
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Remedies
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6
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4.
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TERM AND
TERMINATION
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7
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4.1.
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Term of
SOW
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7
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4.2.
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Termination
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7
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5.
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CHARGES
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10
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6.
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ADDITIONAL
PROVISIONS
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10
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6.1.
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Definitions
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10
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6.2.
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Permitted
Users
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11
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6.3.
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Transition and
Transformation
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12
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6.4.
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Interim
Services
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14
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6.5.
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Vendor
Personnel
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14
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6.6.
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Responsibilities for Resources
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16
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6.7.
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Intellectual
Property Rights And Restrictions
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17
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6.8.
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Reports and
Meetings
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17
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6.9.
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Procedures
Manual
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17
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6.10.
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Use of
Subcontractors
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17
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6.11.
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SAS 70
Audits
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17
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6.12.
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Charges
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17
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6.13.
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Allocation of
Taxes
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18
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6.14.
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Invoicing
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18
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6.15.
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Benchmarking
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19
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6.16.
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New
Services
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21
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6.17.
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Extraordinary
Events
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21
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6.18.
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Invoicing
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23
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6.19.
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Indemnities
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23
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6.20.
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Liability
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23
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6.21.
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Termination for
Convenience
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23
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6.22.
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Compliance With
Laws
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23
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7.
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OVERSEAS IT
INITIATIVE
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24
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8.
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MISCELLANEOUS
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24
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8.1.
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Entire
Agreement; Amendment
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24
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8.2.
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Notices
Provisions
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25
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9.
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TERMS OF THIS
SOW THAT TAKE PRECEDENCE OVER THE TERMS OF THE AGREEMENT
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25
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LIST OF SCHEDULES/EXHIBITS TO
THIS SOW
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Schedule
A
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Services
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Exhibit A-1
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In-Flight
Projects
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Exhibit A-2
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Transition
Plan
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Exhibit A-3
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Transformation
Plan
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Exhibit A-4
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Services Delivery
Plan
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Exhibit A-5
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SOW
Termination/Expiration Assistance Plan
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Exhibit A-6
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Disaster Recovery
Requirements
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Exhibit A-7
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Financial
Responsibilities Matrix
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Exhibit A-8
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D&B Locations
Matrix
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Exhibit A-9
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Managed Third
Parties
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Exhibit A-10
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[Reserved]
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Exhibit A-11
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Reports
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Schedule
B
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Service
Levels
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Exhibit B-1
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Service
Levels
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Exhibit B-2
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Point of Customer Entry
Service Levels
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Exhibit B-3
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Mainframe Subsystem
Service Levels
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Exhibit B-4
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Critical Processing
Jobs
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Exhibit B-5
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Batch and Fulfillment
Jobs
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Exhibit B-6
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Service Request
Categorization
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Schedule
C
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Charges
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Exhibit C-1
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Resource Categories and
Resource Units
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Exhibit C-2
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Resource Unit
Baselines
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Exhibit C-3
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Annual Services
Charge
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Exhibit C-4
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ARC and RRC
Rates
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Exhibit C-5
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Time & Materials
Rates
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Exhibit C-6
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Form of Acxiom
Invoice
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Exhibit C-7
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Pass-Through
Expenses
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Exhibit C-8
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IMAC Counting
Rules
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Exhibit C-9
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Termination
Charges
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Exhibit C-10
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CSC Stranded
Assets
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Exhibit C-11
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[Reserved]
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Exhibit C-12
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Asset List
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Exhibit C-13
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Standard Server
Equipment Configurations
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Schedule
D
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List of Key
Acxiom Positions
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Schedule
E
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Governance
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Schedule
F
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[Reserved]
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Schedule
G
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List of
Initially Approved Subcontractors
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Schedule
G-1
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List of D&B
Competitors
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Schedule
H
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List of
Software
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Schedule
I
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Acxiom Use of
D&B Facilities
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Schedule
J
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Provisions
Regarding Acquired Rights Directive
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Pursuant to Item 601 of
Regulation S-K, certain schedules, exhibits and similar
attachments to this Statement of Work No. 9 have not been
filed with this exhibit. The Company agrees to furnish
supplementally any omitted schedule, exhibit or similar attachment
to the SEC upon request.
