HomeMy WebLinkAboutDUN & BRADSTREET, INC.City of Santa Ana
Clerk of the Council
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-- AGREEMENT TERMINATION
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Revised 07-23-07
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Master Agreement (01-07)
N-2007 -119
COpy
Decide with Confidence
Dun & Bradstreet, Inc. ("O&B') and the customer named below ('Customer') agree that O&B, 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 ('Agreemenr). The Services subject to this Agreement are identified in orders entered into from
time to time by O&B 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 O&B accepts the applicable order in writing (Le., by signature of a O&B representative or delivery of a O&B 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 or addendum and this Agreement, the terms of the Order or addendum, as applicable, shall control with respect to the Services
set forth in such Order or addendum and solely to the extent of the conflict. The Services made available to Customer by O&B pursuant to a particular Order may also be made available
to U.S. companies that are subsidiaries, divisions or affiliates, wholly-owned or controlled by Customer ('Affiliates') and identified on a 'Schedule of Affiliates' attached to such Order and
signed by the parties. The Effective Date of this Agreement is as set forth below O&B's signature. 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:
DUN & BRADSTREET, INC.
Signature:
Print Name:
Title:
Date:
1. Licenses
1.1 O&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 O&B product specified in an Order, subject to the limitations contained
in this Agreement and such Order. O&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.
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. O&B 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 O&B. 'Upgrades' (i.e., modifications, additions or
substitutions that result in a substantial change, improvement or addition to Software), if
made commercially available by O&B, 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 O&B. All Updates and Upgrades made available to 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 jf Customer has installed
all Updates received.
2. Restrictions on Use
2.1 Information and Software are licensed for internal use only by Custome(s
employees with a need to know, subject to any restrictions set forth in the Order.
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 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.
2.2 Notwithstanding the foregoing, Customer may allow individuals performing
the functions of an employee and who are working onsite for the Customer on a
temporary basis ('Contractors') to use the Services solely for Custome(s internal use as
permitted hereunder, and Customer shall be responsible for such contracto(s
compliance with this Agreement. In addition, Customer may, subject to the written
approval of O&B, engage a third party to process, host or otherwise have access to the
Information or Software (a 'Processor'), provided Customer enters into a written
agreement with such Processor that provides that (a) such Processo(s access to and
MA-01.07
Customer:
Signature:
City of Santa Ana
Title:
City Manager
Date:
use of the Information or Software shall be limited solely to the performance of services
for Customer, (b) the Information may not be duplicated or integrated with information
belonging to such Processor, (c) the Information or Software is the property of O&B and
may not be disclosed or distributed by such Processor to any other party (including any
affiliate of such Processor), (d) O&B shall be a third party beneficiary of the foregoing
obligations, and (e) upon the earlier of termination of Custome(s agreement with such
Processor or termination of the applicable Order, such Processor shall retum the
Information or Software to O&B or certify its destruction. Customer shall be responsible
for such Processo(s compliance with the foregoing and shall indemnify O&B for any third
party claims relating to such Processo(s conduct.
2.3 Customer will not attempt to access, use, modify, copy, reverse engineer, or
otherwise derive the source code of Software.
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 (i1) 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 but not limited to
laws and regulations promulgated by the Office of Foreign Asset Control, applicable
export restrictions, and/or those laws and regulations regarding telemarketing, customer
solicitation (including fax 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 O&B 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 Processors as permitted by paragraph 2.2 hereof; and upon request, provide O&B with
a corporate office(s certification thereof.
2.6 Upon reasonable notice and during regular business hours, Customer will
permit O&B to inspect the locations at, or computer systems on which, Information and
Software are used, stored or transmitted so that O&B can verify Custome(s compliance
with this Agreement.
3. D.U.N.g@ Numbers
3.1 O-U-N-S Numbers are proprietary to and controlled by O&B. O&B grants
Customer a non-exclusive, perpetual, limited license to use O-U-N-S Numbers (excluding
linkage O-U-N-S Numbers) solely for identification purposes and only for Custome(s
intemal business use. Where practicable, Customer will refer to the number as a 'O-U-
N-S@ Number' and state that O-U-N-S is a registered trademark of O&B.
4. Payment
4.1 Customer will pay O&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 O&B's
AOP and MOP Price Guides ('Price Guides'), which are available upon request. A late
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payment charge of the lesser of 1Yz% per month or the highest lawful rate may be
applied to any outstanding balances until paid.
4.2 Customer will pay any applicable taxes relating to this Agreement, other than
taxes based on D&B income and franchise - related taxes.
4.3 Except as stipulated in an Order, D&B reselVes the right to revise its pricing
schedules at any time. Changes to transactional fees shall be applied on a prospective
basis, upon 30 days written notice. Changes to non-transactional fees (e.g., annual
Information or Software license fees) shall take effect upon the License renewal date.
