--------------------------------------------------------------------------------
BUSINESS PROCESS SERVICES AGREEMENT
BETWEEN
THE DUN & BRADSTREET CORPORATION (D&B)
AND
INTERNATIONAL BUSINESS MACHINES CORPORATION (IBM)
----------------------------------
OCTOBER 15, 2004
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TABLE OF CONTENTS
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1.
OBJECTIVES..............................................................................................
1
1.1 Background,
Goals, and
Objectives.....................................................................
1
2.
DEFINITIONS.............................................................................................
2
2.1 Certain Defined
Terms.................................................................................
2
2.2 Other Defined
Terms...................................................................................
6
3.
SERVICES................................................................................................
6
3.1
General...............................................................................................
6
3.2 Implied
Services......................................................................................
7
3.3 Services
Evolution....................................................................................
7
3.4 Services
Variable in Scope and
Volume.................................................................
7
3.5 Services
Performed by D&B or Third
Parties............................................................
7
3.6 Permitted Users
of the
Services.......................................................................
8
3.7 Service
Locations.....................................................................................
8
3.8 Relationship and
Agreement
Structure..................................................................
8
4. TERM
OF
AGREEMENT.......................................................................................
9
4.1
Term..................................................................................................
9
4.2 Extension of
Term.....................................................................................
9
5.
TRANSITION AND
TRANSFORMATION...........................................................................
10
5.1 Transition and
Transformation,
Generally..............................................................
10
6.
PERSONNEL...............................................................................................
10
6.1 Key IBM
Positions.....................................................................................
10
6.2 IBM Project
Executive.................................................................................
11
6.3 Qualifications,
Retention and Removal of IBM
Personnel................................................
11
6.4 Restrictive
Covenant..................................................................................
12
7.
HUMAN
RESOURCES.........................................................................................
13
8.
RESPONSIBILITY FOR
RESOURCES............................................................................
13
8.1
Generally.............................................................................................
13
8.2 Acquired
Assets.......................................................................................
13
8.3
[Reserved]............................................................................................
13
8.4
[Reserved]............................................................................................
13
8.5 D&B
Facilities........................................................................................
13
9.
RIGHTS IN
MATERIALS.....................................................................................
14
9.1 D&B
Materials.........................................................................................
14
9.2 Commercially
Available IBM
Materials..................................................................
14
9.3 Non-Commercially
Available IBM
Materials..............................................................
15
9.4 Developed
Materials...................................................................................
16
9.5 Certain D&B
Rights Following the
Term.................................................................
17
9.6 Residual
Knowledge....................................................................................
17
10. REQUIRED
CONSENTS.......................................................................................
18
11.
PERFORMANCE STANDARDS/SERVICE
LEVELS....................................................................
18
11.1
General............................................................................................
18
11.2
Priority of Recovery Following Interruption of
Services............................................ 18
11.3 User
Satisfaction..................................................................................
18
11.4
Periodic
Reviews...................................................................................
19
12.
ACCEPTANCE..............................................................................................
19
13.
governance..............................................................................................
19
13.1
Reports............................................................................................
20
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13.2 Procedures
Manual..................................................................................
20
13.3
Change
Control.....................................................................................
21
13.4
Subcontractors.....................................................................................
22
13.5
Quality Assurance and Improvement
Programs.........................................................
22
14. AUDITS;
RECORD
RETENTION................................................................................
22
14.1
Audit
Rights.......................................................................................
22
14.2 IBM
Audits.........................................................................................
23
14.3
Records
Retention..................................................................................
24
15. D&B
RESPONSIBILITIES....................................................................................
24
15.1
Designation of Certain D&B
Personnel...............................................................
24
15.2
D&B Retained
Functions.............................................................................
24
15.3
Savings
Clause.....................................................................................
24
16.
CHARGES.................................................................................................
24
17.
SAFEGUARDING OF DATA;
CONFIDENTIALITY...................................................................
25
17.1
D&B
Information....................................................................................
25
17.2
Safeguarding D&B
Data..............................................................................
25
17.3
Confidential
Information...........................................................................
26
17.4
Obligations in Connection with Confidential
Information............................................
26
18.
REPRESENTATIONS, WARRANTIES AND
COVENANTS...............................................................
27
18.1 Work
Standards.....................................................................................
27
18.2
Efficiency and Cost
Effectiveness..................................................................
27
18.3
Deliverables.......................................................................................
27
18.4
Technology.........................................................................................
27
18.5
Non-Infringement...................................................................................
27
18.6
Ownership and Use of Software and Related
Material.................................................
28
18.7
Authorization and Other
Consents...................................................................
28
18.8
Inducements........................................................................................
28
18.9
Viruses............................................................................................
28
18.10 Disabling
Code.....................................................................................
29
18.11
DISCLAIMERS........................................................................................
29
19.
INSURANCE...............................................................................................
29
20.
INDEMNITIES.............................................................................................
29
20.1 IBM
Indemnities....................................................................................
29
20.2
D&B
Indemnities....................................................................................
31
20.3
Additional
Indemnities.............................................................................
31
20.4
Infringement.......................................................................................
32
20.5
Indemnification
Procedures.........................................................................
32
20.6
Subrogation........................................................................................
33
21.
LIABILITY...............................................................................................
33
21.1
General
Intent.....................................................................................
33
21.2
Liability
Restrictions.............................................................................
33
21.3
Direct
Damages.....................................................................................
34
21.4 Duty
to
Mitigate...................................................................................
34
21.5
Force
Majeure......................................................................................
34
22. DISPUTE
RESOLUTION......................................................................................
35
22.1
Dispute Resolution
Process.........................................................................
35
22.2
Consolidation of
Disputes..........................................................................
36
22.3
Continued
Performance..............................................................................
37
22.4
Governing
Law......................................................................................
37
23.
TERMINATION.............................................................................................
37
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23.1
Termination For Cause By
D&B.......................................................................
37
23.2
Termination by
IBM.................................................................................
38
23.3
Termination for Convenience by
D&B.................................................................
38
23.4
Termination for Change of
Control..................................................................
39
23.5
Special Termination
Conditions.....................................................................
39
23.6
Extension of Termination Effective
Date............................................................
39
23.7
Termination/Expiration
Assistance..................................................................
40
23.8
Equitable
Remedies.................................................................................
41
24. COMPLIANCE
WITH
LAWS....................................................................................
41
24.1
Compliance with Laws and Regulations
Generally.....................................................
41
24.2
Equal Employment
Opportunity.......................................................................
41
24.3
Occupational Safety and Health
Act.................................................................
42
24.4
Gramm-Leach-Bliley Act and Similar
Laws............................................................
42
24.5 Fair
Labor Standards
Act...........................................................................
42
25.
GENERAL.................................................................................................
42
25.1
Binding Nature and
Assignment......................................................................
42
25.2
Public
Disclosures.................................................................................
43
25.3
Non-Solicitation...................................................................................
43
25.4
No Third Party
Beneficiaries.......................................................................
43
25.5
Entire
Agreement...................................................................................
43
25.6
Amendments.........................................................................................
43
25.7
Consents and
Approvals.............................................................................
44
25.8
Waiver.............................................................................................
44
25.9
Remedies
Cumulative................................................................................
44
25.10 Priority
of
Documents..............................................................................
44
25.11
Headings...........................................................................................
45
25.12 Section
References.................................................................................
45
25.13 Schedule
References................................................................................
45
25.14 Use of
Certain
Words...............................................................................
45
25.15 Statutory
References...............................................................................
46
25.16
Severability.......................................................................................
46
25.17
Counterparts.......................................................................................
46
25.18 Covenant
of Good
Faith.............................................................................
46
25.19
Notices............................................................................................
46
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SCHEDULES, EXHIBITS, ATTACHMENTS AND ANNEXES
Schedule A
IBM Services and Solutions
Exhibit A-1 Contact Center Services Statement of Work
Exhibit A-2 Data Programming Services Statement of Work
Attachment A-2-1 Postal Data Cleansing
Attachment A-2-2 Data Programming Quality Checklists
Annex A-2-2a SMS Data Normalization Project Quality
Checklist
Annex A-2-2b SMS Spend Analysis Quality Checklist
Annex A-2-2c SMS MWOB Quality Checklist
Annex A-2-2d SMS Supply Optimizer Quality Checklist
Annex A-2-2e SMS Supply Optimizer Refresh Quality
Checklist
Exhibit A-3 Transaction Processing Services Statement of Work
Attachment A-3-1 Transaction Processing Data Sources
Attachment A-3-2 Transaction Processing Workflows
Exhibit A-3 Transaction Processing Services Statement of Work
Attachment A-3-1 Transaction Processing Data Sources
Attachment A-3-2 Transaction Processing Workflows
Exhibit A-4 Finance Processing Services Statement of Work
Exhibit A-5 Cross Functional Services Statement of Work
Attachment A-5-1 IBM Personnel Background Checks and Screening
Exhibit A-6 IBM Solutions
Attachment A-6-1 Contact Center Solution
Annex A-6-1a EU
File Update Solution
Attachment A-6-2 Data Programming Solution
Attachment A-6-3 Transaction Processing Solution
Attachment A-6-4 Finance Processing Solution
Attachment A-6-5 Technology Solution
Exhibit A-7 Transition and Transformation
Attachment A-7-1 Transition Solution
Attachment A-7-3 Transition Schedule
Attachment A-7-2 Transformation Solution
Schedule B
Service Levels
Exhibit B-1 Contact Center Service Levels
Attachment B-1-1 Record Completeness Score Point Values
Exhibit B-2 Data Programming Service Levels
Attachment B-2-1 Delivery Project Commitment Dates -
Standard Projects
Exhibit B-3 Transaction Processing Service Levels
Exhibit B-4 Finance Processing Service Levels
Exhibit B-5 Critical Service Levels
Exhibit B-6 Mission Critical Service Failures
Exhibit B-7 Revenue Commitment Service Levels
Attachment B-7-1 Revenue Commitment Service Level Computation
Schedule C
Charges
Exhibit C-1 Transaction Types and Transaction Volume
Measurement
Exhibit
C-2 Pricing Tables
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Exhibit C-3 T&M Rate Schedule
Exhibit C-4 Transaction Baselines
Exhibit C-5 Transition Reimbursement
Exhibit C-6 Finance Processing Gain-Share
Exhibit C-7 Minimum Annual Service Charges
Exhibit C-8 Financial Responsibilities
Attachment C-8-1 Financial Responsibilities Matrix
Exhibit C-9 Price Benchmarking
Exhibit C-10 Economic Change Adjustment
Attachment C-10-1 Inflation Sensitivity Factors
Exhibit C-11 Termination Charges
Attachment C-11-1 Termination Charges Schedule
Exhibit C-12 Transition Delay Credits
Exhibit C-13 Invoice Template
Schedule D
Key IBM Positions
Schedule E
Human Resources
Exhibit E-1 Affected Personnel
Exhibit E-2 Transitioned Personnel
Exhibit E-3 Key Transitioned Personnel
Exhibit E-4 [Reserved]
Exhibit E-5 [Reserved]
Exhibit E-6 [Reserved]
Exhibit E-7 Job Descriptions
Schedule F
Governance
Exhibit F-1 IBM and D&B Organization Structures
Exhibit F-2 Draft Procedures Manual Table of Contents
Exhibit F-3 Reports
Schedule G
Other Country Locations
Exhibit G-1 Canada Services Agreement
Exhibit G-2 Europe Services Agreement
Attachment G-2-1 United Kingdom Affected Employees
Schedule H
Data Privacy and Data Protection Laws
Exhibit H-1 Offshore Processing
Exhibit H-2 Qualifications to the Standard Contractual Clauses
Exhibit H-3 Model Contract
Schedule I [Reserved]
Schedule J Termination/Expiration
Assistance
Schedule K Approved Subcontractors
Schedule L Insurance
Schedule M Existing D&B Resources
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Exhibit M-1 Software
Schedule N [Reserved]
Schedule O D&B Competitors
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GENERAL TERMS AND CONDITIONS
BUSINESS
PROCESS SERVICES AGREEMENT (the "Agreement"), made and
effective
as of October 15, 2004 (the "Effective
Date"), by and between The Dun &
Bradstreet Corporation ("D&B"), a
Delaware corporation with its principal place
of business located at 103 JFK Parkway,
Short Hills, New Jersey 07078-2708, and
International Business Machines Corporation
("IBM"), a New York corporation with
its principal place of business located at
Route 100, Somers, NY 10589.
1. OBJECTIVES
1.1
BACKGROUND, GOALS, AND OBJECTIVES.
D&B
and IBM agree upon the following specific background, goals,
and
objectives for the Agreement:
(a) D&B desires to enter into an outsourcing arrangement in
order to
transform and optimize performance of
certain call center, data programming,
transaction processing and financial
activities. D&B's guiding principles for
this arrangement are as follows:
(i) recognize substantial and sustained cost savings over what
it would have cost D&B to provide the
services for itself, without sacrificing
quality of the services, both initially and
on an on-going basis;
(ii) treat fairly and equitably all D&B team members;
(iii) maintain the quality of D&B data, implement effective
controls, and comply with all relevant
privacy, financial, and other applicable
controls, laws, rules and regulations;
and
(iv) deliver to D&B world class, evolving services,
including
through the provision of information
technology skills, methods, practices and
standards.
(b) D&B desires for the outsourcing arrangement to align with
the
foregoing guiding principles by:
(i) enabling D&B to focus on its core competencies and on
those activities that provide it with a
competitive advantage, recognizing that
D&B's core business is dependent on
D&B being able to deliver information and
related services to its customers;
(ii) enabling D&B to increase revenues as further described
in
the Agreement;
(iii) establishing a flexible framework within which to
quickly respond to evolving technologies,
competitive conditions, and changing
D&B business needs;
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(iv) attaining transparency and variability of IBM's charging
structures, permitting D&B to fully
understand IBM's charges and to implement a
consumption-based expense structure where
actual demand for the Services drives
the charges;
(v) identifying means to improve the Services and reduce costs
to D&B and to enable D&B to improve
and expand its information/database
capabilities;
(vi) providing the transitioning of responsibility for
performing the Services from D&B and
its contractors to IBM in such a manner so
that any disruptions to D&B are
planned, minimal, and controlled; and
(vii) providing the transitioning of responsibility for
performing the Services back to D&B or
its designee(s) in connection with
termination or expiration of the Agreement
in such a manner so that any
disruptions to D&B are planned,
minimal, and controlled.
2. DEFINITIONS
2.1
CERTAIN DEFINED TERMS.
(a) "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 shall be deemed to remain
an Affiliate of D&B for up to
twenty-four (24) months after the date it ceases
to be controlled by D&B and (ii) the
purchaser of all or substantially all the
assets of any line of business of D&B
or its Affiliates shall be deemed an
Affiliate of D&B for up to twenty-four
(24) months after the date of purchase,
but only with respect to the business
acquired.
(b) "Agreement" shall mean this Agreement, including its
schedules,
exhibits, and other attachments, as amended
by the Parties from time to time in
accordance with its terms.
(c) "Approved Subcontractors" shall mean IBM's Affiliates,
those
subcontractors of IBM approved by D&B
prior to the Effective Date and identified
in the Agreement, and any other
subcontractor(s) approved by D&B during the Term
in accordance with the provisions in
Section 13.4, unless and until approval of
such subcontractor is rescinded by
D&B.
(d) "Change" shall have the meaning given in Section 13.3(a).
(e) "Change Management Process" shall have the meaning given in
Section 13.3(a).
(f) "Change Order" shall mean a written document executed by a
duly
authorized representative of both Parties
and issued under the Agreement
authorizing IBM to carry out a Change.
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(g) "Claim" shall mean any demand, or any civil, criminal,
administrative, or investigative claim,
action, or proceeding (including
arbitration) asserted, commenced or
threatened against an entity or person.
(h) "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.
(i) "Confidential Information" shall have the meaning given in
Section 17.3.
(j) "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) actual
management control by agreement or
otherwise; or (iii) with respect to an
entity not domiciled in the United
States, Control and its derivatives shall
have the meaning given in Section 416
of the United Kingdom's Income and
Corporation Taxes Act 1988.
(k) "Country Locations" shall mean the countries in which D&B
and
its Affiliates that are Eligible Recipients
are located.
(l) "D&B Competitor" shall mean the entities listed in Schedule
O
(D&B Competitors), and all Affiliates
of such entities.
(m) "D&B Data" shall mean all data, whether or not
Confidential
Information, collected by or on behalf of
IBM (or its Affiliates) in performing
the Services, as well as data provided by
D&B (or its Affiliates) or D&B's third
party vendors, and includes D&B
customer data as well as business related data,
and all data derived from any of the
foregoing, including as stored in or
processed through the Equipment or
Software.
(n) "D&B Information" shall mean all information, including
D&B
Data, in any form, furnished or made
available directly or indirectly to IBM by
D&B or its Affiliates or otherwise
obtained by IBM from D&B or its Affiliates
(including data collected on behalf of
D&B by IBM Personnel in the course of
performing the Services, but excluding
other information first provided directly
or indirectly by IBM Personnel).
(o) "D&B Materials" shall mean Materials owned by D&B or
its
Affiliates.
(p) "D&B Retained Functions" shall mean any functions expressly
set
forth in the Agreement as functions to be
performed by D&B.
(q) "Deliverable" shall mean any tangible work product produced
for
D&B or its Affiliates by or on behalf
of IBM in the course of performing the
Services that is listed or described as a
Deliverable in the Agreement or a
document executed by the Parties under the
Agreement.
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(r) "Developed IBM Materials" shall have the meaning given in
Section 9.4(b).
(s) "Developed Materials" shall have the meaning given in
Section
9.4(a).
(t) "Effective Date" shall mean the date set forth in the
introductory paragraph of the
Agreement.
(u) "Eligible Recipients" shall have the meaning given in
Section
3.6.
(v) "End Users" shall mean users of the Services.
(w) "Equipment" shall mean the computer and telecommunications
equipment (without regard to which entity
owns or leases such equipment) used by
IBM to provide the Services.
(x) "Force Majeure Event" shall have the meaning given in
Section
21.5(a).
(y) "IBM Materials" shall mean Materials that are owned or
distributed by IBM, any Approved
Subcontractors, or any of their respective
Affiliates.
(z) "IBM Personnel" shall mean the employees, officers,
consultants,
contractors and agents of IBM and its
Approved Subcontractors assigned to
perform the Services pursuant to the
Agreement.
(aa) "IBM Project Executive" shall have the meaning given in
Section
6.2.
(bb) "Intellectual Property Rights" shall have the meaning given
in
Section 9.4(a).
(cc) "Local Adoption Agreement" shall have the meaning given in
Section 3.8.
(dd) "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) suffered or
incurred by a person or entity as a result
of or in connection with a claim or demand
by a third party.
(ee) "Major Market" shall mean any the United States, Canada or
Europe.
(ff) "Major Market Agreement" shall have the meaning given in
Section 3.8.
(gg) "Materials" shall mean software and non-software materials
used
in performing the Services or otherwise in
connection with the Agreement.
(hh) "Notice of Election" shall have the meaning given in
Section
20.5.
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(ii) "Out-of-Pocket Expenses" shall mean reasonable,
demonstrable
and actual out-of-pocket expenses incurred
by IBM for equipment, materials,
supplies or services provided to or for
D&B or its Affiliates as identified in
the Agreement and which are reimbursable to
IBM under the terms of the
Agreement, but not including IBM's overhead
costs (or allocations thereof),
administrative expenses or other mark-ups.
In determining IBM's expenses, IBM's
actual, incremental expense shall be used
and shall be net of all rebates,
discounts, and allowances received by
IBM.
(jj) "Party" shall mean either D&B or IBM and "Parties" shall
mean
both D&B and IBM. With respect to a
Local Country Agreement, "Party" shall mean
either signatory to it and "Parties" shall
mean both signatories to it.
(kk) "Performance Standards" shall mean, individually and
collectively, the quantitative and
qualitative performance standards and
commitments for the Services contained in
the Agreement, including Service
Levels.
(ll) "Procedures Manual" shall have the meaning given in
Section
13.2.
(mm) "Required Consents" shall mean such consents as may be
required
or agreed by both Parties to be desirable
for the novation or assignment to IBM,
or the grant to IBM of rights of use, of
resources otherwise provided for in the
Agreement.
(nn) "Service Commencement Date" shall mean, for each Service
type,
the date on which IBM meets the applicable
acceptance criteria for completion of
Transition of the applicable Service type,
and first assumes contractual
responsibility for performance of such
Services. In cases where, pursuant to
Attachment A-7-1, IBM assumes contractual
responsibility for a Service type or
category in progressive stages (i.e., a
certain percentage on one date, an
additional percentage on a later date,
etc.), the Service Commencement Date
shall be deemed to have occurred only for
that portion of the Services for which
IBM has assumed contractual
responsibility.
(oo) "Service Levels" shall have the meaning given in Section
11.1(b).
(pp) "Software" shall (unless a more specific reference is
provided)
mean all software used by IBM to provide
the Services, and all related
materials, including methodologies, tools,
documentation, materials and media
related thereto (without regard to which
entity owns or licenses such software
and related materials).
(qq) "Subscription Agreements" shall have the meaning given in
Section 3.8.
(rr) "Term" shall mean the period during which the Agreement is
in
force.