STATEMENT OF WORK NO.
9
STATEMENT OF WORK NO. 9 (this
“ SOW ” or “ SOW No. 9
”) is made and effective as of May 6, 2009 (the “
SOW Effective Date ”), by and between
DUN & BRADSTREET, INC., a Delaware corporation (“
D&B ”), and ACXIOM CORPORATION, a Delaware
corporation (“ Acxiom ”).
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1.1.
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Contractual
Background
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(a) The parties are party to an
Information Technology Outsourcing Services Agreement made and
executed as of July 27, 2006, which was amended, restated, and
renamed by the Global Master Services Agreement, dated as of
June 2, 2008 (as so amended and restated, and as it may be
further amended and/or restated from time to time, the “
Agreement ”).
(b) The Agreement contemplates that
the parties and their respective Affiliates may enter into
statements of work that are governed by and subject to the
Agreement. This is Statement of Work No. 9 under the
Agreement.
(c) Simultaneously with the
execution and delivery of this SOW No. 9, the parties are
executing and delivering (i) Amendment Number Two to the
Amended and Restated Sales & Marketing Agreement (the
“ S&M Agreement ”), dated
June 27, 2006 (and amended and restated June 2, 2008),
between them, (ii) Amendment Number One to the Alliance
Agreement (the “ Alliance Agreement ”),
dated November 26, 2008, between them, (iii) Amendment
Number One to Schedule Number One to the Alliance Agreement, and
(iv) Amendment Number Two to the Agreement.
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1.2.
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Goals and
Objectives of this SOW
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D&B and Acxiom agree upon the
following background, goals and objectives for this SOW:
(a) D&B operates in a wide range
of businesses across a wide geographic area. Uninterrupted high
quality IT infrastructure services are mission critical to
D&B’s business. Without them D&B is unable to sell
its products. D&B requires a supplier that understands
D&B’s business, has world class facilities, is willing to
make initial and ongoing investment in transformation and
technology evolution during the SOW Term (as defined in
Section 4.1(a) of this SOW), and delivers Services with a
quality of execution consistent with their criticality to
D&B’s business.
(b) D&B has determined that
Acxiom appears to be well-suited to meet D&B’s goals and
objectives.
(c) D&B currently obtains a wide
range of information technology services from Computer Sciences
Corporation (“ CSC ”). D&B’s primary
objective for transition is to migrate these services (other than
the Excluded Services, as hereinafter defined) in an orderly manner
with no unplanned disruption to Acxiom from CSC’s Berkeley
Heights data center to Acxiom’s shared Tier 2 or better data
center that positions D&B to:
(i) benefit from economies of
scale;
(ii) utilize ITIL or other
best-practice data center processes;
(iii) improve service levels and
disaster recovery capabilities; and
(iv) reduce IT operating
costs.
(d) D&B seeks a flexible
relationship that allows D&B to:
(i) take advantage of evolving
technologies;
(ii) receive services for businesses
that D&B may acquire or divest in the future; and/or
(iii) change platforms or methods of
service delivery, or move operations outside the United States, if
beneficial to D&B’s business needs or
strategy.
(e) D&B requires a supplier that
is responsive to changes, requests, and incidents in the
environment; has personnel available and approachable for strategy,
help, advice and discussion as desired by D&B; and facilitates
cooperation, teamwork and clear governance structure between the
parties and their personnel, all as defined within the scope of
Services defined by the Agreement, this SOW, and Schedule
A.
(f) D&B seeks a variable pricing
structure that, within any limits provided in this SOW, will
accommodate the potential of significant decreases in D&B
volumes over the SOW Term due to server virtualization and
consolidation, optimization of D&B’s data supply chain,
and other initiatives D&B may pursue, and will, within any
limits provided in this SOW, accommodate potential increases in
volumes.