5. Disclaimers
5.1 Though D&B 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 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.
6. CopvriQhts and Other Proprietary RiQhts
6.1 Information and Software are proprietary, copyrighted 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 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.
6.2 Customer will not use any trademark, selVice mark or trade name of D&B or
any of D&B's affiliated companies or publish any press releases regarding this
Agreement or any Order. Customer shall not disclose the negotiated pricing or terms of
this Agreement, or any Order, to any third party.
6.3 D&B will treat all information that Customer designates in writing to be
confidential in the same manner as D&B treats its own confidential information; provided
that i) D&B may share such information with its employees and third party selVice
providers, with a need to know, in furtherance of the provision of SelVices hereunder,
that are subject to confidentiality obligations substantially as restrictive as those set forth
in this paragraph 6.3 and Ii) D&B assumes responsibility for such employee's and third
party selVice provider's use of such information. Customer represents and warrants that
it has all necessary right, title, consents and authority to disclose such confidential
information to D&B. Such confidential 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 confidential information.
6.4 Intentionally Deleted.
6.5 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, as of the effective date of the applicable Order. 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.
6.6 Customer shall implement and maintain security measures with respect to
the D&B 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
MA-01-07
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
D&B with a description of such security measures at D&B's request In the event of an
actual or suspected breach of such security measures, Customer shall notify D&B within
24 hours.
7. Termination
7.1 In the event of material breach of paragraph 2 or 6, the non-breaching party
may immediately terminate, or D&B may suspend SelVices under, this Agreement or
particular Orders without prior notice. In the event of material breach of any other part of
this Agreement (including, without limitation, a breach by Processor of the agreement
required under paragraph 2.2) by Customer or D&B, 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, and D&B may terminate this Agreement at such time as there are no Orders in
effect.
7.3 The provisions set forth in paragraphs 2, 3, 5, 6 (but not including 6.4), 7.3,
7.4, 8 and 9 will sUlVive the termination of this Agreement
7.4 If, without D&B's written permission or as permitted hereunder, Customer
continues after termination to obtain, retain or continue to use Information, Software or
other SelVices covered by a terminated Order or Agreement, in addition to any other
remedies available to D&B for such breach of the Agreement, Customer will be liable to
D&B for the undiscounted fees (including annual fees for SelVices generally licensed on
an annual basis) for such SelVices in effect on the date of such termination.
8. Limitation of Liability
8.1 EXCEPT FOR CLAIMS ARISING OUT OF VIOLATIONS OF PARAGRAPHS
2 OR 6, AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR ORDER, FOR
CUSTOMER, WILL NOT EXCEED THE AGGREGATE AMOUNT PAYABLE BY
CUSTOMER TO D&B PURSUANT TO SUCH ORDER, OR, FOR D&B, THE
AGGREGATE AMOUNT PAID TO D&B BY CUSTOMER PURSUANT TO SUCH
ORDER. ANY CLAIMS WILL BE BROUGHT, IN ACCORDANCE WITH THIS
AGREEMENT, WITHIN 12 MONTHS OF THE FIRST OCCURRENCE GIVING RISE TO
SUCH CLAIMS, OR SUCH CLAIMS WILL BE FOREVER BARRED.
8.2 D&B SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS), EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
9. Choice of Law: Disputes
9.1 This Agreement is governed by and construed in accordance with the laws
of the State of Califomia, 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 Orange County, CA.
10. Miscellaneous
10.1 This Agreement all Orders, addenda, statements of work and schedules,
and the Price Guides constitute the entire agreement between D&B and Customer
regarding the SelVices. 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 D&B
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 selVices to D&B for use in
providing the SelVices are intended third party beneficiaries of paragraphs 5 and 8.
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, D&B may assign the
Agreement to any of its affiliated companies or in connection with a merger or
consolidation involving D&B (so long as the assignment is to the newly merged or
consolidated entity) or the sale of substantially all of D&B's assets (so long as the
assignment is to the acquirer of such assets).
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IN WITNESS WHEREOF, the City of Santa Ana has executed this Agreement the date and year
first above written.
CITY OF SANTA ANA
ATTEST:
~ .'# ~11DJ-#
~vPATRICIAE EALY
Clerk 6ftheCouncil
~;p
City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
B~'
L ura Sheedy
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
~
D&B Order Form (04-07 PC)
~
Decide with Confidence
CUSTOMER BILLING INFORMATION: CUSTOMER SHIPPING INFORMATION:
D&B D-U-N-S #: 08-315-3247 D&B D-U-N-S #: 08-315-3247
Company Name: City of Santa Ana Company Name: City of Santa Ana
Address: 20 Civic Center Plaza Address: 20 Civic Center Plaza
City: Santa Ana City: Santa Ana
State: CA Zip: 92701 State: CA Zip: 92701
Attention: Account Payable Attention: Accounts Payable
Company Number: Telephone #: 714-647-5108
Telephone #: 714-647-5108 Fax#:
Fax#: E-Mail: sperez@santa-ana,orQ
E-Mail: soerez(1i)santa-ana,orQ Batch Delivery Method
P.O. No: o Mail (CD ROM) o E-Mail o FTP/BDE DN/A
Project Related D-U-N-S@ #
Governing MSA D-U-N-S@ #
This is an Order placed pursuant to the Master Agreement between Customer and 0&8. This Order
is not valid unless a Master Agreement has been executed between the parties. Notwithstanding
anything to the contrary contained in the 0&8 Master Agreement, this Order constitutes Customer's
binding commitment for the term of this Order.
Order is effective as of: __
OR Project Related Subscriber #:
OR Governing MSA Subscriber # :
~~.New Customer
.",."i!Jf"",
Existing Customer
(mandatory field)
(mandatory field)
TYPE OF LICENSE
Contract Number:
o
o
o
o
PC Generated
(Order entry use only)
o
License Term
12 months from the date here of unless indicated otherwise below.
(check one if aoolicable)
One time use only
12 months from the (1) date of initial shipment of any Information or (2) 30 days from effective date of Order, whichever
comes first.
LICENSE: Customer is licensed to use Information for purposes of use checked below. Use of Information for any other
purpose is not permitted under this license. Use of Information for any special applications (e.g., use in CRM, ERP or
similar applications) are not included in this License. Customer may not use Information in special applications without
D&S's prior written consent, and the payment of applicable fees. Customer acknowledges that it has received a
description of the special applications that result in added seat and/or additional information charges. Customer
acknowledges that it has received a review of the standard license payment options.
o
Sales & Marketing licensed use is limited to lead generation, mailing lists, segmentation analysis, sales channel
management, campaign management, sales force automation and call center management, customer acquisition and
order entry.
Risk Management licensed use is limited to credit scoring including online and batch applications, credit evaluation,
customer accounts receivable analytics and management.
Supply Management licensed use is limited to supply chain analytics, supplier evaluation, supplier
normalization/rationalization, monitoring, and management, strategic sourcing, e-procurement catalog, trading partner,
and bid management, logistics, materials and inventory management, accounts payable, general ledger analysis, and
balance of trade analysis.
Enterprise Risk & Compliance licensed use is limited to managing enterprise risk across counterparties and securities
and complying with government or industry regulations and intemal controls. Use of Information for any other purposes
(e.g., marketing lists, cross selling, up-selling, campaign management) is not permitted under this license.
STANDARD LICENSE
PAYMENT OPTIONS
(check one):
Basic
Paygo
o
o
Committed Record Volume:
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D&B Order Form (04-07 PC)
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Decide with conf"uience
DESCRIPTION OF INFORMATION I Output is File Matching and/or Data Append
~ of Records: 14,118
ype of Record: Telemarketing
Update Frequency: None
Yield: 14,118 Additional records will be invoiced as follows: (1l Global Cleansing - $0.06 per record. (2) Domestic Matching - $0.119 per record. (3) Global Matching -
$0.103 per record. (4) Data Appends - $0.175 per record. The Term for additional records will coincide with the Contract Year listed below.
enm: 1 Year $2,470.65
. Actual number of records delivered may vary based on D&B file dynamics, even if there is no change in number of input records or selection criteria.
"If File Matching and/or Data Append, price is based on assumed CUstomer file size of "N/A" records and assumes a match rate of "N/A" %, yielding "N/A" matched records. Additional
ecords shall be priced as stated above.
Additionallnfonmalion:
(All record counts above are approximate.)
PC Generated
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D&B Order Form (04-07 PC)
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SHIPPING and SALES TAX: Will be billed to Customer. PA YMENT TERMS: Due uoon receiot of invoice unless
stated otherwise herein.
AGREED TO BY:
DUN & BRADSTREET, INC. Company Name: City of Santa Ana
Authorized Signature: Authorized Signature:
By: By:
Name (Please Print): Name (Please Print): DAVID N. REAM
Title: Title: City Manager
Date: Date:
Decide with Confidence
RM/AE #:
RM/AE Telephone #: 973-605-6105
E-Mail: heimw@dnb.com
Center #:
Ext:
3065
RM/AE Fax #:
866-800-4244
ATTEST:
_~If~
~PATRICr.t\ll. HEALY
Clerk of the Co~ncil
RECOMMENDED FOR APPROVAL:
- FMSA
APPROVED AS TO FORM
pC Generated
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