1
EXHIBIT 99.5
FORM OF SHARED TRANSACTION SERVICES AGREEMENT
BETWEEN
[SERVICE PROVIDER]
AND
[RECIPIENT]
DATED AS OF ___________________
2
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND CONSTRUCTION................................. 1
1.01 Definitions............................................... 1
1.02 References................................................ 3
1.03 Headings.................................................. 3
1.04 Interpretation of Documents............................... 4
ARTICLE 2. TERM OF AGREEMENT............................................ 4
ARTICLE 3. SERVICES..................................................... 4
3.01 Services.................................................. 4
3.02 Priority.................................................. 4
3.03 Reports................................................... 4
3.04 Additional Services....................................... 4
3.05 Facilities................................................ 5
3.06 Tax and Accounting Work Group............................. 5
ARTICLE 4. RECIPIENT OBLIGATIONS........................................ 5
4.01 Recipient Hardware........................................ 5
4.02 Generally................................................. 6
4.03 Associated Equipment...................................... 6
4.04 Security.................................................. 6
4.05 Business Planning......................................... 6
ARTICLE 5. PROPRIETARY RIGHTS........................................... 7
5.01 Recipient Software........................................ 7
5.02 Service Provider Software................................. 7
ARTICLE 6. DATA......................................................... 7
6.01 Form of Data.............................................. 7
6.02 Ownership of Data......................................... 7
6.03 Ownership of Media........................................ 7
6.04 Responsibility for Data................................... 7
ARTICLE 7. FEES......................................................... 8
7.01 Fees...................................................... 8
7.02 Time of Payment........................................... 8
7.03 Substantial Change in Volume.............................. 8
7.04 Taxes..................................................... 8
7.05 Late Payments............................................. 8
7.06 Termination Fees.......................................... 8
3
Page
ARTICLE 8. AUDITS....................................................... 9
ARTICLE 9. CONFIDENTIALITY.............................................. 9
ARTICLE 10. INDEMNITY................................................... 9
ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY...................... 10
11.01 DISCLAIMER............................................... 10
11.02 Limitation of Liability.................................. 10
ARTICLE 12. DISPUTE RESOLUTION.......................................... 10
12.01 Negotiation.............................................. 10
12.02 Arbitration.............................................. 10
12.03 Continuity of Services and Performance................... 11
ARTICLE 13. CONTINUED PROVISION OF SERVICES............................. 12
13.01 Force Majeure............................................ 12
13.02 Disaster Recovery........................................ 12
ARTICLE 14. TERMINATION................................................. 12
14.01 For Convenience.......................................... 12
14.02 Effect of Termination.................................... 12
ARTICLE 15. TERMINATION ASSISTANCE SERVICES............................. 12
ARTICLE 16. MISCELLANEOUS PROVISIONS.................................... 13
16.01 No Waivers............................................... 13
16.02 Consents, Approvals and Requests......................... 13
16.03 Partial Invalidity....................................... 13
16.04 Notices.................................................. 13
16.05 Relationship............................................. 14
16.06 Governing Law............................................ 14
16.07 Covenant of Further Assurances........................... 14
16.08 Assignment............................................... 14
16.09 Entire Understanding..................................... 14
16.10 Successors............................................... 14
16.11 Amendments............................................... 15
16.12 Survival................................................. 15
16.13 Counterparts............................................. 15
16.14 Good Faith and Fair Dealing.............................. 15
16.15 Third Party Beneficiaries................................ 15
ii
4
SCHEDULES
Schedule A Services and Capacity Levels
Schedule B Service Levels
Schedule C Reports
Schedule D Recipient Software
Schedule E Fees
Schedule F Extended Term Charges
Schedule G Real Estate and Facilities Agreements
Schedule H Service Provider Software
