GLOBAL MASTER SERVICES AGREEMENT

Exhibit 10.1

Confidential portions of this document have been omitted

pursuant to a request for confidential treatment and filed

separately with the Securities and Exchange Commission

GLOBAL MASTER SERVICES AGREEMENT

by and between

DUN & BRADSTREET, INC.

and

ACXIOM CORPORATION

July 27, 2006

Amended and Restated as of June 2, 2008

TABLE OF CONTENTS

 

 

 

 

 

SCHEDULES

 

Pursuant to Item 601 of Regulation S-K, certain schedules, exhibits and similar attachments to this Agreement 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.

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

GLOBAL MASTER SERVICES AGREEMENT

This GLOBAL MASTER SERVICES AGREEMENT (this “ Agreement ” or the “ Global Master Services Agreement ”), is effective as of June 2, 2008 (the “ Global Master Services Effective Date ” or “ Global Effective Date ”), between DUN & BRADSTREET, INC. (“ D&B ”), a Delaware corporation having its principal place of business at 103 JFK Parkway, Short Hills, New Jersey 07078 and ACXIOM CORPORATION (“ Acxiom ”), a Delaware corporation having its principal place of business at 301 Dave Ward Drive, Conway, Arkansas 72033 and amends and restates in its entirety that certain Information Technology Outsourcing Services Agreement (as amended prior to the Global Master Services Effective Date, the “ Original Agreement ”) dated as of July 27, 2006 (the “ Contract Execution Date ”) by and between D&B and Acxiom.

The parties executed the Original Agreement as of July 27, 2006. Amendment Number One to the Original Agreement was executed as of September 28, 2006, Amendment Number Two to the Original Agreement was executed as of April 10, 2007, Amendment Number Four to the Original Agreement was executed as of March 31, 2007, Amendment Number Eight was executed as of June 21, 2007 and Amendment Number Nine was executed as of January 1, 2008. In addition, certain Letters of Authorization and Statements of Work were entered into by Acxiom and D&B pursuant to the Original Agreement. A list of previous amendments, Letters of Authorization and Statements of Work (the “ Original Amendments ”) is attached hereto as Schedule M ; provided however, that such list shall not be interpreted to mean that any amendment, Letter of Authorization or Statement of Work that previously has been executed by the parties and is not listed in such Schedule M is not included as an “Original Amendment”. Unless the context otherwise requires, any reference herein to the Original Agreement shall be deemed to include all such Original Amendments. The parties desire to further amend the Original Agreement and to incorporate such further amendment into this Global Master Services Agreement. The principal objective of the changes to this Agreement, resulting from this Global Master Services Agreement, is to provide a mechanism whereby D&B may request (and Acxiom may provide) additional products, licenses, and services to D&B (in addition to the limited services provided under the Original Agreement).

 

1.	BACKGROUND AND OBJECTIVES

 

1.1

Background .

This Agreement is being made and entered into with reference to the following:

(a) D&B is a leading provider of information and data about businesses;

(b) Acxiom is a leading provider of information and data about individuals and a leading provider of data processing services;

 

(c) D&B’s business is the provision of information to its customers and D&B is almost entirely reliant upon data processing services to collect, organize, maintain and deliver information to its customers. D&B has a number of business lines, including Credit, Sales & Marketing, Supply Chain, and Compliance. D&B currently obtains substantially all of its data center based data processing services under an outsourcing arrangement with CSC under which CSC provides services from CSC’s Berkeley Heights, NJ data center;

(d) Acxiom is engaged in providing data, analytical tools, data processing services, and computer services, particularly with respect to large scale consumer information databases;

(e) This Agreement shall govern the relationship, rights, duties, obligations, responsibilities and liabilities of Acxiom and D&B beginning on and from and after the Global Master Services Effective Date; provided that, except as otherwise expressly provided in this Agreement by specific reference to this Section 1.1(e) , the Original Agreement shall continue to be effective and govern the relationship, rights, duties, obligations, responsibilities and liabilities of the Parties for the period prior to the Global Effective Date. Nothing in this Agreement, including the deletion of any language from the Original Agreement, is intended to waive, release or otherwise affect either party’s rights, obligations and liabilities as the same existed prior to the Global Effective Date. Where this Agreement expressly provides a date for a term or provision that pre-dates the Global Effective Date, such term or provision shall be given effect in accordance with the stated date; and

(f) For the avoidance of doubt, the provisions of this Agreement and SOW #1 (Phase 1 Statement of Work) shall supersede the Original Agreement and its attached Schedule A (Services) as to CDI Production Services and CDI Production Support Services (as those terms are defined in SOW #1 to this Agreement) from and after the Global Effective Date.

 

1.2

Objectives.

D&B and Acxiom have agreed upon the following specific goals and objectives for this Agreement:

(a) D&B requires a relationship with Acxiom: (i) that is responsive to changes, requests, and incidents in the environment; (ii) such that Acxiom has personnel available and approachable for strategy, help, advice and discussion as desired by D&B within the scope defined by this Agreement, Schedule A and applicable SOWs hereto; and (iii) that facilitates cooperation, teamwork and clear governance structure between the parties and their personnel.

(b) D&B and Acxiom intend, pursuant to (i) the Sales and Marketing Agreement dated as of July 27, 2006 between Acxiom and D&B and amended and restated as of June 2, 2008 (as amended, the “ S&M Agreement ”), (ii) the HBBI Prospect Solutions Sales and Marketing Agreement dated as of March 31, 2007 between Acxiom and D&B and amended and restated as of June 2, 2008 (as amended, the “ HBBI Prospect Solutions SMA ”), and (iii) other to be agreed strategic relationships and Statements of Work under this Agreement, to develop a strategic relationship, to include developing opportunities for both parties to gain and expand their businesses.

 

(c) D&B and Acxiom intend to institute a process allowing D&B to request (and Acxiom to provide) under this Agreement various products, licenses, and services from Acxiom during the Term.

 

1.3

Construction.

The provisions of this Article 1 (other than Sections 1.1(e) and 1.1(f) ) are intended to be a general introduction to this Agreement and are not intended to expand the scope of the parties’ obligations under this Agreement or to alter the plain meaning of the terms and conditions of this Agreement. However, to the extent the terms and conditions of this Agreement do not address a particular circumstance or are otherwise unclear or ambiguous, such terms and conditions are to be interpreted and construed so as to give full effect to the provisions in this Article 1 .

 

2.	DEFINITIONS

 

2.1

Certain Definitions.

The following terms will have the meanings set forth below with respect to this Agreement and each SOW hereunder:

(a) “ AAA ” shall have the meaning provided in Section 21.1(b) .

(b) “ AbiliTec Software ” shall mean Acxiom’s proprietary customer data integration and linking software technology utilized and/or offered by Acxiom in connection with SOW #1, which includes a proprietary number system that facilitates the management of consumer, business, and postal delivery point data, as well as any AbiliTec-related documentation, and the Acxiom-developed data management programs within this customer data integration and linking software technology.

(c) “ Acxiom ” shall have the meaning provided in the preamble to this Agreement.

(d) “ Acxiom Competitor ” shall mean those entities listed in Schedule G-2 , and their Affiliates, as such Schedule may be updated by Acxiom on an annual basis; provided that: (i) without D&B’s consent, the number of Acxiom Competitors shall not exceed the number initially specified in Schedule G-2 as of the Contract Execution Date, and (ii) with respect to any entity on (or added to) the list in Schedule G-2 , if D&B has an existing relationship with such entity, prior to such entity being added to the list, then any restrictions herein applicable to Acxiom Competitors shall not be effective with respect to such entity.

(e) “ Acxiom Confidential Information ” shall have the meaning provided in Section 16.4(c) .

(f) “ *** ” shall mean ***, a schematic representation of which is attached as Schedule F .

(g) “ Acxiom Owned Material ” shall mean any Material or Intellectual Property Right that is owned in whole or in part by Acxiom or a third party, including Acxiom Software.

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

(h) “ Acxiom Personnel ” shall mean employees of Acxiom and its Approved Subcontractors assigned to perform the Services pursuant to this Agreement (including SOWs hereunder).

(i) “ Acxiom Project Executive ” shall have the meaning provided in Section 6.1(a) .

(j) “ Acxiom Software ” shall mean the Software that is owned or distributed by Acxiom or its Affiliates, and includes the AbiliTec Software and the software components of ***, together with any modifications, upgrades or enhancements (derivative works) of such Software (other than any D&B Confidential Information).

(k) “ Affiliate ” shall mean, with respect to any entity, any other entity Controlling, Controlled by, or under common Control with, such entity at the time in question. At D&B’s option:

(i) an entity affiliated with D&B (which at the time of divestiture was receiving a portion of the Services) shall be deemed to remain an Affiliate of D&B for up to (at D&B’s discretion) eighteen (18) months after the date it ceases to Control, be Controlled by, or be under common Control with, D&B; and

(ii) the purchaser of all or substantially all the assets of any line of business of D&B or its Affiliates (which at the time of sale was receiving a portion of the Services) shall be deemed to be an Affiliate of D&B for eighteen (18) months after the date of purchase, but only with respect to the business(es) acquired.

(l) “ Agreement ” shall mean this Global Master Services Agreement, including its schedules, exhibits, SOWs, and appendices, as the same may be amended by the parties from time to time in accordance with Section 24.18 . This Agreement includes references to “this Agreement or an SOW hereunder” (and other similar references); the fact that such references appear herein shall not be interpreted as meaning that a reference to the “Agreement” does not include SOWs hereunder (as the term “Agreement” does include all documents hereunder, as provided in the first sentence of this definition).

(m) “ Amount At Risk ” shall have the meaning provided in Section 10.2(c) .

(n) “ Ancillary Software ” shall have the meaning provided in Section 8.5(d)(iii) .

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

(o) “ Applicable Laws ” means:

(i) any applicable law, statute, regulation, ordinance or subordinate legislation in force from time to time to which a party is subject;

(ii) the common law as applicable to the parties from time to time;

(iii) any binding court order, judgment or decree; and

(iv) any applicable directive, policy, rule or order that is binding on a party and that is made or given by any government, an agency thereof, or any regulatory body;

of any country, the European Union, or other national, federal, commonwealth, state, provincial or local jurisdiction and of any exchange or association (including the New York Stock Exchange, the National Association of Securities Dealers and the Direct Marketing Association) whose regulations are binding on either party pursuant to a self-regulating mechanism approved by a governmental entity.