(ss) "Termination/Expiration Assistance" shall have the meaning
given in Section 23.7(a).
(tt)
"Third Party Contractor" shall mean a contractor, other than
IBM, IBM's Affiliates and Approved
Subcontractors, who provides services similar
to or that replace the Services to D&B
and Eligible Recipients.
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(uu) "Third Party Materials" shall mean Materials owned by
third
parties.
(vv) "Third Party Service Contracts" shall mean those
agreements
pursuant to which a third party was,
immediately prior to the Effective Date,
furnishing or providing services to D&B
or its Affiliates similar to the
Services, including agreements for the
services of non-employee personnel to
provide services similar to the Services
prior to the Effective Date.
Notwithstanding the foregoing, Third Party
Service Contracts do not include
licenses, leases and other agreements under
the Software provisions of this
Agreement.
(ww) "Transition" shall mean the process (and associated time
period) of migrating performance of the
in-scope functions from D&B's operating
environment to IBM's initial service
delivery environment, making the initial
planned improvements to the service
delivery infrastructure and effectuating any
required knowledge transfer from D&B
personnel to IBM Personnel.
(xx) "Transformation" shall mean the reengineering/innovation
activities to be planned and undertaken by
IBM during the Term to transform the
Services and associated business processes
of D&B from their respective
then-current states to a state that will be
compliant with D&B's long-term
objectives and IBM's solution as described
in the Exhibits to Schedule A (IBM
Services and Solutions) and to otherwise
cause the Services to meet D&B's
evolving business requirements.
(yy)
"Use" shall mean, in the context of Software, to use, copy,
maintain, modify, enhance, distribute, or
create derivative works.
(zz) "Virus" shall have the meaning given in Section 18.9.
2.2 OTHER
DEFINED TERMS.
(a) Other terms used in the Agreement are defined in the context
in
which they are used and have the meanings
indicated.
3. SERVICES
3.1
GENERAL.
Commencing
on the Effective Date (or the applicable Service Commencement
Date in the case a specific service), IBM
will provide the following services,
functions and responsibilities, as they may
evolve during the Term and as they
may, subject to the Change Management
Process, be supplemented, enhanced,
modified or replaced ("Services"):
(a) the services, functions and responsibilities described in
the
Agreement (including its schedules,
exhibits and attachments);
(b) the services, functions and responsibilities reasonably
related
to the in-scope Services to the extent
performed during the twelve (12) months
preceding the Effective Date by D&B's
(and its Affiliates') personnel (including
employees and
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contractors) who are displaced or whose
functions were displaced as a result of
the Agreement, even if the service,
function or responsibility so performed is
not specifically described in the
Agreement; and
(c) any services not described in the Agreement or its schedules
but
that are incidental to performance of the
Services.
3.2
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 in the Agreement,
they shall be deemed to be implied by
and included within the scope of the
Services to be provided by IBM to the same
extent and in the same manner as if
specifically described in the Agreement.
Except as otherwise expressly provided in
the Agreement, IBM shall be
responsible for providing the facilities,
personnel, and other resources as
necessary to provide the Services.
3.3
SERVICES EVOLUTION.
IBM shall
cause the Services to evolve and to be modified, enhanced,
supplemented and replaced as necessary for
the Services to keep pace with
technological advances and advances in the
methods of delivering services, where
such advances are at the time pertinent in
general use within the industry or,
as identified by D&B, among D&B's
competitors. As an example, Services evolution
shall include addition of functionality by
IBM as is made possible with new
Equipment and Software utilized by IBM
during the Term. Adjustments in Services
in accordance with this Section 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 the Agreement.
3.4
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 Schedule C (Charges). IBM
shall not be entitled to receive an
adjustment to the charges except as set
forth therein.
3.5
SERVICES PERFORMED BY D&B OR THIRD PARTIES.
(a) Subject to Schedule C (Charges), D&B retains the right
to
perform itself, or retain third parties to
perform, any of the Services. D&B
will provide IBM with at least sixty (60)
days' notice prior to withdrawing any
substantial portion of the Services from
the scope of Services under the
Agreement.
(b) In the case of D&B's withdrawal of Services under
Section
3.5(a), IBM's charges shall be adjusted as
provided in Schedule C (Charges) to
reflect those Services that are no longer
required.
(c) If D&B performs any of the Services itself, or retains
third
parties to do so, IBM shall cooperate with
D&B or such third parties as
reasonably necessary for D&B or the
third party to perform such Services. Such
cooperation shall include: (i) providing
reasonable access to the D&B or other
facilities being used by IBM to
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provide the Services; (ii) providing
reasonable access to the Equipment and
Software (to the extent permitted under any
underlying agreements with
unaffiliated third parties); and (iii)
providing such information regarding the
operating environment, system constraints
and other operating parameters as a
person with reasonable commercial skills
and expertise would find reasonably
necessary for D&B or a third party to
perform its work. Such cooperation shall
be subject to the third party's compliance
with IBM's reasonable security and
confidentiality policies. For the avoidance
of doubt, the Parties acknowledge
that this provision is not intended to
require IBM to furnish IBM resources for
third parties to use in performing services
comparable to the Services.
3.6
PERMITTED USERS OF THE SERVICES.
The
Services may be used by D&B and, as directed by D&B, its
Affiliates,
and those third parties (such as customers,
suppliers, and joint venturers) with
whom D&B or any Affiliate has a bona
fide commercial relationship that is
broader than mere resale of the Services
(collectively, "Eligible Recipients").
Services provided to Eligible Recipients
shall be deemed to be Services provided
to D&B.
3.7
SERVICE LOCATIONS.
The
Parties have agreed upon and identified in Schedule A the
locations,
as of the Effective Date, at which IBM will
perform the Services (subject, in
the case of any Service locations outside
the United States, to the execution of
any prerequisite Major Market Service
Agreements and/or Local Adoption
Agreements). Any changes in the Service
locations or the types of Services
provided at a Service location will be
subject to the Change Management Process.
3.8
RELATIONSHIP AND AGREEMENT STRUCTURE.
(a) The Agreement provides for and governs the provision of
Services
to D&B and its Affiliates in the United
States. By executing the Agreement, D&B
and IBM contract to implement the Agreement
in relation to the United States.
(b) It is also the intention of the Parties that the Agreement
provide for the provision of Services to
D&B Affiliates in the Major Markets of
Canada and Europe. Simultaneously with the
execution of the Agreement by D&B and
IBM in the United States, D&B's and
IBM's respective Affiliates in Canada are
subscribing to and joining in the
Agreement, thereby activating it in relation
to Canada, by executing a Major Market
Services Agreement for Canada in the form
set forth as Exhibit G-1 (Canada Services
Agreement). In addition, D&B's and
IBM's respective Affiliates in the United
Kingdom are subscribing to and joining
in the Agreement, thereby activating it in
relation to the United Kingdom, by
executing a Major Market Services Agreement
for Europe in the form set forth as
Exhibit G-2 (Europe Services
Agreement).
(c) The Europe Services Agreement provides a framework and
contractual vehicle by which other D&B
and IBM Affiliates in Europe may
subscribe to and join in the Agreement if
they choose to do so. The Europe
Services Agreement will not be activated or
effective in relation to European
countries other than the United Kingdom
unless and until the local IBM and D&B
Affiliates in the applicable country
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choose to participate in the Agreement. If
they choose to participate in the
Agreement, they may subscribe to and join
in the Agreement by negotiating and
executing a local agreement issued under
the Europe Services Agreement for the
provision and receipt of the Services in
relation to the country in which they
operate (a "Local Adoption Agreement"). If
D&B and IBM Affiliates in a European
country choose to enter into a Local
Adoption Agreement, they will do so in
compliance with all relevant legal
requirements in their home country, including
national legislation implementing the
ARD.
(d) Without D&B's consent, no Major Market Services Agreement
or
Local Adoption Agreement (collectively
"Subscription Agreements") shall alter
the aggregate net amounts to be received by
IBM (including IBM Affiliates),
expand the geographic scope of, or
otherwise alter the Parties' respective
rights and obligations under the
Agreement.
(e) No amendment to an executed Subscription Agreement shall be
effective unless it is approved by the
D&B Global Project Executive and the IBM
Project Executive.
(f) The applicable D&B Affiliate may, subject to the terms
of
Section 23, terminate any Subscription
Agreement without affecting the other
Subscription Agreements or the
Agreement.
(g) In relation to a Subscription Agreement, all references in
the
Agreement to D&B or IBM shall, be
regarded as references to the corresponding
D&B or IBM Affiliate(s) in the relevant
jurisdiction unless the context requires
otherwise.
(h) The Parties agree that the UN Convention on the
International
Sale of Goods shall not apply to any
Subscription Agreement.
4. TERM OF AGREEMENT
4.1
TERM.
Subject to
extensions made pursuant to Section 4.2, the Term of the
Agreement will start on the Effective Date
and expire at midnight (U.S. Eastern
Time) on March 31, 2012.
4.2 EXTENSION OF TERM.
By giving
written notice to IBM no less than six (6) months prior to the
then-existing expiration date of the
Agreement, D&B shall have the right to
extend the Term of the Agreement for up to
one (1) year on the terms and
conditions then in effect, including those
terms, if any, that provide
mechanisms by which the IBM's price is to
be adjusted. D&B shall have three (3)
such extension options of up to one (1)
year each.
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5. TRANSITION AND TRANSFORMATION
5.1
TRANSITION AND TRANSFORMATION, GENERALLY.
(a) IBM will perform all functions and services necessary to
accomplish the Transition and
Transformation on schedule and otherwise in
accordance with Exhibit A-7 (Transition and
Transformation).
(b) IBM will plan and perform the Transition and Transformation in
a
way that controls and minimizes disruption
to D&B and its Affiliates.
(c) IBM's responsibilities with respect to the Transition and
Transformation will include: (i)
establishing communications lines and network
connections, and providing Equipment,
Software, tapes, records and supplies, as
made necessary by the Transition and
Transformation; (ii) maintaining the
Services with minimal disruption to
D&B's business operations; (iii) paying all
costs associated with the Transition and
Transformation, including
communications lines costs (both
installation and ongoing); and (iv) otherwise
performing such tasks as are necessary to
enable IBM to carry out the Transition
and Transformation in accordance with
Exhibit A-7 (Transition and
Transformation) and provide the Services,
including following the Transition and
Transformation.
(d) No functionality of the operations being transitioned to
IBM
shall be disabled until IBM demonstrates to
D&B's reasonable satisfaction that
it has fully tested and implemented
equivalent capabilities for such
functionality at its new location.
Communications bandwidth for new locations,
if any, shall support or improve the
response times experienced by End Users
prior to the Transition and
Transformation.
(e) D&B may monitor, test and otherwise participate in the
Transition and Transformation. IBM shall
immediately notify D&B if such
monitoring, testing or participation has
caused (or in IBM's reasonable opinion
may cause) a problem or delay in the
Transition and/or Transformation, and shall
work with D&B to prevent or circumvent
such problem or delay.
6. PERSONNEL
6.1 KEY
IBM POSITIONS.
(a) IBM shall cause each of the IBM Personnel filling the Key
IBM
Positions set forth in Schedule D (Key IBM
Positions) to devote substantially
full time and effort to the provision of
the Services to D&B except as otherwise
specified in Schedule D (Key IBM
Positions). These individuals will be expected
to remain on the D&B account for at
least twenty-four (24) consecutive months
from the time they initially assume their
position.
(b) D&B may from time to time change the positions designated
as Key
IBM Positions upon at least sixty (60) days
prior written notice to IBM,
provided that without IBM's consent, the
number of Key IBM Positions shall not
exceed the number initially specified in
the Agreement. D&B acknowledges that if
it newly designates a
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position as a Key IBM Position, the person
IBM nominates to fill that position
going forward may be different from the
person who then occupies the position.
(c) D&B will have the right to interview and/or approve any
personnel proposed by IBM to fill a Key IBM
Position.
(d) Except at D&B's request, IBM may not transfer any
individual
filling a Key IBM Position until D&B
has approved a suitable replacement. No
transfers may occur at a time or in a
manner that would have an adverse impact
on delivery of the Services.
(e) So long as an individual is assigned to a Key IBM Position,
and
for twelve (12) months thereafter, IBM
shall not assign such individual to
perform services for the benefit of any
D&B Competitor.
(f) IBM shall establish and maintain an up-to-date succession
plan
for the individuals filling Key IBM
Positions.
6.2 IBM
PROJECT EXECUTIVE.
IBM shall
designate an individual to serve as "IBM Project Executive."
The
IBM Project Executive shall: (i) be one of
the Key IBM Positions; (ii) serve as
the single point of accountability for IBM
for the Services; (iii) have
day-to-day authority for undertaking to
ensure customer satisfaction; (iv)
receive compensation that includes
significant financial incentives based on
D&B's satisfaction with the Services,
(i.e., not less than thirty-five percent
(35%) of his or her total targeted
compensation); and (v) be located at a
location reasonably designated by D&B
from time to time.
6.3
QUALIFICATIONS, RETENTION AND REMOVAL OF IBM PERSONNEL.
(a) Notwithstanding any specific IBM Personnel staffing plans
set
out or described in the schedules, exhibits
and attachments to the Agreement,
IBM shall be responsible for providing an
adequate number of IBM Personnel to
perform the Services in accordance with the
requirements of the Agreement,
including as necessary to accommodate
spikes in demand for Services, to resolve
backlogs, to achieve the Service Levels,
and to meet applicable customer and
month-end deadlines. IBM Personnel shall be
properly educated, trained and fully
qualified for the Services they are to
perform. D&B shall have the right to
review and approve the job descriptions of
IBM Personnel to be recruited to
perform the Services and the right to
validate the language skills of IBM
Personnel.
(b) D&B and IBM agree that it is in their best interests to
keep the
turnover rate of IBM Personnel to a
reasonably low level. As part of its monthly
reporting, IBM shall report on turnover of
personnel assigned to D&B's account.
If D&B believes that IBM's turnover
rate may be excessive and so notifies IBM,
IBM shall provide data concerning its
turnover rate and shall meet with D&B to
discuss the reasons for, and impact of, the
turnover rate. If appropriate, IBM
shall submit to D&B its proposals for
reducing the turnover rate, and the
Parties shall mutually agree on a program
to bring the turnover rate down to an
acceptable level. In any event, IBM shall
use Commercially Reasonable Efforts to
keep the turnover rate to a reasonably
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<PAGE>
low level, and notwithstanding transfer or
turnover of IBM Personnel, IBM
remains obligated to perform the Services
without degradation and in accordance
with the Agreement.
(c) While at D&B's premises (or the premises of others
receiving the
Services under the Agreement), IBM
Personnel shall (i) comply with reasonable
requests, rules, and regulations regarding
personal and professional conduct
(including the wearing of an identification
badge and adhering to general
safety, dress, behavior, and security
practices or procedures) generally
applicable to such premises; and (ii)
otherwise conduct themselves in a
businesslike and professional manner.
(d) If D&B determines in good faith that the continued
assignment to
D&B's account of one or more IBM
Personnel is not in the best interests of D&B,
then IBM shall promptly replace that person
with another person of suitable
ability and qualifications.
(e) Prior to being assigned to perform Services, all IBM
Personnel
must successfully complete a background
screening in accordance with the
provisions of Attachment A-5-1 (IBM
Personnel Background Checks and Screening).
If D&B requires, IBM Personnel shall
not be assigned to particular Services or
projects until they successfully complete
additional background screening, drug
testing, and similar requirements. IBM
shall staff the D&B account with a
sufficient number of employees who are
willing to agree to and able to pass
background screening, drug tests, and
similar requirements as necessary to meet
the requirements of D&B's business.
(f) With respect to Services which are to be performed at
locations
other than those exclusively under the
control of IBM, IBM shall be responsible
for: (i) being fully informed of the
working conditions under which the Services
will be performed; (ii) employing such
labor and such means and methods of
carrying out the Services as required by
such conditions; (iii) using
Commercially Reasonable Efforts to maintain
labor harmony in providing the
Services in order to avoid and prevent
strikes, walkouts, work stoppages,
slowdowns, boycotts and other labor
difficulties, disharmony, and discord; and
(iv) any costs (including costs of delays)
incurred as a result of failing to
meet the obligations under this Section.
Without limiting the generality of the
foregoing, IBM shall use Commercially
Reasonable Efforts to provide IBM
Personnel for its labor force that will be
compatible with other workers at the
applicable location, and shall not permit
any disruption in the provision of the
Services on account of IBM Personnel.
6.4
RESTRICTIVE COVENANT.
While IBM
Personnel are assigned to perform Services under the Agreement,
they shall not be assigned or permitted to
perform services for or on behalf of
any D&B Competitors until after they
have ceased to perform any Services under
the Agreement. For the avoidance of doubt,
it is acknowledged that IBM Personnel
filling the Key IBM Positions are subject
to additional restrictions under
Section 6.1(e).
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7. HUMAN RESOURCES
Schedule E
(Human Resources) sets forth the terms and conditions
applicable to the transfer of personnel
from D&B (and its Affiliates) to IBM
(and its Affiliates) pursuant to the
Agreement.
8. RESPONSIBILITY FOR RESOURCES
8.1
GENERALLY.
Except to
the extent specifically provided elsewhere in the Agreement,
IBM
shall be responsible for providing all
resources (including Equipment and
Software) necessary or desirable to provide
the Services and will only recover
the cost of providing such resources
through the corresponding charges in
Schedule C (Charges). Any Equipment and
Software furnished by IBM that provides
a means of access to D&B systems or
D&B Data shall comply with D&B's
then-current IT architecture and security
policies.
8.2
ACQUIRED ASSETS.
As of the
Effective Date, D&B hereby sells and conveys to IBM for use
in
providing the Services, for nominal
consideration of one US dollar (US$ 1.00),
the DUNSVoice Assistance Equipment
described in Schedule M (Existing D&B
Resources).
8.3
[RESERVED]
8.4
[RESERVED]
8.5
D&B FACILITIES.
(a) As described in Schedule A (IBM Services and Solutions),
D&B has
agreed to provide workspace at D&B
facilities during agreed timeframes
(generally, during the Transition) for use
by in-scope D&B personnel who are
hired by IBM and its Affiliates pursuant to
the Agreement. IBM may only use the
D&B facilities for the sole and
exclusive purpose of providing the Services. Use
of D&B facilities by IBM and its
Affiliates does not constitute a leasehold or
other property interest in favor of IBM and
its Affiliates.
(b) IBM and its Affiliates will use the D&B facilities
efficiently,
in a manner that is coordinated with
D&B and does not interfere with D&B's
business operations, and which does not
damage D&B facilities. IBM will cause
IBM Personnel to comply with D&B's
policies and procedures made available to IBM
regarding access to and use of the D&B
facilities, including procedures for
physical security. IBM will permit D&B
and its agents and representatives to
enter into those portions of the D&B
facilities occupied by IBM Personnel at any
time to perform inspections, audits or
facilities-related services. IBM
acknowledges that when IBM Personnel are
present at D&B facilities, they are
subject to the same limitations on privacy
that are applicable to D&B personnel
at that facility.
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<PAGE>
(c) When D&B facilities are no longer required for performance
of
the Services, or in any event upon
expiration or termination of the Agreement
(or the applicable lease term, if shorter),
IBM will vacate and return them to
D&B's use in substantially the same
condition as when IBM began use of them,
subject to reasonable wear and tear.
9. RIGHTS IN MATERIALS
This
Section 9 addresses the Parties' respective rights in
Materials.
9.1 D&B
MATERIALS.
(a) D&B retains all right, title and interest in and to
D&B
Materials. If D&B makes any D&B
Materials available to IBM for use in providing
the Services, D&B grants to IBM a
worldwide, fully paid-up, nonexclusive,
non-transferable license during the Term to
Use such D&B Materials solely to the
extent necessary for performing the
Services with the right to grant
sub-licenses to Approved Subcontractors
thereunder only for such purposes and
subject to all applicable provisions of the
Agreement. D&B Materials will be
made available to IBM in such form and on
such media as exists on the Effective
Date or as is later obtained by D&B.
Except as otherwise specifically set forth
in the Agreement, D&B Materials made
available to IBM are made available on an
"AS IS" basis, with no warranties
whatsoever.
(b) IBM shall not be permitted to (and shall not permit any
Approved
Subcontractors to) Use D&B Materials
for the benefit of any entities other than
D&B and its Affiliates without the
prior written consent of D&B, which may be
withheld at D&B's discretion. IBM shall
(and shall procure that its Approved
Subcontractors shall) install, operate and
support (and otherwise treat in the
same manner as D&B Materials existing
as of the Effective Date) additional D&B
Materials that D&B may designate from
time to time during the Term. Except as
otherwise requested or approved by D&B,
IBM shall (and shall procure that its
Approved Subcontractors shall) cease all
use of D&B Materials upon expiration or
termination of the Agreement.
9.2
COMMERCIALLY AVAILABLE IBM MATERIALS.
With
respect to commercially available IBM Materials (and any
modifications and enhancements that are not
developed specially for D&B or
according to D&B's specifications):
(a) IBM hereby grants to D&B and the Eligible Recipients a
license
on standard terms and conditions no less
favorable than those offered generally
by IBM to other commercial customers to use
such IBM Materials during the Term
to permit D&B and the Eligible
Recipients to receive, use and enjoy fully the
benefits of the Services;
(b) IBM hereby grants to D&B and the Eligible Recipients a
license
on standard terms and conditions no less
favorable than those offered generally
by IBM to other commercial customers to use
such IBM Materials following the
expiration or termination of the Term or
termination of the Service(s) for which
such IBM Materials
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were used; provided that, in all events,
such terms and conditions must be at
least broad enough to permit D&B and
the Eligible Recipients to use such IBM
Materials to provide for themselves, or
have provided for them by third party
contractors, services similar to the
Services, and for D&B and the Eligible
Recipients to receive such services;
(c) IBM (A) shall deliver a copy of such IBM Materials to D&B
and
the Eligible Recipients, (B) shall deliver
source code and/or object code to the
extent such IBM Materials include source
code or object code and such code is
customarily provided to commercial
customers licensing such IBM Materials, and
(C) if IBM fails to offer or provide
upgrades, maintenance, support or other
services for such IBM Materials as
provided, shall deliver source code and
object code for such IBM Materials to the
extent such IBM Materials include
source code, together with the right to
modify, enhance and create derivative
works of such IBM Materials (provided that,
in such event, the licensed IBM
Materials shall thereafter be provided on
an "as is" basis); and
(d) IBM shall offer to provide to D&B and the Eligible
Recipients
upgrades, maintenance, support and other
services for such IBM Materials on
IBM's then-current standard terms and
conditions for such services.
(e) Unless D&B has otherwise agreed in advance, D&B and the
Eligible
Recipients shall not be obligated to pay
any license or transfer fees in
connection with its receipt of the licenses
and other rights above. IBM shall
not use any such IBM Materials for which it
is unable to offer such license or
other rights without D&B's prior
written approval (and absent such approval,
IBM's use of any such IBM Materials shall
obligate IBM to provide, at no
additional cost to D&B, such license
and other rights to D&B, the Eligible
Recipients and D&B's designees).
9.3
NON-COMMERCIALLY AVAILABLE IBM MATERIALS.
With
respect to IBM Materials that are not commercially available,
unless
otherwise agreed prior to the first use of
such IBM Materials:
(a) IBM hereby grants to D&B and the Eligible Recipients a
worldwide, perpetual, irrevocable,
non-exclusive, non-transferable fully paid-up
license, to use, execute, reproduce,
display, perform, and distribute such IBM
Materials following the expiration or
termination of the Term or termination of
the Service(s) for which such IBM Materials
were used. Such license shall be
limited to the use of such IBM Materials by
D&B and the Eligible Recipients to
provide for themselves and, to have
provided for them by Third Party
Contractors, services similar to the
Services and for D&B and the Eligible
Recipients to receive, use and fully enjoy
the benefits of such services.
Nothing in this Agreement will require
D&B or the Eligible Recipients to cease
conducting their respective businesses, or
to prohibit Third Party Contractors
from assisting D&B or the Eligible
Recipients, in accordance with any business
processes or manners of conducting business
that have been implemented by IBM
and nothing in this Agreement will preclude
D&B or the Eligible Recipients (or
Third Party Contractors while providing
services to D&B or the Eligible
Recipients) from continued use of such
processes or manners of conducting
business.
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<PAGE>
(b) IBM shall not use any IBM Materials for which it is unwilling
to
grant all of the license and other rights
described above without D&B's prior
written approval.
(c) IBM hereby grants to Third Party Contractors designated by
D&B a
worldwide, irrevocable, non-exclusive,
non-transferable, fully paid-up license
to use, execute, reproduce, display,
perform, and distribute such IBM Materials
for up to twelve (12) months following the
expiration or termination of the Term
or, if later, the cessation of the
Service(s) for which such IBM Materials were
used. Such license shall be limited to the
use of such IBM Materials by such
Third Party Contractors to provide services
similar to the Services to D&B and
the Eligible Recipients. The Third Party
Contractors shall not be obligated to
pay any license or transfer fees in
connection with their receipt of the
licenses and other rights specified above.
However, if the Third Party
Contractors require such licenses and other
rights for longer than the stated
period, IBM will provide the licenses
solely for the continuation of the
services to D&B and its Affiliates for
a price that * . At D&B's request,
IBM shall provide upgrades, maintenance,
support and other services for such IBM
Materials on reasonable commercial terms
and conditions, which shall include
pricing no less favorable than the pricing
customarily charged to other
commercial customers receiving equivalent
services. If IBM fails to offer or
provide upgrades, maintenance, support or
other services, IBM shall deliver
source code and object code for such IBM
Materials to the extent such IBM
Materials are Software and include source
code, together with the right to
modify, enhance and create derivative works
of such IBM Materials (provided
that, in such event, the licensed IBM
Materials shall thereafter be provided on
an "as is" basis).
9.4
DEVELOPED MATERIALS.
(a) "Developed D&B Materials" shall mean the following
Materials
developed pursuant to this Agreement by IBM
Personnel (alone or jointly with
others): (i) modifications to, or upgrades
or enhancements (derivative works)
of, D&B Materials; (ii) newly developed
Materials that do not modify or enhance
then existing D&B Materials but are
developed specially for D&B or according to
D&B's specifications; and (iii)
modifications to, or enhancements (derivative
works) of, IBM Materials or Third Party
Materials that are developed specially
for D&B or according to D&B's
specifications. As between D&B and IBM, D&B shall
own all patent (including rights to patent
applications), copyright, trademark,
trade secret, design, database,
transferable moral and other intellectual
property rights (collectively,
"Intellectual Property Rights") in and to
Developed D&B Materials. In the case of
item (iii) above, D&B's ownership shall
be subject to and limited by the terms of
any license agreement entered into by
D&B with respect to the IBM Materials
or Third Party Materials from which the
Developed D&B Materials are derived;
provided, however, that if IBM Personnel
incorporate any pre-existing Third Party
Materials or IBM Materials into any
Developed D&B Materials without first
notifying D&B of their nature and entering
into with D&B, or obtaining for
D&B, a license to use the pre-existing Third
Party Materials or IBM Materials on terms
that are acceptable to D&B, IBM hereby
grants to D&B and Eligible Recipients a
perpetual, irrevocable, non-exclusive,
worldwide, paid-up right and license to use
such pre-existing Third Party
Materials or IBM Materials as part of the
Developed D&B Materials in their
businesses and to authorize others to do
the same on their behalf. Any
representations, warranties, and covenants
of IBM, and any
D&B / IBM Confidential
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* Text redacted pursuant to application for
Confidential Treatment under Rule
24b-2 of the Securities Exchange Act of
1934, as amended, and filed separately
with the Securities and Exchange
Commission.
<PAGE>
rights of D&B under the Agreement, that
are applicable to Developed D&B
Materials shall apply equally to any Third
Party Materials or IBM Materials
incorporated into the Developed D&B
Materials. To the extent required by
applicable law, IBM shall do all such
things and shall execute all such
documents as may be necessary to effect an
assignment or transfer (as the case
may be) of all such Intellectual Property
Rights. D&B will grant IBM a
non-exclusive license during the Term to
Use Developed D&B Materials solely to
perform the Services. The Parties will
mutually agree upon, and IBM will include
in the Procedures Manual, a process to
ensure written documentation of any
agreement of the Parties pursuant to which
IBM will develop any Materials
"specially for D&B or according to
D&B's specifications."
(b) "Developed IBM Materials" shall mean modifications to, or
upgrades or enhancements (derivative works)
of, IBM Materials developed pursuant
to this Agreement by IBM Personnel (alone
or jointly with others) that are not
developed specially for D&B or
according to D&B's specifications. As between IBM
and D&B, IBM shall own all Intellectual
Property Rights in the Developed IBM
Materials. D&B's license rights in and
to Developed IBM Materials shall be the
same as D&B's license rights in and to
the underlying IBM Materials from which
they are derived, as provided Sections 9.2
and 9.3, whichever is applicable
under the circumstances.
9.5
CERTAIN D&B RIGHTS FOLLOWING THE TERM.
To the
extent D&B and/or its Affiliates use or practice IBM
Intellectual
Property Rights in accordance with the
terms of the Agreement during the Term,
IBM (on its own behalf and on behalf of its
Affiliates) covenants not to assert
against or sue D&B and its Affiliates
during or at any time following the Term
any claim for infringement of any patent
owned or exclusively licensed by IBM or
its Affiliates where D&B's or its
Affiliate's use or practice which constitutes
such infringement began during the
Term.
9.6
RESIDUAL KNOWLEDGE.
Nothing
contained in the 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 the
Agreement, provided that in doing so
such Party does not infringe the
Intellectual Property Rights of the other Party
or third parties who have licensed or
provided materials to the other Party. For
the avoidance of doubt, the Parties
acknowledge and agree that the provisions of
this Section 9.6 do not apply to any of the
following: (i) D&B Data; (ii)
information concerning the operations,
affairs and businesses of D&B (or its
Affiliates), the financial affairs of
D&B (or its Affiliates), and the relations
of D&B (or its Affiliates) with their
respective, employees and service
providers (including customer lists,
customer information, account information,
consumer markets and other information
regarding D&B's (or its Affiliates')
business planning, operations, or marketing
activities); or (iii) D&B Materials
and Third Party Materials licensed by
D&B (or its Affiliates).
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<PAGE>
10. REQUIRED CONSENTS
IBM and
its Affiliates shall be responsible, with D&B's and its
Affiliates' reasonable co-operation, for
obtaining the Required Consents for
third party contracts and licenses as
necessary to perform the Services, and IBM
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
cooperate with each other so as to minimize
such costs. As and to the extent consent is
obtained for IBM 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 IBM, after
consultation with D&B, reasonably
directs. If a Required Consent is not
obtained, then, unless and until such
Required Consent is obtained, IBM shall
determine and promptly adopt, subject to
D&B's prior written approval, such
alternative approaches as are necessary and
sufficient to provide the Services
without such Required Consents.
11. PERFORMANCE STANDARDS/SERVICE
LEVELS
11.1
GENERAL.
(a) IBM shall perform the Services at least at the same level
and
with at least the same degree of accuracy,
quality, completeness, timeliness,
responsiveness and efficiency as was
provided prior to the Effective Date by or
for D&B.
(b) Quantitative Performance Standards for certain of the
Services
("Service Levels"), are set forth in
Schedule B (Service Levels).
(c) At all times IBM's level of performance shall be at least
equal
to the Service Levels and to standards
satisfied by well-managed, world-class
operations performing services similar to
the Services.
11.2
PRIORITY OF RECOVERY FOLLOWING INTERRUPTION OF SERVICES.
IBM will
give the recovery of its capabilities to perform the Services
and
the resumption of its actual performance of
the Services the same or greater
priority it gives to recovering its
capabilities to perform services and
resuming its performance of those services
for any other customer of IBM (and
IBM's own operations).
11.3 USER
SATISFACTION.
IBM and
D&B will conduct a survey at agreed-to intervals (not less
than
annually) of an agreed upon percentage of
the D&B user community. The surveys
shall be designed to determine the level of
user satisfaction and areas where
user satisfaction can be improved. Such
surveys shall include representative
samples of each major category of user
within D&B and an agreed upon number of
in-depth face-to-face or telephone
interviews. IBM and D&B will mutually agree
on the form and content of the surveys,
which shall be no less thorough than
IBM's customary user satisfaction program.
The Parties will jointly review the
results of the surveys, and IBM will
develop and implement a plan to improve
user satisfaction in areas where
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<PAGE>
user satisfaction is low. D&B's
satisfaction shall be an element of IBM
employees' personal measurements and a key
factor in determining business unit
success. Such factors shall comprise a
significant percentage of the variable
incentive compensation pay of each
individual holding a Key IBM Position.
11.4
PERIODIC REVIEWS.
Within
twelve (12) months after the Effective Date and at least
annually
thereafter, D&B and IBM will review the
Service Levels and will make adjustments
to them as appropriate to reflect improved
performance capabilities associated
with advances in technology, processes and
methods. The Parties expect and
understand that the Service Levels will be
improved over time without impacting
the agreed pricing. As new technologies and
processes are introduced, additional
Service Levels reflecting industry best
practices for those technologies and
processes will be established by the
Parties. Without limiting the generality of
this Section 11.4, Section 5.3 of Schedule
B (Service Levels) sets forth a
mechanism for specific annual improvements
in Service Levels.
12. ACCEPTANCE
To the
extent development of any software or other Deliverables is
included within the scope of the Agreement,
the provisions of this Section 12
shall apply. IBM shall fully test all
Software Deliverables prior to delivery to
D&B. Upon receipt of a Software
Deliverable, D&B shall review the Deliverable
within ten (10) business days in the case
of a written Deliverable and thirty
(30) days in the case of a Software
Deliverable, or such other time period as is
otherwise agreed by the Parties in writing
(with respect to each Deliverable,
the "Acceptance Period") to verify that it
complies with its applicable
specifications. If D&B notifies IBM
within five (5) business days after the end
of the Acceptance Period that the
Deliverable does not meet its applicable
specifications and describes the
deficiencies in sufficient detail for IBM to
reproduce them, IBM shall promptly replace
the Deliverable with a conforming
Deliverable. If IBM is unable to provide a
conforming Deliverable within ten
(10) days after notification of the
nonconformance from D&B, D&B may, at its
option, (i) extend the time for correction
of the Deliverable, (ii) accept that
Deliverable in its current condition and
receive an equitable adjustment to the
price for such Deliverable to account for
the reduction in value of the
Deliverable, or (iii) reject and return to
IBM the Deliverable and receive a
refund of amounts paid for the Deliverable
and for any other Deliverables
returned by D&B that are rendered
unusable for their intended purpose due to the
inoperability of such Deliverable.
13. GOVERNANCE
Schedule F (Governance) sets forth
the global relationship structures and
governance processes the Parties will use
to govern their relationship under the
Agreement.
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<PAGE>
13.1
REPORTS.
Exhibit
F-3 (Reports) lists the periodic reports to be issued by IBM to
D&B, which should include, at a
minimum, monthly performance reports, monthly
change reports and monthly reports on
resource utilization.
13.2
PROCEDURES MANUAL.
(a) IBM shall prepare and deliver to D&B a procedures
manual
("Procedures Manual") which describes the
activities IBM proposes to undertake
in order to provide the Services,
including, where appropriate, those
supervision, monitoring, staffing,
reporting, planning and oversight activities
to be undertaken by IBM. IBM will also
include in the Procedures Manual a
description of its back up and archiving
practices, security procedures, change
control policies and procedures, and
overall architecture plan.
(b) Attached as Exhibit F-2 (Draft Procedures Manual Table of
Contents) is a draft table of contents for
the Procedures Manual. Working in
consultation with D&B, IBM will deliver
a draft Procedures Manual to D&B within
ninety (90) days after the Effective Date
for review and comment. The draft
Procedures Manual will be organized
generally in accordance with Exhibit F-2
(Draft Procedures Manual Table of
Contents), but may include additional sections
or provisions as appropriate. IBM will
incorporate or address reasonable
comments or suggestions of D&B and will
finalize the Procedures Manual within
one hundred fifty (150) days after the
Effective Date. The final Procedures
Manual will be subject to the approval of
D&B in accordance with Section 12.
(c) The Procedures Manual will be considered an operational
document, which IBM may revise with the
written approval of D&B Global Project
Executive without the need to amend the
Agreement. IBM will periodically update
the Procedures Manual to reflect changes in
the operations or procedures
described in it. Updates of the Procedures
Manual will be provided to D&B for
review, comment and approval.
(d) Notwithstanding anything to the contrary in Section 9, D&B
and
its Affiliates may retain and use the
Procedures Manual in their businesses and
for their benefit both during the Term and
following the expiration or
termination of the Agreement for any
reason. Subject to appropriate
non-disclosure agreements for the limited
purpose of protecting IBM's
Intellectual Property Rights in any
pre-existing IBM Materials incorporated into
the Procedures Manual, D&B and its
Affiliates may permit any of their other
service providers to use the Procedures
Manual during and after the Term, but
solely in connection with their provision
of services to D&B and its Affiliates.
If IBM considers any pre-existing IBM
Materials incorporated into the Procedures
Manual to be highly confidential, it may so
notify D&B. In that case, D&B will
cooperate with IBM to permit IBM to prepare
a special version of the Procedures
Manual masking the sensitive information
that D&B will use when disclosing the
Procedures Manual to other service
providers provided the masking can be
accomplished without detracting materially
from the usefulness of the Procedures
Manual for its intended purpose.
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<PAGE>
(e) IBM will perform the Services in accordance with the
Procedures
Manual save that in the event of a conflict
between the provisions of the
Procedures Manual and the provision of the
Agreement, the provisions of the
Agreement shall prevail and the conflict
shall be resolved in accordance with
the Change Management Process described in
Section 13.3.
13.3
CHANGE CONTROL.
(a) "Change" means any modification to the scope of the Services
or
to IBM's charges for providing the
Services. "Change Management Process" means a
written procedure for considering,
analyzing, approving and carrying out Changes
designed to ensure that only desirable
Changes are made and that Changes made by
or on behalf of IBM are carried out in a
controlled manner with minimal
disruption to the Services and D&B's
and its Affiliates' business operations.
(b) Working in consultation with D&B, IBM will develop and
include a
Change Management Process in the Procedures
Manual.
(c) Except as otherwise expressly provided in Schedule A (IBM
Services and Solutions), D&B has
retained responsibility for establishing the IT
architecture, standards (including security
standards) and strategic direction
of D&B (and its Affiliates). IBM will
conform to and support such architecture,
standards, and strategic direction in
rendering the Services. Any Equipment and
Software provided by or on behalf of IBM
that connects to D&B (or its
Affiliates') IT infrastructure will comply
with such architecture, standards,
and strategic direction and will only be
introduced into the D&B IT
infrastructure in accordance with the
Change Management Process.
(d) IBM will not make any Changes, except in accordance with
the
Change Management Process and with
D&B's approval, that may reasonably be
expected to do or result in any of the
following: (i) adversely affect the
specifications, functionality, or
performance of any Services; (ii) increase D&B
`s internal costs or IBM's charges to
D&B under the Agreement; (iii) disrupt or
adversely affect any of D&B's or its
Affiliates' business operations; or (iv)
deploy technology that is not consistent
with D&B's (and its Affiliates') IT
architecture, standards and strategic
direction, as communicated to IBM.
(e) D&B will not be obliged to approve any Change proposed by
IBM if
implementation of the Change would increase
D&B's internal costs or IBM's
charges to D&B under the Agreement, or
if it would otherwise adversely affect
D&B's or its Affiliate's business. IBM
will not be obliged or authorized to
carry out any proposed Change that D&B
disapproves.
(f) Should the Parties agree on carrying out a Change, a
written
Change Order shall be prepared describing
the Change and its effects on the
Services, IBM's charges and any affected
components of the Agreement. IBM shall
not begin performing any proposed Change
until it has been authorized by a duly
executed Change Order. If IBM does so, IBM
shall be deemed to have provided such
performance gratuitously.
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<PAGE>
13.4
SUBCONTRACTORS.
IBM may
not use subcontractors to perform any material part of the
Services or any of its material
responsibilities without D&B's prior written
consent. Where D&B gives its approval
of a subcontractor (Approved
Subcontractor), D&B has a right to
revoke such approval at any time. If D&B's
revocation of such approval is not for good
cause and would cause IBM to incur
significant Out-of-Pocket Expenses, IBM may
so notify D&B. In that case, D&B's
revocation will be subject to D&B
agreeing to reimburse IBM for such additional
Out-of-Pocket Expenses. IBM will be
responsible for all subcontractor services
as if performed by IBM and shall be
D&B's sole point of contact for all issues
relating to or arising in connection with
the performance of any part of the
Services by Approved Subcontractors. IBM
shall remain liable at all times for
all acts or omissions of the Approved
Subcontractors arising out of or in
connection with the Agreement. Any act or
omission which would be a default
under the Agreement had it been done by IBM
shall be deemed to be a default by
IBM under the Agreement notwithstanding the
fact that it was done by an Approved
Subcontractor and not IBM. A list of the
Approved Subcontractors as of the
Effective Date is set forth in Schedule K
(Approved Subcontractors).
13.5
QUALITY ASSURANCE AND IMPROVEMENT PROGRAMS.
As part of
its total quality management process, IBM shall provide
continuous quality assurance and quality
improvement through: (a) the
identification and application of proven
techniques and tools from other
installations within its operations (i.e.,
"best practices"); and (b) the
implementation of concrete programs,
practices and measures designed to improve
performance standards. Such procedures
shall include checkpoint reviews,
testing, acceptance, and other procedures
for D&B to confirm the quality of
IBM's performance, and shall be included in
the Procedures Manual. IBM shall
utilize project management tools, including
productivity aids and project
management systems, as appropriate in
performing the services.
14. AUDITS; RECORD RETENTION
14.1 AUDIT
RIGHTS.
(a) IBM shall maintain a complete audit trail of all financial
and
non-financial transactions resulting from
the Agreement. IBM shall provide to
D&B and its Affiliates, and its and
their auditors (including internal audit
staff and external auditors), inspectors,
regulators and other representatives
as D&B may from time to time designate
in writing, access at all reasonable
times (and in the case of regulators at any
time required by such regulators) to
any facility or part of a facility at which
either IBM or any of its
subcontractors is providing the Services,
to IBM Personnel, and to data and
records (excluding data pertaining to IBM's
other customers and not to D&B, and
excluding cost data except in cases where
IBM's charges to D&B are based
directly on IBM's costs: e.g.,
Out-of-Pocket Expenses) relating to the Services
for the purpose of performing audits and
inspections of either IBM or any of its
subcontractors during the Term. For the
avoidance of doubt, the purposes for
which D&B audits and inspections may be
performed include the following: to
verify the accuracy of IBM's invoices; to
verify the integrity of D&B Data and
IBM's compliance
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<PAGE>
with the data privacy, data protection,
confidentiality and security
requirements of the Agreement; to
investigate actual or suspected intrusions
into D&B networks or systems or
incidents of unauthorized access to or use of
D&B Data, and to verify IBM's
compliance with any other provisions of the
Agreement.
(b) Audits and inspections will be conducted during business
hours
and upon reasonable advance notice to IBM
except in the case of audits or
inspections by regulators, emergency or
security audits or inspections, or
audits or inspections investigating claims
of illegal behavior. D&B and its
Auditors will comply with IBM's reasonable
security and confidentiality
requirements when accessing facilities or
other resources owned or controlled by
IBM; provided, however, that IBM shall not
restrict access by personnel
conducting such audits or inspections to
any D&B Data or other resources owned
or supplied by D&B. IBM will cooperate
fully with D&B and its representatives
conducting audits or inspections and
provide such assistance as they reasonably
require to carry out the audit or
inspection, including installing and operating
audit software.
14.2 IBM
AUDITS.
(a) IBM shall conduct audits of or pertaining to the Services
in
such manner and at such times as is
consistent with the audit practices of well
managed operations performing services
similar to the Services. IBM shall
perform a security audit at least annually
and shall cause a Type II Statement
of Auditing Standards ("SAS") 70 audit (or
equivalent audit) to be conducted
annually for each shared services facility
at or from which Services are
provided to D&B and/or the Eligible
Recipients. The SAS 70 audits will be
conducted in accordance with D&B's
control requirements as required by D&B. IBM
shall permit D&B to participate in the
planning of each SAS 70 audit, shall
confer with D&B as to the scope and
timing of each such audit and shall
accommodate D&B requirements and
concerns to the extent practicable, in IBM's
reasonable discretion. Unless otherwise
agreed by the Parties, each SAS 70 audit
shall be scheduled so as to facilitate
annual compliance reporting by D&B and
the Eligible Recipients under the
Sarbanes-Oxley Act of 2002 and implementing
regulations promulgated in the thereunder.
To the extent the resulting audit
report is relevant to D&B and/or the
Eligible Recipients, IBM shall provide a
copy of such report to D&B and its
independent auditors for review and comment
as soon as reasonably possible and in all
events within thirty (30) days after
completion.
(b) Following an audit or examination, D&B may conduct (in the
case
of an internal audit), or request its
external auditors or examiners to conduct,
an exit conference with IBM to obtain
factual concurrence with issues identified
in the review.
(c) IBM and D&B will meet to review each audit report promptly
after
its issuance and to agree mutually upon the
appropriate manner, if any, in which
to respond to the changes suggested by the
audit report. D&B and IBM agree to
develop operating procedures for the
sharing of audit and regulatory findings
and of reports related to IBM's operating
practices and procedures produced by
auditors or regulators of either Party.
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<PAGE>
14.3
RECORDS RETENTION.
Until the
latest of (a) three (3) years after creation of the record; (b)
all pending matters relating to the
Agreement are closed; (c) the information is
no longer required to meet D&B's
records management policy as disclosed by D&B
to IBM and as such policy may be adjusted
from time to time; or (d) the
information is no longer required for
either Party to comply with applicable
laws, IBM shall maintain and provide access
upon request to the records,
documents, and other information required
to meet D&B's audit rights under the
Agreement.
15. D&B RESPONSIBILITIES
15.1
DESIGNATION OF CERTAIN D&B PERSONNEL.
D&B
shall designate an individual to serve in each of the D&B
roles
identified in Exhibit F-1 (IBM and D&B
Organization Structures).
15.2
D&B RETAINED FUNCTIONS
In support
of IBM's performance of the Services, D&B will perform the
D&B
Retained Functions.
15.3
SAVINGS CLAUSE.
(a) DUE TO THE IMPACT ANY TERMINATION OF THE AGREEMENT OR
SUSPENSION
OF PERFORMANCE WOULD HAVE ON D&B'S
BUSINESS, D&B'S FAILURE TO PERFORM ITS
RESPONSIBILITIES SET FORTH IN THE AGREEMENT
(OTHER THAN D&B'S FAILURE TO PAY
UNDISPUTED AMOUNTS IN EXCESS OF THREE
MILLION US DOLLARS (US$ 3 MILLION), OR ITS
FAILURE TO COMPLY WITH THE PROVISIONS OF
SECTION 7.2 (DISPUTED CHARGES) OF
SCHEDULE C (CHARGES)) SHALL NOT BE GROUNDS
FOR TERMINATION OF THE AGREEMENT BY
IBM OR FOR THE SUSPENSION OF PERFORMANCE OF
THE SERVICES BY IBM. IBM
ACKNOWLEDGES THAT D&B WOULD NOT BE
WILLING TO ENTER INTO THE AGREEMENT WITHOUT
ASSURANCE THAT IT MAY NOT BE TERMINATED BY
IBM AND THAT IBM MAY NOT SUSPEND
PERFORMANCE EXCEPT, AND ONLY TO THE EXTENT,
AS PROVIDED UNDER THE AGREEMENT.
(b) IBM's nonperformance of its obligations under the Agreement
shall be excused if and to the extent (a)
such IBM nonperformance results from
D&B's failure to perform its
responsibilities; and (b) IBM provides D&B with
reasonable notice of such nonperformance
and (if requested by D&B) uses
Commercially Reasonable Efforts to perform
notwithstanding D&B's failure to
perform with D&B being responsible to
reimburse IBM for its additional
Out-of-Pocket expenses for such
efforts.
16. CHARGES
Schedule C
(Charges) sets forth all the charges payable to IBM for
performing the Services and the associated
invoicing and payment procedures and
terms. D&B will not be required to pay
IBM any amounts for or in connection with
performing the
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<PAGE>
Services and fulfilling IBM's obligations
under the Agreement other than the
Permitted Charges (as defined in Schedule
C).
17. SAFEGUARDING OF DATA;
CONFIDENTIALITY
17.1
D&B INFORMATION.
(a) D&B Information shall be and remain, as between the
Parties, the
property of D&B, its Affiliates and
third party licensors (as the case may be).
IBM shall not possess or assert any lien or
other right against or to D&B
Information. Except as expressly permitted
by Section 9.6, D&B Information shall
not be: (i) used by IBM other than in
connection with providing the Services;
(ii) disclosed, sold, assigned, leased or
otherwise provided to third parties by
IBM; or (iii) commercially exploited by or
on behalf of IBM.
(b) D&B Information shall not be utilized by IBM for any
purpose
other than that of rendering the Services
under the Agreement. Upon D&B's
request, or upon termination or expiration
of the Agreement for any reason, D&B
Information shall be promptly returned to
D&B (or its applicable Affiliate) or
destroyed by IBM.
(c) Without limiting the generality of Sections 24.1 and Schedule
H
(Data Privacy and Data Protection Laws),
IBM will comply with all data
protection and data privacy laws and
regulations applicable to IBM's business.
In addition, IBM will enable D&B to
comply with data protection and data privacy
laws and regulations that are not generally
applicable to IBM's business but are
applicable to D&B and/or its Affiliates
by complying with any associated D&B
standards, policies and requirements that
have been communicated to IBM in
writing. For the avoidance of doubt, the
Parties acknowledge that IBM is not
providing audit, legal, or compliance
advice to D&B under the Agreement.
17.2
SAFEGUARDING D&B DATA.
(a) IBM will establish and maintain safeguards against the
destruction, loss, or alteration of D&B
Data in the possession of IBM which are
no less rigorous than those in effect at
D&B as of the Effective Date, and which
are no less rigorous than those maintained
by IBM for its own information of a
similar nature. D&B will have the right
to establish backup security for data
and to keep backup data and data files in
its possession if it chooses.
(b) IBM Personnel shall not attempt to access, or allow access
to,
any D&B Data that they are not
permitted to access under the Agreement. If such
access is attained (or is reasonably
suspected), IBM shall promptly report such
incident to D&B, describe in detail the
accessed D&B Data, and if applicable
return to D&B any copied or removed
D&B Data.
(c) IBM shall utilize Commercially Reasonable Efforts,
including
thorough systems security measures, to
guard against the unauthorized access,
alteration or destruction of Software and
D&B Data. Such measures shall include
the use of Software which: (i) requires all
users to enter a user identification
and password prior to gaining access to the
information systems; (ii) controls
and tracks
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<PAGE>
the addition and deletion of users; and
(iii) controls and tracks user access to
areas and features of the information
systems. If IBM becomes aware of any
suspected, attempted or actual intrusions
into D&B networks or systems, or
incidents of unauthorized access to or use
of D&B Data, IBM shall immediately
report the incident to the D&B Global
Project Executive.
(d) Schedule H (Data Privacy and Data Protection Laws) sets
forth
additional terms and conditions governing
data privacy and data protection, and
compliance by the Parties with applicable
legislation and regulations as they
relate to the performance of the Services
by IBM.
17.3
CONFIDENTIAL INFORMATION.
IBM and
D&B each acknowledge that they may be furnished with, receive
or
otherwise have access to information of or
concerning the other Party that such
Party considers to be confidential, a trade
secret or otherwise restricted.
"Confidential Information" shall mean all
information, in any form, furnished or
made available directly or indirectly by
one Party to the other which is marked
confidential, restricted, or with a similar
designation. The terms and
conditions of the Agreement shall be deemed
Confidential Information.
17.4
OBLIGATIONS IN CONNECTION WITH CONFIDENTIAL INFORMATION.
(a) Each Party shall use at least the same degree of care as it
employs to avoid unauthorized disclosure of
its own information, but in any
event no less than Commercially Reasonable
Efforts, to prevent disclosing to
unauthorized parties the Confidential
Information of the other Party, provided
that IBM may disclose such information to
properly authorized entities as and to
the extent necessary for performance of the
Services, and D&B may disclose such
information to third parties as and to the
extent necessary for the conduct of
its business, where in each such case: (i)
the receiving entity first agrees in
writing to terms and conditions
substantially the same as the confidentiality
provisions set forth in the Agreement; (ii)
use of such entity is authorized
under the Agreement; (iii) such disclosure
is necessary or otherwise naturally
occurs in that entity's scope of
responsibility; and (iv) the disclosing Party
assumes full responsibility for the acts
and omissions of such third party.
(b) The receiving Party's obligations respecting Confidential
Information of the other Party shall
continue for as long as the receiving Party
(or any of its Affiliates, contractors,
agents or representatives) retains any
copies of the Confidential Information and
shall survive for a period of two (2)
years following the receiving Party's
destruction or return of all copies of the
Confidential Information. For the avoidance
of doubt, the provisions of this
section shall not in any way limit IBM's
obligations to safeguard the D&B Data
pursuant to Section 17.2.
(c)
Each Party's Confidential Information shall remain the property
of that Party. Nothing contained in the
Parties' obligations with respect to
Confidential Information shall be construed
as obligating a Party to disclose
its Confidential Information to the other
Party, or as granting to or conferring
on a Party, expressly or impliedly, any
rights or license to the Confidential
Information of the other Party, and
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<PAGE>
any such obligation or grant shall only be
as provided by other provisions of
the Agreement. The obligations set forth in
this Section 17.4 shall not apply to
any particular information that the
receiving Party can establish: (i) was
already in its possession without any
obligation of confidentiality at the time
of disclosure by the furnishing Party; (ii)
was developed independently by it
without reference to any Confidential
Information of the furnishing Party; (iii)
was obtained without obligation of
confidentiality from a source who had the
right to furnish the information to the
receiving Party without an obligation of
confidentiality; (iv) was publicly
available when disclosed by the furnishing
Party or subsequently becomes publicly
available through no fault of the
receiving Party; or (v) was disclosed by
the furnishing Party to other parties
without an obligation of
confidentiality.
18. REPRESENTATIONS, WARRANTIES AND
COVENANTS
18.1 WORK
STANDARDS.
IBM
represents and warrants that the Services shall be rendered
with
promptness and diligence and shall be
executed in a workmanlike manner, in
accordance with the practices and high
professional standards used in
well-managed operations performing services
similar to the Services. IBM
represents and warrants that it shall use
adequate numbers of qualified
individuals with suitable training,
education, experience and skill to perform
the Services.
18.2
EFFICIENCY AND COST EFFECTIVENESS.
IBM
represents and warrants that it shall use Commercially
Reasonable
Efforts to use efficiently the resources or
services necessary to provide the
Services. IBM represents and warrants that
with respect to chargeable resources
it shall use Commercially Reasonable
Efforts to perform the Services in the most
cost-effective manner consistent with the
required level of quality and
performance.
18.3
DELIVERABLES.
IBM
represents and warrants that all deliverables will comply with
their
applicable specifications.
18.4
TECHNOLOGY.
IBM agrees
that it shall provide the Services using, subject to the Change
Management Process, proven, current
technology that will enable D&B to take
advantage of technological advancements in
its industry and support D&B's
efforts to maintain competitiveness in the
markets in which it competes.
18.5
NON-INFRINGEMENT.
Each Party
represents and warrants that it shall perform its
responsibilities under the Agreement in a
manner that does not infringe, or
constitute an infringement or
misappropriation of, any Intellectual Property
Rights of any third party. IBM represents
that there are no current claims that
any portion of the Services infringes any
third party Intellectual Property
Rights (regardless of IBM's view of the
merits of
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such claim) and IBM shall promptly inform
D&B of any claims which are
hereinafter brought.
18.6
OWNERSHIP AND USE OF SOFTWARE AND RELATED MATERIAL.
IBM
represents and warrants that it is either the owner of, or
authorized
to use, all of the software and related
material, including IBM Software, used
and to be used in connection with the
Services, which is not otherwise owned by
D&B or its Affiliates.
18.7
AUTHORIZATION AND OTHER CONSENTS.
Each Party
represents and warrants to the other that: (a) it has the
requisite corporate power and authority to
enter into the Agreement and to carry
out the transactions contemplated by the
Agreement; (b) the execution, delivery
and performance of the Agreement and the
consummation of the transactions
contemplated by the Agreement have been
duly authorized by the requisite
corporate action on the part of such Party
and will not constitute a violation
of any judgment, order or decree; (c) the
execution, delivery and performance of
the Agreement and the consummation of the
transactions contemplated by the
Agreement will not constitute a material
default under any material contract by
which it or any of its material assets are
bound, or an event that would, with
notice or lapse of time or both, constitute
such a default; and (d) there is no
proceeding pending or, to the knowledge of
the Party, threatened which
challenges or may have a material adverse
affect on the Agreement or the
transactions contemplated by the
Agreement.
18.8
INDUCEMENTS.
IBM
represents and warrants to D&B that it has not violated any
applicable
laws or regulations or any D&B policies
of which IBM has been given notice
regarding the offering of unlawful
inducements in connection with the Agreement.
If at any time during the Term, D&B
determines that the foregoing representation
and warranty is inaccurate, and provided
the inaccuracy is of such a material
nature that it might have reasonably led
D&B not to enter into the Agreement had
D&B known this before entering into the
Agreement, then, in addition to any
other rights D&B may have at law or in
equity, D&B shall have the right to
terminate the Agreement for cause without
first affording IBM an opportunity to
cure.
18.9
VIRUSES.
IBM shall
use Commercially Reasonable Efforts so that no Viruses are
coded
or introduced into the systems used to
provide the Services. If a Virus is found
to have been introduced into the systems
used to provide the Services, IBM shall
use Commercially Reasonable Efforts upon
D&B's request to assist D&B in reducing
the effects of the Virus and, if the Virus
causes a loss of operational
efficiency or loss of data, to assist
D&B to the same extent to mitigate and
restore such losses. Such assistance shall
be provided at no charge if the Virus
was introduced either by IBM personnel or
via software, systems or other
resources controlled by IBM; otherwise,
such assistance shall be provided in
accordance with the applicable pricing
provisions of the Agreement. "Virus"
shall mean: (a) program code or programming
instruction or set of instructions
intentionally designed to disrupt, disable,
harm, interfere with or
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otherwise adversely affect computer
programs, data files or operations; or (b)
other code typically described as a virus
or by similar terms, including Trojan
horse, worm or backdoor, that was not
authorized in writing by D&B.
18.10
DISABLING CODE.
IBM
represents and warrants that, without the prior written consent of
D&B
(which it may withhold in its sole
discretion), IBM shall not insert into the
Software any code that would have the
effect of disabling or otherwise shutting
down all or any portion of the Services,
other than code which is inserted into
commercially available products by the
product licensor in the normal course of
its business to ensure a purchaser or
licensee uses the product in accordance
with the license agreement. IBM further
represents and warrants that, with
respect to any disabling code that may be
part of the Software, IBM shall not
invoke such disabling code at any time,
including upon expiration or termination
of the Agreement for any reason, without
D&B's prior written consent.
18.11
DISCLAIMERS.
(a) During the proposal and contract negotiation process
preceding
the Effective Date, IBM has been afforded
the opportunity to conduct to its
satisfaction a full examination of
D&B's operations related to the Services. D&B
MAKES NO WARRANTIES THAT ARE NOT SET FORTH
IN THE AGREEMENT. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN SCHEDULE C (CHARGES),
IN NO EVENT WILL INFORMATION
DISCOVERED AFTER THE EFFECTIVE DATE OR
CHANGES IN CIRCUMSTANCES OF ANY KIND
SERVE AS THE BASIS FOR IBM TO ADJUST THE
PRICING OR TERMS OF THE AGREEMENT.
(b) THE WARRANTIES SET FORTH IN THE AGREEMENT ARE EXCLUSIVE.
OTHER
THAN AS PROVIDED IN THE AGREEMENT, THERE
ARE NO EXPRESS WARRANTIES AND THERE ARE
NO IMPLIED WARRANTIES, INCLUDING IMPLIED
WARRANTIES OR MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
19. INSURANCE
IBM will
maintain during the Term insurance coverage in accordance with
Schedule L (Insurance).
20. INDEMNITIES
20.1 IBM
INDEMNITIES.
IBM will indemnify and
hold D&B and D&B's Affiliates and their respective
officers, directors, employees, agents,
successors and assigns harmless against
any and all Losses arising from, related
to, or in any way connected with,
Claims of or for any of the following:
(a) IBM's failure to observe or perform any duties or obligations
to
be observed or performed on or after the
Effective Date by IBM under the Third
Party
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Service Contracts, if any, assigned to IBM
or for which IBM has assumed
financial, administrative or operational
responsibility under the Agreement.
(b) Infringement or misappropriation of any Intellectual
Property
Rights, alleged to have occurred because of
systems, deliverables, or other
resources provided by IBM to D&B, or
based upon the performance of the Services
by IBM. IBM's foregoing indemnity
obligation shall not apply to the extent (but
only to the extent) any claimed
infringement or misappropriation is directly
attributable to any of the following: (i)
the combination, operation or use of
an item provided on behalf of IBM with
other specific items not furnished by,
through, or at the specification of IBM or
its subcontractors; provided,
however, that this exception will not be
deemed to apply to the combination,
operation or use of an item with other
commercially available products that
could reasonably have been anticipated to
be used in combination with the item
provided by IBM in connection with the
Services: e.g., the use of application
software provided by IBM with a
commercially available computer and operating
system not provided by IBM), (ii)
modifications of hardware, Software, or
materials that were not made, directed, or
approved by IBM, (iii) specifications
provided by the Indemnified Party if such
specifications did not permit use of a
non-infringing alternative and provided IBM
did not knowingly commit an
infringement or misappropriation without
advising D&B in writing in advance,
(iv) business process(es) that the
Indemnified Party requires IBM to use or
follow if such business process(es) did not
permit use of a non-infringing
alternative and provided IBM did not
knowingly commit an infringement or
misappropriation without advising D&B
in writing in advance, or (v) use by the
Indemnified Party of an item in other than
its specified operating environment;
(c) By, on behalf of, or related to, any employee of IBM, its
Affiliates, or any Approved Subcontractor,
including Claims arising on or after
the Effective Date under occupational
health and safety, worker's compensation,
ERISA or other applicable federal, state,
or local laws or regulations, or at
common law, except to the extent of
D&B's responsibility, if any, under Section
20.3;
(d) Any amounts including taxes, interest, and penalties
assessed
against D&B or its Affiliates which are
obligations of IBM;
(e) The inaccuracy or untruthfulness of any representation or
warranty made by or on behalf of IBM in any
of the following Sections: 18.5,
18.6, 18.7 and/or 18.10;
(f) By subcontractors arising out of IBM's breach or violation
of
IBM's subcontracting arrangements;
(g) Arising out of (i) a violation of Federal, state, or other
laws
or regulations for the protection of
persons or members of a protected class or
category of persons by IBM or its
employees, subcontractors or agents; (ii)
sexual discrimination or harassment by IBM,
its employees, subcontractors or
agents; and (iii) work-related injury or
death caused by IBM, its employees,
subcontractors, or agents (except to the
extent covered by D&B's worker's
compensation coverage);
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<PAGE>
(h) By any IBM Personnel that D&B (or its Affiliate) is liable
to
such person as the employer or joint
employer of such person, including any
claim for employee benefits as a result
thereof;
(i) Arising out of or relating to inadequacies in the physical
and
data security control systems at the
locations from which IBM provides the
Services, to the extent such systems are
controlled or provided by IBM after the
Effective Date; and/or
(j) Arising out of IBM's breach of Section 24.