Schedule I Termination Fees
Schedule J Disaster Recovery Plan
iii
5
SHARED TRANSACTION SERVICES AGREEMENT (this "Agreement"),
dated as of ___________, 1996 (the "Agreement Date"), by and between [SERVICE
PROVIDER], a ___________ corporation ("Service Provider") and [RECIPIENT], a
___________ corporation ("Recipient").
W I T N E S S E T H:
WHEREAS, The Dun & Bradstreet Corporation shall be separated
into three separate and independent businesses by means of a spin-off (the
"Distribution"), pursuant to a Distribution Agreement dated as of
________________, 1996 (the "Distribution Agreement"), among The Dun &
Bradstreet Corporation ("D&B"), Cognizant Corporation ("Cognizant") and
ACNielsen Corporation ("ACN") (collectively, called the "Newcos"); and
WHEREAS, the target date of the Distribution is October 1,
1996, and the actual date that the Distribution becomes effective shall be
called the "Distribution Date"; and
WHEREAS, prior to the Distribution Date, Service Provider has
provided and Recipient has purchased, pursuant to various written and oral
agreements, the Shared Transaction Services and the Other Services described in
this Agreement; and
WHEREAS, in order to facilitate the orderly continuation of
Recipient's business for a transitional period after the Distribution Date,
Service Provider has agreed to provide to Recipient, and Recipient has agreed to
purchase from Service Provider, the Shared Transaction Services and the Other
Services described in this Agreement.
NOW, THEREFORE, in consideration of the agreements of Service
Provider and Recipient set forth below, Service Provider and Recipient agree as
follows:
ARTICLE 1. DEFINITIONS AND CONSTRUCTION.
1.01 Definitions. The following defined terms shall have the
meanings specified below:
(1) "ACN" shall have the meaning set forth in the Recitals.
(2) "Additional Services" shall mean those services in addition to the
Services requested by Recipient pursuant to Section 3.05.
(3) "Agreement" shall have the meaning set forth in the Heading.
6
2
(4) "Agreement Date" shall have the meaning set forth in the Heading.
(5) "Agreement Disputes" shall have the meaning set forth in Section 12.01.
(6) "Alternative Provider" shall mean any alternative external service
provider selected by Recipient for the provision of services similar to
the Services following the expiration or termination of this Agreement.
(7) "Cognizant" shall have the meaning set forth in the Recitals.
(8) "D&B" shall have the meaning set forth in the Recitals.
(9) "Distribution" shall have the meaning set forth in the Recitals.
(10) "Distribution Agreement" shall have the meaning set forth in the
Recitals.
(11) "Distribution Date" shall have the meaning set forth in the Recitals.
(12) "Extended Term" shall have the meaning set forth in Article 2.
(13) "Fees" shall mean those charges for the Services set forth in Schedule
E.
(14) "Initial Term" shall have the meaning set forth in Article 2.
(15) "Licensed Documentation" shall mean all documentation that is used in
connection with the operation of the Licensed Software.
(16) "Licensed Software" shall mean the software described in Schedule D.
(17) "Newcos" shall have the meaning set forth in the Recitals.
(18) "Other Services" shall mean the services described in Schedule A-2.
(19) "Parties" shall mean Service Provider and Recipient, collectively.
(20) "Party" shall mean either of Service Provider or Recipient, as the case
may be.
(21) "Recipient" shall have the meaning set forth in the Heading.
(22) "Recipient Data" shall mean all data or information supplied by
Recipient to Service Provider for processing or transmission in
connection with the Services.
7
3
(23) "Rules" shall have the meaning set forth in Section 12.02.
(24) "Service Provider" shall have the meaning set forth in the Heading.
(25) "Service Provider Service Location" shall mean any Service Provider
service location from which Service Provider provides or performs the
Services. The Service Provider Service Locations as of the Agreement
Date are located at _________________.
(26) "Service Provider Software" shall mean the software and related
documentation (a) owned, acquired or developed by Service Provider that
is used in connection with the provision of the Services or (b)
licensed or leased by Service Provider from a third party which is used
in connection with the provision of the Services. The Service Provider
Software includes the software set forth in Schedule H.
(27) "Services" shall mean the Shared Transaction Services and the Other
Services, collectively.
(28) "Shared Transaction Services" shall mean the services described in
Schedule A-1.
1.02 References. In this Agreement and the Schedules to this
Agreement:
(1) the Schedules to this Agreement shall be incorporated in and deemed
part of this Agreement and all references to this Agreement shall
include the Schedules to this Agreement; and
(2) references to the word "including" or the phrase "e.g." in this
Agreement shall mean "including, without limitation".
