Master Agreement (10-12 CT)
Dun & Bradstreet, Inc. ("D&B") and Customer agree that Dun & Bradstreet, either directly or through its affiliates, 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"); professional services and other services, subject to this Master Agreement ("Agreement"). “Customer” means the single end-user customer organization executing this Agreement. The Services subject to this Agreement are identified in orders entered into from time to time by Dun & Bradstreet and Customer (“Orders”), which may include particular Service-specific terms and conditions. No obligation to furnish or to pay for a particular Service arises under this Agreement until Dun & Bradstreet accepts the applicable order in writing (i.e., by signature of a Dun & Bradstreet representative or delivery of a Dun & Bradstreet invoice to Customer in connection with such Order). All accepted Orders for Services entered into after the effective date hereof are subject to this Agreement, and the terms of such Orders are incorporated by reference in this Agreement. 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. Each Order placed by Customer shall identify the territories in which Customer is permitted to access and/or use the Information, Services and Software supplied pursuant to that Order (“Territories”). If no territories are specifically identified in an Order, the Territory is limited to the United States. Customer agrees that it shall (and shall procure that its users shall) only access and/or use the Information, Services and Software within the Territories specified in that Order to support its business operations in the Territories. Customer shall not set up or share any user ID’s, passwords or Information with persons located outside the Territories.The Services made available to Customer by Dun & Bradstreet pursuant to a particular Order may be made available to U.S. entities that control, are controlled by, or are under common control with, Customer ("Affiliates”) and identified on a "Schedule of Affiliates" attached to such Order and signed by the parties. Affiliates may place Orders for Services on their own behalf governed by this Agreement as if such Affiliate had entered this Agreement itself (and any reference in the Order to the Master Agreement between Dun & Bradstreet and such Affiliate shall be deemed to mean this Agreement). Any such Affiliate is included in the definition of "Customer" as that term is used in this Agreement, except such Affiliates shall not have the authority to terminate, amend or assign this Agreement, and such Affiliates are responsible for their own performance under this Agreement. The Effective Date of this Agreement is as of Customer’s online acceptance of this Agreement. In consideration of the mutual obligations set forth in this Agreement, each party agrees to the terms and conditions below and represents that this Agreement is executed by duly authorized representatives.
1.1 Dun & Bradstreet 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 Dun & Bradstreet product specified in an Order, subject to the limitations contained in this Agreement and such Order. Dun & Bradstreet 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.
1.2 Each License is for a term of twelve (12) months, beginning on the effective date of the Order, unless another term is specified in the Order. Dun & Bradstreet may extend the term for an additional period while the parties are engaged in renewal discussions. Any such extension shall be subject to this Agreement and the terms and pricing of the Order or the renewal, as applicable. 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 made commercially available by Dun & Bradstreet. "Upgrades" (i.e., modifications, additions or substitutions that result in a substantial change, improvement or addition to Software), if made commercially available by Dun & Bradstreet, 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 Dun & Bradstreet. All Updates and Upgrades made available to Customer are subject to this Agreement.
2. Restrictions on Use
2.1 Information and Software are licensed for internal use only by Customer's employees with a need to know. Customer will not provide Information, Software or other Services 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, comparative, or other information that is or will be provided to third parties (including as the basis for providing recommendations to others); or voluntarily produce Information in legal proceedings, unless required by law.
2.2 Notwithstanding the foregoing, Customer may allow third parties to access the Services in the Territories on behalf of Customer (“Contractors”), provided that such Contractors use the Information in accordance with this Agreement. However, Customer must have written approval of Dun & Bradstreet prior to providing access to a Contractor for use outside of a Customer controlled environment. Customer is liable to Dun & Bradstreet for any use or disclosure by any Contractor of Services, which if done by Customer itself would be a breach of this Agreement..
2.3 Customer will not attempt to access, use, modify, copy, reverse engineer, or otherwise derive the source code of any Service.
2.4 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 all applicable local, state, federal and international laws, rules, regulations or requirements, including, but not limited to, laws and regulations promulgated by the Office of Foreign Asset Control, and/or those laws and regulations regarding telemarketing, customer solicitation (including fax advertising, wireless advertising and/or e-mail solicitation), data protection and privacy.
2.5 Upon expiration or termination of a License 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 Dun & Bradstreet instructs Customer otherwise, Customer will immediately delete or destroy all originals and copies of the Information and/or Software, as applicable, including all Information or Software provided to Contractors as permitted by Section 2.2 hereof; and upon request, provide Dun & Bradstreet with a corporate officer’s certification thereof.