20.2
D&B INDEMNITIES.
D&B
will indemnify, defend and hold harmless IBM and its Affiliates
and
their respective officers, directors,
employees, agents, successors and assigns
against any and all Losses arising from,
related to, or in any way connected
with, Claims of or for any of the
following:
(a) D&B's failure to observe or perform any duties or
obligations to
be observed or performed prior to the
Effective Date by D&B under any of the
third party contracts assigned to IBM or
for which IBM has assumed financial,
administrative or operational
responsibility; and
(b) Infringement or misappropriation of any Intellectual
Property
Rights, alleged to have occurred because of
systems or other resources provided
to IBM by D&B unless attributable to
IBM's failure to obtain any Required
Consent IBM is responsible for
obtaining.
20.3
ADDITIONAL INDEMNITIES.
Each Party
(indemnitor) agrees to indemnify, defend and hold harmless the
other (indemnitee) and its Affiliates and
their respective officers, directors,
employees, agents, successors and assigns,
against any and all Losses arising
from, related to or in any way connected
with, Claims of or for any of the
following:
(a) the death or bodily injury of any agent, employee (other than
an
employee of the indemnitor), customer,
business invitee, or business visitor or
other person caused by the tortious conduct
of the indemnitor (except to the
extent that that the indemnitor is
considered a 'special employer' under
applicable workers compensation laws and
that under such law the indemnitee is
deemed to be fully protected by workers
compensation insurance);
(b) the damage, loss or destruction of any real or tangible
personal
property caused by the tortious conduct of
the indemnitor; or
(c) resulting from an act or omission of the indemnitor in its
capacity as an employer of a person.
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<PAGE>
20.4
INFRINGEMENT.
(a) If any item used by IBM to provide the Services (other than
an
item provided by D&B) becomes, or in
IBM's reasonable opinion is likely to
become, the subject of a third party
infringement or misappropriation Claim, in
addition to indemnifying D&B and its
Affiliates and in addition to D&B's other
rights, IBM shall promptly take the
following actions, at no additional charge
to D&B, in the listed order of
priority: (i) promptly secure the right to
continue using the item; (ii) replace or
modify the item to make it
non-infringing or without misappropriation,
provided that any such replacement
or modification must not degrade the
performance or quality of the affected
component of the Services and IBM shall be
responsible for the cost of any new
interfaces or integration work required as
a result of the replacement or
modification; or (iii) remove the item from
the Services, in which case IBM's
charges shall be equitably adjusted to
reflect such removal and if, in D&B's
reasonable opinion, such removal is
material to all or any portion of the
remaining Services D&B may terminate
such portion of the affected Services or
the entire Agreement, as the case may be,
without penalty.
(b) If any item provided to IBM by D&B for use in providing
the
Services becomes, or in D&B's
reasonable opinion is likely to become, the
subject of a third party infringement or
misappropriation Claim, in addition to
indemnifying IBM and its Affiliates
pursuant to Section 20.2(b), D&B may take
any of the following actions, at no charge
to IBM: (i) promptly secure the right
for IBM and its Affiliates to continue
using the item; (ii) replace or modify
the item with a functionally equivalent or
similar item that is non-infringing
and bear the cost of any new interfaces or
integration work required as a result
of the replacement or modification; or
(iii) cease making the item available to
IBM for use in providing the Services. If
D&B exercises option (iii), the
Parties will negotiate an equitable
adjustment of IBM's performance obligations
and charges to reflect the withdrawal of
the item from IBM's use. The foregoing
shall not apply to the extent the claimed
infringement or misappropriation is
attributable to IBM's failure to obtain any
Required Consent(s) for which IBM is
responsible under the Agreement.
20.5
INDEMNIFICATION PROCEDURES.
The
following procedures will apply to Claims for which a party seeks
to
be indemnified pursuant the Agreement:
(a) Promptly after an indemnitee receives notice of any Claim
for
which it will seek indemnification pursuant
to the Agreement, the indemnitee
will promptly notify the indemnitor of the
Claim in writing. No failure to so
notify the indemnitor will abrogate or
diminish the indemnitor's obligations
under this Section 20 if the indemnitor has
or receives knowledge of the Claim
by other means or if the failure to notify
does not materially prejudice its
ability to defend the Claim. Within fifteen
(15) days after receiving an
indemnitee's notice of a Claim, but no
later than ten (10) days before the date
on which any formal response to the Claim
is due, the indemnitor will notify the
indemnitee in writing as to whether the
indemnitor acknowledges its
indemnification obligation and elects to
assume control of the defense and
settlement of the Claim (a "Notice of
Election"). In issuing a Notice of
Election, the indemnitor waives any right
of contribution against the indemnitee
unless the Notice of Election
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expressly states that indemnitor believes
in good faith that the indemnitee may
be liable for portions of the Claim that
are not subject to indemnification by
the indemnitor, in which case the
indemnitee will have the right to participate
jointly in the defense and settlement of
the Claim at its own expense using
counsel selected by it.
(b) If the indemnitor timely delivers a Notice of Election, it
will
be entitled to have sole control over the
defense and settlement of the Claim
except as provided in Section 20.5(a).
After delivering a timely Notice of
Election, the indemnitor will not be liable
to the indemnitee for any legal
expenses subsequently incurred by the
indemnitee in defending or settling the
Claim. In addition, the indemnitor will not
be required to reimburse the
indemnitee for any amount paid or payable
by the indemnitee in settlement of the
Claim if the settlement was agreed to
without the written consent of the
indemnitor.
(c) If the indemnitor does not deliver a timely Notice of
Election
for a Claim, the indemnitee may defend
and/or settle the Claim in such manner as
it may deem appropriate, at the cost and
expense of the indemnitor, including
payment of any settlement, judgment or
award and the costs of defending or
settling the Claim. The indemnitor will
promptly reimburse the indemnitee upon
demand for all Losses suffered or incurred
by the indemnitee as a result of or
in connection the Claim.
20.6
SUBROGATION.
If an
indemnitor shall be obligated to indemnify an indemnitee under
the
Agreement, the indemnitor shall, upon
fulfillment of its obligations with
respect to indemnification, including
payment in full of all amounts due
pursuant to its indemnification
obligations, be subrogated to the rights of the
indemnitee with respect to the Claims to
which such indemnification relates.
21. LIABILITY
21.1
GENERAL INTENT.
Subject to
the liability restrictions below, it is the intent of the
Parties that each Party shall be liable to
the other Party for any actual
damages incurred by the non-breaching Party
as a result of the breaching Party's
failure to perform its obligations in the
manner required by the Agreement.
21.2
LIABILITY RESTRICTIONS.
(a) Subject to Section
21.2(c) below, in no event, whether in
contract or in tort (including breach of
warranty, negligence and strict
liability in tort), shall a Party be liable
for indirect or consequential,
exemplary, punitive or special damages, or
any loss of profits, revenue,
business, savings, or goodwill, even if
such Party has been advised of the
possibility of such damages in advance.
(b) Subject to Section 21.2(c) below, each Party's total
liability
to the other, whether in contract or in
tort (including breach of warranty,
negligence and strict liability in tort)
shall be limited in the aggregate to an
amount equal to the total
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charges payable to IBM pursuant to the
Agreement for proper performance of the
Services for the twelve (12) months prior
to the month in which the most recent
event giving rise to liability occurred;
provided that if such event giving rise
to liability occurs during the first twelve
(12) months after the Effective
Date, liability shall be limited to an
amount equal to the total charges that
would be payable to IBM pursuant to the
Agreement for proper performance for the
Services during such twelve (12) month
period. Service Credits do not count
against and do not reduce the amounts
available under the foregoing limitations.
For the avoidance of doubt, the cap on
aggregate liability set forth in this
paragraph is intended to be an aggregate
cap applicable to any and all claims
under the Agreement, including any and all
claims arising under Local Services
Agreements executed hereunder, or under any
Adoption Agreements executed
thereunder.
(c) The limitations set forth in Sections 21.2(a) and 21.2(b)
above
shall not apply with respect to: (i) Claims
that are the subject of
indemnification; (ii) damages occasioned by
a Party's breach of its obligations
with respect to Confidential Information;
or (iii) any amounts payable by D&B to
IBM under the Agreement for Services
properly performed.
21.3
DIRECT DAMAGES.
The
following shall be considered direct damages and shall not be
considered consequential damages to the
extent they result from a Party's
failure to fulfill its obligations in
accordance with the Agreement: (a) costs
of recreating or reloading any D&B
Information that is lost or damaged; (b)
costs of implementing a workaround in
respect of a failure to provide the
Services; (c) costs of replacing lost or
damaged equipment and software and
materials; (d) costs and expenses incurred
to correct errors in software
maintenance and enhancements provided as
part of the Services; (e) costs and
expenses incurred to procure the Services
from an alternate source; and (f)
straight time, overtime, or related
expenses incurred by D&B or its Affiliates,
including overhead allocations for
employees, wages and salaries of additional
personnel, travel expenses,
telecommunication and similar charges incurred due
to the failure of IBM to provide the
Services or incurred in connection with (a)
through (e) above.
21.4 DUTY
TO MITIGATE.
Each Party
shall have a duty to mitigate damages for which the other Party
is responsible.
21.5 FORCE
MAJEURE.
(a) Neither Party shall be liable for any default or delay in
the
performance of its obligations under the
Agreement (other than the obligations
to pay amounts due under the Agreement) (i)
if and to the extent such default or
delay is caused, directly or indirectly, by
fire, flood, earthquake, elements of
nature or acts of God, riots, civil
disorders, war, government action, an order
under the Defense Production Act, or any
other cause beyond the reasonable
control of such Party; (ii) provided the
non-performing Party is without fault
in causing such default or delay, and such
default or delay could not have been
prevented by reasonable precautions
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and could not reasonably be circumvented by
the non-performing Party through the
use of alternate sources, workaround plans
or other means (including, with
respect to IBM, by IBM meeting its
obligations for performing disaster recovery
services as provided in the Agreement)
(each such event, a "Force Majeure
Event").
(b) In such event the non-performing Party shall be excused
from
further performance or observance of the
obligations so affected for as long as
such circumstances prevail and such Party
continues to use Commercially
Reasonable Efforts to recommence
performance or observance without delay,
including the performance and fulfillment
of any express disaster
recovery/business continuity obligations of
IBM under the Agreement. Any Party
so delayed in its performance shall
immediately notify the Party to whom
performance is due by telephone (to be
confirmed in writing within twenty-four
(24) hours of the inception of such delay)
and describe at a reasonable level of
detail the circumstances causing such
delay. A Force Majeure Event does not
excuse IBM from providing disaster recovery
services.
(c) If any Force Majeure Event substantially prevents, hinders
or
delays performance of the Services
necessary for the performance of functions
reasonably identified by D&B as
critical for more than five (5) consecutive
calendar days or any material portion of
the Services for more than ten (10)
business days, then at D&B's option:
(i) D&B may procure such Services from an
alternate source, and IBM shall be liable
for payment for such Services from the
alternate source for so long as the delay
in performance shall continue, not to
exceed 180 days; (ii) D&B may terminate
any portion of the Agreement so affected
and the charges payable hereunder shall be
equitably adjusted to reflect those
terminated Services; or (iii) D&B may
terminate the Agreement as of a date
specified by D&B in a written notice of
termination to IBM. If D&B terminates
the Agreement under clause (b) or (c)
above, D&B shall pay IBM's charges for all
Services performed under the Agreement, but
shall not be liable for payment of
any termination charges. IBM shall not have
the right to any additional payments
from D&B for costs or expenses incurred
by IBM as a result of any Force Majeure
Event.
22. DISPUTE RESOLUTION
Any
dispute between the Parties arising out of or relating to the
Agreement, including with respect to the
interpretation of any provision of the
Agreement and with respect to the
performance by IBM to D&B, shall be resolved
by the process set forth in this Section
22.
22.1
DISPUTE RESOLUTION PROCESS.
(a) The Parties initially shall attempt to resolve their
disputes
informally, or as described in Section
22.1(b), by appointing designated
representatives who do not devote
substantially all of their time to performance
under the Agreement to meet for the purpose
of endeavoring to resolve such
disputes.
(b) In the event of any dispute arising out of or in connection
with
the Agreement that is not resolved
informally, the Parties agree to discuss and
consider submitting the matter to
settlement proceedings under the International
Chamber of Commerce (ICC) ADR Rules. In the
event that the Parties agree to
submit the matter to settlement proceedings
under the ICC ADR Rules and the
dispute has not been settled pursuant to
such rules within forty five (45) days
following the filing of a request for ADR
or within such period as the Parties
may agree in writing, the parties shall
have no further obligations under this
Section 22.1(b).
(c) If the Parties are unable to resolve a dispute informally,
either party may pursue its remedies under
the Agreement through litigation.
(d) Nothing in this Section 22.1 shall prevent any party
seeking,
obtaining or implementing interim or
conservatory measures or other immediate
relief in respect of any dispute or
referring any matter relating to the
Agreement to any competent government
agency, commission, court or other
authority having jurisdiction over either
Party with a request that it make a
determination or take other appropriate
steps for its resolution.
(e) Notwithstanding the provisions of Section 22.1, commencement
of
litigation shall be deemed appropriate if
commenced by a Party to avoid the
expiration of an applicable limitations
period or to preserve a superior
position with respect to other creditors,
or a Party makes a good faith
determination that a breach of the
Agreement by the other Party is such that a
temporary restraining order or other
injunctive relief is necessary.
22.2
CONSOLIDATION OF DISPUTES.
(a) Notwithstanding anything in the Agreement or any Major
Market
Services Agreement or Local Adoption
Agreement to the contrary, in order that
disputes between the Parties to the
Agreement, or between the parties to the
Major Market Services Agreements or Local
Adoption Agreements that are similar
in nature are resolved in a consistent
manner, if either Party determines that a
dispute under a Major Market Services
Agreement or Local Adoption Agreement is
sufficiently similar to a dispute that is
pending, or which it believes is
likely to occur, under the Agreement, such
Party may elect to cause the dispute
under the Major Market Services Agreement
or local Adoption Agreement to be
resolved under Section 22.1.
(b) Such right to elect to consolidate any dispute resolution
must
be exercised no later than fifteen (15)
days (time being of the essence) after
(i) the Parties agree to submit the
matter
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to settlement proceedings under the ICC ADR
Rules in accordance with Section
22.1(b), or (ii) the service by one Party
of process for litigation under
Section 0 to the other Party and to the
tribunal where the action is pending,
whose proceedings shall be stayed.
(c) If the Parties are unable to resolve a dispute informally,
either party may pursue its remedies under
the Agreement through litigation.
(d) Nothing in this Section 22.1 shall prevent any party
seeking,
obtaining or implementing interim or
conservatory measures or other immediate
relief in respect of any dispute or
referring any matter relating to the
Agreement to any competent government
agency, commission, court or other
authority having jurisdiction over either
Party with a request that it make a
determination or take other appropriate
steps for its resolution.
(e) Notwithstanding the provisions of Section 22.1, commencement
of
litigation shall be deemed appropriate if
commenced by a Party to avoid the
expiration of an applicable limitations
period or to preserve a superior
position with respect to other creditors,
or a Party makes a good faith
determination that a breach of the
Agreement by the other Party is such that a
temporary restraining order or other
injunctive relief is necessary.
22.2
CONSOLIDATION OF DISPUTES.
(a) Notwithstanding anything in the Agreement or any Major
Market
Services Agreement or Local Adoption
Agreement to the contrary, in order that
disputes between the Parties to the
Agreement, or between the parties to the
Major Market Services Agreements or Local
Adoption Agreements that are similar
in nature are resolved in a consistent
manner, if either Party determines that a
dispute under a Major Market Services
Agreement or Local Adoption Agreement is
sufficiently similar to a dispute that is
pending, or which it believes is
likely to occur, under the Agreement, such
Party may elect to cause the dispute
under the Major Market Services Agreement
or local Adoption Agreement to be
resolved under Section 22.1.
(b) Such right to elect to consolidate any dispute resolution
must
be exercised no later than fifteen (15)
days (time being of the essence) after
(i) the Parties agree to submit the matter
to settlement proceedings under the
ICC ADR Rules in accordance with Section
22.1(b), or (ii) the service by one
Party of process for litigation under
Section 0 to the other Party and to the
tribunal where the action is pending, whose
proceedings shall be stayed.
(c) If any such election is made, all disputes pending under
the
applicable Major Market Services Agreement
and/or Local Adoption Agreement shall
be consolidated with all disputes pending
or raised under the Agreement. The
party who initiated the proceeding under
the Major Market Services Agreement
and/or Local Adoption Agreement shall in no
way be procedurally prejudiced by
such consolidation and the adverse party
shall not assert any procedural defense
to the consolidated disputes pending under
the Major Market Services Agreement
and/or Local Adoption Agreement (such as
expiration of any statute of
limitations) which would not have been
available to it under the proceeding
initiated under the Agreement.
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22.3
CONTINUED PERFORMANCE.
Except as
otherwise directed by the other Party, each Party shall
continue
performing its obligations under the
Agreement while a dispute is being resolved
except (and then only) to the extent the
issue in dispute precludes performance
and without limiting either Party's right
to terminate the Agreement. For the
avoidance of doubt, D&B's withholding
payment of disputed charges as permitted
under the Agreement will not be considered
to prevent IBM from performing the
Services. In the event of a breach of this
obligation (in addition to all other
remedies and rights and without the same
constituting an election of remedies),
D&B shall be entitled to seek and
obtain injunctive relief, without posting bond
or proving damages, in addition to all
other remedies.
22.4
GOVERNING LAW.
The
Agreement and performance under it shall be governed by and
construed
in accordance with the law of the State of
New Jersey, United States, without
regard to any portion of its choice of law
principles which might provide for
application of a different jurisdiction's
law, except in the case of (i) any
dispute or claim arising under a Local
Services Agreement executed hereunder, or
an Adoption Agreement issued thereunder
which, according to the local laws of
the applicable country, must mandatorily be
governed and resolved according to
such local laws; or (ii) any dispute or
claim relating specifically to the terms
and conditions set forth specifically in a
Local Services Agreement executed
hereunder, or an Adoption Agreement issued
thereunder. In the case of an
exception under the preceding sentence, the
local law of the applicable country
outside the United States shall apply.
23. TERMINATION
23.1
TERMINATION FOR CAUSE BY D&B.
D&B
may terminate the Agreement for cause, in whole or in part, if
IBM:
(a) commits a material breach of the Agreement which is capable
of
being cured within thirty (30) days after
notice of breach from D&B to IBM, and
is not cured in such thirty (30) day
period;
(b) commits a material breach of the Agreement which is not
capable
of being cured within thirty (30) days
after notice of breach from D&B to IBM
but is capable of being cured within sixty
(60) days after such notice and fails
to (i) proceed promptly and diligently to
correct the breach; (ii) develop
within thirty (30) days following such
notice a complete plan (acceptable to
D&B) for curing the breach; and (iii)
cure the breach within sixty (60) days of
such notice;
(c) commits a material breach of the Agreement that is not
subject
to cure with due diligence within sixty
(60) days after notice of breach from
D&B to IBM; or
(d) commits numerous breaches of its duties or obligations
which
collectively constitute a material breach
of the Agreement.
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If D&B
chooses to terminate the Agreement in part, the charges payable
under the Agreement will be equitably
reduced to reflect those services that are
terminated.
23.2
TERMINATION BY IBM.
IBM may
terminate the Agreement before the end of the Term by separate
written notice of termination setting forth
the termination date if, and only
if, D&B fails to pay IBM undisputed
charges due under the Agreement totaling at
least three million US dollars (US$ 3
million) and does not cure the failure by
the end of the third and final notice
period set forth below. For the avoidance
of doubt, the foregoing three million US
dollars (US$ 3 million) limit is
intended to be an aggregate limit
applicable to any and all charges under the
Agreement, including any and all charges
under the Major Market Services
Agreements and Local Adoption Agreements
executed pursuant to this Agreement.
(a) IBM's first notice of overdue payment shall be sent to the
attention of D&B's Global Project
Executive, with a copy to D&B's General
Counsel, shall expressly reference this
Section 23.2, be identified as the first
notice, shall set forth the overdue amount
and shall expressly state that IBM
may terminate the Agreement if such failure
to make payment is not cured within
thirty (30) days after D&B's receipt of
such notice.
(b) If D&B does not make the overdue payment within ten (10)
days
after receipt of IBM's first notice, IBM
shall send a second notice to the
attention of D&B's Vice President,
Corporate Controller, with a copy to D&B's
General Counsel, which notice shall
expressly reference this Section 23.2, be
identified as the second notice, shall set
forth the overdue amount and shall
expressly state that IBM may terminate the
Agreement if such failure to make
payment is not cured within twenty (20)
days after D&B's receipt of such notice.
(c) If D&B does not make the overdue payment within ten (10)
days
after receipt of IBM's second notice, IBM
shall send a third notice to the
attention of D&B's Chief Financial
Officer, with a copy to D&B's General
Counsel, which notice shall expressly
reference this Section 23.2, be identified
as the third and final notice, shall set
forth the overdue amount and shall
expressly state that IBM may terminate the
Agreement if such failure to make
payment is not cured within ten (10) days
after D&B's receipt of such notice
23.3
TERMINATION FOR CONVENIENCE BY D&B.
D&B
may terminate the Agreement (or any Major Market Services Agreement
or
Local Adoption Agreement) for convenience
and without cause at any time by
giving IBM at least six (6) months' prior
written notice designating the
termination date. In such event, D&B
shall pay IBM on the effective date of
termination, in accordance with Section 9.2
of Schedule C (Charges), the
applicable termination charges specified in
Exhibit C-11 (Termination Charges),
such payment not being a condition
precedent to the termination. If a purported
termination for cause by D&B is
determined by a competent court or other
tribunal with appropriate jurisdiction not
to have been properly a termination
for cause, then such termination by D&B
will be deemed to have been a
termination for convenience.
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<PAGE>
23.4
TERMINATION FOR CHANGE OF CONTROL.
If (a)
another entity, directly or indirectly, in a single transaction
or
series of related transactions, acquires
either Control of D&B (or the D&B
Affiliate that is a party to a Subscription
Agreement) or all or substantially
all of the assets of D&B (or such
D&B Affiliate); or (b) D&B (or such D&B
Affiliate) is merged with or into another
entity, then, at any time within nine
(9) months after the last to occur of such
events, D&B may terminate the
Agreement (or such D&B Affiliate may
terminate its Subscription Agreement) by
giving IBM at least one hundred twenty
(120) days' prior written notice
designating the termination date. In such
event, D&B shall pay IBM on the
effective date of termination, in
accordance with Section 9.2 of Schedule C
(Charges), the applicable termination
charges specified in Exhibit C-11
(Termination Charges), such payment not
being a condition precedent to the
termination.
23.5
SPECIAL TERMINATION CONDITIONS.
D&B
may terminate the Agreement, in whole or in part, in the
following
circumstances, without being liable for any
termination charges or wind-down
expenses. For the avoidance of doubt, such
termination shall not be considered a
termination for cause or a termination for
convenience, but shall otherwise be
with full reservation of rights by
D&B.
(a) A Mission Critical Service Failure identified in Exhibit
B-6
(Mission Critical Service Failures) occurs
other than as a result of a Force
Majeure Event; or
(b) Subject to the limitations, if any, imposed by applicable
then-current bankruptcy statutes, if IBM
(a) files any petition in bankruptcy;
(b) has an involuntary petition in
bankruptcy filed against it which is not
challenged in twenty (20) days and
dismissed within sixty (60) days; (c) becomes
insolvent; (d) makes a general assignment
for the benefit of creditors; (e)
admits in writing its inability to pay its
debts as they mature; (f) has a
receiver appointed for its assets; or (g)
is subject to an event analogous to
any of the foregoing in any jurisdiction in
which IBM is incorporated, resident
or is otherwise subject including any
jurisdiction in which IBM is located for
the performance of the Services or any part
of them.
23.6
EXTENSION OF TERMINATION EFFECTIVE DATE.
D&B
may extend the effective date of termination/expiration one or
more
times as it elects in its discretion,
provided that the total of all such
extensions shall not exceed one hundred
eighty (180) days following the
effective date of termination/expiration in
place immediately prior to the
initial extension under this Section, at
the charges then in effect. If IBM
terminates the Agreement for D&B's
failure to pay undisputed charges, if so
requested by IBM, D&B will either (a)
pre-pay the estimated monthly charges at
least thirty (30) days prior to each month;
or (b) post an irrevocable letter of
credit or performance bond in sufficient
amount to meet ninety (90) days of the
on-going charges to be incurred and D&B
shall pay such on-going charges in a
timely manner. For any notice or notices of
such extensions provided to IBM
within thirty (30) days of the
then-scheduled date of termination/expiration,
D&B
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<PAGE>
shall also reimburse IBM for incremental
Out-of-Pocket Expenses caused by such
extension.
23.7
TERMINATION/EXPIRATION ASSISTANCE.
(a) Commencing six (6) months prior to expiration of the
Agreement
or on such earlier date as D&B may
request, or commencing upon a notice of
non-renewal or termination (including
notice based upon default by D&B) of the
Agreement or of one or more of the Services
and continuing through the effective
date of expiration or, if applicable, of
termination of the Agreement, IBM
shall, while continuing to provide the
Services, provide to D&B, or at D&B's
request to D&B's designee, the
reasonable termination/expiration assistance
requested by D&B to allow the Services
to continue without material interruption
or material adverse effect and to
facilitate the orderly transfer of the
Services to D&B or its designee
(including a competitor of IBM)
("Termination/Expiration Assistance").
Schedule J (Termination/Expiration
Assistance) contains a non-exhaustive
description of the kinds of
Termination/Expiration Assistance
activities IBM may be requested by D&B to
provide.
(b) During Termination/Expiration Assistance, D&B or its
designee
shall be permitted to undertake, without
interference from IBM, to hire any IBM
Personnel primarily performing the Services
as of the date of notice of
termination, or, in the case of expiration,
within the six (6) month period
prior to expiration. IBM and its Affiliates
shall waive its rights, if any,
under agreements with such personnel
restricting the ability of such personnel
to be recruited or hired by D&B or
D&B's designee. D&B or its designee shall
have reasonable access to such personnel
for interviews and recruitment. In the
case of IBM Personnel who are employees (or
contractors) of IBM's non-Affiliate
subcontractors, the following shall apply:
(i) if the applicable subcontract
between IBM and the subcontractor was
entered into on or after the Effective
Date of the Agreement, the foregoing shall
apply without modification; and
alternatively, (ii) if the applicable
subcontract between IBM and the
subcontractor was entered into prior to the
Effective Date of the Agreement, IBM
shall use Commercially Reasonable Efforts
to cause the subcontractor to waive
its rights, if any, under agreements with
such personnel restricting the ability
of such personnel to be recruited or hired
by D&B or D&B's designee and the
foregoing shall apply subject to any such
restrictions that are not waived by
the subcontractor.
(c) For twelve (12) months following the effective date of
termination or expiration of the Agreement
or of any Services, at D&B's request
IBM shall continue to provide
Termination/Expiration Assistance. Actions by IBM
under this Section shall be subject to the
other provisions of the Agreement.
Charges for such activities by IBM shall be
as indicated in Section 9.3 of
Schedule C (Charges).
(d) As reasonably requested by D&B, IBM shall provide
Termination/Expiration Assistance for any
Services that D&B reduces or
terminates, or otherwise withdrawals from
IBM's scope, under the Agreement.
(e) In the process of evaluating whether to undertake or allow
termination/expiration or renewal of the
Agreement, D&B may consider obtaining,
or determine to obtain, offers for
performance of services similar to the
Services following
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termination/ expiration of the Agreement.
As and when reasonably requested by
D&B for use in such a process, IBM
shall provide to D&B such information and
other cooperation regarding performance of
the Services as would be reasonably
necessary for a third party to prepare an
informed, non-qualified offer for such
services, and for a third party not to be
disadvantaged compared to IBM if IBM
were to be invited by D&B to submit a
proposal. The types of information and
level of cooperation to be provided by IBM
shall be no less than those initially
provided by D&B to IBM prior to
commencement of the Agreement. IBM's support in
this respect shall include providing
information regarding Equipment, Software,
staffing and other matters that IBM would
otherwise provide as part of
Termination/Expiration Assistance.
23.8
EQUITABLE REMEDIES.
IBM
acknowledges that, if it breaches (or attempts or threatens to
breach)
its obligation to provide
Termination/Expiration Assistance, D&B will be
irreparably harmed. In such a circumstance,
D&B may proceed directly to court.
If a court of competent jurisdiction should
find that IBM has breached (or
attempted or threatened to breach) any such
obligations, IBM agrees that,
without any additional findings of
irreparable injury or similar procedural
requirements to obtaining injunctive relief
(including the posting of bond), it
shall not oppose the entry of an
appropriate order compelling performance by IBM
and restraining it from any further
breaches (or attempted or threatened
breaches).
24. COMPLIANCE WITH LAWS
24.1
COMPLIANCE WITH LAWS AND REGULATIONS GENERALLY.
(a) Each Party agrees at its cost and expense to obtain all
necessary regulatory approvals applicable
to its business, to obtain any
necessary licenses or permits for its
business and to comply with all national,
federal, state and local laws, regulations,
ordinances and codes applicable to
such Party or its business (or its
Affiliates).
(b) In addition, in the case of any laws, regulations,
ordinances
and codes that are specifically applicable
to the Services rendered by IBM or to
IBM as a provider of Services to D&B
and its Affiliates, IBM shall perform its
obligations under the Agreement in
compliance with any associated D&B standards,
policies and requirements that have been
communicated to IBM in writing.
(c) If a charge occurs of non-compliance of a Party with any
such
laws, regulations, ordinances, or codes
affecting the Services or the other
Party, the Party so charged shall promptly
notify the other Party of such
charges in writing.
24.2 EQUAL
EMPLOYMENT OPPORTUNITY.
IBM
represents that it is, and during the Term shall remain, an
equal
opportunity/affirmative action employer.
IBM certifies that IBM does not, and
shall not, discriminate against its
employees or applicants for employment on
any legally impermissible basis and is and
shall remain in compliance with all
national, federal, state, and local laws,
regulations or executive orders
against discrimination, including
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Executive Orders 11141, 11246, 11375,
11458, 11625, 11701, and 11758. IBM
certifies in accordance with 41 CFR Chapter
60-1.8 that its facilities are not
segregated and that IBM complies with the
Equal Opportunity Clause (41 CFR
Section 60-1.4), the Affirmative Action
Clause for Handicapped Workers (41 CFR
Section 60-250.4), and the Affirmative
Action Clause for Disabled Veterans and
Veterans of the Vietnam Era (41 CFR Section
60-741.4), which are incorporated in
the Agreement by reference.
24.3
OCCUPATIONAL SAFETY AND HEALTH ACT.
IBM
covenants that all work performed under the Agreement will
fully
comply with the provisions of the Federal
Occupational Safety and Health Act of
1970 and with any rules and regulations
promulgated pursuant to the Act and any
similar state or local laws.
24.4
GRAMM-LEACH-BLILEY ACT AND SIMILAR LAWS.
IBM shall
comply with all applicable national, federal, state or local
laws, and rules and regulations of
regulatory agencies, protecting the
confidential material and privacy rights of
D&B, its Affiliates, and/or their
customers and consumers, including Title V
of the Gramm-Leach-Bliley Act, 15 USC
Section 6801 et. seq. and the Economic
Espionage Act, 18 USC Section 1831 et.
seq. to the extent applicable to IBM in its
capacity as a provider of processing
services to D&B and as directed by
D&B
24.5 FAIR
LABOR STANDARDS ACT.
IBM certifies to D&B that in the
performance of the Agreement it shall comply
with all applicable provisions of Section
6, 7, and 12 of the Fair Labor
Standards Act, 29 USC Sections 201 - 219,
as amended, and that there will be no
violations by IBM of the `hot goods' or
`hot cargo' provisions of such Act
involving restrictions on the use of
underage employees by IBM.
25. GENERAL
25.1
BINDING NATURE AND ASSIGNMENT.
The
Agreement shall be binding on the Parties and their respective
successors and assigns. Neither Party may,
or shall have the power to, assign
the Agreement without the prior written
consent of the other, except that D&B
may assign its rights and obligations under
the Agreement without the approval
of IBM to: (a) an entity which acquires all
or substantially all of the assets
of D&B's line of business to which the
Services relate; (b) to any Affiliate; or
(c) to the successor in a merger or
acquisition of D&B; provided that in no
event shall such assignment relieve D&B
of its obligations under the Agreement.
Subject to the foregoing, any assignment by
operation of law, order of any
court, or pursuant to any plan of merger,
consolidation or liquidation, shall be
deemed an assignment for which prior
consent is required and any assignment made
without any such consent shall be void and
of no effect as between the Parties.
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<PAGE>
25.2 PUBLIC DISCLOSURES.
All media
releases, public announcements and public disclosures by either
Party relating to the Agreement or the
subject matter of the Agreement,
including promotional or marketing
material, but not including announcements
intended solely for internal distribution
or disclosures to the extent required
to meet legal or regulatory requirements
beyond the reasonable control of the
disclosing Party, shall be coordinated with
and approved by the other Party
prior to release.
25.3
NON-SOLICITATION.
Subject to
D&B's right to recruit IBM Personnel when transitioning
Services from IBM to a third party or back
in-house, from the Effective Date
until six (6) months after completion of
its obligations under the Agreement a
Party shall not directly or indirectly
solicit or seek to procure (other than by
general advertising), without the prior
written consent of the other Party, (i)
in the case of D&B, the employment of
IBM's employees engaged in the provision
of the Services during the period they are
so engaged and for six (6) months
thereafter; and (ii) in the case of IBM,
D&B's employees engaged in the
provision of its call center systems during
the period they are so engaged and
for six (6) months thereafter. A breach of
this obligation shall not be the
basis for termination of the Agreement.
25.4 NO
THIRD PARTY BENEFICIARIES.
The IBM
Party, in providing the Services, shall be acting as an
independent contractor. Nothing in the
Agreement shall create any relationship
of joint venturers, partnership, or
employer and employee between the Parties or
between one of the Parties and the other
Party's personnel, agents, employees or
subcontractors. Except as expressly
provided in the Agreement, neither Party
(nor any of its Affiliates) shall have any
authority to act or make
representations or commitments on behalf of
the other Party (or its Affiliates)
or to create any contractual liability to a
third party on behalf of the other
Party (or its Affiliates).
25.5
ENTIRE AGREEMENT.
This
Agreement - consisting of these General Terms and Conditions and
the
attached Schedules A through O (including
their respective exhibits and other
attachments) - constitutes the entire
agreement between the Parties with respect
to its subject matter and merges,
integrates and supersedes all prior and
contemporaneous agreements and
understandings between the Parties, whether
written or oral, concerning its subject
matter.
25.6
AMENDMENTS.
Any terms
and conditions varying from the Agreement on any order or
written notification from either Party will
not be effective or binding on the
other Party. The Agreement may be amended
or modified solely in a writing signed
by an authorized representative of each
Party.
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25.7
CONSENTS AND APPROVALS.
Where
approval, acceptance, consent or similar action by either Party
is
required under the Agreement, such action
will not be unreasonably delayed,
conditioned or withheld unless the
Agreement expressly provides that it is in
the discretion of the Party. No approval or
consent given by a Party under the
Agreement will relieve the other Party from
responsibility for complying with
the requirements of the Agreement, nor will
it be construed as a waiver of any
rights under the Agreement (except to the
extent, if any, expressly provided in
such approval or consent). Each Party will,
at the request of the other Party,
perform those actions, including executing
additional documents and instruments,
reasonably necessary to give full effect to
the Agreement.
25.8
WAIVER.
No failure
or delay by a Party in exercising any right, power or remedy
will operate as a waiver of that right,
power or remedy, and no waiver will be
effective unless it is in writing and
signed by an authorized representative of
the waiving Party. If a Party waives any
right, power or remedy, the waiver will
not waive any successive or other right,
power or remedy that Party may have.
25.9
REMEDIES CUMULATIVE.
Except as
otherwise expressly provided in the Agreement, all remedies
provided in the Agreement are cumulative
and in addition to and not in lieu of
any other remedies available to a Party
under the Agreement, at law, or in
equity.
25.10
PRIORITY OF DOCUMENTS.
(a) Subject to Section 25.10(b), the Schedules, Exhibits and
any
other attachments expressly identified in
the same or in the body of the
Agreement form part of the Agreement and
shall have the same force and effect as
if expressly set out in the body of the
Agreement, and any reference to the
Agreement shall include the Schedules,
Exhibits and any such other attachments.
(b) In the event of a conflict between or among the documents
comprising the Agreement, the following
order of precedence will apply
(documents listed in descending order of
priority):
(i) these General Terms and Conditions, together with Schedule
H (Data Privacy and Data Protection Laws),
Schedule J (Termination/Expiration
Assistance), and Schedule L
(Insurance);
(ii) Schedule C (Charges), including its Exhibits and
Attachments;
(iii) other Schedules;
(iv) other Exhibits;
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(v) other Attachments; and
(vi) other Annexes.
(c) In the event of a conflict between or among the documents
comprising Schedule A (IBM Services and
Solutions), the following order of
precedence will apply (documents listed in
descending order of priority):
(i) the Statements of Work (Exhibits A-1 through A-5);
(ii) Exhibit A-7 (Transition and Transformation), including
its Attachments; and
(iii) Exhibit A-6 (IBM Solutions), including its Attachments.
25.11
HEADINGS.
The
section headings and the table of contents used in the Agreement
are
for convenience of reference only and will
not enter into the interpretation of
the Agreement.
25.12
SECTION REFERENCES.
(a) Unless otherwise indicated, section references are to
sections
of the document in which the reference is
contained. For example, section
references in these General Terms and
Conditions are to sections of the General
Terms and Conditions and, likewise, section
references in a schedule to the
Agreement are to sections of that
schedule.
(b) References to numbered (or lettered) sections of the
Agreement
also refer to and include all subsections
of the referenced section.
25.13
SCHEDULE REFERENCES.
Unless
otherwise indicated, references to schedules to the Agreement
also
refer to and include all exhibits,
attachments and annexes to the referenced
schedule.
25.14 USE
OF CERTAIN WORDS.
Unless the
context requires otherwise, (i) "including" (and any of its
derivative forms) means including but not
limited to, (ii) "may" means has the
right, but not the obligation to do
something and "may not" means does not have
the right to do something, (iii) "will" and
"shall" are expressions of command,
not merely expressions of future intent or
expectation, (iv) "written" or "in
writing" is used for emphasis in certain
circumstances, but that will not
derogate from the general application of
the notice requirements set forth in
the Agreement in those and other
circumstances, (v) use of the singular imports
the plural and vice versa, and (vi) use of
a specific gender imports the other
gender(s).
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25.15
STATUTORY REFERENCES.
All
references to any statute or statutory provision (including any
subordinate legislation) shall be deemed to
include a reference to any statute
or statutory provision that amends,
extends, consolidates or replaces the same
or that has been amended, extended,
consolidated or replaced by the same, and
shall include any orders, regulations,
codes of practice, instruments or other
subordinate legislation made under the
relevant statute.
25.16
SEVERABILITY.
If any
provision of the Agreement conflicts with the law under which
the
Agreement is to be construed or if any
provision of the Agreement is held
invalid by a competent authority, [such
provision will, if possible, be deemed
to be restated to reflect as nearly as
possible the original intentions of the
Parties in accordance with applicable
law.
25.17
COUNTERPARTS.
The
Agreement may be executed in two (2) or more counterparts, all
of
which taken together constitute a single
agreement between the Parties. Each
signed counterpart, including a signed
counterpart reproduced by facsimile or
other reliable means, will be considered an
original.
25.18 COVENANT OF GOOD
FAITH.
Each
Party, in its respective dealings with the other Party under or
in
connection with the Agreement, will act
reasonably and in good faith.
[Remainder of page intentionally blank]
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25.19
NOTICES
(a) All formal notices, requests, demands, approvals and
communications under the Agreement (other
than routine operational
communications) will be in writing and may
be served either (i) in person or
(ii) by registered or certified mail or air
freight services that provide proof
of delivery, with postage or shipping fees
prepaid, and addressed to the Party
to be served as follows:
In the
case of D&B:
With a copy to:
D&B
D&B
3 Sylvan
Way
103 JFK Parkway
Parsippany, New Jersey 07054
Short Hills, New Jersey 07078
Attn: Mark
Samuels
Attn: General Counsel
Fax:
866.758.0641
Fax: 866.561.5154
In the
case of IBM:
With a copy to:
IBM
Corporation
IBM Corporation
Florham
Park
Legal Dept.
400 Campus
Drive
Route 100
Florham
Park, New Jersey 07932
Somers, NY 10589
Attn: IBM
Global Services Project
Attn: IBM Global Services
Executive
for D&B
General Counsel
Fax:
973.514.4159
Fax: 914.766.8445
[Remainder of page intentionally blank]
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(b) Notices given as described above will be considered received
on
the day of actual delivery.
(c) A Party may from time to time change its address or designee
for
notification purposes by giving the other
Party prior written notice of the new
address or designee in the manner provided
above and the date on which it will
become effective.
IN WITNESS
WHEREOF, the parties have each caused this Agreement to be
signed and delivered by its duly authorized
officer, all as of the Effective
Date.
INTERNATIONAL BUSINESS MACHINES
DUN & BRADSTREET, Inc.
CORPORATION
By: _________________________________
By:
__________________________
Maureen Power
Gary Michel
Vice President,
Business
Vice President, Re-Engineering
Transformation
Outsourcing
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SCHEDULE A
IBM SERVICES AND SOLUTIONS
1. INTRODUCTION
As part of the
Services, IBM shall provide the services, functions, and
responsibilities described in this Schedule
A. IBM shall provide the Services as
required to meet the Service Levels
provided in Schedule B (Service Levels) and
in accordance with the Procedures Manual.
All Charges for the Services are
provided in Schedule C (Charges).
D&B
operates in a business environment characterized by constant
change
that directly affects the delivery of
finance-related processing services. IBM
shall evolve, supplement, and enhance the
Services over time as necessary to
meet D&B's changing business needs and
to gain the benefit of changes in
technology and best practice processes.
Excepted
as otherwise specified in this Schedule A, IBM shall: (a) have
end-to-end responsibility for the
performance of the Services beginning on the
Services Commencement Date; and (b) be held
responsible for the performance of
the Services without regard to the use by
IBM of third-party products or
vendors.
All
communications sent by IBM on behalf of D&B as part of the
Services
shall appear to be from D&B (e.g.,
e-mails shall be sent from a D&B e-mail
address).
References
to time in this Schedule A shall be in Local Market Time for
each in-scope D&B location.
2. FORMAT AND
CONTENTS
This
Schedule A consists of this document and the Exhibits listed
below.
2.1. EXHIBIT A-1 - CONTACT CENTER
SERVICES
This
Exhibit describes the Inbound, Outbound and other Contact
Center
Services (e.g., Contract Administration)
that IBM shall provide.
2.2. EXHIBIT A-2 - DATA PROGRAMMING
SERVICES
This
Exhibit describes the Data Programming Services, including
Delivery
and Global Trade, that IBM shall
provide.
This
Exhibit contains the following Attachments:
(a)
Attachment
A-2-1: Postal Data Cleansing
(b)
Attachment
A-2-2: Data Programming Quality Checklists
(i) Annex
A-2-2a: SMS Data Normalization Project Quality Checklist
(ii) Annex A-2-2b: SMS
Spend Analysis Quality Checklist
(iii) Annex A-2-2c: SMS MWOB Quality Checklist
(iv) Annex A-2-2d: SMS
Supply Optimizer Quality Checklist
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(v) Annex
A-2-2e: SMS Supply Optimizer Refresh Quality Checklist
2.3. EXHIBIT A-3 - TRANSACTION
PROCESSING SERVICES
This
Exhibit describes the Transaction Processing Services that IBM
shall
provide. This Exhibit contains the
following Attachments:
(a) Attachment A-3-1:
Transaction Processing Data Sources
(b)
Attachment
A-3-2: Transaction Processing Workflows
2.4. FINANCE PROCESSING SERVICES
This
Exhibit describes the Accounts Payable and Travel and Expense
processing, Order-to-Cash and collections
and cash applications processing
Services that IBM shall provide.
2.5. EXHIBIT A-5 - CROSS FUNCTIONAL
SERVICES
This
Exhibit describes additional "cross-functional" Services that
apply
generally to the Contact Center, Data
Programming, Transaction Processing, and
Finance Processing Services, (e.g.,
security and business continuity).
Attachment A-5-1 (IBM Personnel Background
Checks and Screening) describes the
Personnel background checks and screening
that IBM will perform.
2.6. EXHIBIT A-6 - IBM SOLUTIONS
This
Exhibit describes how IBM will perform the Services described in
each
Exhibit listed above, including the overall
implementation of the technology IBM
will use in the solution.
This
Exhibit contains the following Attachments:
(a)
Attachment
A-6-1: Contact Center Solution
(i) Annex
A-6-1-a: EU File Update Solution
(b)
Attachment
A-6-2: Data Programming Solution
(c)
Attachment
A-6-3: Transaction Processing Solution
(d) Attachment A-6-4: Finance
Processing Solution
(e)
Attachment
A-6-5: Technology Solution
2.7. EXHIBIT A-7 - TRANSITION AND
TRANSFORMATION
This
Exhibit describes the activities, deliverables, and schedule by
which
IBM will transition responsibility for the
Services from D&B and the automation,
re-engineering and improvements IBM will
make to the processes, environment, and
technology used to provide the Services as
part of the Transformation.
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This
Exhibit contains the following Attachments:
(a)
Attachment
A-7-1: Transition Solution
(b)
Attachment
A-7-2: Transition Schedule
(c)
Attachment
A-7-3: Transformation
3. DEFINITIONS
3.1. CERTAIN DEFINITIONS
(a)
"Contact Center
Services" means those Inbound Contact Services,
Outbound Contact Services, Contract
Administration that IBM will perform as part
of the Services as are further described in
Exhibit A-1 (Contact Center
Services).
(b)
"Data
Programming Services" means those Services IBM will perform,
including Delivery and Global Trade as are
further described in Exhibit A-2
(Data Programming Services).
(c)
"D&B
Products" means products related to Risk Management Solution
(RMS), Sales and Marketing Solution
(S&MS), and IBM Management Solution Services
(SMS) that IBM sells and delivers as part
of the Services. The specific D&B
Products that IBM will use in its
performance of the Services may change from
time-to-time during the Term.
(d)
"Gold Service
Customer" means those high priority customers as
designated by D&B that receive a higher
level of service, which includes
dedicated Personnel to perform the
Services
(e)
"Gold Services"
means the provision of Services to Gold Service
Customers, which includes dedicated IBM
Personnel to perform the Services.
(f)
"Local Market
Time" means the local time of the country or region
receiving the Services.
(g)
"Transaction
Processing Services" means the collection, entering,
processing, and error correction that IBM
performs as part of the Services as
are further described in Exhibit A-3
(Transaction Processing Services).
(h)
"Finance
Processing Services" means the Accounts Payable, Travel and
Expense, and Order to Cash Services
provided by IBM as further described in
Exhibit A-4 (Finance Processing
Services).
3.2. OTHER DEFINITIONS
Capitalized terms not defined herein shall have the meaning given
to them
in the Exhibits of this Schedule A or
elsewhere in the Agreement.
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EXHIBIT A-1
CONTACT CENTER SERVICES
<TABLE>
<S>
!<C>
1.
DEFINITIONS
........................................................................
2
1.1.
Certain Definitions
.......................................................
2
1.2.
Other Definitions
.........................................................
4
2.
INBOUND CONTACT SERVICES
...........................................................
4
2.1.
Order Requests
............................................................
4
2.2.
Customer Requests
.........................................................
6
2.3.
Entity Query Requests
..................................................... 8
2.4.
Technical Support Requests
................................................ 9
2.5.
Usage Requests
............................................................
11
2.6.
Gold Service
..............................................................
13
2.7.
Marketing Campaigns
.......................................................
16
3.
OUTBOUND CONTACT SERVICES
..........................................................
16
3.1.
Acquisition Services
...................................................... 17
3.2.
Investigation Services
.................................................... 18
3.3.
Fulfillment Services
...................................................... 20
3.4.
Family Tree Services
...................................................... 21
3.5.
Advanced Customer Update Group
............................................ 22
3.6.
Inquiry Screening Services
................................................ 23
3.7.
Ad Hoc Outbound Services
.................................................. 24
4.
Training services
..................................................................
25
5.
Revenue Generation Services
........................................................
25
5.1.
D&B Products
..............................................................
26
5.2.
Lead Generation
...........................................................
26
6.
Contact documentation services
..................................................... 27
6.1.
General
...................................................................
27
6.2.
Contact Disposition Documentation
......................................... 27
6.3.
Translations
..............................................................
27
6.4.
Language Requirements
..................................................... 28
7.
continuous improvement and quality control
......................................... 28
7.1.
Continuous Improvement
.................................................... 28
7.2.
Quality Assurance
.........................................................
28
7.3.
Call Monitoring
...........................................................
29
8.
OTHER SERVICES
.....................................................................
30
8.1.
Contract Administration
................................................... 30
8.2.
Fraud Identification
...................................................... 31
8.3.
Access to D&B Systems
..................................................... 31
8.4.
Preparation Of Procedures Manual
.......................................... 31
8.5.
Operations Management Services
............................................ 32
8.6.
Contact Center Telecommunications Management Services
..................... 32
8.7.
IVR
.......................................................................
34
</TABLE>
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EXHIBIT A-1
CONTACT CENTER SERVICES
1. DEFINITIONS
1.1. CERTAIN DEFINITIONS
(a)
"Acquisition Services" has the meaning given in Section 3.1(a).
(b) "ACUG
Services" has the meaning given in Section 3.5(a).
(c)
"Complaints" has the meaning given in Schedule C to the
Agreement.
(d)
"Contact" means a voice, callback, chat, fax, email or other form
of
communication relating to the Contact
Center Services between IBM Personnel and
an End User. "Inbound Contact" means an
inbound Contact received by IBM.
"Outbound Contact" means an outgoing
Contact initiated by IBM to resolve an
Outbound Services Request.
(e)
"Contact Center" means the physical premises where the Contact
Center
Services are performed.
(f)
"Contract Administration Services" has the meaning given in
Section
8.1(a).
(g) "CRC
Renewals" has the meaning given in Schedule C to the Agreement.
(h)
"Cross-sell" has the meaning given in Section 5.1(b)(iii).
(i)
"Customer" means an Entity having an existing business
relationship
with D&B, potential for a future
relationship with D&B, or D&B Personnel acting
on behalf of D&B.
(j)
"Customer Request Services" has the meaning given in Section
2.2(a).
(k)
"D&B Products" has the meaning given in Section 5.1(a).
(l) "DUNS
Number" has the meaning given in Section 2.3(b)(iv).
(m)
"DUNSVoice Assistance" means those Contacts where operator
assistance
is provided for unresolved Order Requests
and resolved via an automated order
delivery system.
(n) "End
User" shall mean an End User of the Contact Center Services,
including internal and external D&B
customers.
(o)
"Entity" means any business (i.e., sole proprietorship,
partnership,
or corporation), religious, educational or
other not for profit organization, or
governmental agency whose organizational
and financial data is collected by IBM
on behalf of D&B, including D&B
Customers.
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(p)
"Entity Query Request Services" has the meaning given in Section
2.3.
(q)
"eUpdates" has the meaning given in Schedule C to the
Agreement.
(r)
"Family Tree Services" has the meaning given in Section 3.4.
(s) "File
Updates" has the meaning given in Schedule C to the Agreement.
(t)
"Fulfillment Services" has the meaning given in Section 3.3(a).
(u) "Gold
Services" has the meaning given in Section 2.6.
(v)
"Inbound Contact Services" has the meaning given in Section 2.
(w)
"Interactive Voice Response" or "IVR" means a system that
provides
pre-recorded information to End Users
making Inbound Contacts via telephone
either with or without selection by the
caller and include other functions such
as call routing, database interaction to
acquire information from or append
information to a database, and voice input
recognition and voice read back.
(x)
"Inquiry Screening Services" has the meaning given in Section
3.6(a).
(y)
"Investigation Services" has the meaning given in Section
3.2(a).
(z)
"Linkage Validation and Error Resolution" has the meaning given
in
Schedule C to the Agreement.
(aa)
"Local Market Business Hours" means Monday through Friday from
08:00
to 18:00 in the local market receiving
Services, excluding public holidays
recognized by D&B in such market.
(bb)
"Order Request Services" has the meaning given in Section
2.1(a).
(cc) "Outbound Contact
Services" has the meaning given in Section 3.
(dd)
"Outbound Services Request" means a job, project, or other work
request provided to IBM by D&B that
requires IBM to initiate Outbound Contacts
and investigate, acquire, and update
information on business Entities, to
generate Qualified Leads, or to perform
other Services described in this Exhibit
A-1.
(ee)
"Personal Investigations" has the meaning given in Schedule C to
the
Agreement.
(ff)
"Qualified Lead" has the meaning given in Section 5.2(b).
(gg)
"Service Failures" has the meaning given in Schedule C to the
Agreement.
(hh)
"Severe Risk Tip" has the meaning given in Section 1.1(j) of
Exhibit
B-1.
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(ii)
"Technical Support Request Services" has the meaning given in
Section
2.4(a).
(jj)
"Up-sell" has the meaning given in Section 5.1(b)(ii).
(kk)
"Usage Request Services" has the meaning given in Section
2.5(a).
1.2. OTHER DEFINITIONS
Capitalized terms not defined in this Exhibit A-1 (Contact
Center
Services) shall have the meaning given to
them in Schedule A or elsewhere in the
Agreement.
2. INBOUND CONTACT
SERVICES
IBM shall
be responsible for receiving and responding to Order Requests,
Customer Requests, Entity Query Requests,
Technical Support Requests, and Usage
Requests received via voice, callback,
chat, fax, and email, and any other
inbound communications, as well as
providing Gold Services and where applicable,
supporting marketing campaigns, all as
further described in this Section 2
(collectively, "Inbound Contact Services").
IBM shall provide Inbound Contact
Services during Local Market Business Hours
for each of the local markets
receiving such Services.
2.1. ORDER REQUESTS
(a)
General. As part of the Inbound Contact Services, IBM shall be
responsible for handling order Requests for
D&B Products received from End Users
("Order Request Services").
(b) Order
Request Services Description. IBM's responsibilities with
respect to Order Request Services
include:
(i) Receiving an End User Order Request;
(ii) Accessing and validating the End User's account with D&B
and
authenticating that the End User is
authorized to access account information and
purchase D&B Products and services on
behalf of their company;
(iii) Locating the D&B reports or other products or
services
requested by the End User;
(iv) Providing general preview information about the located
D&B
reports or other products or services;
(v) For DUNSVoice Assistance Contacts, providing a report number
and
transferring the End User back to the
automated order entry system for
processing;
(vi) Identifying and
presenting Up-sell and Cross-sell opportunities
in each Inbound Contact;
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(vii) Determining the delivery method preferred by the End User
for
D&B Products;
(viii) Placing domestic and international D&B Product orders,
as
applicable;
(ix) Providing manual processing and delivery via email, fax
and
mail for orders in Europe that require
special instructions and after
Transition, for those orders handled
offshore, routing such orders via email as
requested by D&B (i.e., routing such
orders through US) for delivery;
(x) Reviewing the interaction with the End User at the end of
the
Contact and setting forth proper
expectations about the contents, price, and
delivery time of D&B products; and
(xi) Documenting the sale and delivery of each D&B Product
and
disposition of each Order Request.
(c) IBM
Personnel Minimum Requirements. All IBM Personnel providing
Order
Request Services shall have the following
minimum skills and qualifications:
(i) Good oral and written communication skills, including
accent
neutralization training and ability;
(ii) Basic telephone skills;
(iii) Good spelling skills;
(iv) Computer skills ranging from basic to good as required,
including typing ability and the ability to
navigate text and interfaces;
(v) Intermediate to extensive knowledge of D&B Products as
required
to process the Order Request;
(vi) Basic business and financial knowledge, including an
in-depth
understanding and awareness of the culture
and business practices in the local
markets being serviced;
(vii) Basic knowledge of D&B policies and organization; and
(viii) Sales skills ranging from basic to intermediate as
required
to perform the Services set forth in
Section 5 below.
(d)
Language Requirements. IBM Personnel shall have the language
skills
required to complete the Order Requests
from each local market from which the
Inbound Contacts originate. In addition, at
a minimum for each local market,
there shall be at least one (1) person
available during Local Market Business
Hours who is able to perform the Order
Request Services in English. IBM
Personnel shall be able to read, write, and
speak the following languages with
native fluency:
(i) English;
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(ii) Spanish;
(iii) Dutch;
(iv) Flemish;
(v) French;
and
(vi) Italian.
2.2. CUSTOMER REQUESTS
(a)
General. IBM shall be responsible for receiving and responding
to
Customer requests, which include billing
and payment inquiries, requests for
duplicate bills, D&B Product
information (e.g., price information), contract
inquiries (e.g., types of contracts or
usage requirements), questions concerning
the delivery of a report, inquiries about
using a D&B tool or application,
inquiries regarding understanding credit
ratings, and requests for removal from
marketing files ("Customer Request
Services").
(b)
Customer Request Services Description. IBM's responsibilities
with
respect to Customer Request Services
include:
(i) Receiving incoming Customer Requests;
(ii) Accessing and validating the End User's account with D&B
and
authenticating that the End User is
authorized to provide and receive
information about the Customer account and
make commitments on behalf of their
company;
(iii) Identifying the type of Customer Request and action
required
to resolve it;
(iv) Resolving the Customer Request to the Customer's
satisfaction,
or where IBM cannot resolve the Customer
Request, escalating it in accordance
with D&B policies and procedures (e.g.,
issuing Customer Request to other D&B
service points as required for
resolution);
(v) If escalated, tracking the Customer Request through
resolution
and following up regularly with the
escalation points to ensure timely
resolution;
(vi) Identifying and presenting Up-sell and Cross-sell sales
opportunities in each Contact;
(vii) Reviewing the interaction with the Customer at the end of
the
Contact and setting forth proper
expectations about any future action to be
taken with respect to the Customer Request;
and
(viii) Documenting resolution of the Customer Request.
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(c) IBM
Personnel Minimum Requirements. All IBM Personnel providing
Customer Request Services shall have the
following minimum skills and
qualifications:
(i) Good oral and written communication skills, including
accent
neutralization training and ability;
(ii) Good telephone skills as required to handle each
particular
type of Customer Request;
(iii) Intermediate computer skills (e.g., file transfer and
maintenance ability);
(iv) Extensive D&B Product knowledge;
(v) Basic business and financial knowledge, including an
in-depth
understanding and awareness of the culture
and business practices in the local
markets being serviced;
(vi) Basic problem analysis skills;
(vii) Basic to intermediate complaint resolution skills;
(viii) Extensive knowledge of D&B policies and organization;
and
(ix) Basic sales skills.
(d)
Language Requirements. IBM Personnel shall have the language
skills
required to complete the Customer Requests
from each local market from which the
Inbound Contacts originate in accordance
with the proficiency requirements set
forth in Attachment A-6-1 (Contact Center
Solution). In addition, at a minimum
for all local markets, there shall be at
least one (1) person available during
Local Market Business Hours who is able to
perform the Customer Request Services
in English. For the purposes of clarity,
where language skills of each local
market are not specifically designated in
Attachment A-6-1 (Contact Center
Solution), IBM Personnel shall be able to
read, write, and speak the following
languages with native fluency:
(i) English;
(ii) Spanish;
(iii) Italian;
(iv) Flemish;
(v) Dutch; and
(vi) French.
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2.3. ENTITY QUERY REQUESTS
(a)
General. IBM shall be responsible for receiving and responding
to
Entity Query Requests from End Users, which
includes delivery of entity reports,
providing explanation of entity reports
(e.g., ratings and analytics),
confirmation of specific information within
the report (e.g., confirmation of
CEO), updating data elements, updating
financial statements, identification of
family tree and linkage information,
creation of new entity records, and
assignment of DUNS Number ("Entity Query
Request Services").
(b) Entity
Query Request Services Description. IBM's responsibilities with
respect to Entity Query Request Services
include:
(i) Receiving incoming Entity Query Requests;
(ii) Accessing and validating the End User's account with D&B
and
authenticating that the End User is
authorized to provide data and make
commitments on behalf of their company;
(iii) Identifying the type of Entity Query and the action
required
to resolve it;
(iv) Establishing business Entity number ("DUNS Number") if the
Entity is not listed in the D&B
databases;
(v) Soliciting additional business Entity information missing
from
the D&B database for existing business
Entities and entering such information
into the D&B database based on D&B
policy and procedures;
(vi) Providing D&B reports to End Users about Entities upon
request;
(vii) Resolving each Entity Query to the End User's satisfaction,
or
where IBM cannot resolve the Entity Query,
escalating it in accordance with D&B
policies and procedures;
(viii) If escalated, tracking the Entity Query through
resolution
and following up regularly with the
escalation points to ensure timely
resolution;
(ix) Identifying and presenting Up-sell and Cross-sell sales
opportunities in each Contact;
(x) Performing direct sales of Self-Awareness D&B Products;
(xi) Reviewing the End User interaction at the end of the
Contact
and setting forth proper expectations about
any future action to be taken with
respect to the Entity Query Request;
and
(xii) Documenting resolution of Entity Query Request.
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(c) IBM
Personnel Minimum Requirements. All IBM Personnel handling
Entity
Query Requests shall have the following
minimum skills and qualifications:
(i) Good oral and written communication skills, including
accent
neutralization training and ability;
(ii) Telephone skills ranging from basic to good as required to
handle the particular customer service
request;
(iii) Intermediate computer skills (e.g., navigate text and GUI
interfaces);
(iv) Extensive D&B Product knowledge;
(v) Advanced business and financial knowledge, including an
in-depth
understanding and awareness of the culture
and business practices in the local
markets being serviced;
(vi) Advanced problem analysis skills;
(vii) Advanced complaint resolution skills;
(viii) Extensive knowledge of D&B policies and organization;
and
(ix) Proven advanced sales skills.
(d)
Language Requirements. IBM Personnel shall have the language
skills
required to complete the Entity Query
Requests from each local market from which
the Inbound Contacts originate. In
addition, at a minimum for each local market,
there shall be at least one (1) person
available during Local Market Business
Hours who is able to perform the Entity
Query Request Services in English. IBM
Personnel shall be able to read, write, and
speak the following languages with
native fluency:
(i) English;
(ii) Spanish;
(iii) Dutch;
(iv) Flemish;
(v) French; and
(vi) Italian.
2.4. TECHNICAL SUPPORT REQUESTS
(a)
General. IBM shall be responsible for receiving and resolving
technical support requests, which includes
performing ID and password
maintenance, assisting End Users with the
configurations of browsers, modems,
and other interfaces necessary to connect
to D&B, consulting on firewall issues,
assisting in the recovery of
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data, and consulting D&B proprietary
applications so as to maximize the
Contact's use of such applications
("Technical Support Request Services").
(b)
Technical Support Request Services Description. IBM's
responsibilities
with respect to Technical Support Request
Services include:
(i) Receiving incoming Technical Support Requests;
(ii) Accessing and validating the End User's account with D&B
and
authenticating that the End User is
authorized to provide and receive
information about the End User and make
commitments on behalf of their company;
(iii) Identifying the type of Technical Support Request and
action
required to resolve the request, including
repairing End User files as
appropriate;
(iv) Resolving the Technical Support Request to the End User's
satisfaction, or where IBM cannot resolve
the request, escalating it in
accordance with D&B policies and
procedures;
(v) If escalated, tracking the Technical Support Request
through
resolution and following up regularly with
the escalation points to ensure
timely resolution;
(vi) Providing step-by-step user instruction to the End User;
(vii) Testing the solution provided to the End User or
maintaining
the Contact until the End User has tested
the solution and confirmed that its
problem has been resolved;
(viii) Reviewing the interaction with the End User at the end of
the
Contact and setting forth proper
expectations about any future action to be
taken with respect to the Technical Support
Request; and
(ix) Documenting resolution of the Technical Support Request.
(c)
Testing
As part of
the Technical Support Requests Services, IBM shall perform
intermediate testing of applications used
by End Users to purchase to D&B
Products, including:
(i) Receiving test code in advance of release;
(ii) Performing test routines to identify application and data
exceptions;
(iii) Prioritizing application and data exceptions and
reporting
back such exceptions to application
development; and
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(iv) Signing off on acceptance of applications.
(d) IBM
Personnel Minimum Requirements. All IBM Personnel handling
Technical Support Requests shall have the
following minimum skills and
qualifications:
(i) Good oral and written communication skills, including
accent
neutralization training and ability;
(ii) Telephone skills ranging from basic to good as required to
handle the particular Technical Service
Request;
(iii) Advanced Internet skills;
(iv) Good troubleshooting and problem resolution skills;
(v) Extensive D&B system knowledge;
(vi) Intermediate database knowledge (e.g., Search Query
Language);
and
(vii) Intermediate network knowledge.
(e) IBM
Personnel shall have the language skills required to complete
the
Technical Support Requests from each local
market from which the Inbound
Contacts originate. In addition, at a
minimum for each local market, there shall
be at least one person available during
Local Market Business Hours who is able
to perform the Technical Support Request in
English. IBM Personnel shall be able
to read, write, and speak the following
languages with native fluency:
(i) English;
(ii) Spanish;
(iii) Dutch;
(iv) Flemish;
(v) French; and
(vi) Italian.
2.5. USAGE REQUESTS
(a)
General. IBM shall be responsible for receiving and resolving
requests
regarding contract usage from End Users
("Usage Request Services").
(b) Usage
Request Services Description. IBM's responsibilities with
respect to Usage Request Services
include:
(i) Receiving Usage Requests;
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(ii) Accessing and validating the End User's account with D&B
and
authenticating that the End User is
authorized to provide data and make
commitments on behalf of their company;
(iii) Identifying the type of Usage Request and the action
required
to fulfill the Usage Request;
(iv) Reviewing each Usage Request to determine whether it
complies
with applicable D&B policy;
(v) Aggregating applicable documentation required to fulfill
each
Usage Request;
(vi) If a Usage Request is permitted by D&B policy, calculating
the
corresponding usage adjustment and
preparing the appropriate accounting
transaction;
(vii) If a Usage Request is not permitted by D&B policy,
referring
the Usage Request to D&B's sales
organization with all relevant documentation
and an explanation of the reason the Usage
Request is non-compliant;
(viii) Processing approved Usage Requests as permitted by
D&B
policy;
(ix) Entering updated Usage information into the appropriate
D&B
systems; and
(x) Documenting resolution of the Usage Request.
(c) IBM
Personnel Minimum Requirements. All IBM Personnel handling
Usage
Requests shall have the following minimum
skills and qualifications:
(i) Basic to good oral and written communication skills,
including
accent neutralization training and
ability;
(ii) Telephone skills ranging from basic to good as required to
handle the particular Usage Request;
(iii) Good telephone skills;
(iv) Computer skills ranging from basic to intermediate (e.g.,
ability to navigate text and GUI
interfaces) as required to handle the Usage
Request;
(v) Proficiency in Microsoft Word and Excel;
(vi) Work organization skills;
(vii) Extensive knowledge of D&B policies and
organizations;
(viii) Attention to detail;
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(ix) Advanced analytical skills; and
(x) Good math skills.
(d)
Language Requirements. IBM Personnel shall have the language
skills
required to complete the Usage Requests
from each local market from which such
requests originate. In addition, at a
minimum for all local markets, there shall
be at least one (1) person available during
Local Market Business Hours who is
able to perform the Usage Request Services
in English. IBM Personnel shall be
able to read, write, and speak the
following languages with native fluency:
(i) English;
(ii) Spanish;
(iii) Italian;
(iv) Flemish;
(v) Dutch; and
(vi) French.
2.6. GOLD SERVICE
(a) In
performing order Request Services, Customer Request Services,
and
Usage Request Services, IBM shall designate
certain IBM Personnel to provide
Gold Services to Gold Service Customers,
which includes:
(i) Working with D&B on account planning;
(ii) Working with D&B on identifying incremental sales
opportunities
for such accounts and implementing
strategies to take advantage of such
opportunities;
(iii) Performing special requests relating to Gold Service
Customers
at no additional charge in an effort to
stimulate sales as requested by D&B,
which include:
(A) Performing
usage projects, which includes customizing
data outputs as required to meet Gold Service Customer
requests and allow D&B sales team to leverage such usage
requests in order to analyze usage trends, identify
sales opportunities and to assist with contract
renewals;
(B) Updating the
schedule of location document ("SOL"),
which contains all of the various user locations and
contact information and is required in the contract
renewal process;
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(C) Maintaining
the SOL, which includes subscriber set-up,
cancellation and any changes to contacts or addresses);
(D) Researching
and documenting variances for pricing,
contract terms and conditions and payment terms, which
require D&B approval. Any deviation from standard
published pricing or payment terms is considered a
variance that will require prior approval from the
appropriate authorization level. Any deviation from
standard contract terms and conditions (whether such
deviation is located within the terms and conditions,
the order form or any other document) is considered a
variance that will require D&B approval;
(E) Assisting
with contract renewal process by working
closely with IBM Personnel performing Contract
Administration Services to ensure all information is
collected and entered correctly, including handling the
purchase orders, invoices, tracking usage for carryover
purposes, and working closely with D&B in monitoring the
process;
(F) Maintaining
and assigning customer IDs and passwords for
the full spectrum of D&B access systems;
(G) Assisting
with the collection, logging and resolving of
data quality issues for gold customers, which includes
working with D&B in resolving issues concerning data
quality and delivering information regarding resolution
of such issues back to Customers on a daily, weekly and
monthly depending on the customer requirements. In
addition, IBM shall order investigations or
reinvestigations where required and deliver the results
of such investigation back to the customer;
(H) Supporting
IBM on-Ramp ("SOR"), which includes
functioning as the front line support for all suppliers
that need support when completing the online application
process (e.g., placing an investigation to create a
report for suppliers to have a scoreable record on
file);
(I) Supporting
the Safeco Credit Scoring Project, which
includes functioning as the front line support for
Safeco agents and customers that have questions
regarding their D&B file as it pertains to their ability
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to meet Safeco's requirements. IBM shall log calls from
Safeco agents and customers and issue a monthly report
to Safeco that defines activity and results;
(J) Handling and
processing investigations from Ford
locations in an expedited fashion, including callbacks
so Ford is able to enter results of such investigations
into their application processing system for approval;
(K) Tracking the
history of a D&B rating between specific
dates and providing this information to the customer;
(L) Checking and
filtering D&B data to fit into a specific
customer's algorithm;
(M) Checking
different data providers for later filings of
balance sheet information and, if necessary printing a
copy of the balance sheet and matching to the D&B data,
and delivering to the customer;
(N) End to end
fulfillment of the portfolio check product,
which includes checking the database for a DUNS number,
creating a database in MS Access, and picking up the
request from Lotus Notes and exporting into Excel for
analysis;
(O) Providing
customized data/services as required (e.g.,
creating spreadsheets from customers containing multiple
businesses, providing reasons for D&B rating changes);
and
(P) Calling GMC
customers (in collaboration with local
Marketing and GMC sales) to stimulate revenue usage.
(vi) Proactively implementing processes that improve service to
Gold
Service Customers and/or reduce complaints
by Gold Service Customers (provided
that if such a process will have a material
impact on the cost to IBM, the
parties may mutually agree on any
incremental charges through a Change Order);
(v)
Compiling special reports (e.g., summary of contract details,
usage or billing information) as requested
by D&B;
(vi) Meeting with D&B clients in person as requested by
D&B.
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(b) IBM
Personnel Minimum Requirements. In addition to the minimum
skills
required for IBM Personnel handling Order
Requests, Customer Requests, and Usage
Requests, IBM Personnel performing Gold
Services shall have the following
minimum skills and qualifications:
(i) Excellent oral and communication skills, including accent
neutralization training and ability;
(ii) Telephone skills ranging from good to basic as required to
perform the Gold Services;
(iii) Intermediate computer skills;
(iv) Extensive D&B Product knowledge;
(v) Good to advanced business and financial knowledge as required
to
perform the Services;
(vi) Advanced analytical skills;
(vii) Expert complaint resolution skills;
(viii) Extensive knowledge company policies and organization;
and
(ix) Proven advanced selling skills (e.g., ability to recognize
value propositions).
(c)
Language Requirements. IBM Personnel shall have the language
skills
required to perform Gold Services in each
local market serviced. In addition, at
a minimum for each local market, there
shall be at least one (1) person
available during Local Market Business
Hours who is able to perform the Gold
Services in English. IBM Personnel shall be
able to read, write, and speak the
following languages with native
fluency:
(i) English; and
(ii) Italian.
2.7. MARKETING CAMPAIGNS
From time
to time during the Term, and in accordance with the Change
Control Procedures, D&B will set-up
toll-free numbers to conduct specialized
marketing campaigns to market certain
D&B Products and services. IBM shall
handle the Inbound Contacts from such
campaigns as designated by D&B ("Marketing
Campaign Services").
3. OUTBOUND CONTACT
SERVICES
IBM shall
be responsible for providing outbound voice and back office
support for the following: Acquisition
Services (comprising CRC Renewal,
eUpdate, and File
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Update (including File Build) Outbound
Services Requests); Investigation
Services (comprising Complaint, Service
Failure, Fulfillment, Personal
Investigation, and VIP Reporting Outbound
Services Requests), Family Tree
Services (comprising Family Tree and
Linkage Validation and Error Resolution
Outbound Services Requests); ACUG Services;
and Inquiry Screening Services, all
as further described in this Section 3
(collectively, the "Outbound Contact
Services"). IBM shall provide Outbound
Contact Services during Local Market
Business Hours for each of the local
markets receiving such Services, and during
extended hours outside of Local Market
Business Hours to the extent necessary
for IBM to meet the Service Levels and
other performance standards provided in
the Agreement.
3.1. ACQUISITIoN SERVICES
(a)
General.
IBM shall
be responsible for the CRC Renewals, eUpdates, File Updates
(including File Build), which includes
gathering data and acquiring new
financial Entity reports ("Acquisition
Services").
(b)
Acquisition Services Description. IBM's responsibilities with
respect
to Acquisition Services include:
(i) Pulling outbound Services Requests from a request queue;
(ii) Gathering data elements and inquiring as to availability
of
financial statements for the Entity that is
the subject of the outbound Services
Request;
(iii) Mitigating issues or concerns with service or perceived
value
of service, if applicable, during all
Contacts with the Entity;
(iv) Obtaining and entering financial statements from the
Entity;
(v) Closing and documenting the resolution of each Outbound
Services
Request and all Contacts made relating to
the Outbound Services Request;
(vi) Creating or Updating as required, the credit record of
each
Entity involved in the Outbound Services
Request to reflect most current
information that has been gathered from IBM
research and interviews.
(c) IBM Personnel
Minimum Requirements. All IBM Personnel performing the
Acquisition Services shall have the
following minimum skills and qualifications:
(i) Good oral and written communication skills, including
accent
neutralization training and ability;
(ii) Telephone skills ranging from basic to good as required to
handle the particular Outbound Services
Request;
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(iii) Basic computer skills (e.g., ability to navigate text and
GUI
interfaces);
(iv) D&B Product knowledge;
(v) Basic to intermediate business and financial knowledge;
(vi) Good sense of customer service;
(vii) Good internet skills; and
(viii) Attention to detail.
(d)
Language Requirements. IBM Personnel shall have the language
skills
required to perform the Acquisition
Services in each local market serviced. In
addition, at a minimum for each local
market, there shall be at least one (1)
person available during Local Market
Business Hours who is able to perform the
Acquisition Services in English. IBM
Personnel shall be able to read, write, and
speak English with native fluency.
3.2. INVESTIGATION SERVICES
(a)
General. IBM shall be responsible for Complaint, Personal
Investigations, VIP Reporting, Service
Failure Outbound Services Requests, which
includes investigating requests regarding
Entities and updating or confirming
data that is currently on file as a result
of such Entity investigations, or if
applicable, writing an original report
about such Entity as requested by
Customers ("Investigation Services").
(b)
Investigation Services Description. In performing the
Investigation
Services, IBM's responsibilities include
the following:
(i) Pulling Outbound Services Requests from a request queue;
(ii) Accessing and validating the End User's account with D&B
and
authenticating that the End User is
authorized to provide data and make
commitments on behalf of their company;
(iii) Investigating the issues involved in each Outbound
Services
Request utilizing D&B data resources
and external resources as required (e.g.,
legal documents on the Entity filed at
central registries);
(iv) Contacting the Entity that is the subject of the Outbound
Services Request for more information where
required to complete the
investigation;
(v) Utilizing additional data sources where required, to gather
'value added' data (e.g., local Registries
& Government agencies or surfing the
internet);
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(vi) Updating the Entity record to reflect the most current
information gathered during the research
and Entity interview;
(vii) For priority orders, contacting the Entity to communicate
status and resolution on high priority
requests;
(viii) Where requested or required by applicable procedures,
contacting the Entity to communicate the
steps taken in the investigation;
(ix) Generating and sending appropriate reports required to
resolve
the Outbound Services Request or requested
during Contacts; and
(x) Documenting the resolution of the Outbound Services Request
and
all Contacts made relating to the Outbound
Services Request.
(c) IBM
Personnel Minimum Requirements. IBM Personnel performing
Investigation Services shall have the
following minimum skills and
qualifications:
(i)
Good oral and written communication skills, including accent
neutralization training and ability;
(ii) Basic telephone skills;
(iii) Computer skills ranging from basic to intermediate as
required
to handle the particular investigation;
(iv) Ability to work through uneven incoming workloads and
inventories;
(v) Basic business and financial knowledge including an
in-depth
understanding and awareness of the culture
and business practices in the local
markets serviced in performing each the
Investigation Services;
(vi) Good knowledge of D&B data and processes;
(vii) D&B Product knowledge;
(viii) Sales skills;
(ix) Good sense of customer service; and
(x) Attention to detail.
(d)
Language Requirements. IBM Personnel shall have the language
skills
required to perform the Investigation
Services in each local market serviced in
accordance with the proficiency
requirements set forth in Attachment A-6-1
(Contact Center Solution). In addition, at
a minimum for each market, there
shall be at least one (1) person available
during Local Market Business Hours
who is able to perform the Investigation
Services in English. For the purposes
of clarity, where language skills of each
local market are not specifically
designated in Attachment A-6-1 (Contact
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Center Solution), IBM Personnel shall be
able to read, write, and speak the
following languages with native
fluency:
(i) English;
(ii) Spanish;
(iii) Italian;
(iv) Flemish;
(v) Dutch;
(vi) German; and
(vii) French.
3.3. FULFILLMENT SERVICES
(a)
General. IBM shall be responsible for performing Fulfillment
Services,
which include expediting U.S. Entity report
creation and investigating
additional data sources that might have a
material affect on the entities report
(i.e., trade references) ("Fulfillment
Services").
(b)
Fulfillment Services Description. In performing the Fulfillment
Services, IBM shall investigate additional
references provided by the Entity for
up to six (6) months from the date the
Outbound Services Request is pulled from
the request queue. In performing the
Fulfillment Services, IBM responsibilities
include the following:
(i) Pulling Outbound Services Requests from a request queue;
(ii) Accessing and validating the End User's account with D&B
and
authenticating that the End User is
authorized to provide data and make
commitments on behalf of their company;
(iii) Calling credit references;
(iv) Adding credit information to Entity files;
(v) Creating a credit information file for each Entity if not
in
existence;
(vi) Offering D&B Products as part of the Fulfillment Services;
and
(vii) Documenting resolution of the Outbound Services Request
and
all Contacts relating to the Outbound
Services Request.
(c) IBM
Personnel Minimum Requirements. IBM Personnel performing
Fulfillment Services shall have the
following minimum skills and qualifications:
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(i) Basic oral and written communication skills, including
accent
neutralization training and ability;
(ii) Basic telephone skills;
(iii) Ability to work through uneven incoming work loads and
inventories;
(iv) Intermediate to superior customer service skills; and
(v) Basic computer skills (ability to navigate text and GUI
interfaces).
(d)
Language Requirements. IBM Personnel shall be able to read, write,
and
speak English with native fluency.
3.4. FAMILY TREE SERVICES
(a)
General. IBM shall be responsible for handling Family Tree and
Linkage
Validation and Error Outbound Services
Requests, which includes creating
complete and accurate views of corporate
family trees and maintaining such views
("Family Tree Services").
(b) Family
Tree Services Description. In performing the Family Tree
Services, IBM's responsibilities include
the following:
(i) Pulling Outbound Services Requests from a request queue;
(ii) Authenticating that the Entities End User is authorized to
provide data and make commitments on behalf
of their company;
(iii) Reviewing D&B's current list of corporate linkages to
eliminate duplication and ensure
consistency of data elements (e.g., Standard
Industrial Codes ("SICs"), business names,
and tradestyles);
(iv) Obtaining lists of locations from the subject company
either
via direct request, or other verifiable
means (e.g., website, annual report). If
directly requesting the information, the
company may agree to review D&B's
corporate linkage and make changes. If a
company's website is used, confirmation
of permission to use the website shall be
requested by the IBM by sending an
e-mail notice to the company and obtaining
such permission via a return e-mail
or other means. IBM will utilize the form
e-mail provided by D&B to provide such
notice;
(v) Matching list of company locations to D&B's files and
reviewing
results to validate that the results are
accurate;
(vi) Updating the company's corporate family and inputting such
updates into D&B systems;
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(vii) Responding to requests to add new locations to corporate
families by creation of a new Entity
record;
(viii) Contacting, and updating if applicable, lists of
locations
that may be part the corporate families
based on similarity of names;
(ix) For linkage validation errors, contacting those locations
where
an ownership or linkage update is required
because the current owner has been
deleted as a duplicate or is out of
business; and
(x) Responding to customer inquiries on corporate linkages using
a
web based tools system (e.g., DBDATA1).
(c) IBM
Personnel Minimum Requirements. IBM Personnel performing Family
Tree Services shall have the following
minimum skills and qualifications:
(i) Good oral and written communication skills, including
accent
neutralization training and ability;
(ii) Basic telephone skills;
(iii) Basic business and financial knowledge, including an
in-depth
understanding and awareness of the culture
and business practices in the local
markets being serviced
(iv) Ability to work through uneven incoming work
loads/inventories;
(v) Intermediate/superior customer service skills; and
(vii) Basic computer skills (e.g., ability to navigate text and
GUI
interfaces).
(d)
Language Requirements. IBM Personnel shall have the language
skills
required to perform the Family Tree
Services in each local market from where
data is collected in accordance with the
specific proficiency requirements set
forth in Attachment A-6-1 (Contact Center
Solution).
3.5. ADVANCED CUSTOMER UPDATE GROUP
(a)
General. IBM shall be responsible for handling Advanced
Customer
Update Group ("ACUG") Outbound Services
Requests, which includes updating U.S.
and Canadian company credit records of
public and large private companies,
responding to specific End User requests
regarding public companies, confirming
information submitted by a company, and
performing expedited reevaluation of
credit investigations ("ACUG
Services").
(b) ACUG
Service Descriptions. In performing the ACUG Services, IBM's
responsibilities include the following:
(i) Pulling Outbound Services Requests from a request queue;
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(ii) Retrieving the filing from the SEC website and updating
the
financial statement and D&B record with
all data retrieved;
(iii) Validating that data gathered from the company's
information
listed with the SEC;