1.03 Headings. The article and section headings and the table
of contents are for reference and convenience only and shall not be considered
in the interpretation of this Agreement.
1.04 Interpretation of Documents. In the event of a conflict
between this Agreement and the terms of any of the Schedules, the terms of this
Agreement shall prevail.
ARTICLE 2. TERM OF AGREEMENT.
8
4
The initial term of this Agreement shall commence on the
Distribution Date and shall continue until 12:00 midnight (Eastern Standard
Time) on December 31, 1997 (the "Initial Term"), unless terminated earlier
pursuant to Section 14.01; provided, however, that Recipient may, upon notice to
Service Provider at least 120 days prior to the expiration of the Initial Term,
extend the term of this Agreement for a period to be specified in such notice of
up to one additional 12-month period (the "Extended Term") at the charges set
forth in Schedule F.
ARTICLE 3. SERVICES.
3.01 Services. Service Provider shall provide to Recipient,
and Recipient shall purchase from Service Provider, (1) the Shared Transaction
Services and (2) the Other Services. The Services shall be of substantially the
same type, quality and utilization levels and provided with substantially the
same degree of care and diligence as such services had been provided to
Recipient during the period prior to the Distribution Date. The Services shall
be provided at the levels of service set forth in Schedule B.
3.02 Priority. Service Provider shall provide the Services to
Recipient with respect to prioritizing, processing and recovery in accordance
with Schedule B.
3.03 Reports. Service Provider shall provide Recipient with
the reports set forth in Schedule C according to the schedule set forth in
Schedule C.
3.04 Additional Services. Service Provider shall provide to
Recipient, upon commercially reasonable terms and at a commercially reasonable
charge, the Additional Services requested by Recipient. Service Provider and
Recipient shall execute a written amendment to this Agreement setting forth any
additional terms and conditions applicable to such Additional Services. In
connection with its receipt of the Services, Recipient may purchase or lease
upgrades to the machines used to provide the Services and request that Service
Provider install such upgrades; provided, however, that, in the event such
upgrade requires Service Provider to incur any incremental expense or provide
additional resources, Recipient shall (a) obtain Service Provider's consent
prior to such installation and (b) be responsible for the payment of such
incremental expense or the costs of such additional resources. Except as
otherwise provided in this Agreement, Service Provider shall not be obligated to
(i) purchase or otherwise acquire any hardware or software in addition to that
used before the Distribution Date in connection with the Services or (ii)
provide any services to Recipient other than the Services.
9
5
3.05 Facilities. Certain matters relating to real estate
matters and the use of facilities shared by D&B and the Newcos subsequent to the
Distribution Date are set forth in Schedule G.
3.06 Tax and Accounting Work Group. Each Party shall appoint a
member of its staff to provide such assistance as may be necessary to address
issues relating to tax periods prior to the Distribution Date. Each Party shall
maintain accurate and complete accounting and tax records relating to such tax
periods.
ARTICLE 4. RECIPIENT OBLIGATIONS.
4.01 Recipient Hardware. For Recipient owned or leased
equipment, Recipient shall:
(1) maintain all equipment, software and operational features at the same
level that was provided immediately prior to the Distribution Date, and
shall receive maintenance services from those third party service
providers that provided maintenance services to Recipient immediately
prior to the Distribution Date; and
(2) upon notice from Service Provider (which notice shall include Service
Provider's estimate of the costs, if any, of the enhancement or
modification) as soon as possible after it has been determined that an
enhancement or modification is necessary, but in any event upon at
least 30 days' notice, enhance or modify such equipment, software and
operational features as may be necessary to remain compatible with any
systems used by Service Provider in connection with the Services;
provided, however, in the event such enhancement or modification
results in Service Provider incurring any incremental expense or
providing any additional resources, Recipient shall be responsible for
the payment of such incremental expense or the costs of such additional
resources;
4.02 Generally. Recipient shall:
(1) comply with any reasonable instructions provided by Service Provider
that are necessary for Service Provider to adequately provide the
Services;
(2) comply with all applicable standards and procedures applicable to the
Service Provider Service Location;
(3) promptly report any operational or system problem to Service Provider;
10
6
(4) maintain a business recovery plan detailing the requirements of
Recipient in the event of the occurrence of a disaster affecting the
Services and periodically test such plan; and
(5) provide the working environment, including space, furniture,
electricity, telephones and other infrastructure requirements for
Service Provider's employees located at Recipient's premises.