(g) The parties intend for Acxiom to
assume responsibility for the Services and implement the solution
described in the Service Delivery Plan provided in Exhibit
A-4 of this SOW in phases:
(i) On the SOW Effective Date,
Acxiom shall begin performing Transition Services;
(ii) On or around September 1,
2009, subject to D&B reaching an appropriate agreement with
CSC, Acxiom shall assume responsibility for managing the Services
provided by CSC and begin providing the Interim Services described
in Section 6.4 of this SOW;
(iii) Beginning on each applicable
Commencement Date, or other date agreed by the parties, Acxiom
shall begin assuming full responsibility for certain of the
Services in the Primary Data Center in accordance with the
Transition Plan described in Section 4 of the
Agreement;
(iv) By ***, 2010, Acxiom shall
assume full responsibility for all the Services, and complete the
Transition from Berkeley Heights to its Primary Data Center and
other applicable service delivery facilities described in the
Service Delivery Plan; and
(v) During Transition and
thereafter, Acxiom shall enhance certain aspects of the Services,
and the infrastructure used to deliver the Services, in accordance
with the Transformation Plan described in Section 4 of the
Agreement.
The foregoing goals and objectives
shall be governed by the provisions of Section 1.3 of the
Agreement.
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2.1.
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Coordination
of Documents
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(a) This SOW shall be subject to the
terms of the Agreement. The terms of the Agreement are hereby
incorporated into this SOW by reference, subject to
Section 2.1(b) of this SOW.
(b) The provisions of this SOW shall
be construed wherever possible to avoid conflict with the
Agreement. Section 3.5(e) of the Agreement shall govern
conflicts between the Agreement and this SOW. Any inconsistencies
among this SOW, the Schedules, and the Exhibits shall be resolved
in favor of the SOW, then the Schedules, then the
Exhibits.
(c) Schedule J of this SOW is
incorporated herein by this reference.
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2.2.
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Use of
Defined Terms
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(a) Terms used in this SOW with
initial capitalization and not otherwise defined herein shall have
the meaning provided in the Agreement. Readers of this SOW should
note that a number of definitions in the Agreement are modified in
Section 6.1 of this SOW.
(b) As used in this SOW, the
following terms will have the meaning set forth below:
(i) “ Agreement ”
shall have the meaning provided in Section 1.1(a).
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***
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Omitted
pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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(ii) “ Commencement
Date ”, for particular Services, shall mean the date
on which Acxiom assumes responsibility for such Services under this
SOW. The Transition Plan provides for Acxiom to assume
responsibility for Services in multiple phases, beginning in
September, 2009. Accordingly, there will be separate Commencement
Dates applicable to the Services as Acxiom assumes responsibility
for them.
(iii) “ Contract
Year ” shall mean the period commencing on the SOW
Effective Date and continuing until ***, 20***, and
thereafter each consecutive twelve (12) month period
thereafter. If the final Contract Year is less than twelve
(12) months, references to amounts for such Contract Year
shall be pro-rated as appropriate.
(iv) “ D&B
Service Locations ” shall mean the locations at
which the parties agree that the Services are to be delivered to
D&B, typically D&B offices.
(v) “ Excluded
Services ” shall mean functions which might otherwise
be deemed to be in-scope Services but which are specifically
provided in this SOW as being out of Acxiom’s scope,
including CSC’s OPAL services provided by a CSC Affiliate in
Australia, CSC’s Oracle application support services, and
production print services.
(vi) “ Transition
Services ” shall mean the portion of Services required
to execute the Transition in accordance with the Transition
Plan.
(c) References to Schedules and
Exhibits in this SOW shall be deemed to be references to the
Schedules and Exhibits attached to this SOW, except where another
document ( e.g. , the Agreement, the S&M Agreement, or
the Alliance Agreement) is specifically referenced.
(a) Acxiom shall provide to D&B
the services described in this SOW, including Schedule A
(including its Exhibits) to this SOW (which, collectively, shall be
deemed to be “ Services ” under the Agreement).
Transition Services shall begin on the SOW Effective Date; all
other Services shall begin on the applicable Commencement Date
provided in the Transition Plan, except to the extent that Schedule
A specifically provides that a particular aspect of the Services is
to begin on a different date.
(b) Unless a Retained Responsibility
or an Excluded Service, the Services include all functions
performed in the twelve (12) months prior to the SOW Effective
Date by:
(i) CSC or its Affiliates (including
the five (5) CSC personnel providing Release Management
Services); or
(ii) the four (4) D&B
personnel providing Red Hat and Oracle support.
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***
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Omitted
pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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(c) Acxiom shall be responsible for
managing CSC and providing the Interim Services as described in and
subject to the provisions of Section 6.4 of this
SOW.
(d) The Services shall be delivered
without the use of ***.
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3.2.
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Location of
Services
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The Services will be provided
globally, as required to meet D&B’s needs. The list of
D&B Service Locations at which the Services are initially to be
provided is provided in Exhibit A-8. Such Exhibit may be modified
through the Change Control Procedure, provided, that if D&B
requests that Acxiom provide Services (1) in or from a new
D&B Service Location or (2) in or from an existing D&B
Service Location that are materially different from the Services
previously provided at such D&B Service Location,
then:
(a) Acxiom shall provide any
one-time transition and set-up functions required to implement such
Services as a Project, except to the extent such one-time
transition and set-up functions are covered by an IMAC Charge or
other applicable unit rate provided in Schedule C to this SOW;
and
(b) after Acxiom has implemented
such Services, D&B shall be charged for such Services in
accordance with the charges and unit rates provided in Schedule C
unless, prior to the implementation of such Services, Acxiom
demonstrates to D&B that there will be a more than an
insubstantial increase in Acxiom’s cost of providing such
Services at the new D&B Service Location (including any taxes
whose burden is otherwise imposed on Acxiom) that justifies an
equitable adjustment to the charges and/or unit rates, in which
case the charges and/or unit rates in Schedule C shall be adjusted
accordingly and, as appropriate, tax burden reallocated by mutual
agreement of the parties.
(a) Schedule B to this SOW
describes the Service Levels and Critical Service Levels (and their
accompanying metrics) that apply to Acxiom’s performance of
the Services provided under this SOW and, except as otherwise
provided in Schedule B, the Service Levels in Schedule B shall
become effective as of the Transition Completion Date. Schedule B
to this SOW shall replace and supersede Schedule B to the Agreement
for purposes of this SOW.
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***
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Omitted
pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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(b) For the purposes of this SOW,
Section 10.1(b) of the Agreement is amended to read as
follows:
“Except where a different
level of performance is specifically agreed, Acxiom shall perform
the Services at least at the same level and with at least the same
degree of accuracy, quality, timeliness, responsiveness, and
efficiency as was provided during the twelve (12) months prior
to the Commencement Date by or for D&B and its
Affiliates.”
(c) For the purposes of this SOW,
Section 10.2(c) of the Agreement is amended to read as
follows:
“With respect to the Service
Levels provided in an SOW, *** percent (***%) of Acxiom’s
aggregate monthly At Risk Charges under the applicable SOW (as
defined in Section 10.2(d) below) shall be at risk each month
for Service Level Credits (the ‘ Amount at
Risk ’). D&B may allocate *** (***) percentage
points among Critical Service Levels in the applicable SOW
hereunder, for the purpose of calculating Service Level Credits;
provided, however, that D&B may not allocate more than ***
(***) percentage points to any single Critical Service Level. For
example, if Acxiom fails to meet a Critical Service Level to which
D&B has allocated *** (***) percentage points, the applicable
Service Level Credit will equal *** percent (***%) of the Amount at
Risk (which equals *** percent (***%) of Acxiom’s monthly
Charges under such SOW), for the month in which the failure
occurred.”
