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EXHIBIT 10.7
TRANSITION SERVICES AGREEMENT
between
THE DUN & BRADSTREET CORPORATION
and
THE NEW D&B CORPORATION
Dated as of ___________ __, 2000
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TABLE OF CONTENTS
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Page
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ARTICLE I
SERVICES PROVIDED ............. 1
1.1 Transition Services ........................ 1
1.2 Personnel .................................. 1
1.3 Representatives ............................ 1
1.4 Level of Transition Services ............... 2
1.5 Limitation of Liability .................... 2
1.6 Force Majeure .............................. 3
1.7 Modification of Procedures ................. 3
1.8 Provider Access ............................ 3
ARTICLE II
COMPENSATION ................ 4
2.1 Consideration .............................. 4
2.2 Invoices ................................... 4
2.3 Payment of Invoices ........................ 4
2.4 Late Payment ............................... 4
ARTICLE III
CONFIDENTIALITY .............. 4
3.1 Obligation ................................. 4
3.2 Care and Inadvertent Disclosure ............ 5
ARTICLE IV
TERM AND TERMINATION ........... 5
4.1 Term ....................................... 5
4.2 Termination ................................ 5
4.3 Termination of Obligations ................. 5
4.4 Survival of Certain Obligations ............ 6
ARTICLE V
DISPUTE RESOLUTION ............ 6
5.1 Dispute Resolution ......................... 6
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ARTICLE VI
MISCELLANEOUS ............... 6
6.1 Complete Agreement; Construction ........... 6
6.2 Other Ancillary Agreements ................. 6
6.3 Counterparts ............................... 6
6.4 Survival of Agreements ..................... 6
6.5 Notices .................................... 7
6.6 Waivers .................................... 7
6.7 Amendments ................................. 7
6.8 Assignment ................................. 7
6.9 Successors and Assigns ..................... 7
6.10 Subsidiaries ............................... 7
6.11 Third Party Beneficiaries .................. 7
6.12 Title and Headings ......................... 8
6.13 Appendices ................................. 8
6.14 GOVERNING LAW .............................. 8
6.15 Consent to Jurisdiction .................... 8
6.16 Severability ............................... 8
6.17 Laws and Government Regulations ............ 8
6.18 Relationship of Parties .................... 9
6.19 Subcontractors and Outsourcing ............. 9
6.20 Definitions ................................ 9
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TRANSITION SERVICES AGREEMENT
TRANSITION SERVICES AGREEMENT dated as of ________ __, 2000,
between THE DUN & BRADSTREET CORPORATION, a Delaware corporation (the
"Corporation"), and THE NEW D&B CORPORATION, a Delaware corporation ("New D&B").
W I T N E S S E T H :
WHEREAS, the Corporation and New D&B have entered into a
Distribution Agreement and certain Ancillary Agreements, each dated as of the
date hereof, pursuant to which, among other matters, New D&B has agreed to
provide, or cause one or more of its Subsidiaries to provide, to the Corporation
certain transitional, administrative and support services on the terms set forth
in this Agreement and the Appendices hereto.
NOW, THEREFORE, subject to the terms, conditions, covenants
and provisions of this Agreement, each of the Corporation and New D&B mutually
covenant and agree as follows:
ARTICLE I
SERVICES PROVIDED
1.1 Transition Services. Upon the terms and subject to
the conditions set forth in this Agreement, with respect to each of those
services set forth in an Appendix hereto, each of which Appendices is made a
part of this Agreement, New D&B will provide to the Corporation the services
indicated in such Appendix (hereinafter referred to individually as a
"Transition Service", and collectively as the "Transition Services") during the
time period for each such Transition Service set forth in such Appendix
(hereinafter referred to as the "Time Periods" for all of the Transition
Services, and the "Time Period" for each Transition Service).