4.03 Associated Equipment. Except to the extent otherwise
provided for herewith in any Schedule, Recipient shall maintain and be
responsible for all costs (including personnel, maintenance and repair)
associated with communications equipment (including terminals, communications
hardware, modems and telephone lines) that Recipient owns or operates and that
are not located at the Service Provider Service Location necessary to provide
the Services or to transmit the Recipient Data for processing at the Service
Provider Service Location.
4.04 Security. Recipient shall ensure that user accounts shall
only be used by the person for whom such account was created or other authorized
personnel. Recipient shall promptly inform Service Provider of any individual
who is no longer authorized to use the Services.
4.05 Business Planning. During the Initial Term and, if any,
the Extended Term, Recipient shall, within a reasonable period of time after
such plans are available, provide Service Provider with a detailed plan
identifying any changes in Recipient's business that may affect the Services or
result in additional capacity being required in order for Service Provider to
provide the Services to Recipient. Recipient's business plan provided to Service
Provider pursuant to this Section 4.05 shall be deemed confidential information
of Recipient.
ARTICLE 5. PROPRIETARY RIGHTS.
5.01 Recipient Software. Recipient shall grant a
non-exclusive, non-transferable, royalty-free right for Service Provider, solely
in connection with providing the Services, to (1) have access to and (a) operate
the Licensed Software set forth in Schedule D and (b) use the Licensed
Documentation, and (2) use any other hardware, software and documentation owned
by, leased by or licensed to Recipient that is necessary to allow Service
Provider to perform the Services. Recipient shall obtain any consents or
approvals necessary in connection with Service Provider's use of the Licensed
Software, the Licensed Documentation and any other such hardware, software and
documentation.
11
7
5.02 Service Provider Software. All Service Provider Software
is, or shall be, and shall remain, the exclusive property of Service Provider or
its third party licensor and Recipient shall have no rights or interests to the
Service Provider Software, except as described in this Section 5.02. Service
Provider shall obtain any consents or approvals necessary in connection with
Service Provider's use of the Service Provider Software to provide the Services
to Recipient.
ARTICLE 6. DATA.
6.01 Form of Data. All data submitted by Recipient to Service
Provider in connection with the Services shall be in the form substantially
similar to that submitted before the Distribution Date, unless otherwise agreed
to in writing by the parties.
6.02 Ownership of Data. The Recipient Data is and shall remain
the property of Recipient or its customers.
6.03 Ownership of Media. Unless furnished to Service Provider
by Recipient, all media upon which Recipient Data is stored is and shall remain
the property of Service Provider. Recipient may, upon Service Provider's
consent, (1) provide Service Provider with a replacement for the media upon
which the Recipient Data is stored or (2) purchase such media from Service
Provider at the price specified by Service Provider.
6.04 Responsibility for Data. Recipient is responsible from
the Agreement Date for (1) the accuracy and completeness of the data submitted
by Recipient in connection with the Services and (2) any errors in and with
respect to data obtained from Service Provider because of any inaccurate or
incomplete data submitted by Recipient to Service Provider.
ARTICLE 7. FEES.
7.01 Fees. Recipient shall pay to Service Provider the fees
set forth in Schedule E in respect of each of the Services.
7.02 Time of Payment. The Fees shall be paid by Recipient
monthly in arrears on or before the first business day immediately following the
end of each whole or partial calendar month of the Initial Term and, if any, the
Extended Term.
7.03 Substantial Change in Volume. In the event that
Recipient's use of a Service increases above that set forth in Schedule A for
such Service, Service Provider shall determine whether any additional hardware
or software is necessary
12
8
in order for Service Provider to provide the Service and, in the event that
Service Provider and Recipient determine, pursuant to this Section 7.03, that
additional hardware or software is required, (1) Service Provider shall acquire,
upon Recipient's request, such additional hardware or software on behalf of
Recipient and Recipient shall pay to Service Provider or to the supplier or
third party lessor, as may be applicable, the purchase or lease fees in respect
of such additional hardware or software, (2) Service Provider shall implement an
appropriate increase to the Fees and (3) the Parties shall establish a mechanism
for determining the costs to Service Provider of maintaining such additional
hardware or software beyond the Initial Term and, if any, the Extended Term and
Recipient shall pay such costs to Service Provider upon the expiration or
termination of this Agreement. Except as otherwise agreed in writing by the
Parties, all rights in and title to any hardware or software acquired by Service
Provider on behalf of Recipient and paid for by Recipient shall belong to
Recipient.
7.04 Taxes. Recipient shall pay any value-added tax and any
tariff, duty, export or import fee, sales tax, use tax, service tax or other tax
or charge subsequently imposed by any government or government agency on
Recipient or Service Provider with respect to the Services or the execution or
performance of this Agreement.
7.05 Late Payments. Any fees or payments owing to Service
Provider pursuant to this Agreement that are not paid when due shall bear
interest at the rate of _______ 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 Service Provider.
7.06 Termination Fees. Upon the termination of this Agreement,
Recipient shall pay to Service Provider the fees set forth in Schedule I.
ARTICLE 8. AUDITS.
Recipient shall have the right during normal business hours
and upon reasonable advance notice, to review the computer printouts and reports
and other records of Service Provider to the extent such books and records
relate to the provision by Service Provider of the Services. Any such review
shall be conducted at Recipient's sole expense.
ARTICLE 9. 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
13
9
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 Services pursuant to this
Agreement, and each Party shall not (without the prior consent of the other)
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 10. INDEMNITY.
Each Party agrees to indemnify and hold harmless the other
Party in respect of all claims, costs, expenses, damages and liabilities
(including reasonable attorney's fees) arising from the gross negligence or
willful misconduct of the employees, agents or other representatives of the
indemnifying Party after the Agreement Date or the breach of such Party's
covenants or other obligations under this Agreement. In no event shall either
Party have any liability to the other Party for any claims, losses, damages,
judgments, costs or expenses which the other Party may suffer or incur as a
result of injuries to personnel of such other Party or loss or theft or damage
to any personal property of such other Party at the Service Provider Service
Location, except as provided in the foregoing sentence.
ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY.
11.01 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE
SERVICES, THE LICENSED SOFTWARE, THE SERVICE PROVIDER SOFTWARE OR THE LICENSED
DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
11.02 Limitation of Liability. Recipient acknowledges that the
Services are provided by Service Provider (1) at the request of Recipient in
order to accommodate the Distribution, (2) at Service Provider's cost and that
no profit is being made by Service Provider and (3) with the expectation that
Service Provider is not assuming any financial or operational risks, including
those usually assumed by a service provider. Accordingly, Recipient agrees that
Service Provider shall not
14
10
be liable for any direct, indirect, special, incidental or consequential
damages, including lost profits or savings, whether or not such damages are
foreseeable, or for any third party claims relating to the Services or Service
Provider's performance under this Agreement.
ARTICLE 12. DISPUTE RESOLUTION.
12.01 Negotiation. In the event of a controversy, dispute or
claim arising out of, or in connection with, or in relation to the
interpretation, performance, nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any way related to this Agreement
or the transactions contemplated hereby, including any claim based on contract,
tort, statute or constitution (collectively, "Agreement Disputes"), the general
counsels of the Parties shall negotiate in good faith for a reasonable period of
time to settle such Agreement Dispute, provided such reasonable period shall
not, unless otherwise agreed by the Parties in writing, exceed 30 days from the
time the Parties began such negotiations; provided further, that in the event of
any arbitration in accordance with Section 12.02, the Parties shall not assert
the defenses of statute of limitations and laches arising for the period
beginning after the date the Parties began negotiations hereunder, and any
contractual time period or deadline under this Agreement to which such Agreement
Dispute relates shall not be deemed to have passed until such Agreement Dispute
has been resolved.