2.6 Upon reasonable notice and during regular business hours, Customer will permit Dun & Bradstreet to inspect the locations at, or computer systems on which, Information and Software are used, stored or transmitted so that Dun & Bradstreet can verify Customer's compliance with this Agreement.
3. D-U-N-S® Numbers
3.1 D-U-N-S Numbers are proprietary to and controlled by Dun & Bradstreet. Dun & Bradstreet grants Customer a non-exclusive, perpetual, limited license to use D-U-N-S Numbers (excluding linkage 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 Dun & Bradstreet.
4.1 Customer will pay Dun & Bradstreet in accordance with the Order. A late payment charge of the lesser of 1½% per month or the highest lawful rate may be applied to any outstanding balances until paid. Unless the parties agree otherwise in an Order, Dun & Bradstreet reserves the right to revise its published list pricing for reports and data packets pulled on a transactional basis upon thirty (30) days notice.
4.2 Customer will pay any applicable taxes relating to this Agreement, other than taxes based on Dun & Bradstreet income and franchise - related taxes.
5.1 Though Dun & Bradstreet uses extensive procedures to keep its database current and to promote data accuracy, Customer acknowledges that the Information will contain a degree of error.
5.2 Dun & Bradstreet represents that, to the best of its knowledge, the Information has been collected and compiled in accordance with applicable local, state, federal and international laws, rules or regulations, but Dun & Bradstreet does not guarantee that the Customer’s use of the Information meets the requirements of any applicable federal, or state law, rule or regulation including but not limited to wireless suppression lists, the CAN-SPAM Act, and “Do Not Call” lists.
5.3 ALL SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, Dun & Bradstreet DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Dun & Bradstreet 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, OR Dun & Bradstreet'S CONDUCT IN COLLECTING, COMPILING, OR INTERPRETING INFORMATION.
6. Protection of Proprietary Rights
6.1 Information and Software are proprietary to Dun & Bradstreet and may include copyrighted works, trade secrets, or other materials created by Dun & Bradstreet at great effort and expense. Customer will not contest the validity of Dun & Bradstreet’s rights in or ownership of the Information or Software in any way. Customer will reproduce Dun & Bradstreet's copyright and proprietary rights legend on all copies of Information and Software.
6.2 Neither party will use the trade names, trademarks or service marks of the other party in any news release, publicity, advertising, or endorsement without the prior written approval of the other party. Customer shall not disclose the negotiated pricing or terms of this Agreement, or any Order, to any third party.
6.3 Each party (“Recipient”) will treat all information provided by the other party (“Discloser”) that Discloser designates in writing to be confidential in the same manner as Recipient treats its own confidential information; provided that i) Recipient may share such information with its employees and third party service providers, with a need to know and/or in order to fulfill the obligations pursuant to this Agreement (“Representatives”), in furtherance of the provision of Services hereunder, that are subject to confidentiality obligations substantially as restrictive as those set forth in this Section and ii) Recipient assumes responsibility for such employee’s and third party service provider’s use of such information. Discloser represents and warrants that it has all necessary legal rights, title, consents and authority to disclose such confidential information to Recipient. Notwithstanding such confidential status, Customer agrees that Dun & Bradstreet may, without identifying Customer as the source of such information, use information provided by Customer on its commercial customers, prospects, distributors and/or suppliers to create, update, merge, analyze, maintain or enhance its database of business records, which business records are used to create, and are included within, the Services made commercially available by Dun & Bradstreet and its affiliates. Dun & Bradstreet will not transfer, disclose, sell or otherwise distribute such information in the form supplied by Customer to any third party (other than Representatives) without Customer's consent, unless Dun & Bradstreet is required by law to do so. Confidential information shall not include information that (i) is or becomes a part of the public domain through no act or omission of Recipient; (ii) was in Recipient’s lawful possession prior to Discloser’s disclosure to Recipient; (iii) is lawfully disclosed to Recipient by a third-party with the right to disclose such information and without restriction on such disclosure; or (iv) is independently developed by Recipient without use of or reference to the confidential information. This section shall not apply to the use of Information and Services provided by Dun & Bradstreet which is governed by the license terms of this Agreement.
6.4 Customer shall implement and maintain security measures with respect to the Dun & Bradstreet Information and Software in Customer's possession that effectively restrict access to Information and Software only to authorized users with a need to know, and protect Information and Software from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those Customer employs to safeguard its most confidential information. Customer shall supply Dun & Bradstreet with a description of such security measures at Dun & Bradstreet's request. In the event of an actual or suspected breach of such security measures, Customer shall provide Dun & Bradstreet prompt, but in no event later than (2) days after becoming aware, written notice of any security incident that involves, or which the Customer reasonably believes involves, the unauthorized access, use or disclosure of Information.
7.1 In the event of material breach of any other part of this Agreement by Customer or Dun & Bradstreet, the non-breaching party may terminate this Agreement or particular Orders if such breach is not cured within thirty (30) days of written notice of breach.
7.2 Termination of this Agreement will result in a termination of all outstanding Orders. Dun & Bradstreet may terminate this Agreement at such time as there are no Orders in effect.
7.3 The provisions set forth in Sections 2, 3, 5, 6, 7.3, 7.4, 8 and 9 will survive the termination of this Agreement.
7.4 If, without Dun & Bradstreet's written permission or as permitted hereunder, Customer continues after termination or expiration of License to obtain, retain or continue to use Information, Software or other Services, in addition to any other remedies available to Dun & Bradstreet for such breach of the Agreement, Customer will be liable to Dun & Bradstreet for the undiscounted fees (including annual fees for Services generally licensed on an annual basis) for such Services in effect on the date of such termination or expiration.
8. Limitation of Liability; Indemnification
8.1 NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
8.2.EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LOSS, DAMAGE, INJURY, CLAIM, COST OR EXPENSE OCCURRED.
8.3.Notwithstanding anything to the contrary, the exclusions and limitations set forth in Section 8.1 and Section 8.2 above shall not apply with respect to: (i) the parties’ respective obligations under Section 8.4 (Indemnification), or (ii) breach of Section(s) 2 or 6.
8.4 (a) Dun & Bradstreet shall defend or settle at its expense any claim, suit or proceeding (“Claim”) arising from or alleging infringement of any existing U.S. copyrights, patents, trademarks, or other intellectual property rights of any third party by the Services furnished under this Agreement (but not to the extent Customer modifies the Services in any way or combines the Services with material from third parties). Dun & Bradstreet shall indemnify and hold Customer harmless from and pay any and all losses, costs and damages, including reasonable counsel fees (“Losses”) attributable to such Claim. Customer shall give Dun & Bradstreet prompt notice of any Claim. Dun & Bradstreet shall have the right to control the defense of any such Claim, including appeals, negotiations and any settlement or compromise thereof, provided that Customer shall have the right to approve the terms of any settlement or compromise, such approval not to be unreasonably withheld. Customer shall provide all reasonable cooperation in the defense of any Claim. This section provides Customer’s exclusive remedy for any infringement Claims or damages. (b) Customer shall indemnify and hold Dun & Bradstreet harmless from and pay any and all Losses arising from Customer’s unauthorized use or distribution of Services. With respect to covered Claims brought by Dun & Bradstreet directly, Customer will pay all costs and expenses, including reasonable attorneys' fees that Dun & Bradstreet incurs in any such action.
9. Choice of Law; Disputes
9.1 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.
9.2 Customer will pay all costs and expenses, including reasonable attorneys' fees, that Dun & Bradstreet incurs in any action to enforce Customer's and Affiliates' obligations under this Agreement.
10.1 This Agreement, any Orders, addenda, statements of work and schedules, and the Price Guides constitute the entire agreement between Dun & Bradstreet and Customer regarding the Services. All prior agreements, both oral and written, between the parties on the matters contained in this Agreement are expressly cancelled and superseded by this Agreement. Any Order in effect as of the effective date of this Agreement, regardless of such Order’s effective date, and notwithstanding anything to the contrary contained therein, shall be subject to this Agreement. In no event shall any terms or conditions included on any form of Customer purchase order apply to the relationship between Dun & Bradstreet and Customer hereunder, unless such terms are expressly agreed to by the parties in writing. Any amendments of or waivers relating to this Agreement or any Order must be in writing signed by the party, or parties, to be charged therewith.
10.2 Third parties that provide information, software or services to Dun & Bradstreet for use in providing the Services are entitled to assert defenses under Sections 5 and 8 to the same extent as Dun & Bradstreet. This Agreement is not intended to, nor may be deemed to create any rights of enforcement in any person who is not a signatory to this Agreement.
10.3 This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, Dun & Bradstreet may assign the Agreement to any of its affiliated companies or in connection with a merger or consolidation involving Dun & Bradstreet (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of Dun & Bradstreet's assets (so long as the assignment is to the acquirer of such assets).