(p) “ Applications Software ” or “ Applications ” shall mean those programs and programming (including the supporting documentation, media, on-line help facilities and tutorials) that perform specific user related data processing and telecommunications tasks in connection with the Services.

(q) “ Approved Subcontractors ” shall mean those subcontractors of Acxiom:

(i) identified in the applicable SOW;

(ii) whose approval by D&B is not required in accordance with Section 11.5 ; and

(iii) any other subcontractor(s) approved by D&B in accordance with Section 11.5 ;

unless and until (in each case of (i), (ii), and (iii)) approval of such subcontractor is rescinded by D&B in accordance with Section 11.5(b) .

(r) “ At Risk Charges ” shall have the meaning provided in Section 10.2(d) .

(s) “ Baselines ” shall mean the usage levels of Resource Units designated as baselines in an SOW.

(t) “ Benchmarker ” shall have the meaning provided in Section 14.7(a) .

 

(u) “ Business CDI Services ” shall have the meaning provided in the S&M Agreement, which definition shall survive any termination or expiration of the S&M Agreement (for purposes of defining such term in this Agreement).

(v) “ Business Day ” shall mean every day Monday through Friday other than those holidays (not to exceed fifteen (15) per calendar year) when D&B’s corporate headquarters is not scheduled to be open for business. References in this Agreement to “days” that do not specifically refer to Business Days are references to calendar days and, unless otherwise provided, a period of more than seven (7) days that expires on a day other than a Business Day shall be automatically extended to the next following Business Day.

(w) “ Certain Manuals / Procedures ” shall have the meaning provided in Section 8.9 .

(x) “ CDI ” shall mean customer data integration.

(y) “ Change Control Procedure ” shall have the meaning provided in Section 11.4(c) .

(z) “ Change in Control of Acxiom ” shall have the meaning provided in Section 22.5 .

(aa) “ Charges ” shall mean the amounts payable to Acxiom for Services as set forth in the SOWs, but without deduction for any Service Level Credits. The term “Charges” does not include (i) Pass-Through Expenses or Out-of-Pocket Expenses, (ii) travel and lodging expenses and (iii) taxes.

(bb) “ Commencement Date ” shall mean September 1, 2006.

(cc) “ Commercially Available ” with respect to Software and tools shall mean Software or a tool: (i) that is available to the general public under standard terms and conditions, (ii) for which the applicable vendor provides ongoing maintenance and updates, and (iii) that is available at list prices offered to the public.

(dd) “ Commercially Reasonable Efforts ” shall mean taking such steps and performing in such a manner as a well managed business would undertake where such business was acting in a determined, prudent and reasonable manner to achieve a particular desired result for its own benefit.

(ee) “ Confidential Information ” shall have the meaning provided in Section 16.4(a) .

(ff) “ Contract Execution Date ” shall have the meaning provided in the preamble to this Agreement.

(gg) “ Contract Year ” shall mean each consecutive twelve (12) month period beginning on the Commencement Date. If the final Contract Year is less than twelve (12) months non-specific references to amounts for such Contract Year shall be appropriately and equitably pro-rated.

 

(hh) “ Control ” and its derivatives mean with regard to any entity the legal, beneficial or equitable ownership, directly or indirectly, of:

(i) fifty percent (50%) or more of the capital stock (or other ownership interest if not a stock corporation) of such entity ordinarily having voting rights;

(ii) (A) twenty percent (20%) or more of the capital stock (or other ownership interest if not a stock corporation) and (B) either (1) a greater percentage than any other juridical person or (2) management control in fact or by agreement; or

(iii) with respect to an entity not domiciled in the United States, the greater of twenty percent (20%) of the capital stock (or other ownership interest if not a stock corporation) and the maximum percentage allowed for a United States domiciliary to directly or indirectly own in accordance with local law for an entity engaged in such entity’s business.

(ii) “ Credit Card Data ” shall have the meaning provided in Section 16.3(d)(ii) .

(jj) “ Critical Service Levels ” shall have the meaning provided in Schedule B .

(kk) “ CSC ” shall mean Computer Sciences Corporation.

(ll) “ D&B ” shall have the meaning provided in the preamble to this Agreement.

(mm) “ D&B Competitor ” shall mean those entities listed in Schedule G-1 , and their Affiliates, as such Schedule may be updated by D&B on an annual basis; provided that: (i) without Acxiom’s consent, the number of D&B Competitors shall not exceed the number initially specified in Schedule G-1 as of the Contract Execution Date, and (ii) with respect to any entity on (or added to) the list in Schedule G-1 , if Acxiom has an existing relationship with such entity, prior to such entity being added to the list, then any restrictions herein applicable to D&B Competitors shall not be effective with respect to such entity.

(nn) “ D&B Confidential Information ” shall have the meaning provided in Section 16.4(b) .

(oo) “ D&B Contract Executive ” shall have the meaning provided in Section 13.1(a) .

(pp) “ D&B Customer Information ” shall have the meaning provided in Section 16.3(a) .

 

(qq) “ D&B Data ” shall mean all information, whether or not Confidential Information, entered in or otherwise transferred to Software or Equipment by or on behalf of D&B and information derived from such information, including as stored in or processed through the Equipment or Software. “D&B Data” also includes (i) all data and information from D&B (or its Affiliates, customers, etc.) that are processed by, or otherwise are provided to, Acxiom (including all D-U-N-S ^® Numbers); and (ii) all data and information that D&B generates through use of the Services, subject to certain license rights granted to D&B and applicable to data generated through the use of the AbiliTec Software.

(rr) “ D&B Information ” shall mean all information, including D&B Data and D&B Customer Information, in any form, furnished or made available directly or indirectly to Acxiom by D&B or otherwise obtained by Acxiom from D&B.

(ss) “ D&B Materials ” shall mean Materials owned by D&B or its Affiliates.

(tt) “ D&B Software ” shall mean Software owned by D&B or its Affiliates, including the NextGen System and the Phase 0 System.

(uu) “ D&B SOW Executive ” shall have the meaning provided in Section 13.1(a) .

(vv) “ Deliverable ” shall mean (i) any Materials, work product, mappings, software, concepts, works, information, data, computer programs, processes, methods, audio media, visual media, inventions, and other ideas and materials, and any modifications, enhancements, or derivative works thereof, and (ii) which are created, developed, invented, prepared, reduced to practice, or discovered by Acxiom, solely or together with D&B, an Acxiom Affiliate, and/or (to the extent permitted herein) a subcontractor, pursuant to this Agreement (and/or any SOW hereunder).

(ww) “ Developed *** Materials ” shall have the meaning provided in Section 8.5(a)(i)(A) .

(xx) “ Developed D&B Materials ” shall have the meaning provided in Section 8.5(a) .

(yy) “ Developed Third Party *** Materials ” shall have the meaning provided in Section 8.5(a)(ii)(A) .

(zz) “ Dispute Date ” shall have the meaning provided in Section 21.1(a)(i) .

(aaa) “ Distinct Entity ” shall have the meaning provided in Section 22.5(a)(i) .

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

(bbb) “ Embedded Acxiom Material ” shall have the meaning provided in Section 8.5(f) .

(ccc) “ End Users ” shall mean users of the Services.

(ddd) “ Equipment ” shall mean the computer and telecommunications equipment (without regard to which entity owns or leases such equipment) used by Acxiom and its Approved Subcontractors to provide the Services. Equipment includes the following:

(i) computer equipment, including associated attachments, features, accessories, peripheral devices, front end devices, and other computer equipment;

(ii) telecommunications equipment, including private branch exchanges, multiplexors, modems, CSUs/DSUs, hubs, bridges, routers, switches and other telecommunications equipment; and

(iii) related services (e.g., maintenance and support services, upgrades, subscription services) provided by third parties (e.g., manufacturer and lessor) in the same or related agreement covering the provision of such Equipment.

(eee) “ Extended Term ” shall have the meaning provided in Section 5.2 .

(fff) “ FCRA ” shall mean the Fair Credit Reporting Act of 1970, as amended, 15 U.S.C. § 1681.

(ggg) “ Force Majeure Event ” shall have the meaning provided in Section 20.3(a) .

(hhh) “ Former Affiliate ” shall mean the entities who are deemed to be Affiliates pursuant to the second sentence of the definition of “Affiliate”.

(iii) “ GLB Act ” shall mean the Gramm-Leach-Bliley Act, 15 USC §6801 et. seq ., and the implementing regulations and regulatory interpretations thereto, as amended from time to time.

(jjj) “ Global Effective Date ” (or “ Global Master Services Effective Date ”) shall have the meaning provided in the preamble to this Agreement.

(kkk) “ Global Master Services Agreement ” shall have the meaning provided in the preamble to this Agreement.

(lll) “ HBBI Prospect Solutions SMA ” shall have the meaning set forth in Section 1.2(b) .

(mmm) “ InfoBase ” shall have the meaning provided in SOW #1.

(nnn) “ Initial Term ” shall have the meaning provided in Section 5.1 .

 

(ooo) “ Intellectual Property Rights ” shall mean, on a worldwide basis, any and all:

(i) rights associated with works of authorship and literary property, including copyrights, moral rights of an author of a copyrightable work (including any right to be identified as the author of the work or to object to derogatory treatment of the work), and mask-work rights;

(ii) trade marks, service marks, logos, trade dress, trade names, whether or not registered, and the goodwill associated therewith;

(iii) rights relating to know-how or trade secrets, including ideas, concepts, methods, techniques, inventions (whether or not developed or reduced to practice);

(iv) patents, designs, algorithms and other industrial property rights;

(v) rights in domain names, universal resource locator addresses, telephone numbers (including toll free numbers), and similar identifiers;

(vi) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and

(vii) registrations, initial applications (including intent to use applications), renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

(ppp) “ Joint Review Meeting ” shall have the meaning provided in Section 8.5(a)(i)(B) .

(qqq) “ Key Acxiom Positions ” shall have the meaning provided in Section 6.1(a) .

(rrr) “ Losses ” shall mean all losses, liabilities, damages and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties).

(sss) “ Major Milestone ” shall have the meaning provided in Section 4.2(a) .

(ttt) “ Majority Owned Affiliate ” shall mean an Affiliate whose Control is measured at fifty (50) percent or greater.