12.02 Arbitration. If after such reasonable period such
general counsels are unable to settle such Agreement Dispute (and, in any event,
unless otherwise agreed in writing by the Parties, after 60 days have elapsed
from the time the Parties began such negotiations), such Agreement Dispute shall
be determined, at the request of a Party, by arbitration conducted in
___________, before and in accordance with the then-existing International
Arbitration Rules of the American Arbitration Association (the "Rules"). In any
dispute between the Parties, the number of arbitrators shall be three. Any
judgment or award rendered by the arbitrators shall be final, binding and
nonappealable (except on grounds specified in 9 U.S.C. Section 10(a), as in
effect on the Agreement Date). If the Parties are unable to agree on the
arbitrators, the arbitrators shall be selected in accordance with the Rules. Any
controversy concerning whether an Agreement Dispute is an arbitrable Agreement
Dispute, whether arbitration has been waived, whether an assignee of this
Agreement is bound to arbitrate, or as to the interpretation or enforceability
of this Article 12 shall be determined by the arbitrators. In resolving any
dispute, the Parties intend that the arbitrators apply the substantive laws of
_____________, without regard to the choice of law principles thereof. The
Parties intend that the provisions to arbitrate set forth in this Section 12.02
be valid, enforceable and irrevocable. The undersigned agree to comply with any
award made in any such arbitration proceedings that has become
15
11
final in accordance with the Rules and agree to enforcement of or entry of
judgment upon such award, by any court of competent jurisdiction, including (1)
_______________________, or (2) ________________________________. The
arbitrators shall be entitled, if appropriate, to award any remedy in such
proceedings, including monetary damages, specific performance and all other
forms of legal and equitable relief; provided, however, the arbitrators shall
not be entitled to award punitive damages. Without limiting the provisions of
the Rules, unless otherwise agreed in writing by the Parties or as permitted by
this Agreement, the undersigned shall keep confidential all matters relating to
the arbitration or the award, provided such matters may be disclosed (a) to the
extent reasonably necessary in any proceeding brought to enforce the award or
for entry of a judgment upon the award and (b) to the extent otherwise required
by law. Notwithstanding Article 32 of the Rules, the losing Party in the
arbitration shall be responsible for all of the costs of the arbitration,
including legal fees and other costs specified by such Article 32. Nothing
contained in this Section 12.02 is intended to or shall be construed to prevent
either Party, in accordance with Article 22(3) of the Rules or otherwise, from
applying to any court of competent jurisdiction for interim measures or other
provisional relief in connection with the subject matter of any Agreement
Disputes.
12.03 Continuity of Services and Performance. Unless otherwise
agreed in writing, the Parties shall continue to provide the Services and honor
all other commitments under this Agreement during the course of dispute
resolution pursuant to the provisions of this Article 12 with respect to all
matters not subject to such dispute, controversy or claim.
ARTICLE 13. CONTINUED PROVISION OF SERVICES.
13.01 Force Majeure. Service Provider shall not be in default
of its obligations hereunder for any delays or failure in performance resulting
from any cause or circumstance beyond the reasonable control of Service
Provider, provided that Service Provider exercises commercially reasonable
efforts to perform its obligations in a timely manner. If any such occurrence
prevents Service Provider from providing any of the Services, Service Provider
shall cooperate with Recipient in obtaining, at Recipient's sole expense, an
alternative source for the affected Services, and Recipient shall be released
from any payment obligation to Service Provider in respect of such Services
during the period of such force majeure.
13.02 Disaster Recovery. Service Provider shall maintain a
disaster recovery policy in accordance with Schedule J. Upon the occurrence of a
disaster affecting the Services, Service Provider shall implement the disaster
recovery policy and Recipient shall be responsible for its proportionate share
of any fees incurred by Service Provider in connection with implementing the
disaster recovery policy.
16
12
ARTICLE 14. TERMINATION.
14.01 For Convenience. Recipient may terminate this Agreement
at any time during the Initial Term upon 90 days' notice to Service Provider.
14.02 Effect of Termination. Upon the termination of this
Agreement pursuant to Section 14.01, Recipient shall pay to Service Provider, no
later than the effective date of such termination, the balance of the Fees due
for the Initial Term and, if any, the Extended Term.
ARTICLE 15. TERMINATION ASSISTANCE SERVICES.