1.2 Personnel. In providing the Transition Services, New
D&B as it deems necessary or appropriate in its sole discretion, may (i) use its
personnel and that of its Affiliates, and (ii) employ the services of third
parties to the extent such third party services are routinely utilized to
provide similar services to other businesses of New D&B or are reasonably
necessary for the efficient performance of any of such Transition Services. The
Corporation may retain at its own expense its own consultants and other
professional advisers.
1.3 Representatives. Each of the Corporation and New D&B
shall nominate a representative to act as its primary contact person for the
provision of all of the Transition Services (collectively, the "Primary
Coordinators"). The initial Primary Coordinators shall be Debra Perry for the
Corporation and Chester Geveda, Jr. for New D&B. The initial coordinators for
each specific Transition Service shall be the individuals named in the Appendix
relating to such Transition Service (the "Service Coordinators"). Each party may
treat an act of a Primary Coordinator or Service
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Coordinator of another party as being authorized by such other party without
inquiring behind such act or ascertaining whether such Primary Coordinator or
Service Coordinator had authority to so act. New D&B and the Corporation shall
advise each other in writing of any change in the Primary Coordinators and any
Service Coordinator for such Transition Service, setting forth the name of the
Primary Coordinator or Service Coordinator to be replaced and the name of the
replacement, and certifying that the replacement Primary Coordinator or Service
Coordinator is authorized to act for such party in all matters relating to this
Agreement. Each of the Corporation and New D&B agree that all communications
relating to the provision of the Transition Services shall be directed to the
Primary Coordinators.
1.4 Level of Transition Services. (a) New D&B shall
perform the Transition Services for which it is responsible hereunder following
commonly accepted standards of care in the industry and exercising the same
degree of care as it exercises in performing the same or similar services for
its own account as of the date of this Agreement, with priority equal to that
provided to its own businesses or those of any of its Affiliates, Subsidiaries
or divisions. Nothing in this Agreement shall require New D&B to favor the
businesses of the Corporation over its own businesses or those of any of its
Affiliates, Subsidiaries or divisions.
(b) New D&B shall not be required to provide the
Corporation with extraordinary levels of Transition Services, special studies,
training, or the like or the advantage of systems, equipment, facilities,
training, or improvements procured, obtained or made after the Distribution Date
by New D&B.
(c) In addition to being subject to the terms and
conditions of this Agreement for the provision of the Transition Services, the
Corporation agrees that the Transition Services provided by third parties shall
be subject to the terms and conditions of any agreements between New D&B and
such third parties. New D&B shall consult with the Corporation concerning the
terms and conditions of any such agreements to be entered into, or proposed to
be entered into, with third parties after the date hereof but the Corporation
shall have no right to require New D&B to reject or amend any of such terms and
conditions.
1.5 Limitation of Liability. In the absence of gross
negligence or willful misconduct on the part of New D&B, and whether or not New
D&B is negligent, New D&B shall not be liable for any claims, liabilities,
damages, losses, costs, expenses (including, but not limited to, settlements,
judgments, court costs and reasonable attorneys' fees), fines and penalties,
arising out of any actual or alleged injury, loss or damage of any nature
whatsoever in providing or failing to provide Transition Services for which it
is responsible hereunder to the Corporation. Notwithstanding anything to the
contrary contained herein, in the event New D&B commits an error with respect to
or incorrectly performs or fails to perform any Transition Service, at the
Corporation's request, New D&B shall use reasonable efforts and good faith to
correct such error, re-perform or perform such Transition Service at no
additional cost to the Corporation; provided, that New D&B shall have no
obligation to recreate any lost or destroyed data to the extent the same cannot
be cured by the re-performance of the Transition Service in question.
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1.6 Force Majeure. Any failure or omission by a party in
the performance of any obligation under this Agreement shall not be deemed a
breach of this Agreement or create any liability, if the same arises from any
cause or causes beyond the control of such party, including, but not limited to,
the following, which, for purposes of this Agreement shall be regarded as beyond
the control of each of the parties hereto: acts of God, fire, storm, flood,
earthquake, governmental regulation or direction, acts of the public enemy, war,
rebellion, insurrection, riot, invasion, strike or lockout; provided, however,
that such party shall resume the performance whenever such causes are removed.