(uuu) “ Materials ” shall mean, collectively, Software, expressions of literary works, or other works of authorship which are reduced to tangible form, specifications, design documents and analyses, studies, software programs and programming, program listings, programming tools, interfaces, documentation,

 

implementation and change management plans, business models, business rules, business logic, work and process flows, system architecture plans, web site design flow charts, reports, drawings, inventions, and similar work product (all of which are reduced to tangible (including electronic) form).

(vvv) “ Monthly Performance Report ” shall have the meaning provided in Schedule B to the Agreement.

(www) “ New Acxiom Software ” shall have the meaning provided in Section 8.2(b) .

(xxx) “ New Services ” shall have the meaning provided in Section 14.6 .

(yyy) “ New Third Party Software ” shall have the meaning provided in Section 8.4(b) .

(zzz) “ NextGen System ” shall have the meaning provided in SOW #1.

(aaaa) “ Non-Public Personal Information ” shall have the meaning provided in the GLB Act including (A) an individual’s name, address, e-mail address, IP address, telephone number and/or social security number; (B) the fact that an individual has a relationship with D&B or any of its affiliates; and (C) an individual’s or D&B or its Affiliates’ customer’s account information.

(bbbb) “ Notice of Election ” shall have the meaning provided in Section 19.6(a) .

(cccc) “ Original Agreement ” shall have the meaning provided in the preamble to this Agreement.

(dddd) “ Original Amendments ” shall have the meaning provided in the preamble to this Agreement.

(eeee) “ Original Execution Date ” shall have the meaning provided in the preamble to this Agreement.

(ffff) “ Out-of-Pocket Expenses ” shall mean reasonable, demonstrable and actual out-of-pocket expenses incurred by Acxiom for equipment, materials, supplies or services provided to or for D&B or its Affiliates as identified in this Agreement, but not including Acxiom’s overhead costs (or allocations thereof), administrative expenses or other mark-ups. Out-of-Pocket Expenses shall be calculated at Acxiom’s actual incremental expense and shall be net of all rebates and allowances received by Acxiom or its Affiliates. Where Acxiom incurs an Out-of-Pocket Expense from an Affiliate of Acxiom, D&B’s approval (which may be arbitrarily withheld) shall be obtained and the amount recognized shall be no greater than would have been paid to such Affiliate in an arm’s length transaction between unaffiliated companies at fair market value.

 

(gggg) “ PCI DSS ” shall have the meaning provided in Section 16.3(d)(ii)(A) .

(hhhh) “ Pass-Through Expenses ” shall have the meaning provided in Section 14.2(a) .

(iiii) “ Patriot Act ” shall mean United States Public Law 107-56 (October 26, 2001).

(jjjj) “ Performance Standards ” shall mean, individually and collectively, the quantitative and qualitative performance standards and commitments for the Services contained in this Agreement and any SOW hereunder, including Service Levels.

(kkkk) “ Personally Identifiable Information ” shall mean any information that (i) is defined as “personal information” under the GLB Act, or (ii) alone, or in combination with other information, relates to a specific, identifiable individual person. Personally Identifiable Information includes individual names, social security numbers, telephone numbers, home address, driver’s license number, account number, email address, and vehicle registration number. Any information that can be associated with Personally Identifiable Information shall also be Personally Identifiable Information. For example, an individual’s age alone is not Personally Identifiable Information, but if such age were capable of being associated with one or more specific, identifiable, individuals then such age would be deemed Personally Identifiable Information.

(llll) “ Procedures Manual ” shall mean the standards and procedures manual described in Section 11.3 .

(mmmm) “ Project ” shall have the meaning provided in Section 3.5(f) .

(nnnn) “ Project Estimates Process ” shall have the meaning provided in Attachment A-1 (Project Estimates Process) to Schedule A .

(oooo) “ Project Plan ” shall have the meaning provided in Attachment A-1 (Project Estimates Process) to
Schedule A .

(pppp) “ Required Consents ” shall mean such consents as may be required or desirable for the assignment to Acxiom, or the grant to Acxiom of rights of use, of resources otherwise provided for in this Agreement.

(qqqq) “ Resource Units ” shall mean the unit of chargeable resource utilization for particular resource categories and/or Services, as provided in SOWs hereunder.

(rrrr) “ Retained Responsibilities ” shall have the meaning provided in Section 13.1 .

 

(ssss) “ S&M Agreement ” shall have the meaning provided in Section 1.2(b) .

(tttt) “ Safe Harbor Program ” shall have the meaning provided in Section 16.9(a) .

(uuuu) “ SAS 70 ” shall have the meaning provided in Section 12.2(a) .

(vvvv) “ Services ” shall have the meaning provided in Section 3.1(a) .

(wwww) “ Service Level Credits ” shall have the meaning provided in Schedule B .

(xxxx) “ Service Levels ” shall have the meaning provided in Section 10.1 .

(yyyy) “ Software ” shall (unless a more specific reference is provided) mean Applications Software and Systems Software.

(zzzz) “ SOW ” refers to a specific document or documents prepared by the parties on or after the Global Effective Date, in order for D&B to receive Services from Acxiom pursuant to this Agreement. Each SOW will be subject to the terms and conditions of this Agreement.

(aaaaa) “ SOW Effective Date ” shall mean the effective date of an applicable SOW.

(bbbbb) “ Specific *** Materials ” shall have the meaning provided in Section 8.5(d) .

(ccccc) “ Specific Patent Notice ” shall have the meaning provided in Section 8.7 .

(ddddd) “ Standard *** Software Change ” shall have the meaning provided in Section 8.5(a)(i)(D) .

(eeeee) “ Steering Committee ” shall have the meaning provided in Section 11.1 .

(fffff) “ System Change ” shall have the meaning provided in Section 11.4(d) .

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

(ggggg) “ Systems Software ” shall mean those programs and programming (including the supporting documentation, media, on-line help facilities and tutorials) that perform (i) tasks basic to the functioning of the Equipment and which are required to operate the Applications Software; or (ii) tasks, other than as performed by Applications Software, otherwise supporting the provision of the Services by Acxiom. Programs and programming supporting the Services that are not Applications Software shall be deemed to be Systems Software. Systems Software includes mainframe and mid-range operating systems, server operating systems, network operating systems, systems utilities (including measuring and monitoring tools), data security software, middleware, database management systems, development tools (other than development tools specific to a particular item of Applications Software which is provided by the licensor of such Applications Software) and telecommunications monitors.

(hhhhh) “ T&M Rates ” shall have the meaning provided in Schedule C .

(iiiii) “ Technology Plan ” shall have the meaning provided in Section 11.6 .

(jjjjj) “ Term ” shall have the meaning provided in Section 5.2.

(kkkkk) “ Termination/Expiration Assistance ” shall have the meaning provided in Section 22.10(a) .

(lllll) “ Third Party Service Contracts ” shall mean those agreements pursuant to which a third party was, immediately prior to the Contract Execution Date, furnishing or providing services to D&B or its Affiliates similar to the Services.

(mmmmm) “ Third Party Software ” shall mean Software that is not Acxiom Software or D&B Software.

(nnnnn) “ Transition Plan ” shall have the meaning provided in Section 4.3 .

(ooooo) “ UCITA ” shall have the meaning provided in Section 21.5(b) .

(ppppp) “ Use ” shall mean, in the context of Software or Materials, to use, copy, maintain, modify, enhance, distribute, or create derivative works.

(qqqqq) “ Virus ” shall have the meaning provided in Section 17.5 .

(rrrrr) “ Without Notice Material ” shall have the meaning provided in Section 8.5(a)(i)(D) .

(sssss) “ Without Notice Third Party Material ” shall have the meaning provided in Section 8.5(a)(ii)(D) .

 

2.2

Inclusion of Affiliates in Definition of D&B and Acxiom; Meaning of “party”.

(a) As used in this Agreement, references to “D&B” include Affiliates of D&B in accordance with the following:

(i) A reference includes Affiliates of D&B where expressly so provided;

(ii) References to D&B in the following definitions include Affiliates of D&B (unless expressly provided to the contrary): D&B Data, D&B Information and D&B Software;

(iii) References to sale, assignment, grant or the like by D&B means D&B will perform the act for itself or cause Affiliates of D&B to perform the act themselves; references to assets being in the name of D&B include Affiliates of D&B; and

(iv) References to the business, operations, policies, procedures and the like of D&B include Affiliates of D&B to the extent Affiliates are receiving the Services.

Subject to the foregoing, references to D&B shall include (i) Affiliates of D&B as D&B reasonably designates and (ii) any other entity directly or indirectly owned by D&B and entering into an SOW hereunder.

(b) References to a “party” means D&B, on the one hand, and Acxiom, on the other hand. References to the “parties” means D&B and Acxiom.

 

2.3

Rules of Interpretation.

(a) Terms other than those defined within this Agreement shall be given their plain English meaning, and those terms, acronyms and phrases known in the information technology and customer data integration services industries shall be interpreted in accordance with their generally known meanings. Unless the context otherwise requires, words importing the singular include the plural and vice-versa, and words importing gender include both genders. Unless the context otherwise requires to “persons” includes individual natural persons and juridical legal entities.

(b) References to articles, sections, and paragraphs shall be references to sections and paragraphs of this Agreement, unless otherwise specifically stated.

(c) The section headings in this Agreement are intended to be for reference purposes only and shall not be construed to modify or restrict any of the terms or provisions of this Agreement.

(d) Where there is similar, but not identical, construction of phrases, sentences, or clauses of this Agreement no implication is made that a “negative pregnant” is intended and they shall each be construed separately, in accordance with their plain meaning.

 

(e) The words “ include ”, “ includes ”, “ including ”, and “ e.g. ” when following a general statement or term, are not to be construed as limiting the general statement or term to any specific item or matter set forth or to similar items or matters, but rather as permitting the general statement or term to refer also to all other items or matters that could reasonably fall within its broadest scope.

(f) The word “ may ” (unless followed by “not”) shall be construed as meaning “shall have the right, but not the obligation, to”.

(g) Any reference to a foreign, federal, state, local, or other statute or law shall be deemed to also refer to all rules and regulations promulgated thereunder, unless the context otherwise requires.

 

3.

SERVICES

 

3.1

Provision of Services.

(a) In General . Commencing on the Contract Execution Date, Acxiom shall provide the services, functions and responsibilities described in this Agreement and its Schedules, including Schedule A , as each may be supplemented, enhanced, modified or replaced in accordance with this Agreement. Additionally, commencing on the relevant SOW Effective Date, Acxiom shall provide the services, functions and responsibilities described in each SOW, as each may be supplemented, enhanced, modified or replaced in accordance with this Agreement The foregoing are collectively referred to, herein, as the “ Services ”.

(b) Implied Services . If any services, functions, or responsibilities are required for the proper performance and provision of the Services, regardless of whether they are specifically described herein, they shall be deemed to be implied by and included within the scope of the Services to be provided by Acxiom to the same extent and in the same manner as if specifically described in this Agreement or the applicable SOW. Except as otherwise expressly provided in this Agreement, Acxiom shall be responsible for providing the facilities, personnel, and other resources as necessary to provide the Services.

(c) Services Evolution .

(i) Acxiom shall cause the portion of the Services provided by *** to evolve and to be modified, enhanced, supplemented and replaced as necessary for such Services to keep pace with technological advances and advances in the methods of delivering services, where such advances are at the time pertinent for such Services to keep pace with the general use within the IT industry or among D&B’s customers or competitors. As an example, Services evolution shall include addition of

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

functionality by Acxiom as this is made possible with new Equipment and Software utilized by Acxiom during the Term. Adjustments in Services in accordance with this Section 3.1(c) shall be deemed to be included within the scope of the Services to the same extent and in the same manner as if expressly described in this Agreement.

(ii) Acxiom shall cause the portion of the Services that is not provided by *** to evolve and to be modified, enhanced, supplemented and replaced as necessary for such Services to keep pace with technological advances and advances in the methods of delivering services, where such advances are at the time pertinent for such Services to keep pace with the general use within the IT industry or among D&B’s customers or competitors; provided however, in no event shall this provision be interpreted to require that any Software used to provide the Services be more current than n-1 (where the “n” level of Software currency refers to the most current release of Software, and the “n-1” (n minus one) level of Software currency refers to the release that immediately precedes the most current release of Software). Adjustments in Services in accordance with this Section 3.1(c)(ii) shall be deemed to be included within the scope of the Services to the same extent and in the same manner as if expressly described in this Agreement.

(d) Services Variable In Scope and Volume . The Services are variable in scope and volume. Such variations are provided for in the pricing mechanisms set forth in Article 14 , the Change Control Procedure set forth in Schedule A , Charges defined in SOWs hereunder, and in Schedule C . Acxiom shall be responsible for adjusting the resources used to provide the Services to accommodate the changes in scope and volume in such a manner as to comply with all Performance Standards. Acxiom shall not be entitled to receive an adjustment to the Charges resulting from such variations in scope and volume except as set forth in Article 14 , the Change Control Procedure set forth in Schedule A , in the Charges portions of SOWs hereunder, and in Schedule C .

(e) Services Performed by D&B or Third Party .

(i) Services Performed by D&B or Third Party . Except as provided in Section 3.8(a) of the S&M Agreement or in an SOW, D&B has the right to perform itself, or retain third parties to perform, any of the Services.

(A) If D&B performs any of the Services itself, or retains third parties to do so, Acxiom shall cooperate with D&B or such third parties, at D&B’s expense. Such cooperation shall include providing such information regarding the Software, Materials, data and Equipment in use pursuant to this Agreement, as a person with reasonable commercial skills and expertise would find reasonably necessary for D&B or a third party to perform its work; provided however, that Acxiom shall not be required to provide information regarding any such items ***. If D&B reduces the Services pursuant to this Section 3.1(e) , the Charges shall be adjusted as provided in Section 14.6(b) or the applicable SOW.

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

(B) Third parties retained by D&B shall comply with Acxiom’s reasonable security and confidentiality requirements and (to the extent failure to do so would substantially impact on Acxiom’s performance) with Acxiom’s reasonable work standards, methodologies, and procedures, as have been provided by Acxiom. Acxiom shall promptly notify D&B if an act or omission of such a third party may cause a problem or delay in providing the Services and shall work with D&B to prevent or circumvent such problem or delay.

 

3.2

Intentionally Omitted.

 

3.3

Intentionally Omitted.

 

3.4

Permitted Users of the Services.

The Services may be used by D&B and, as directed by D&B, (i) its Affiliates and those third parties (such as customers, suppliers, and joint venturers) with whom D&B or any Affiliate has a commercial relationship which includes the resale of the Services provided hereunder through D&B’s distribution network and (ii) those persons (which may be as broad as the general public) who D&B or its Affiliates permits access through the internet and similar methods. Services provided to such entities shall be deemed to be Services provided to D&B; provided however, that this Section 3.4 shall not be interpreted to allow any such entity to be deemed in legal privity with Acxiom and is subject to Section 24.15 . D&B shall be responsible to Acxiom for any breach of this Agreement caused by a party permitted by D&B to use the Services hereunder. As provided in Section 3.5(a) , each SOW hereunder shall identify the specific Acxiom entity (i.e., Acxiom and/or an Acxiom Affiliate(s)) providing Services and the specific D&B entity (i.e., D&B and/or a D&B Affiliate(s)) receiving Services.

 

3.5

SOWs.

(a) D&B and Acxiom, and their respective Affiliates (including additional D&B business units and/or geographic territories), may execute SOWs substantially in the form attached hereto as Schedule L in order for Acxiom (and/or its Affiliates) to provide (and for D&B (and/or its Affiliates) to receive) certain products, licenses, and services during the Term. The provision of all such products, licenses, and services (including to additional D&B business units and/or geographic territories) provided pursuant to an SOW shall be deemed to be the provision of “Services” hereunder. An SOW shall provide a description of the Services and/or Project to be provided by Acxiom to D&B. All Charges for Services and the charging methodology provided by Acxiom pursuant to the SOW (including, if necessary charges for travel-related or other incidental expenses, Pass-Through Expenses and Out-Of-Pocket Expenses) shall be set forth in the SOW.

(i) Neither party shall have any obligation unless and until a specific SOW setting forth the specific terms with respect to Services to be provided and received has been executed by both of the parties.

 

(ii) No SOW under this Agreement shall be effective unless and until the D&B Vendor Management Office (VMO) reviews and provides its approval of the terms in such SOW, which approval must be evidenced by the VMO’s execution of such SOW. Acxiom shall be entitled to rely, without further inquiry, on the authenticity of such signature and authority of the person signing on behalf of the VMO.

(iii) Each individual SOW shall identify the specific Acxiom entity (i.e., Acxiom and/or an Acxiom Affiliate(s)) providing Services and the specific D&B entity (i.e., D&B and/or a D&B Affiliate(s)) receiving Services, and each party may so utilize an Affiliate to enter into an SOW.

(b) The following provisions will be addressed in individual SOWs, as necessary and as applicable:

(i) Legally necessary exceptions and additions, local and country-specific exceptions and additions, and transaction-specific exceptions and additions to the uniform terms and conditions in this Agreement, as well as additional terms and conditions specific to the Services provided under such SOW;

(ii) Provisions governing the transfer of assets ( e.g. , hardware, software, third party service contracts) and/or personnel to Acxiom;

(iii) Disaster recovery provisions applicable to the Services to be provided by Acxiom; and

(iv) In jurisdictions where the Acquired Rights Directive (or equivalent legislation) is effective, appropriate enabling provisions for those instances where employees of D&B are affected. Similarly where either party is obligated to consult with works councils or similar groups, the parties shall fully comply with such requirements, and the relevant SOW shall set forth any contractual requirements in such regard.

(c) Each SOW shall incorporate the terms and conditions of this Agreement by reference.

(d) Any future amendment to or modification of the terms and conditions of this Agreement shall be deemed incorporated into each SOW without the necessity of further action by either party, provided that such amendment or modification complies with Section 24.18 herein.

(e) If there is a conflict between (x) an SOW, and (y) this Agreement, the terms of the SOW shall prevail as to:

(i) Acxiom’s and D&B’s respective rights and obligations under that SOW, provided that if such conflict relates to Section 8 (Intellectual Property Rights And Restrictions), 14 (Charges), 15 (Invoicing and Payment), 20 (Liability) or 22 (Termination) of this Agreement, then in order for the conflicting provision of the SOW to prevail: such conflict must be expressly listed in such SOW as a conflict (within a Section of such SOW that lists all such SOW-specific conflicts); and

 

(ii) issues involving local, country-specific law.

(f) An SOW may also describe a particular Project to be provided by Acxiom to D&B. A “ Project ” is comprised of work that is: (a) expressly deemed to be a Project in the Agreement, or (b) a discrete unit of non-recurring work that generally requires startup, planning, execution, and completion. For all Projects proposed or requested by D&B, Acxiom shall develop a Project Plan if necessary and comply with the Project Estimates Process provided in Attachment A-1 to Schedule A . If Acxiom proposes or requests a Project, and D&B agrees that the proposed work properly constitutes a Project in accordance with the definition provided above, Acxiom shall develop a Project Plan, if necessary, and comply with the Project Estimates Process provided in Attachment A-1 to Schedule A . The cost of developing initial Project Plans and Analysis Phases estimates and/or Project Estimates (as defined in Attachment A-1 to Schedule A ) may be charged to D&B as set forth in the Project Estimate Process. No work will be considered a Project unless and until D&B approves the SOW and associated estimate, in writing. For purposes of clarification, all work with respect to “Projects” pursuant to SOWs shall be deemed to be “Services” governed by this Agreement.

(g) If D&B Affiliates and/or Acxiom Affiliates enter into any SOW and either Affiliate fails to perform under such SOW for any reason, the applicable parent company (Acxiom Corporation or Dun & Bradstreet, Inc., or the successor to either company) will be secondarily responsible hereunder for such performance (or failure to perform).

 

4.	TRANSITION

 

4.1

D&B Cooperation and Support.

D&B will cooperate with Acxiom in the conduct of the Services as expressly provided in each SOW hereunder.

 

4.2

Major Milestones.

(a) Each SOW shall identify major events relating to the products or services provided by Acxiom to D&B pursuant to such SOW (“ Major Milestones ”), if any, and dates by which such Major Milestones are to be achieved. Acxiom shall achieve each Major Milestone by the applicable date set forth in the applicable SOW. Completion of each Major Milestone shall require successful achievement of each interim milestone upon which such Major Milestone depends, which interim milestones are included in such SOW (and Acceptance Criteria for each Major Milestone shall include D&B’s acceptance that such interim milestone(s) have been successfully achieved). A failure by Acxiom to substantially conform to any such Major Milestone in accordance with the preceding sentence, as approved by D&B in writing in accordance with the Project Estimates Process, will entitle D&B, in addition to any other rights set forth in this Agreement or available to D&B in law or at equity for Acxiom’s breach of this Agreement, to exercise the remedies described in such SOW.

 

(b) D&B shall have the right to monitor, test and otherwise observe and participate in the Services as described in the applicable SOW hereunder. Acxiom will promptly notify D&B if any D&B monitoring, testing, participation, or other action has caused (or Acxiom expects it to cause) a problem or delay in the delivery of Services, and work with D&B to prevent or circumvent the problem or delay.

(c) Approval of each Major Milestone by D&B and the completion of the transition (if any) described in an SOW hereunder shall be subject to (i) each such Major Milestone included in such SOW meeting corresponding acceptance criteria with respect to such Major Milestone, as such acceptance criteria are described in the applicable SOW (and as such acceptance criteria may be updated during the Term) and (ii) the applicable Acceptance Procedure with respect to such Milestones (which may include the Acceptance Procedures provided in Attachment A-1 to Schedule A .

 

4.3

Transition Plan.

If D&B transitions to Acxiom, pursuant to an SOW hereunder, any assets owned by D&B and/or any services previously performed by D&B, the parties shall, as necessary, attach to such SOW a transition plan applicable to such transfer (a “ Transition Plan ”).

 

5.

TERM

 

5.1

Term.

The term of this Agreement shall begin on the Contract Execution Date and shall expire on September 1, 2010, unless terminated earlier or extended in accordance with this Agreement (such period, the “ Initial Term ”).

 

5.2

Extension.

By providing written notice to Acxiom in accordance with Section 24.4 at least six (6) months before the expiration of the then-current Term, D&B shall have the right and option to extend the Initial Term in accordance with either clause (a) or (b) below, in which case all of the terms and conditions set forth in this Agreement shall remain in full force and effect:

(a) up to two (2) times for a period of up to one (1) year each, or

(b) for an initial renewal term of four (4) years, and, following such initial renewal term, a second renewal term of up to one (1) year.

 

 

(As extended in accordance with either of such options, any renewal term of this Agreement shall be referred to as the “ Extended Term ”, and, collectively, the Initial Term and the Extended Term shall constitute the “ Term ”).

 

6.	VENDOR PERSONNEL

 

6.1

Key Acxiom Positions.

(a) “ Key Acxiom Positions ” shall be the positions (and corresponding roles) set forth as such in Schedule D . Acxiom shall cause each of the Acxiom Personnel filling the Key Acxiom Positions to devote substantially full time and effort to the provision of the Services. Acxiom Personnel approved as of the Global Effective Date to fill the Key Acxiom Positions are listed in Schedule D . Additionally, each SOW may contain, to the extent agreed by the parties, one or more additional Key Acxiom Positions as expressly identified in such SOW, which number shall be dependent upon the scope of the Services provided under such SOW. In accordance with Section 6.1(b) , Acxiom shall designate an individual to serve as “ Acxiom Project Executive ”. The Acxiom Project Executive shall be one of the Key Acxiom Positions and he or she shall be a member of the Management Committee. The Key Acxiom Position approved as of the Global Effective Date to fill the role of the Acxiom Project Executive is listed in Schedule D . The Acxiom Project Executive shall (i) serve as the single point of accountability for Acxiom for the Services; and (ii) have day-to-day authority for undertaking to ensure the provision of the Services and customer satisfaction. The Acxiom Project Executive’s compensation shall include significant financial incentives based on D&B’s satisfaction with the Services. The Acxiom Project Executive shall be located at Acxiom’s offices and will travel upon an as-needed basis, as reasonably requested by D&B, to D&B’s office locations or other locations reasonably designated by D&B from time to time.

(b) Before assigning an individual to a Key Acxiom Position, whether as an initial assignment or a subsequent assignment, Acxiom shall notify D&B of the proposed assignment, introduce the individual to appropriate D&B representatives, provide such representatives upon request with the opportunity to interview the individual, and provide D&B with a resume and other information about the individual reasonably requested by D&B. If D&B objects in good faith to the proposed assignment of any proposed Key Acxiom Position, the parties shall attempt to resolve D&B’s concerns on a mutually agreeable basis. If the parties have not been able to resolve D&B’s concerns within five (5) Business Days, Acxiom shall not assign the individual to that position and shall propose to D&B the assignment of a different individual of suitable ability and qualifications.

(c) Except with D&B’s consent (which may be arbitrarily withheld) individuals filling Key Acxiom Positions may not be transferred or re-assigned to other positions with Acxiom or its Affiliates (i) for at least one (1) year following their assignment (or expiration of the SOW, if any, under which they are identified as a Key Acxiom Position, if shorter than one (1) year), and (ii) until a suitable replacement has

 

been approved by D&B. No such transfer shall occur at a time or in a manner that would have a non-insubstantial adverse impact on delivery of the Services. Acxiom shall establish and maintain an up-to-date succession plan for the replacement of individuals serving in Key Acxiom Positions that shall be reviewed with D&B on a regular basis.

(d) So long as an individual is assigned to a Key Acxiom Position and for twelve (12) months thereafter, Acxiom shall not assign such individual to perform services for the benefit of any D&B Competitor.

 

6.2

Qualifications, Retention and Replacement of Acxiom Personnel.

(a) Acxiom shall assign an adequate number of Acxiom Personnel to perform the Services. Acxiom Personnel shall be properly educated, trained, and fully qualified for the Services they are to perform, and Acxiom shall ensure (to the extent reasonably possible) that any outgoing Acxiom Personnel leaving the D&B account spend a reasonable period of time training the new Acxiom Personnel who will be replacing such outgoing personnel. If any portion of the Services provided by Acxiom Personnel are a separately chargeable resource Acxiom shall not charge D&B for the time or other costs of training Acxiom Personnel to become familiar with D&B’s account or business. Acxiom is responsible for ensuring that Acxiom Personnel assigned to perform the Services have the legal right to work in the country(ies) in which they are assigned to work.

(b) Background Checks .

(i) Acxiom shall ensure that prior to assigning any individual to perform the Services in the United States, Acxiom shall have performed employment, drug and background screening on such person in accordance with Acxiom’s standard employment screening policies, the version of which screening policies (as of the Global Effective Date) is provided in Schedule K . During the Term, Acxiom shall provide D&B written notice of any material changes to such screening policies.

(ii) With respect to Services to be performed outside of the United States, the relevant SOW shall set forth the equivalent background screening requirements under both local law and (to the extent applicable) U.S. law; provided however, that unless otherwise agreed within an SOW:

(A) in countries outside of the United States that permit background checks, permit employment decisions based on background checks, and do not restrict employment decisions if a potential employee refuses to allow a background check, then background checks shall be performed; and

(B) in countries outside of the United States that are not governed by item (A) above (i.e., countries that restrict background checks and/or employment decisions based on background checks in some manner), Acxiom shall (1) so inform D&B and (2) unless D&B otherwise agrees (within an SOW) that the following are not necessary, Acxiom shall (x) ensure that Services are provided from

 

facilities in such country with appropriate physical and logical security, as agreed by the parties ( e.g. , provide Services from facilities that do not have printers or USB ports), or (y) restrict the type of work performed from facilities in such country (as agreed by the parties).

(c) While at D&B’s premises (or the premises of others receiving the Services hereunder), Acxiom Personnel shall (i) comply with D&B’s requests, rules, and regulations regarding personal and professional conduct (including the wearing of an identification badge and adhering to regulations and general safety, dress, behavior, and security practices or procedures) generally applicable to such premises; (ii) comply with D&B security policies, and (iii) otherwise conduct themselves in a businesslike and professional manner.

(d) If D&B determines in good faith (and for reasons that would not be legally impermissible for an employer to make as to one of its own employees) that the continued assignment to D&B’s account of one or more of the Acxiom Personnel is not in the best interests of D&B, then D&B shall give Acxiom notice to that effect. After receipt of such notice, Acxiom shall have a reasonable period of time in which to investigate the matters stated in such notice, discuss its findings with D&B and resolve the problems with such person. If, following such period, D&B requests replacement of such person, Acxiom shall replace that person with another person of suitable ability and qualifications. However, where D&B notifies Acxiom that D&B has determined that the nature of the concern is of such that such Acxiom Personnel should be removed immediately (albeit temporarily) from D&B’s account, Acxiom shall immediately remove such individual(s) from D&B’s account. In any event, any request by D&B to remove an individual from D&B’s account shall not be deemed to constitute a termination of such individual’s employment by Acxiom and in no event shall D&B be deemed an employer of any such person. This provision shall not operate or be construed to limit Acxiom’s responsibility for the acts or omissions of Acxiom Personnel.

 

7.	RESPONSIBILITY FOR RESOURCES

 

7.1

Generally.

Except to the extent specifically provided elsewhere in this Agreement or in an SOW hereunder, Acxiom shall be responsible for providing all resources (including facilities, services, telecommunications, Software, Equipment, personnel, storage, etc.) necessary or desirable to provide the Services and will only recover such costs through: the Charges for Services described in SOWs hereunder, the ARC/RRC methodology, and the other charges expressly provided in Schedule C or in SOWs hereunder. Refresh of all such Equipment resources shall be *** except (a) as otherwise expressly provided in an SOW or (b) as to Equipment that is owned or leased by *** as provided in an SOW.

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

7.2

Financial Responsibility for Equipment.

Financial responsibility for (i) acquisition, lease, and ownership costs for Equipment, including current and future Equipment, upgrades, enhancements, growth and technology refreshments and (ii) all costs and expenses related to operational support, including installation, support, hardware maintenance, disaster recovery, service levels, and moves, adds and changes shall be allocated between the parties as provided in the applicable SOW.

 

7.3

Equipment Access and Operational and Administrative Responsibility.

