exv10w2



 






Exhibit 10.2




 




 









 




Dun & Bradstreet, Inc. (“D&B”) and the customer named on the attached Order (“Customer”)
agree that D&B shall make available to Customer business information services (“Services”), which
may include information (“Information”); computer programs or applications (including those
accessed remotely), documentation and media (collectively, “Software”); and other services, subject
to this Master Agreement (“Agreement”). The Services subject to this Agreement are identified in
Orders entered into from time to time by D&B and Customer. No obligation to furnish or to pay for
a particular Service arises under this Agreement until D&B accepts an order and any attachments
thereto placed by Customer. All accepted orders and their attachments (collectively, the
“Order(s)”) for Services are subject to this Agreement, and the terms of such Orders are
incorporated by reference in this Agreement. Subject to paragraph 10.2, this Agreement continues in
force even though no Order may then be outstanding. The Services will also be made available to
Customer’s U.S. parent and to U.S. companies that are subsidiaries, divisions or affiliates,
wholly-owned or controlled by Customer and that are identified on a “Schedule of Locations of
Service & Customer-Related Companies” schedule attached to such Order and signed by the parties.



1. Licenses



1.1 D&B grants to Customer a non-exclusive, non-transferable license (“License”) to use and display
the Information and Software (in object code format only) constituting each D&B product specified
in an Order, subject to the limitations contained in this Agreement and such Order. D&B retains
all ownership rights (including copyrights and other intellectual property rights) in the Services,
in any form, and Customer obtains only such rights as are explicitly granted in this Agreement and
such Order. The Services will include a custom model developed by D&B through the use of D&B and
Customer information. To the extent such model is customized for Customer, the customized model
shall be owned by Customer; provided that (i) Customer grants D&B a license to use such model in
connection with its provision of Services to Customer hereunder, (ii) Customer’s ownership of the
customized model does not (x) include ownership of any D&B information, techniques, processes,
methods, expertise, or other intellectual property included therein (which collectively remain D&B
intellectual property) or (y) affect D&B’s ability or rights with respect to the use of such D&B
information, techniques, processes, methods, expertise, or other intellectual property for the
purpose of developing custom models for other customers for any purpose, and (iii) Customer shall
not license, sell, distribute or otherwise make available such custom model to any third party,
other than those third parties to which Customer may make Information or Software available
pursuant to the first sentence of paragraph 2.2.



1.2 Each License and Order is for a term, beginning on the date of the Order, of 12 months, unless
another term is specified in the Order. D&B may extend the term for an additional period, in its
discretion, while the parties are engaged in renewal discussions. Any such extension shall be
subject to this Agreement. Each License or Order may be renewed as set forth in the Order and by
mutual written agreement and payment of renewal fees and applicable product and service fees (the
initial term and any renewal period for an Order or License constitute “the Term” for such Order or
License).



1.3 Software “Updates” (i.e., minor enhancements, additions, and substitutions to Software,
including corrections and bug fixes) are provided at no additional fee, if available. “Upgrades”
(i.e., modifications, additions or substitutions that result in a substantial change, improvement
or addition to Software), if available, are provided for an additional fee, if applicable. The
determination of whether a matter involves an Update or an Upgrade is within the sole discretion of
D&B. All Updates and Upgrades obtained by Customer are subject to this Agreement.



1.4 Telephone and email based software support is available during the Term of an Order for the
currently licensed Software versions, and only if Customer has installed all Updates received.



2. Restrictions on Use



2.1 Information and Software are licensed for Customer’s internal use only and (i) only at the
points of service specified in the Order; (ii) only for the frequency of use or total number of
users set forth in the Order; and (iii) subject to any other restrictions set forth in the Order.



2.2 Customer will not provide Information or Software to others, whether directly in any media or
indirectly through incorporation in a database, marketing list, report or otherwise, or use or
permit the use of Information to generate any statistical or other information that is or will be
provided to third parties (including as the basis for providing recommendations to others); use or
permit the use of Information to prepare any comparison to other information databases that is or
will be provided to third parties; or voluntarily produce Information in legal proceedings; except
that Customer may provide Information or Software to Representatives as defined below, in response
to regulatory requests, or as otherwise required by law. Customer shall: (i) maintain the
Information in strict confidence, including by restricting disclosure of the Information solely to
those of its employees, consultants, agents and advisors (collectively, “Representatives”) with a
need to know and not allowing it to be disclosed, through negligence or otherwise, to third
parties, (ii) advise Representatives who receive the Confidential Information of their obligations
hereunder and assume full responsibility for any breach by them of such obligations, (iii) use the
Confidential Information only in furtherance of the business relationship described in Paragraph 1
above, and (iv) take all steps to ensure that no unauthorized persons have access to Confidential
Information and that all persons having access to Confidential Information refrain from any
unauthorized disclosure.



2.3 Customer will not attempt to access, use, modify, copy, reverse engineer, or otherwise derive
the source code of Software.



2.4 Upon reasonable notice and during regular business hours, Customer will permit D&B to inspect
the locations at, or computer systems on which, Information and Software are used, stored or
transmitted so that D&B can verify Customer’s compliance with this Agreement.



2.5 Customer will be responsible for any direct damages or lost profits incurred by D&B as a result
of Customer’s breach of this paragraph 2.



3. Copying



3.1 Customer will not copy, download, upload or in any other way reproduce Information or Software
except for (i) creating a reasonable number of copies of Information in any format for internal use
only in accordance with this Agreement and not for general internal distribution; and (ii) making
one copy of Information and of Software for internal archival purposes.



4. D-U-N-S Numbers



4.1 D-U-N-S Numbers are proprietary to and controlled by D&B. D&B grants Customer a non-exclusive,
perpetual, limited license to use D-U-N-S Numbers solely for identification purposes and only for
Customer’s internal business use. Where practicable, Customer will refer to the number as a
“D-U-N-S Number” and state that D-U-N-S is a registered trademark of D&B.



5. Third Party Services



5.1 Customer may engage a third party to process or host Information (the “Processor”) provided
that the Processor and D&B enter into a D&B Processor’s



 









 








Agreement before any Information or
Software is provided to the Processor.



5.2 Third parties that provide Information to D&B for use in providing the Services are intended
third party beneficiaries of paragraphs 8 and 11.



6. Payment



6.1 Customer will pay D&B in accordance with the Order. Prices and product descriptions are those
set forth in the Order, or, if not included in the Order, in the
applicable pricing and product policies made available to Customer in hard copy or on any D&B
Internet site, which policies are incorporated herein. A late payment charge of the lesser of
1-1/2% per month or the highest lawful rate may be applied to any outstanding balances until paid.



6.2 Customer will pay any applicable taxes relating to this Agreement, other than taxes based on
D&B income and franchise — related taxes.



6.3 For certain Orders for a committed volume or usage represented by an upfront payment by
Customer, Customer may be entitled to “carry over” portions of unused volume or usage upon renewal.
In addition, if Customer’s usage exceeds the committed amount, such excess usage shall be billed
at a specified “overrun” rate. Such carryover and/or overrun rate, if applicable, will be
determined in accordance with the Order, or, if not included in the Order, in the applicable
pricing and product policies made available to Customer in hard copy or on any D&B Internet site.



6.4 If Customer’s pricing with respect to a particular Order is based on Customer’s expected volume
or usage as indicated on such Order and Customer does not meet such volume or usage levels,
Customer will pay D&B a “true-up amount” based on the pricing applicable to the volume or usage
actually utilized by Customer.



7. Compliance with Law



7.1 Customer will not use Information as a factor in establishing an individual’s eligibility for
(i) credit or insurance to be used primarily for personal, family, or household purposes, or (ii)
employment. In addition, Customer will not use any Service to engage in any unfair or deceptive
practices and will use the Services only in compliance with applicable state, local, federal or
foreign laws or regulations, including laws and regulations regarding telemarketing, customer
solicitation (including fax and/or e-mail solicitation), data protection and privacy.



8. Disclaimers



8.1 Though D&B uses extensive procedures to keep its database current and to maintain accurate
data, Customer acknowledges that the Information will contain a degree of error and that Customer
is responsible for determining that the Information is sufficiently accurate for Customer’s
purposes. If the Information is not sufficiently accurate for Customer’s purposes, then Customer
must so notify D&B, in writing, within 15 days after receipt of such Information. D&B will, at its
option, either correct the inaccuracy at D&B’s expense or refund any amounts paid relating to the
unusable Information.



8.2 ALL SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. OTHER THAN AS EXPLICITLY STATED
IN THIS AGREEMENT, D&B DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF
ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. D&B DOES
NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR
REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. D&B WILL NOT BE
LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, D&B’S CONDUCT IN PROCURING,
COMPILING, COLLECTING, INTERPRETING, REPORTING OR DELIVERING SERVICES.



9. Copyrights and Other Proprietary Rights



9.1 Customer acknowledges that Information and Software are proprietary works of D&B and comprise:
(i) works of original authorship, including compiled Information containing D&B’s selection,
arrangement and coordination and expression of such Information or pre-existing material it has
created, gathered or assembled; (ii) trade secret and other confidential information, including
information that derives value or potential value from not being readily known or available; and
(iii) information that has been created, developed and maintained by D&B at great expense, such
that misappropriation or unauthorized use by others for commercial gain would unfairly and/or
irreparably harm D&B or reduce D&B’s incentive to create, develop and maintain such information.
Customer will not knowingly commit or permit any act or omission that would contest or impair D&B’s
proprietary and intellectual property rights in Information and Software or that would cause the
Information or Software to infringe the proprietary or intellectual property rights of a third
party. Customer will reproduce D&B’s copyright and proprietary rights legend on all copies of
Information and Software which are so marked when received. Customer will be responsible for any
direct damages or lost profits incurred by D&B as a result of Customer’s breach of this paragraph 9.1.



9.2 Customer and D&B will not (i) use any trademark, service mark or trade name of each other or
any of their affiliated companies, except that D&B and its affiliates may include Customer’s trade
names in the data base of business information included within the Services it offers to Customer
and others or otherwise as permitted by law, or (ii) publish any press releases regarding this
Agreement or any Order.



9.3 D&B will treat all information that Customer designates in writing to be proprietary in the
same manner as D&B treats its own proprietary information. D&B agrees not to use such identified
proprietary information except for the purposes of performing its obligations to Customer and for
internal analytical purposes (i.e., analyzing such data to improve D&B’s products and services).
Such proprietary information shall not include information that (i) is or becomes a part of the
public domain through no act or omission of D&B; (ii) was in D&B’s lawful possession prior to
Customer’s disclosure to D&B; (iii) is lawfully disclosed to D&B by a third-party with the right to
disclose such information and without restriction on such disclosure; or (iv) is independently
developed by D&B without use of or reference to the proprietary information.



9.4 D&B represents and warrants to Customer that, to D&B’s knowledge, the Software and Information,
when used in accordance with this Agreement, do not violate any existing U.S. copyrights, patents,
trademarks, or other intellectual property rights of any third party. The foregoing warranty does
not apply to the extent Customer modifies the Software or Information in any way or combines the
Software or Information with material from third parties.



10. Termination



10.1 In the event of material breach (including, without limitation, an assignment in violation of
paragraph 13.2 hereof) by Customer or D&B, the non-breaching party may immediately terminate this
Agreement or particular Orders without prior notice. In addition, D&B may terminate this Agreement
or particular Orders upon 30 days’ prior written notice; provided that if D&B terminates this
Agreement or particular Orders other than for cause, D&B will refund to Customer the unused balance
of any amounts paid under the relevant Orders. If Customer terminates this Agreement or particular
Orders due to a material breach by D&B pursuant to this section, D&B will refund to Customer the
unused balance of any amounts paid under the relevant Orders so long as such material breach is
proved in any judicial proceeding.



10.2 If Customer has no Orders in effect during a period of six consecutive months, then D&B may
terminate this Agreement at the end of such six-month period by sending written notice to Customer.



10.3 The provisions set forth in paragraphs 2, 3, 4, 6, 7, 8, 9, 10.3, 10.4, 10.5, 11 and 12 will
survive the termination of this Agreement.



10.4 If, without D&B’s written permission, Customer continues after termination to obtain Services
covered by a terminated Order or Agreement, Customer will be liable to D&B for the undiscounted
fees for such Services in effect on the date of such termination.













 








10.5 Upon termination of a Term with respect to particular Information or Software, or upon receipt
of Software or Information that is intended to supersede previously obtained Software or
Information, unless D&B instructs Customer otherwise, Customer will immediately delete or destroy
all originals and copies (other than archival copies permitted by paragraph 3) of the Information
or Software, and upon request, provide D&B with certification thereof.



10.6 Termination of this Agreement will result in a termination of all outstanding Orders.



11. Limitation of Liability



11.1 NEITHER D&B NOR CUSTOMER WILL BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
ARISING OUT OF THIS AGREEMENT OR THE DELIVERY, USE, SUPPORT OR OPERATION OF THE SERVICES, EXCEPT
AS OTHERWISE PROVIDED HEREIN.



11.2 D&B’s LIABILITY FOR A PARTICULAR CLAIM WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO D&B FOR
THE PARTICULAR INFORMATION OR SOFTWARE UPON WHICH THE CLAIM IS BASED OR $20,000, WHICHEVER IS
GREATER. ANY CLAIMS AGAINST D&B WILL BE BROUGHT, IN ACCORDANCE WITH THIS AGREEMENT, WITHIN 12
MONTHS OF DISCOVERY OF THE FIRST OCCURRENCE GIVING RISE TO SUCH CLAIMS, BUT IN NO CASE MORE THAN
TWENTY-FOUR (24) MONTHS FROM THE FIRST OCCURRENCE, OR SUCH CLAIMS WILL BE FOREVER BARRED.



12. Choice of Law; Disputes



12.1 This Agreement is governed by and construed in accordance with the laws of the State of New
Jersey, without regard to choice of law provisions. Any disputes arising out of this Agreement
that cannot be resolved by the parties will be brought in state or federal court located in Newark,
New Jersey.



12.2 Each party shall bear its own costs and expenses, including reasonable attorneys’ fees
incurred in any action to enforce the obligations of the other party under this Agreement, however,
Customer will reimburse D&B for all costs and expenses (including all reasonable attorneys’ fees
and costs as well as all damages incurred) in D&B’s enforcement of the Customer-Related Companies
compliance with this Agreement.



13. Miscellaneous



13.1 This Agreement, all Orders, addenda and schedules, and D&B’s published policies and procedures
referred to herein and in effect from time to time, including those published on D&B’s web site,
constitute the entire agreement between D&B and Customer regarding the Services. Unless an Order
states otherwise, where there is a conflict between the terms of any addenda or schedules and this
Agreement, the terms of the Agreement shall control with respect to the Services. Where there is a
conflict between the terms of any Order and this Agreement, the terms of the Order shall control
with respect to the Services set forth in such Order and solely to the extent of the conflict. Any
amendments of or waivers relating to this Agreement or any Order must be in writing signed by both
parties.



13.2 This Agreement binds and inures to the benefit of the parties and their successors and
assigns, except that neither party will assign this Agreement without the prior written consent of
the other party; however, either party may assign the Agreement (i) to an affiliate controlled by,
controlling or under common control with that party; provided such affiliate is not a direct
competitor of D&B, or (ii) in connection with a merger or consolidation (so long as the assignment
is to the newly merged or consolidated entity) or the sale of substantially all of its assets (so
long as the assignment is to the newly merged or consolidated entity). Notwithstanding the
foregoing, with respect to an assignment pursuant to (ii) above, the non-assigning party may
terminate this agreement upon thirty (30) days written notice if such party objects to the
assignment.



14 Indemnification



     D&B shall defend or settle at its expense any claim, suit or proceeding arising from or
alleging: (a) infringement of any existing U.S. copyrights, patents, trademarks, or other
intellectual property rights of any third party (“Intellectual Property Right”) by Service or part
thereof furnished under this Agreement; (b) property damage or personal injury, including death,
directly caused by or personal injury, including death, directly caused by or sustained in
connection with the performance of the Services or any activities of D&B in connection therewith;
and (c) a breach of the warranties and representations made by D&B in this Agreement. D&B shall
indemnify and hold Customer harmless from and pay any and all losses, costs and damages, including
royalties and license fees, reasonable counsel fees attributable to such claim, suit or proceeding.
Customer shall give D&B prompt notice of, and the parties shall cooperate in, the defense of any
such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise
thereof, provided that the Customer shall approve the terms of any settlement or compromise.



If any Service or part thereof furnished under this Agreement, including without limitation
Software, system design, equipment or Documentation, becomes or in the Customer’s or D&B’s
reasonable opinion is likely to become, the subject of any claim, suit, or proceeding arising from
or alleging infringement of, or in the event of any adjudication that such Service or part thereof
infringes on, any Intellectual Property Right, D&B, at its own expense shall take the following
actions in the listed order of preference: (i) secure for the Customer the right to continue using
the Service or part thereof; or (ii) if efforts are unavailing, replace or modify the Service or
part thereof to make it non-infringing; provided, however, that such modification or replacement
shall not degrade the operation or performance of the Service