Notwithstanding the foregoing, if such party cannot perform under this Agreement
for a period of forty-five (45) days due to such cause or causes, the affected
party may terminate the Agreement with the defaulting party by providing written
notice thereto.
1.7 Modification of Procedures. New D&B may make changes
from time to time in its standards and procedures for performing the Transition
Services for which it is responsible hereunder. Notwithstanding the foregoing
sentence, unless required by law, New D&B shall not implement any substantial
changes affecting the Corporation unless:
(a) New D&B has furnished the Corporation written notice
(which may be the same notice New D&B shall provide its own businesses)
thereof;
(b) New D&B changes such procedures for its own
businesses at the same time; and
(c) New D&B gives the Corporation a reasonable period of
time for the Corporation (i) to adapt its operations to accommodate
such changes or (ii) to reject the proposed changes. In the event the
Corporation fails to accept or reject a proposed change on or before a
date specified in such notice of change, the Corporation shall be
deemed to have accepted such change. In the event the Corporation
rejects a proposed change but does not terminate this Agreement, the
Corporation agrees to pay any charges resulting from New D&B's need to
maintain different versions of the same systems, procedures,
technologies, or services or resulting from requirements of third party
vendors or suppliers.
1.8 Provider Access. To the extent reasonably required
for personnel of New D&B to perform the Transition Services hereunder, the
Corporation shall provide personnel of New D&B with access to its equipment,
office space, plants, telecommunications and computer equipment and systems, and
any other areas and equipment.
ARTICLE II
COMPENSATION
2.1 Consideration. As consideration for the Transition
Services, the Corporation shall pay to New D&B the amount specified for each
such Transition Service as set forth in the Appendix relating to such Transition
Service.
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2.2 Invoices. After the end of each month, New D&B
together with such party's Affiliates or Subsidiaries providing Transition
Services will submit one invoice to the Corporation for all Transition Services
provided to the Corporation and its Subsidiaries by New D&B during such month.
Such monthly invoices shall be issued no later than the fifteenth day of each
succeeding month. Each invoice shall include a summary list of the previously
agreed upon Transition Service for which there are fixed dollar fees, together
with documentation supporting each of the invoiced amounts that are not covered
by the fixed fee agreements. The total amount set forth on such summary list and
such supporting detail shall equal the invoice total, and will be provided under
separate cover apart from the invoice. All invoices shall be sent to the
attention of Service Coordinator of the Corporation at the address set forth in
Section 6.5 hereof or to such other address as the Corporation shall have
specified by notice in writing to New D&B.
2.3 Payment of Invoices. (a) Payment of all invoices in
respect of a Transition Service shall be made by check or electronic funds
transmission in U.S. Dollars, without any offset or deduction of any nature
whatsoever, within thirty (30) days of the invoice date unless otherwise
specified in the Appendix relating to such Transition Service. All payments
shall be made to the account designated by New D&B, with written confirmation of
payment sent by facsimile to the Service Coordinator or other person designated
thereby.
(b) If any payment is not paid when due (other than as a
result of a delay directly caused by New D&B or its affiliates), New D&B shall
have the right, upon three days written notice, without any liability to the
Corporation, or anyone claiming by or through the Corporation, to cease
providing any or all of the Transition Services provided by New D&B to the
Corporation, which right may be exercised by New D&B in its sole and absolute
discretion.
2.4 Late Payments. Any payments owing to New D&B pursuant
to this Agreement that are not paid when due (other than as a result of a delay
directly caused by New D&B or its affiliates) shall bear interest at the rate of
one and one-half (1 1/2) percent per month, but in no event to exceed the
highest lawful rate of interest, calculated from the date such amount was due
until the date payment is received by New D&B.
ARTICLE III
CONFIDENTIALITY
Each of the Parties shall not use or permit the use of
(without the prior consent of the other) and shall keep, and shall cause its
consultants and advisors to keep, confidential all information concerning the
other Party in its possession, its custody or under its control (except to the
extent that (1) such information has been in the public domain through no fault
of such Party or (2) such information has been later lawfully acquired from
other sources by such Party or (3) this Agreement or any other agreement entered
into pursuant to this Agreement permits the use or disclosure of such
information) to the extent such information (a) relates to the period up to the
Distribution Date or (b) is obtained in the course of providing or receiving the
Transition Services pursuant to this Agreement, and each Party shall not
(without the prior consent of the other)
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otherwise release or disclose such information to any other person, except such
Party's auditors and attorneys, unless compelled to disclose such information by
judicial or administrative process or unless such disclosure is required by law
and such Party has used commercially reasonable efforts to consult with the
other Party prior to such disclosure.
ARTICLE IV
TERM AND TERMINATION
4.1 Term. This Agreement shall become effective on the
Distribution Date and shall remain in force until the expiration of the longest
Time Period specified in any Appendix hereto, including any extension thereof,
unless this Agreement is terminated under Sections 1.6, 4.2 or 6.19 prior to the
end of such Time Period.
4.2 Termination. If any party (hereafter called the
"Defaulting Party") shall fail to perform or default in the performance of any
of its obligations under this Agreement (other than a payment default), the
party entitled to the benefit of such performance (hereinafter referred to as a
"Non-Defaulting Party") may give written notice to the Defaulting Party
specifying the nature of such failure or default and stating that the
Non-Defaulting Party intends to terminate this Agreement with respect to the
Defaulting Party if such failure or default is not cured within fifteen days of
such written notice. If any failure or default so specified is not cured within
such fifteen day period, the Non-Defaulting Party may elect to immediately
terminate this Agreement with respect to the Defaulting Party; provided,
however, that if the failure or default relates to a dispute contested in good
faith by the Defaulting Party, the Non-Defaulting Party may not terminate this
Agreement pending the resolution of such dispute in accordance with Article V
hereof. Such termination shall be effective upon giving a written notice of
termination from the Non-Defaulting Party to the Defaulting Party and shall be
without prejudice to any other remedy which may be available to the
Non-Defaulting Party against the Defaulting Party.
4.3 Termination of Obligations. The Corporation
specifically agrees and acknowledges that all obligations of New D&B to provide
each Transition Service hereunder shall immediately cease upon the expiration of
the Time Period for such Transition Service, and New D&B's obligations to
provide all of the Transition Services for which New D&B is responsible
hereunder shall immediately cease upon the termination of this Agreement. Upon
the cessation of New D&B's obligation to provide any Transition Service, the
Corporation shall immediately cease using, directly or indirectly, such
Transition Service (including, without limitation, any and all software of New
D&B or third party software provided through New D&B, telecommunications
services or equipment, or computer systems or equipment).
4.4 Survival of Certain Obligations. Without prejudice to
the survival of the other agreements of the parties, the following obligations
shall survive the termination of this Agreement: (a) the obligations of each
party under Articles III, IV, V and VI and (b) New D&B's right to receive the
compensation for the Transition Services provided by it hereunder provided in
Section 2.1 above incurred prior to the effective date of termination.
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ARTICLE V
DISPUTE RESOLUTION
5.1 Dispute Resolution. Any disputes arising out of or in
connection with this Agreement shall be settled in accordance with the dispute
resolution mechanisms set forth in Article VI of the Distribution Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Complete Agreement; Construction. This Agreement,
including the Appendices hereto, shall constitute the entire agreement between
the parties with respect to the subject matter hereof and shall supersede all
previous negotiations, commitments and writings with respect to such subject
matter. In the event of any inconsistency between this Agreement and any
Appendix hereto, the Appendix shall prevail. In the event and to the extent that
there shall be a conflict between the provisions of this Agreement and the
provisions of any other Ancillary Agreement, this Agreement shall control.