(a) Operational and Administrative Responsibility . Except as provided in the next sentence, Acxiom and its Affiliates shall be administratively and operationally responsible for the Equipment used to provide the Services, including provisioning, staging, configuring, warehousing, shipping, installing, operating, maintaining, upgrading, and enhancing the Equipment, all as set forth in more detail in Schedule A and in the applicable SOW. Any Equipment for which D&B is financially, legally (i.e., the title or the lease in such party’s name), operationally (i.e., responsible for maintenance and operations) and administratively (i.e., responsible for lease or license renewals and for interacting with the third party vendor) responsible shall be expressly identified in an SOW hereunder, including the Charges therefor.

(b) Pass-Through Equipment . If the parties agree that Acxiom’s or its Affiliates’ financial responsibility with respect to any Equipment is to be on a Pass-Through Expense basis, such Equipment shall expressly be identified in the applicable SOW hereunder. Any such Equipment that is provided on a Pass-Through Expense basis shall be purchased or leased in the name of D&B (or its designated Affiliate), unless otherwise provided within an SOW hereunder. Acxiom shall be responsible for such Equipment during the Term to the same extent as if Acxiom were the owner or lessee (as applicable) of such Equipment. If such Equipment is leased, Acxiom shall comply with the requirements imposed on D&B (or, if applicable, its Affiliate) under the leases approved by D&B for such Equipment.

 

7.4

Financial Responsibility for Software.

(a) Generally . D&B will be responsible for the cost of all D&B proprietary Applications Software, except as otherwise expressly identified in the Agreement or in an SOW. Acxiom will be responsible for the cost of all third party Applications Software, except as otherwise expressly identified in the applicable SOW. Acxiom will be responsible for all Systems Software costs, including database management systems, except as otherwise expressly set forth in an SOW.

(b) Licenses . Where this Agreement or an SOW otherwise provides that D&B shall be the licensee for Software and Acxiom can demonstrate to D&B’s satisfaction an economic advantage from Acxiom, an Acxiom Affiliate, or an Approved Subcontractor being the licensee of any particular Software, then Acxiom, such

 

Acxiom Affiliate, or such Approved Subcontractor may (after obtaining D&B’s approval) be the licensee if Acxiom provides D&B and its Affiliates with an appropriate license (with commercially reasonable maintenance terms) for such Software which shall become effective upon the expiration or termination of this Agreement and/or the applicable SOW (or the part of the Services to which such Software relates).

 

7.5

Required Consents.

Except with respect to Software that is identified in an SOW hereunder as being D&B’s responsibility to obtain Required Consents, Acxiom and its Affiliates shall be responsible, with D&B’s and its Affiliates’ reasonable co-operation, for obtaining the Required Consents for Software as necessary to perform the Services, and *** shall be responsible for those fees (including transfer or upgrade fees, additional licenses, sublicenses, and maintenance fees) required to obtain such Required Consents. The parties shall co-operate with each other so as to minimize such costs. As and to the extent consent is obtained for Acxiom and its Affiliates to manage and utilize the Software or a contract but the relevant license or such contract remains in D&B’s or an Affiliate’s name, D&B and its Affiliates shall exercise termination, extension, and other rights thereunder as Acxiom, after consultation with D&B, reasonably directs. If a Required Consent is not obtained, then, unless and until such Required Consent is obtained, Acxiom shall determine and promptly adopt, subject to D&B’s approval, such alternative approaches as are necessary and sufficient to provide the Services without such Required Consents.

 

8.	INTELLECTUAL PROPERTY RIGHTS AND RESTRICTIONS

This Article addresses the parties’ respective rights in Software and Materials. Grant by D&B to Acxiom of a license to Use or of rights of Use pursuant to this Article 8 shall, subject to the other provisions of this Agreement, be deemed to include grant of such license or rights to Acxiom’s Approved Subcontractors. Additionally, specific Software and products that Acxiom shall license to D&B and specific Deliverables to be provided by Acxiom to D&B may be set forth in SOWs hereunder. Software made available to Acxiom by D&B is made available on an “AS IS” basis, with no warranties whatsoever.

 

8.1

D&B Software & Materials.

D&B retains all right, title, and interest in and to D&B Software and D&B Materials. D&B grants to Acxiom a worldwide, fully paid-up, nonexclusive license to Use D&B Software and D&B Materials during the Term solely to the extent necessary for performing the Services. D&B Software and D&B Materials will be made available to Acxiom in such form and on such media as exists on the Contract Execution Date or as are later obtained by D&B, together with available documentation and any other related materials. Acxiom shall not be permitted to Use D&B Software and D&B Materials for the benefit of any entities other than D&B and its Affiliates (including Acxiom’s use in managing the Services) without the prior

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

consent of D&B, which may be withheld at D&B’s discretion. Acxiom shall install, operate, and support (and otherwise treat in the same manner as D&B Software existing as of the Contract Execution Date) additional D&B Software and/or D&B-provided Third Party Software that D&B may designate from time to time during the Term, subject to the parties’ agreement as to the charge for such. Except as otherwise requested or approved by D&B, Acxiom shall cease all Use of D&B Software and D&B Materials upon expiration or termination of this Agreement.

 

8.2

Acxiom Software.

(a) Acxiom retains all right, title and interest in and to Acxiom Software.

(b) With respect to Acxiom Software (including any Acxiom-proprietary software tools necessary to utilize work flows provided to D&B under this Agreement) that will be installed during the Term (1) *** and used in providing the Services under an SOW, or (2) *** and that will be used exclusively by or for D&B (items (1) and (2), collectively, “ New Acxiom Software ”), Acxiom shall not introduce any such New Acxiom Software (x) without first notifying D&B in writing as to whether such New Acxiom Software is Commercially Available or non-Commercially Available, and (y) without D&B’s prior written approval, which approval D&B may withhold in its discretion.

(i) If Acxiom introduces any such New Acxiom Software without first notifying D&B and obtaining its approval, as provided in items (x) and (y) above, then such New Acxiom Software shall be deemed to be Commercially Available.

(ii) If (A) any such New Acxiom Software is not Commercially Available, (B) D&B elects to not approve the use of such New Acxiom Software, (C) the introduction of such New Acxiom Software is necessary for the proper performance of the Services, and (D) Acxiom, after being provided written notice, is unable or unwilling to propose alternative Software that is acceptable to D&B, then D&B shall have the right to terminate the applicable SOW, in whole or in part, by giving Acxiom at least six (6) months’ prior written notice and designating the termination date. In such event D&B shall be liable to pay to Acxiom the applicable amount, if any, specified in such SOW, such payment not being a condition precedent to the termination. To the extent that D&B assumes (or offers to assume) any remaining obligation of Acxiom, the amount of such liability shall reduce any applicable termination charge. Acxiom shall invoice D&B for such termination charges upon the effective date of termination, and such charges shall be due thirty (30) days after the effective date of termination.

(iii) If any such New Acxiom Software that will be installed during the Term is Commercially Available, then if D&B elects to do so, it shall have the right to obtain a license to such Software: (A) upon termination or expiration of the Agreement, and (B) on commercially reasonable: (I) license, (II) maintenance (if D&B

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

elects to obtain maintenance from Acxiom), and (III) pricing terms; provided that such terms shall not be more restrictive or require greater consideration than offered by Acxiom to similar entities in similar circumstances. The parties shall negotiate such post-termination/expiration license, maintenance, and pricing terms either (as elected by D&B): (1) prior to the introduction of such Commercially Available New Acxiom Software during the Term, or (2) upon provision of any notice of termination or of non-renewal of the Agreement; provided however, that if the Agreement expires or terminates prior to the parties’ agreement on the terms applicable to D&B’s use of such New Acxiom Software after termination or expiration of the Agreement, then commencing upon such termination or expiration and extending until such time that appropriate terms are agreed to by the parties and take effect, D&B shall have the right to use such New Acxiom Software: (a) on the same terms (including pricing, if any) as existed prior to such termination or expiration, and (b) without impact to D&B’s ongoing use of such New Acxiom Software. If any New Acxiom Software was being used by D&B during the Term at no charge or fee and if the Agreement expires or terminates prior to the parties’ agreement on the terms applicable to D&B’s use of such New Acxiom Software after termination or expiration of the Agreement, then when such terms are agreed to by the parties and take effect, the relevant pricing included within such terms shall be retroactive to the effective date of termination or expiration of the Agreement, unless otherwise agreed by the parties within such terms.

(c) Acxiom shall be responsible for installing, operating, and maintaining Acxiom Software at its own expense.

 

8.3

Provision of AbiliTec Software Links and InfoBase Data.

For purposes of clarification, as of the Contract Execution Date and while the S&M Agreement is in effect, the Services include Acxiom’s provision of AbiliTec Software links (as provided in SOW #1) and InfoBase data (as provided in SOW #1) to D&B and its customers; however: (a) D&B and its customers are not presently licensing the AbiliTec Software or InfoBase (and the parties agree that (i) ***, and (ii) ***), and (b) there is *** for Acxiom’s provision of AbiliTec Software links and/or InfoBase data to D&B and its customers as of the Contract Execution Date. Instead, D&B’s and its customers’ rights to use AbiliTec Software links and InfoBase data (and D&B’s rights to resell AbiliTec Software links and InfoBase data) are (as of the Contract Execution Date) as provided in the S&M Agreement. The provisions in this Section 8.3 shall not be interpreted to prevent the parties, if the parties mutually agree to do so, from entering into an SOW during the Term, under which D&B does license from Acxiom the AbiliTec Software, the AbiliTec Software links, InfoBase and/or InfoBase data. D&B’s rights with respect to AbiliTec Software links and InfoBase data as of such time that the S&M Agreement is no longer in effect are provided in SOW #1.

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

8.4

Third Party Software.

(a) Grant of Rights . With respect to the Third Party Software licensed by D&B, subject to the parties having obtained any Required Consents for Third Party Software in the manner provided in Section 7.5 , D&B grants to Acxiom solely to the extent necessary for performing the Services, the rights of Use of such Software that D&B has as of the Contract Execution Date or later obtains with respect to such Software. Acxiom shall comply with the duties, including Use restrictions and those of nondisclosure, imposed on D&B by the licenses for such Third Party Software, and Acxiom shall not seek to modify or otherwise revoke such terms. Except as otherwise requested or approved by D&B, Acxiom shall cease all Use of such Software upon expiration or termination of this Agreement.

(b) Introduction of Third Party Software . Third Party Software that Acxiom will use to provide the Services is listed in the applicable SOW. With respect to additional Third Party Software (including any third party-proprietary software tools necessary to utilize work flows provided to D&B under this Agreement) that will be installed during the Term (1) ***and used in providing the Services under an SOW, or (2) ***and that will be used exclusively by or for D&B (items (1) and (2), collectively, “ New Third Party Software ”), Acxiom shall not introduce any such New Third Party Software (x) without first notifying D&B in writing as to whether such New Third Party Software is Commercially Available or non-Commercially Available, and (y) without D&B’s prior written approval, which approval D&B may withhold in its discretion.

(i) Acxiom Seeks D&B’s Approval for Installation of New Third Party Software that is Not Commercially Available . If (A) any such New Third Party Software that will be installed during the Term is not Commercially Available, (B) D&B elects to not approve the use of such New Third Party Software, and (C) the introduction of such New Third Party Software is necessary for the proper performance of the Services, then D&B shall have the right to terminate the Agreement, by giving Acxiom at least six (6) months’ prior written notice and designating the termination date. In such event D&B shall be liable to pay to Acxiom the applicable amount specified in the applicable SOW, such payment not being a condition precedent to the termination. To the extent that D&B assumes (or offers to assume) any remaining obligation of Acxiom, the amount of such liability shall reduce the termination charge. Acxiom shall invoice D&B for such termination charges upon the effective date of termination, and such charges shall be due thirty (30) days after the effective date of termination.

(ii) Acxiom Seeks D&B’s Approval for Installation of New Third Party Software that is Commercially Available . If any such New Third Party Software that will be installed during the Term is Commercially Available, then prior to granting its approval for the installation of such New Third Party Software, D&B shall have the

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

right to negotiate and obtain (or to have Acxiom negotiate and obtain on behalf of D&B) appropriate license, maintenance and/or pricing terms from the New Third Party Software vendor, applicable to D&B’s use of such New Third Party Software upon termination or expiration of this Agreement.

(iii) If Acxiom Fails to Seek D&B’s Approval for Installation of New Third Party Software . If Acxiom introduces any such New Third Party Software without first notifying D&B and obtaining its approval, as provided in items (x) and (y) above, then:

(A) if such New Third Party Software is not Commercially Available, then D&B may pursue such remedies available to D&B to which it may be entitled under this Agreement, at law and/or in equity (which D&B right shall survive termination or expiration of this Agreement); and

(B) if such New Third Party Software is Commercially Available, then Acxiom shall be responsible (including upon termination or expiration of this Agreement, which obligation shall survive termination or expiration of this Agreement):

(I) for administratively procuring for D&B (1) a license to such Commercially Available New Third Party Software, having license rights that are acceptable to D&B in its sole discretion, and (2) the right for D&B to receive maintenance for such Software after the expiration or termination of this Agreement and at commercially reasonable pricing and maintenance terms; or

(II) if Section 8.4(b)(iii)(B)(I) cannot be accomplished, for providing to D&B substitute software that is Commercially Available software and has license rights and maintenance terms that are acceptable to D&B in its sole discretion; provided that such substitute software shall: (1) provide substantially the same functionality and performance as the New Third Party Software it would replace; (2) be at no additional charge to D&B (except for applicable, commercially reasonable license fees and maintenance charges); and (3) be installed and integrated into the D&B environment by Acxiom at no additional charge to D&B.

(III) If neither Section 8.4(b)(iii)(B)(I) or 8.4(b)(iii)(B)(II) can be accomplished by Acxiom and if such New Third Party Software is necessary for the proper performance of the Services, then D&B may, by giving notice to Acxiom, terminate the applicable SOW, in whole or in-part and at no-cost or charge, as of a date specified in the notice of termination. Any termination by D&B for breach shall not constitute an election of remedies and shall be without prejudice as to D&B’s other rights resulting therefrom.

Acxiom shall be financially responsible for all costs and charges incurred in connection with such efforts as provided in this Section 8.4(b)(iii) , not including license fees and maintenance charges.

 

(c) If requested by D&B during the Term (including if an event occurs that will result in a termination or expiration of this Agreement), Acxiom will provide to D&B a list of Third Party Software in use to provide the Services.

 

8.5

Rights in Newly Developed Materials.

(a) Newly Developed Software and Materials . Software and Materials developed pursuant to this Agreement by Acxiom or Authorized Subcontractors (alone or jointly with others) (“ Developed D&B Materials ”) shall include the following:

(i) newly developed Software and Materials that do not modify or enhance then existing Software and Materials; provided however, that:

(A) this shall not include any newly developed Software or Materials (including open source Software) to the extent such newly developed Software or Materials are installed within *** (such items installed within ***, the “ Developed *** Materials ”);

(B) prior to their development, as part of a joint design review pursuant to an SOW (the “ Joint Review Meeting ”), D&B and Acxiom shall review whether any of the proposed solution’s newly developed Software or Materials will be installed in whole or in part ***;

(C) if, as a result of the Joint Review Meeting pursuant to item (B) above, D&B has a reasonable concern about whether any such newly developed Software or Materials should be installed *** (i.e., since D&B does not own, by definition, any such newly developed Software or Materials installed *** except as otherwise provided in this Agreement ( e.g. , modifications to D&B Software as set forth in Section 8.5(a)(iii) )), the parties shall mutually resolve such concern prior to the development of such Software or Materials at issue. For purposes of clarification, no newly developed Software or Materials (except for Standard *** Software Changes, as defined below) shall be installed *** without disclosure to and approval by D&B pursuant to a Joint Review Meeting; and

(D) if (1) any Software or Materials are developed pursuant to this Agreement and are installed in whole or in part ***, (2) such Software or Materials are not disclosed to and approved by D&B pursuant to the Joint Review Meeting described in items (B) and (C) above, and (3) such installation is not a Standard *** Software Change, as defined below (such Software or Materials described in items (1) – (3), the “ Without Notice Material ”), then upon either party’s written notice to the other that such an event has occurred, which notice is sent during the Term (including during any period of Termination/Expiration Assistance) or within eighteen (18) months after the effective date of termination or expiration, Acxiom shall (unless D&B instructs Acxiom, in its sole discretion, that any of the following actions are not necessary in order to provide D&B the same functionality and rights with respect to such Software or Materials at issue), at Acxiom’s sole cost:

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

(I) modify and/or de-install the Without Notice Material that is installed ***, such that: (x) the Without Notice Material is no longer installed in whole or in part ***; and (y) the other Software or Material – whether in the *** layer (i.e., “below the line” as provided in Schedule F ) or in the Application layer (i.e., “above the line” as provided in Schedule F ) – to which the Without Notice Material relates is not materially degraded, in terms of the overall performance or functionality of the Software or Material;

(II) reconfigure or modify the Software and/or Material to which the Without Notice Material relates, so that such Software and/or Material are no longer dependent upon such Without Notice Material; provided that such Software and/or Material shall not be materially degraded, in terms of the overall performance or functionality of the Software or Material; and

(III) (x) provide to D&B substitute Software and/or Materials that (1) has the same functionality (as determined by D&B in its sole discretion) as the Without Notice Material; and (2) is deemed to be “Developed D&B Materials”; or (y) if item (x) is not possible, provide D&B a royalty-free license to third party software that is commercially available software and that has the same functionality (as determined by D&B in its sole discretion) as the Without Notice Material.

Sections 8.5(a)(i) – (ii)  shall not be applicable to the following (i.e., to the extent installed ***, Acxiom does not need to notify D&B of the following and D&B shall not own the following): if Acxiom

(1) installs new Systems Software that will operate wholly *** (i.e., operate “below the line” as provided in
Schedule F ); or

(2) modifies Systems Software residing wholly ***; or

(3) installs new Acxiom Software that constitutes Applications Software, that is developed outside of this Agreement, and (i) that will reside wholly ***, and (ii) for which there is no express charge to D&B hereunder for the development of such Applications Software; or

(4) installs new Applications Software that is Third Party Software and (i) that will reside wholly ***, and (ii) for which there is no express charge to D&B hereunder for the licensing of such Applications Software; or

(5) modifies Acxiom Software that constitutes Applications Software (i) residing wholly ***, and (ii) for which the there is no express charge to D&B hereunder for the modification of such Applications Software; or

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

(6) modifies Applications Software that is Third Party Software (i) residing wholly ***, and (ii) for which the there is no express charge to D&B hereunder for the modification of such Applications Software (items (1) through (6), a “ Standard *** Software Change ”).

(ii) as between D&B and Acxiom and subject to any applicable third party license agreements, modifications to or enhancements (including derivative works) of, Third Party Software (including open source Software); provided however, that:

(A) this shall not include any such modifications or enhancements of Third Party Software to the extent such modifications or enhancements of Third Party Software are installed *** (such modifications and enhancements of Third Party Software installed ***, the “ Developed Third Party *** Materials ”);

(B) prior to their development, as part of a Joint Review Meeting, D&B and Acxiom shall review whether any of the proposed solution’s newly developed modifications or enhancements to Third Party Software will be installed in whole or in part ***;

(C) if, as a result of the Joint Review Meeting pursuant to item (B) above, D&B has a reasonable concern about whether any such newly developed modifications or enhancements to Third Party Software should be installed *** (i.e., since D&B does not own (as between D&B and Acxiom), by definition, any such items installed ***), the parties shall mutually resolve such concern prior to the development of such modifications or enhancements to Third Party Software at issue. For purposes of clarification, no modifications or enhancements of Third Party Software (except for Standard *** Software Changes, as defined above) shall be installed *** without disclosure to and approval by D&B pursuant to a Joint Review Meeting; and

(D) if (1) any modifications or enhancements to Third Party Software are developed pursuant to this Agreement and are installed in whole or in part ***, (2) such Software or Material are not disclosed to and approved by D&B pursuant to the Joint Review Meeting described in items (B) and (C) above, and (3) such installation is not a Standard *** Software Change, as defined above (such modifications or enhancements to Third Party Software described in items (1) – (3), the “ Without Notice Third Party Material ”), then upon either party’s written notice to the other that such an event has occurred, which notice is sent during the Term (including during any period of Termination/Expiration Assistance) or within eighteen (18) months after the effective date of termination or expiration, Acxiom shall (unless D&B instructs Acxiom, in its sole discretion, that any of the following actions are not necessary in order to provide D&B the same functionality and rights with respect to such Software or Materials at issue), at Acxiom’s sole cost:

(I) modify and/or de-install the Without Notice Third Party Material that is installed ***, such that: (x) the Without Notice Third Party Material is no longer installed in whole or in part ***; and (y) the other Software or Material – whether in the *** layer (i.e., “below the line” as provided in Schedule F ) or in the Application layer (i.e., “above the line” as provided in Schedule F ) – to which the Without Notice Third Party Material relates is not materially degraded, in terms of the overall performance or functionality of the Software or Material;

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

(II) reconfigure or modify the Software and/or Material to which the Without Notice Third Party Material relates, so that such Software and/or Material are no longer dependent upon such Without Notice Third Party Material; provided that such Software and/or Material shall not be materially degraded, in terms of the overall performance or functionality of the Software or Material; or

(III) (x) provide to D&B substitute Software and/or Materials that (1) has the same functionality (as determined by D&B in its sole discretion) as the Without Notice Third Party Material; and (2) is deemed to be “Developed D&B Materials” (as between D&B and Acxiom); or (y) if item (x) is not possible, provide D&B a royalty-free license to third party software that is commercially available software and that has the same functionality (as determined by D&B in its sole discretion) as the Without Notice Third Party Material.

(iii) notwithstanding Sections 8.5(a)(i)-(ii)  above:

(A) any modifications to, or upgrades or enhancements (including derivative works) of: (I) D&B Software, (II) D&B Materials, or (III) Materials to the extent they contain D&B Confidential Information;

(B) interfaces and process flows developed pursuant to this Agreement; provided however, that Developed D&B Materials (I) shall include interfaces that are solely *** (i.e., “above the line” that separates the *** from the Application layer, as depicted in Schedule F ); (II) shall not include interfaces that are solely *** (i.e., “below the line” that separates the *** from the Application layer, as depicted in Schedule F ); and (III) shall include interfaces that connect the *** layer to the Application layer sitting “on top of” the *** (i.e., interfaces that transverse or extend across the line that separates the *** from the Application layer, as depicted in Schedule F.

(C) D&B business rules, business logic, work flows, business specifications, requirements, and related documentation (1) developed for the D&B Software, D&B Materials, and/or the Services and/or (2) as described in SOWs hereunder; and

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

(D) anything identified in Schedule F as Developed D&B Materials.

(iv) notwithstanding the previous language in this Section 8.5(a) , items expressly identified as “Deliverables” within any SOW.

(b) Rights . D&B shall have all Intellectual Property Rights and all right, title, and interest (limited to the extent permitted by the terms of any governing Third Party Software licenses with respect to Section 8.5(a)(ii) above) in and to Developed D&B Materials and all copies made from them. With respect to Developed D&B Materials, Acxiom shall have the rights granted in Section 8.1 .

(c) Works Made for Hire . Developed D&B Materials shall be deemed “works made for hire” for D&B for purposes of copyright law. All Developed D&B Materials shall belong solely and exclusively to D&B, and D&B will possess all ownership rights in and to such Developed D&B Materials, and all Intellectual Property Rights associated therewith. Acxiom shall include and enforce appropriate provisions in all subcontracts to ensure D&B’s exclusive ownership of Deliverables as set forth and described herein. If, and to the extent, any of the Developed D&B Materials are not deemed “works made for hire” by operation of law, Acxiom hereby irrevocably assigns, transfers and conveys to D&B without further consideration all of its right, title and interest in such Developed D&B Materials, including all Intellectual Property Rights in such materials. D&B (and its successors and assigns) may obtain and hold in their own name all such Intellectual Property Rights in and to such materials. Acxiom agrees to execute any documents or take any other actions as may reasonably be necessary, or as D&B may reasonably request, to perfect D&B’s ownership of any such Developed D&B Materials, without additional consideration and regardless of whether during or after the Term. Within a reasonable time after their creation (but in no event more than twice a year), Acxiom shall provide D&B written notice of any Developed D&B Materials created hereunder.

(d) Developed Third Party *** Materials . With respect to Developed Third Party *** Materials developed or created specifically for D&B (limited to the extent permitted by the terms of any governing Third Party Software licenses) and with respect to Developed *** Materials developed or created specifically for D&B (collectively, “ Specific *** Materials ”):

(i) Acxiom hereby agrees that, as and to the extent necessary for D&B (and designees thereof for the sole purpose of providing services to D&B) to perform work and/or receive Services during the Term as permitted under this Agreement, Acxiom shall grant to D&B and such third parties for no additional

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

consideration an irrevocable, worldwide, fully paid-up, nonexclusive license to Use such Specific *** Materials (including source code, programmer interfaces, available documentation, manuals and other materials necessary for the Use thereof) during the Term; and

(ii) Acxiom hereby grants to D&B (and designees thereof for the sole purpose of providing services to D&B), effective after the expiration or earlier termination of this Agreement, for no additional consideration a perpetual, irrevocable, worldwide, fully paid-up, nonexclusive license to Use such Specific *** Materials (including source code, programmer interfaces, available documentation, manuals and other materials necessary for the Use thereof). If requested by D&B, the parties shall mutually agree on applicable terms for Acxiom’s support of such Specific *** Materials after expiration or termination of this Agreement; provided that in no event shall such terms be more restrictive or require greater consideration than offered by Acxiom to similar entities in similar circumstances.

(iii) Notwithstanding the foregoing, Acxiom expressly does not grant to D&B any license to any or all Software provided under public or open source third party license terms (“ Ancillary Software ”), unless otherwise mutually agreed by the parties. Ancillary Software may be obtained by D&B from third party open source repositories and shall be subject to the terms and conditions of any software license agreements applicable to such Ancillary Software. D&B shall not at any time use any Ancillary Software in conjunction with any Developed Acxiom *** Materials, unless mutually agreed by the parties.

(e) Source Code . To the extent any Developed D&B Material consist of Software, Acxiom shall provide source code and artifacts ( e.g. , documentation, use cases, test scripts, design models, activity diagrams, systems configuration) that Acxiom has in its possession or its subcontractors have in their possession for such Software portion of the Developed D&B Material: (i) if such Software portion of the Developed D&B Material is provided under this Agreement (or an SOW hereunder); or (ii) as otherwise provided in this Agreement (or an applicable SOW hereunder). Acxiom shall provide such source code and artifacts promptly (A) upon any reasonable request from D&B during the Term, and (B) upon termination or expiration of this Agreement (or an applicable SOW hereunder).

(f) Embedded Acxiom Material In Developed D&B Materials Provided to D&B . If Acxiom, in connection with this Agreement and/or an SOW hereunder, bundles, embeds, or otherwise includes or appends any Acxiom Owned Material (but not including any AbiliTec Software links or InfoBase data) (the foregoing in this sentence, collectively, “ Embedded Acxiom Material ”) within or to any Developed D&B Materials provided to D&B under this Agreement and/or any SOW hereunder, Acxiom will provide D&B a written description of any such Embedded Acxiom Material. Acxiom hereby grants (or provides, in the case of third party Embedded Acxiom Material) to D&B, D&B’s Affiliates, and D&B’s third party service providers (who

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

receive such materials for the sole purpose of providing services to D&B): a worldwide, perpetual, non-exclusive, irrevocable, and paid-up license to use and modify such Embedded Acxiom Material solely in connection with D&B’s use of the associated Developed D&B Materials and only to the extent that the Embedded Acxiom Material remains integrated into or appended to the Developed D&B Materials. This license is transferable (i) among D&B and its Affiliates, and (ii) in connection with the assignment or transfer of this Agreement or the affected SOW. This license includes use or inclusion of Embedded Acxiom Material in or in connection with any distribution, sublicense, derivative work, adaptation, modification, display, performance, or reproduction of any such Developed D&B Materials by or on behalf of D&B but only to the extent such use or inclusion remains consistent with the purposes for which the Developed D&B Materials were provided. This license does not include the right to reverse engineer, decompile, or disassemble the Embedded Acxiom Material. Upon (A) any reasonable request from D&B during the Term and/or (B) upon termination or expiration of this Agreement (or an applicable SOW hereunder), Acxiom will ***. ***. When Acxiom provides *** to D&B, the foregoing license shall be deemed *** the Embedded Acxiom Material.

 

8.6

Residual Knowledge.

Nothing contained in this Agreement shall restrict a party from the use of any general ideas, concepts, know-how, methodologies, processes, technologies, algorithms or techniques retained in the unaided mental impressions of such party’s personnel relating to the Services which either party, individually or jointly, develops or discloses under this Agreement, provided that in doing so such party does not breach its obligations under Article 16 or infringe the Intellectual Property Rights of the other party or third parties who have licensed or provided materials to the other party. Except for the license rights contained in this Article 8 , neither this Agreement nor any disclosure made hereunder grants any license to either party under Intellectual Property Rights of the other party. This Section 8.6 shall survive termination or expiration of this Agreement.

 

8.7

Acxiom’s Patents .

Acxiom (on its own behalf and on behalf of its Affiliates) covenants not to assert against or sue D&B and its Affiliates (including Former Affiliates, without regard to how long they have been Former Affiliates, notwithstanding the eighteen (18) month condition in the definition thereof) during or at any time following the Term with respect to any claim for infringement of any patent owned or licensed by Acxiom or its Affiliates where: (a) D&B’s or its Affiliate’s use which constitutes such infringement began during the Term, (b) the infringing process, product, Material or act was installed and/or implemented into services for D&B, services utilized by D&B and/or D&B’s processes by Acxiom in connection with the Services provided under this Agreement, and (c) Acxiom did not provide D&B prior written notice that (and did not receive D&B’s written approval of the following): (i) Acxiom was installing or

 

***	Omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

 

implementing such process, product, Material or act, and (ii) such installation or implementation would result in the services for D&B, services utilized by D&B and/or D&B’s processes being subject to a patent owned or licensed by Acxiom or its Affiliates; provided that in no event shall this Section 8.7 apply to Acxiom’s AbiliTec Software patents (but rather, D&B’s rights with respect to the AbiliTec Software are as provided in the S&M Agreement); and provided further that if Acxiom notifies D&B of a specific patent or patents that is or are being infringed upon by D&B or its Affiliates, identifying with reasonable particularity the process or function being performed by or for D&B or its Affiliates which infringes such patent (the “ Specific Patent Notice ”), then (A) thirty-six (36) months after D&B’s receipt of such Specific Patent Notice, if such notice is provided by Acxiom dur