(d) For the purposes of this SOW,
Section 10.2(e) of the Agreement is deleted and the provisions
of Section 6 of Schedule B to this SOW shall apply in its
stead.
Schedule A (including
Exhibit A-6) to this SOW describes the Services to be provided
by Acxiom in supporting D&B in ameliorating the effects of a
Disaster that causes a total or partial loss of the Services to be
provided pursuant to this SOW, within an agreed level and within
target timeliness.
D&B may exercise the remedies
provided in Section 12 of the Project Estimates Process
provided in Attachment A-1 (Project Estimates Process) to Schedule
A if Acxiom fails to successfully complete any Major Milestone for
the work under this SOW within sixty (60) days following the
scheduled completion date for such Major Milestone.
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***
|
Omitted
pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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(a) The term (the “ SOW
Term ”) of this SOW shall begin on the SOW Effective
Date and shall continue until ***, 20*** (such period, the “
Initial SOW Term ”), unless terminated
pursuant to Section 4.2 below or extended as provided in
Section 4.1(b).
(b) D&B may extend the SOW Term
up to *** by providing at least *** (***) months notice to Acxiom,
each for such extension period as elected by D&B; provided that
(i) the total of all such extensions, in the aggregate, shall
be no longer than ***; and (ii) if in any extension D&B
elects to extend the Term for a period of ***, then D&B shall
not have any further extension options (e.g., D&B may extend
*** for *** each time; however if D&B extends the first time
for *** and then a second time for ***, D&B shall lose its ***
option). D&B may also extend the SOW Term as provided in
Section 22.8 of the Agreement.
(c) If, pursuant to Section 5
of the Agreement, the Term of the Agreement would otherwise expire,
it shall nonetheless be deemed to continue until the expiration or
termination of the SOW Term.
(a) Termination of this SOW is
governed by Sections 22.1 through 22.13 of the Agreement. If a
breach of this SOW by Acxiom is material in the context of the
Agreement as a whole then D&B may exercise the rights provided
in Section 22.1 of the Agreement (Agreement Termination for
Cause).
(b) For purposes of this SOW,
Section 22.4(b) of the Agreement (Termination for Convenience)
is deleted and a new subsection 22.4(b) is inserted, to
read:
“(b) Termination of SOW for
Convenience . D&B may terminate this SOW for convenience by
giving Acxiom at least *** (***) months’ prior written notice
designating the termination date. Notwithstanding the foregoing,
D&B may not exercise the termination rights granted under this
Section 22.4 effective earlier than ***. Upon receipt
of any such termination notice from D&B, Acxiom shall,
consistent with the provisions of Schedule A to this SOW (and any
applicable Exhibits thereto), (A) wind-down its work with
respect to this SOW as quickly as possible; (B) eliminate any
ongoing expenses under this SOW, to the extent Acxiom may do so
(and to the extent Acxiom cannot immediately eliminate any such
expense, Acxiom shall do so as soon as it can, during such ***
(***) month period); and (C) not make any future
long-term
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***
|
Omitted
pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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commitments under such SOW (
e.g. , leasing of additional Equipment). In the event of a
termination for convenience pursuant to this
Section 22.4 , D&B shall be liable to pay to Acxiom
the Termination Charges specified in Schedule C of SOW No. 9
for termination pursuant to Section 22.4, and although such
payment is not a condition precedent to the termination, D&B
acknowledges and agrees that (i) D&B shall remain
contractually obligated to pay Acxiom the applicable Termination
Charges and (ii) such obligation shall survive any such
termination by D&B pursuant to this Section 22.4(b).
Acxiom shall invoice D&B for termination for convenience
charges upon the effective date of termination, and such charges
shall be due thirty (30) days after the effective date of
termination. The parties acknowledge and agree that the Termination
Charges specified in Schedule C of SOW No. 9 are a reasonable
forecast of damages to Acxiom for D&B’s termination
pursuant to this Section 22.4 . If a purported
termination for cause by D&B under Section 22.2 is
ultimately determined not to have been properly a termination for
cause, then such termination by D&B shall instead be deemed to
be a termination for convenience under this
Section 22.4 .”
(c) For purposes of this SOW,
Section 22.5 (b) and (c) of the Agreement
(Termination Upon Change of Control of Acxiom) are deleted and new
subsections 22.5(b), (c), (d), and (e) are inserted, to
read:
“(b) If the Change of Control
of Acxiom is subject to (x) Section 22.5(a)(iii) or
(y)(A) Section 22.5(a)(i) or Section 22.5(ii) and
(B) the Distinct Entity is a D&B Competitor, at any time
beginning on the date of a Change of Control of Acxiom and ending
*** after consummation of the transaction which resulted from such
Change of Control of Acxiom, D&B may terminate the Agreement
(in whole and not in part) by giving Acxiom at least *** (***)
months’ prior written notice designating the termination
date. In such event D&B shall not be liable to pay Acxiom any
Termination Charge or other fee. Within ten (10) days of
receipt of D&B’s notice of such termination (time being
of the essence), Acxiom shall pay D&B (without offset of any
kind) the sum of *** Dollars ($***) to compensate D&B for the
anticipated cost of transition to a new supplier or to re-insource
the Services, such amount being a liquidated, negotiated amount. If
Acxiom fails to pay such amount as required, in addition to all
other rights and remedies, D&B may offset the amount due
against Charges otherwise due hereunder.
(c) If the Change of Control of
Acxiom is subject to (x) Section 22.5(a)(i) or
(ii) and (y) the Distinct Entity is not a D&B
Competitor, at any time beginning on the date of a Change of
Control of Acxiom and ending *** after consummation of the
transaction which resulted from such Change of Control of Acxiom
(but subject to the next sentence), D&B may terminate the
Agreement (in whole, and not in part), by giving Acxiom at least
*** (***) months’ prior written notice designating
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***
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Omitted
pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
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the termination date.
Notwithstanding the foregoing, D&B may not exercise the
termination rights granted under this Section 22.5(c)
effective earlier than November 1, 2010, provided that if this
sentence (when read with the prior sentence) does not provide
D&B a time period of at least ninety (90) days to exercise
its rights hereunder, then the time period in which D&B may
exercise such right shall be extended so that it continues for at
least ninety (90) days. In the event of a termination by
D&B pursuant to this Section 22.5(c), D&B shall be
liable to pay to Acxiom the Termination Charges specified in
Schedule C of SOW No. 9 for termination pursuant to
Section 22.5(c), and although such payment is not a condition
precedent to the termination, D&B acknowledges and agrees that
(i) D&B shall remain contractually obligated to pay Acxiom
the applicable Termination Charges and (ii) such obligation
shall survive any such termination by D&B pursuant to this
Section 22.5(c). The parties acknowledge and agree that the
Termination Charges specified in Schedule C of SOW No. 9 are a
reasonable forecast of damages to Acxiom for D&B’s
termination pursuant to this Section 22.5(c). Acxiom shall
invoice D&B for termination for change of control charges upon
the effective date of termination, and such charges shall be due
thirty (30) days after the effective date of
termination.
(d) If the Change of Control of
Acxiom is subject to Section 22.5(a)(iv), (v) or (vi), at
any time beginning on the date of a Change of Control of Acxiom and
ending *** after consummation of the transaction which resulted
from such Change of Control of Acxiom (but subject to the next
sentence), D&B may terminate the Agreement (in whole, and not
in part), by giving Acxiom at least *** (***) months’ prior
written notice designating the termination date. Notwithstanding
the foregoing, D&B may not exercise the termination rights
granted under this Section 22.5(d) effective earlier than
November 1, 2010, provided that if this sentence (when read
with the prior sentence) does not provide D&B a time period of
at least ninety (90) days to exercise its