Upon the expiration of this Agreement or the effective date of
termination of this Agreement, Service Provider shall have no further obligation
to provide the Services to Recipient:
(1) for a period up to (a) 60 days prior to the expiration or the effective
date of termination of this Agreement and (b) 30 days following the
expiration of this Agreement or the effective date of termination of
this Agreement, Service Provider shall use reasonable efforts to
cooperate, at Recipient's expense, with (i) the Alternative Provider or
(ii) Recipient, in connection with the transfer of the Services, the
Recipient Data, the Licensed Software and the Licensed Documentation,
from Service Provider to the facilities of (x) the Alternative Provider
or (y) Recipient, as requested by Recipient; and
(2) the rights granted to Service Provider in Section 5.01 shall
immediately terminate and Service Provider shall deliver to Recipient
(a) a current copy of the Licensed Software in the form in use as of
that time and (b) a current copy of the Licensed Documentation in the
form in use as of that time.
ARTICLE 16. MISCELLANEOUS PROVISIONS.
16.01 No Waivers. No failure on the part of either Party to
exercise and no delay in exercising any right or remedy hereunder shall operate
as a waiver thereof nor shall any single or partial exercise by a Party of any
right or remedy hereunder preclude any other right or remedy or further exercise
thereof or the exercise of any other right.
16.02 Consents, Approvals and Requests. Unless otherwise
specified in this Agreement, all consents and approvals, acceptances or similar
actions to be given by either Party under this Agreement shall not be
unreasonably
17
13
withheld or delayed and each Party shall make only reasonable requests under
this Agreement.
16.03 Partial Invalidity. In the event any of the provisions
of this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected or impaired.
16.04 Notices. All notices, designations, approvals, consents,
requests, acceptances, rejections or other communications required or permitted
by this Agreement shall be in writing and shall be sent via telecopy to the
telecopy number specified below. A copy of any such notice shall also be sent by
registered express air mail on the date such notice is transmitted by telecopy
to the address specified below:
If to Service Provider:
Telecopy No.:
Attention: General Counsel
If to Recipient:
Telecopy No.:
Attention: General Counsel
Any Party may at any time, by notice to the other Party transmitted or sent in
the manner described above, change the address or telecopy number to which
communications to it are to be sent.
16.05 Relationship. The performance by Service Provider of its
duties and obligations under this Agreement shall be that of an independent
contractor and nothing herein contained shall create or imply an agency
relationship between the Parties, nor shall this Agreement be deemed to
constitute a joint venture or partnership between the Parties.
16.06 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of ___________.
16.07 Covenant of Further Assurances. The Parties covenant and
agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of the Parties will execute and
deliver
18
14
any further legal instruments and perform any acts which are or may become
reasonably necessary to effectuate this Agreement.
16.08 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 16.08 shall be void.
16.09 Entire Understanding. This Agreement represents the
entire understanding of the Parties with respect to the Services and supersedes
all previous writings, correspondence and memoranda with respect thereto, and no
representations, warranties, agreements or covenants, express or implied, of any
kind or character whatsoever with respect to such subject matter have been made
by either Party to the other, except as herein expressly set forth.
16.10 Successors. Subject to the restrictions on assignment
set forth in Section 16.08, this Agreement shall be binding upon and inure to
the benefit of and be enforceable against the Parties hereto and their
respective successors and assigns.
16.11 Amendments. This Agreement can be modified or amended
only by a written amendment executed by both Parties.
16.12 Survival. The provisions of Article 5, Article 8,
Article 9, Article 10, Article 11, Article 12, Article 15, Section 3.06, Section
6.02, Section 6.03, Section 7.02, Section 14.02, Section 16.06, this Section
16.12 and Section 16.14 shall survive the expiration or termination of this
Agreement.
16.13 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
16.14 Good Faith and Fair Dealing. Each Party hereby agrees
that its performance of all obligations and exercise of all rights under this
Agreement shall be governed by the fundamental principles of good faith and fair
dealing.
16.15 Third Party Beneficiaries. Each Party intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than Recipient and Service Provider.
19
15
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
[SERVICE PROVIDER]
By:______________________________
Name:
Title:
[RECIPIENT]
By:______________________________
Name:
Title:
