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<br />payment charge of the lesser of 1Yz% per month or the highest lawful rate may be
<br />applied to any outstanding balances until paid.
<br />4.2 Customer will pay any applicable taxes relating to this Agreement, other than
<br />taxes based on D&B income and franchise - related taxes.
<br />4.3 Except as stipulated in an Order, D&B reselVes the right to revise its pricing
<br />schedules at any time. Changes to transactional fees shall be applied on a prospective
<br />basis, upon 30 days written notice. Changes to non-transactional fees (e.g., annual
<br />Information or Software license fees) shall take effect upon the License renewal date.
<br />
<br />5. Disclaimers
<br />5.1 Though D&B uses extensive procedures to keep its database current and to
<br />promote data accuracy, Customer acknowledges that the Information will contain a
<br />degree of error.
<br />5.2 ALL SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS.
<br />OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, D&B DISCLAIMS ALL
<br />WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF
<br />ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS
<br />FOR A PARTICULAR PURPOSE. D&B DOES NOT WARRANT THAT THE SERVICES
<br />WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY
<br />OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE
<br />LEVELS OR PERFORMANCE. D&B WILL NOT BE LIABLE FOR ANY LOSS OR
<br />INJURY ARISING OUT OF, IN WHOLE OR IN PART, D&B'S CONDUCT IN
<br />PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING OR
<br />DELIVERING SERVICES.
<br />
<br />6. CopvriQhts and Other Proprietary RiQhts
<br />6.1 Information and Software are proprietary, copyrighted works of D&B and
<br />comprise: (i) works of original authorship, including compiled Information containing
<br />D&B's selection, arrangement and coordination and expression of such Information or
<br />pre-existing material it has created, gathered or assembled; (Ii) trade secret and other
<br />confidential information, including information that derives value or potential value from
<br />not being readily known or available; and (Iii) information that has been created,
<br />developed and maintained by D&B at great expense, such that misappropriation or
<br />unauthorized use by others for commercial gain would unfairly and/or irreparably harm
<br />D&B or reduce D&B's incentive to create, develop and maintain such information.
<br />Customer will not commit or permit any act or omission that would contest or impair
<br />D&B's proprietary and intellectual property rights in Information and Software or that
<br />would cause the Information or Software to infringe the proprietary or intellectual property
<br />rights of a third party. Customer will reproduce D&B's copyright and proprietary rights
<br />legend on all copies of Information and Software.
<br />6.2 Customer will not use any trademark, selVice mark or trade name of D&B or
<br />any of D&B's affiliated companies or publish any press releases regarding this
<br />Agreement or any Order. Customer shall not disclose the negotiated pricing or terms of
<br />this Agreement, or any Order, to any third party.
<br />6.3 D&B will treat all information that Customer designates in writing to be
<br />confidential in the same manner as D&B treats its own confidential information; provided
<br />that i) D&B may share such information with its employees and third party selVice
<br />providers, with a need to know, in furtherance of the provision of SelVices hereunder,
<br />that are subject to confidentiality obligations substantially as restrictive as those set forth
<br />in this paragraph 6.3 and Ii) D&B assumes responsibility for such employee's and third
<br />party selVice provider's use of such information. Customer represents and warrants that
<br />it has all necessary right, title, consents and authority to disclose such confidential
<br />information to D&B. Such confidential information shall not include information that (i) is
<br />or becomes a part of the public domain through no act or omission of D&B; (ii) was in
<br />D&B's lawful possession prior to Customer's disclosure to D&B; (Iii) is lawfully disclosed
<br />to D&B by a third-party with the right to disclose such information and without restriction
<br />on such disclosure; or (iv) is independently developed by D&B without use of or
<br />reference to the confidential information.
<br />6.4 Intentionally Deleted.
<br />6.5 D&B represents and warrants to Customer that to D&B's knowledge, the
<br />Software and Information, when used in accordance with this Agreement, do not violate
<br />any existing, U.S. copyrights, patents, trademarks, or other intellectual property rights of
<br />any third party, as of the effective date of the applicable Order. The foregoing warranty
<br />does not apply to the extent Customer modifies the Software or Information in any way or
<br />combines the Software or Information with material from third parties.
<br />6.6 Customer shall implement and maintain security measures with respect to
<br />the D&B Information and Software in Customer's possession that effectively restrict
<br />access to Information and Software only to authorized users with a need to know, and
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<br />MA-01-07
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<br />protect Information and Software from unauthorized use, alteration, access, publication
<br />and distribution. In no event shall such security measures be less restrictive than those
<br />Customer employs to safeguard its most confidential information. Customer shall supply
<br />D&B with a description of such security measures at D&B's request In the event of an
<br />actual or suspected breach of such security measures, Customer shall notify D&B within
<br />24 hours.
<br />
<br />7. Termination
<br />7.1 In the event of material breach of paragraph 2 or 6, the non-breaching party
<br />may immediately terminate, or D&B may suspend SelVices under, this Agreement or
<br />particular Orders without prior notice. In the event of material breach of any other part of
<br />this Agreement (including, without limitation, a breach by Processor of the agreement
<br />required under paragraph 2.2) by Customer or D&B, the non-breaching party may
<br />terminate this Agreement or particular Orders if such breach is not cured within thirty (30)
<br />days of written notice of breach.
<br />7.2 Termination of this Agreement will result in a termination of all outstanding
<br />Orders, and D&B may terminate this Agreement at such time as there are no Orders in
<br />effect.
<br />7.3 The provisions set forth in paragraphs 2, 3, 5, 6 (but not including 6.4), 7.3,
<br />7.4, 8 and 9 will sUlVive the termination of this Agreement
<br />7.4 If, without D&B's written permission or as permitted hereunder, Customer
<br />continues after termination to obtain, retain or continue to use Information, Software or
<br />other SelVices covered by a terminated Order or Agreement, in addition to any other
<br />remedies available to D&B for such breach of the Agreement, Customer will be liable to
<br />D&B for the undiscounted fees (including annual fees for SelVices generally licensed on
<br />an annual basis) for such SelVices in effect on the date of such termination.
<br />
<br />8. Limitation of Liability
<br />8.1 EXCEPT FOR CLAIMS ARISING OUT OF VIOLATIONS OF PARAGRAPHS
<br />2 OR 6, AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR ORDER, FOR
<br />CUSTOMER, WILL NOT EXCEED THE AGGREGATE AMOUNT PAYABLE BY
<br />CUSTOMER TO D&B PURSUANT TO SUCH ORDER, OR, FOR D&B, THE
<br />AGGREGATE AMOUNT PAID TO D&B BY CUSTOMER PURSUANT TO SUCH
<br />ORDER. ANY CLAIMS WILL BE BROUGHT, IN ACCORDANCE WITH THIS
<br />AGREEMENT, WITHIN 12 MONTHS OF THE FIRST OCCURRENCE GIVING RISE TO
<br />SUCH CLAIMS, OR SUCH CLAIMS WILL BE FOREVER BARRED.
<br />8.2 D&B SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL OR
<br />CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS), EVEN IF ADVISED
<br />OF THE POSSIBILITY OF SUCH DAMAGES.
<br />
<br />9. Choice of Law: Disputes
<br />9.1 This Agreement is governed by and construed in accordance with the laws
<br />of the State of Califomia, without regard to choice of law provisions. Any disputes arising
<br />out of this Agreement that cannot be resolved by the parties will be brought in state or
<br />federal court located in Orange County, CA.
<br />
<br />10. Miscellaneous
<br />10.1 This Agreement all Orders, addenda, statements of work and schedules,
<br />and the Price Guides constitute the entire agreement between D&B and Customer
<br />regarding the SelVices. All prior agreements, both oral and written, between the parties
<br />on the matters contained in this Agreement are expressly cancelled and superseded by
<br />this Agreement. Any Order in effect as of the effective date of this Agreement, regardless
<br />of such Order's effective date, and notwithstanding anything to the contrary contained
<br />therein, shall be subject to this Agreement. In no event shall any terms or conditions
<br />included on any form of Customer purchase order apply to the relationship between D&B
<br />and Customer hereunder, unless such terms are expressly agreed to by the parties in
<br />writing. Any amendments of or waivers relating to this Agreement or any Order must be
<br />in writing signed by the party, or parties, to be charged therewith.
<br />10.2 Third parties that provide information, software or selVices to D&B for use in
<br />providing the SelVices are intended third party beneficiaries of paragraphs 5 and 8.
<br />10.3 This Agreement binds and inures to the benefit of the parties and their
<br />successors and permitted assigns, except that neither party may assign this Agreement
<br />without the prior written consent of the other party; however, D&B may assign the
<br />Agreement to any of its affiliated companies or in connection with a merger or
<br />consolidation involving D&B (so long as the assignment is to the newly merged or
<br />consolidated entity) or the sale of substantially all of D&B's assets (so long as the
<br />assignment is to the acquirer of such assets).
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