6.2 Other Ancillary Agreements. This Agreement is not
intended to address, and should not be interpreted to address, the matters
specifically and expressly covered by the other Ancillary Agreements.
6.3 Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
6.4 Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
6.5 Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and will be deemed given on the date on which
such notice is received:
To the Corporation:
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Telecopy: (212) 553-0084
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Attn.: Legal Department
To New D&B:
The Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, New Jersey 07974
Telecopy: (908) 665-5827
Attn.: Chief Legal Counsel
6.6 Waivers. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
6.7 Amendments. This Agreement may not be modified or
amended except by an agreement in writing signed by each of the parties hereto.
6.8 Assignment. This Agreement may not be assigned by
either party, other than to an Affiliate of such party or pursuant to a
corporate reorganization or merger, without the consent of the other party. Any
assignment in contravention of this Section 6.8 shall be void.
6.9 Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
6.10 Subsidiaries. Each of the parties hereto shall cause
to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth herein to be performed by any Subsidiary of
such party or by any entity that is contemplated to be a Subsidiary of such
party on and after the Distribution Date.
6.11 Third Party Beneficiaries. This Agreement is solely
for the benefit of the parties hereto and should not be deemed to confer upon
third parties any remedy, claim, liability, reimbursement, claim of action or
other right in excess of those existing without reference to this Agreement.
6.12 Title and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
6.13 Appendices. The Appendices shall be construed with
and as an integral part of this Agreement to the same extent as if the same had
been set forth verbatim herein. In the event of any inconsistency between the
terms of any Appendix and the terms set forth in the main body of this
Agreement, the terms of the Appendix shall govern.
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6.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
6.15 Consent to Jurisdiction. Each of the parties
irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of
the State of New York, New York County, and (b) the United States District Court
for the Southern District of New York, for the purposes of any suit, action or
other proceeding arising out of this Agreement or any transaction contemplated
hereby. Each of the parties agrees to commence any action, suit or proceeding
relating hereto either in the United States District Court for the Southern
District of New York or if such suit, action or other proceeding may not be
brought in such court for jurisdictional reasons, in the Supreme Court of the
State of New York, New York County. Each of the parties further agrees that
service of any process, summons, notice or document by U.S. registered mail to
such party's respective address set forth above shall be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Section 6.15. Each of
the parties irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) the Supreme Court of the State of New
York, New York County, or (ii) the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
6.16 Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
6.17 Laws and Government Regulations. The Corporation
shall be responsible for (i) compliance with all laws and governmental
regulations affecting its businesses and (ii) any use the Corporation may make
of the Transition Services to assist it in complying with such laws and
governmental regulations. New D&B shall not have any responsibility for the
compliance by the Corporation of such Transition Services with such laws and
regulations.
6.18 Relationship of Parties. Nothing in this Agreement
shall be deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being understood and agreed that no provision contained herein, and
no act of the parties, shall be deemed to create any relationship between the
parties other than the relationship of buyer and seller of services nor be
deemed to vest any rights, interests or claims in any third parties. The parties
do not intend to waive any privileges or rights to which they may be entitled.
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6.19 Subcontractors and Outsourcing. New D&B shall have
the right to subcontract or outsource any of its obligations hereunder, provided
that the Corporation consents to such subcontracting or outsourcing, which
consent shall not be unreasonably withheld. The Corporation shall respond to any
such request by New D&B within thirty (30) days of receipt of such request. In
the event that the Corporation does not consent to such request, then New D&B
shall have the right to terminate this Agreement upon one hundred fifty (150)
days written notice. Failure by the Corporation to respond to such request
within the time period set forth above shall be deemed to indicate the
Corporation's consent to such request.
6.20 Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Distribution Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Transition Services Agreement to be executed the day and year first above
written.
THE DUN & BRADSTREET CORPORATION
By:
-------------------------------------
Name:
Title:
THE NEW D&B CORPORATION
By:
-------------------------------------
Name:
Title:
