This Terms & Conditions (“T&C”) regulate all purchase Orders requested by Customer to Cial D&B Client Services Corp. (“D&B”). Customer and D&B may be sometimes referred to each individually as a “Party” or collectively as the “Parties “.
In case of conflict between the languages of this Agreement, the English version, and ONLY the English version, shall prevail.
1 . Definitions
The definitions for the defined terms are contained below or in the body of the T&C.
1.1 “Affiliates“ means entities that control, are controlled by, or are under common control.
1.2 “Claim” means any claim, demand, suit or proceeding.
1.3 “Confidential Information“ means information provided by Discloser to the Recipient that Discloser designates in writing to be confidential, or information that the Recipient ought to reasonably know is confidential.
1.4 “Contact Information“ means professional information D&B collects and compiles relating to a person in the context of business which may include but is not limited to names, titles, business phone and facsimile numbers, wireless devices, e-mail addresses and physical addresses, and social media handles.
1.5 “Contractor“ means third parties provided with Information or accessing the Services solely to support Customer.
1.6 “Data Subject“ means an individual person who is the subject of, represented within or identifiable by Contact Information.,
1.7 “Discloser“ means the party disclosing Confidential Information.
1.8 “Documentation” means any manuals, instructions or other documents or materials that D&B provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
1.9 “Information“ means information D&B collects and compiles on business entities anywhere in the world which may include, but is not limited to, business information, legal or financial data, Contact Information, D-U-N-S® Numbers, and ratings on such business entities.
1.10 “Order“ means the ordering document for Services which may include particular Service-specific terms and conditions.
1.11 “Recipient“ means the party receiving Confidential Information.
1.12 “Representatives” means employees and vendors of the Recipient as further described in Section 8.3.
1.13 “Software“ means computer programs or applications (including those accessed remotely), documentation, and media.
1.14 “Terms & Conditions” means this document, any Orders, addendum, statements of work, and schedules.
1.15 “Third Party Providers” means third parties that provide data, Software or services to D&B for use in providing the Services to D&B customers.
1.16 “Unauthorized Code“ means any virus, trojan horse, worm, or any other software routines or hardware components designed to permit unauthorized access to disable, erase, or otherwise harm software, hardware, or data.
1.17 The term “Cial D&B” refers to each of the following entities, both collectively and individually: Cial D&B Client Services Corp. (Barbados), Cial D&B Services, Inc., Dun & Bradstreet S.A. (Argentina), Dun & Bradstreet do Brasil Ltda., Dun & Bradstreet de Mexico, S.A. de C.V. and Dun & Bradstreet S.A.C. (Peru)
D&B, either directly or through its Affiliates, shall, subject to the T&C, make available to Customer the Information, Software, and other services, identified in Orders entered into from time to time by D&B and Customer (the “Services“). Where there is a conflict between the terms of any Order and the terms of this T&C, the terms of the Order shall control solely with respect to the Services set forth in such Order and solely to the extent of the conflict.
3.1 Whenever applicable to the terms and of the contract hereby, D&B grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use and display the Information and Software constituting the Services specified in an Order. All rights not expressly granted hereunder are reserved to D&B.
3.2 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. The initial term and any renewal period for an Order or License constitute “the Term” for such Order or License.
3.3 Affiliates of either party may execute Orders for Services on their own behalf governed by this T&C.. For purposes of an Order, the Parties executing the Order are deemed “Customer” or “D&B”, as applicable.
3.4 In the event a particular Order allows for Customer to make Services available to its Affiliates, Affiliates are bound by the same terms and conditions as Customer under the T&C Agreement and Customer is responsible and liable for the Affiliates’ acts and/or omissions which if done by Customer itself would be a breach of the T&C.
4.1 Information and Software are licensed for internal use only by Customer’s employees with a need to know for the purpose identified 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, 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.
4.2 Notwithstanding the foregoing, Customer may allow Contractors to access the Services in the territories identified on an Order, provided that such Contractors use the Services in accordance with the T&C. However, Customer must have written approval of D&B prior to providing access to a Contractor for use outside of an installation or site that is owned, used or leased by Customer or that is under Customer’s operational control. Customer is liable to D&B for any use or disclosure by any Contractor of Services not for the benefit of Customer or, which, if done by Customer itself, would be a breach of the T&C.
4.3 Customer and its affiliates will not attempt to reverse engineer any Services or access, use, modify, copy, or derive the source code of, any Software.
4.4 Customer will not use Information (i) as a factor in establishing an individual’s eligibility for credit or insurance to be used primarily for personal, family, household or employment purposes; 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 Laws. If Customer is provided with Information from outside of Barbados, the parties must comply with applicable international data transfer laws.
4.5 Upon expiration or termination of a License with respect to a particular Service, or upon receipt of a Service that is intended to supersede previously obtained Service(s), Customer will promptly 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 4.2 hereof; and provide D&B with a certification thereof. Notwithstanding the foregoing,
(i) Customer is granted a perpetual, limited, non-transferable and non-assignable license to retain copies of such Information in the form of hard copies or in systems not used in the current operations of the Client, so that the Information is not susceptible to use as a substitute for the Services licensed by D&B, made in the normal course of business, solely for historical and/or archival (i.e disaster recovery, compliance, and evidence of Customer’s use of Information for regulatory compliance) purposes and not for any other continuing use (” Retained Information“). Customer is prohibited from using such Retained Information for any commercial purposes or as a substitute for the Services licensed by D&B;
(ii) The obligation to delete Information shall not apply to names, addresses (street, city, state, and zip code), phone numbers, fax numbers, and email addresses to the extent the subject to whom the Information relates has (x) become a customer or supplier of Customer, or (y) engaged with Customer to become a customer or supplier of Customer.
4.6 Customer agrees, that in the event D&B obtains information or other evidence leading it to reasonably conclude that Customer is violating its obligations under the T&C, D&B may request an officer of Customer to certify that it is in compliance. If the officer refuses to do so, or D&B has reasonably evidence that such certification is not reliable, D&B may, at its own expense, audit Customer’s records and applicable computer systems, no more frequently than once a year, provided that such audits are conducted with reasonable notice (of not less than 10 working days), during Customer’s normal working hours, and in such a way as not to interfere unduly with the operation of Customer’s business;. D&B agrees to treat all information obtained in the course of any such audit as confidential; and that such information shall not be used for any purpose except to verify compliance with the T&C.
4.7 To the extent that Customer transfers to D&B, under a particular Order, Personal data subject to the Barbados Laws, D&B will process such Personal data in accordance with the laws of the Barbados juridical system.
5. D-U-N-S® Numbers
5.1 D&B 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. D-U-N-S® Numbers are proprietary to and controlled by D&B. 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.
6. Warranties and Disclaimers
6.1 D&B and Customer each represent and warrant that it (i) has the right to enter into the Order and (ii) has all necessary legal rights, title, consents and authority to disclose information (including Confidential Information and Personal Data) to the other in accordance with this T&C.
6.2 D&B represents that the Information has been collected and compiled in accordance with applicable local, state, federal and international laws, rules or regulations, but D&B does not guarantee that the Customer’s use of the Information meets the requirements of any applicable federal, or state law, rule or regulation.
6.3 D&B and Customer each warrant and undertake that i) use of Personal Data will be for limited and legitimate purposes as specified in the Order; ii) shall be subject to the regulation by law regarding the Protection of Data and Information or Personal Data ; and (iii) upon notice, including under (ii), take reasonable and appropriate steps to stop processing such Personal Data or remediate unauthorized use.
6.4 D&B represents and warrants that all Services will be performed with commercially reasonable care and skill by qualified individuals.
6.5 When applicable to the Services provided by D&B, D&B represents and warrants that it has taken commercially reasonable efforts (i.e., scanning with current versions of antivirus software) to determine that the Software, eventually licensed, does not contain or will not contain any Unauthorized Code. In the event D&B discovers or is notified of any such Unauthorized Code in the Software, D&B shall promptly remove such Unauthorized Code in the Software.
6.6 D&B represents and warrants that the Software will perform all material functions and features as set forth in the Documentation.
6.7 With respect to the Services related to the Duns Guide or any other applicable Services, the Parties declare that the Contact Information has not been obtained directly from the Data Subjects and the Data Subjects have not opted in or otherwise expressly consented to having their information sold for marketing purposes. Except as set forth in this Section 6, D&B shall not be liable for any damages, losses, costs, claims or expenses, including reasonable attorneys’ fees, with respect to any data privacy legal or compliance violation arising out of or related to Customer’s use of Contact Information. Customer’s use of the Contact Information shall be for its own marketing and sales purposes and all opt out provisions and/or opt out links in Customer’s marketing and sales materials shall pertain to opting out of Customer’s marketing lists and/or Customer’s databases only.
6.8 Customer agrees that it will not provide D&B any Social Security number, driver’s license number, account number, credit or debit card number (other than Customer’s own card for payment purposes, if applicable), or personal identification number or password that would permit access to the person’s account, or any special categories of personal data as defined in European Privacy Legislation (these are personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, the processing of genetic or biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation and data relating to criminal convictions and offences).
6.9 With respect to the D&B Information Service, the CUSTOMER ACKNOWLEDGES THAT EVERY BUSINESS DECISION TO SOME DEGREE REPRESENTS AN ASSUMPTION OF RISK AND THAT D&B IN FURNISHING INFORMATION DOES NOT ASSUME CUSTOMER’S RISK. THE SERVICES PROVIDED BY D&B ARE A TOOL IN CUSTOMER’S DECISION MAKING PROCESSES. THEREFORE, ALL SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. THOUGH D&B USES EXTENSIVE PROCEDURES TO KEEP ITS DATABASE CURRENT AND TO PROMOTE DATA ACCURACY, OTHER THAN AS EXPLICITLY STATED IN THE Order, D&B AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY OR REPRESENTATION (IMPLICIT OR EXPLICIT) REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE.
7. Protection of Proprietary Rights
7.1 Information and Software are proprietary to D&B and may include copyrighted works, trade secrets, or other materials created by D&B at great effort and expense. Customer will not remove D&B’s copyright and proprietary rights legend from any Information and Software which are so marked when received.
7.2 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.
7.3 The Recipient will treat all Confidential Information in the same manner as Recipient treats its own Confidential Information of a similar nature provided that: i) Recipient may share such information with its Representatives, with a need to know and/or in order to fulfill the obligations pursuant to the Agreement, 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 Representative’s use of such information. Neither party shall disclose the negotiated pricing or terms of the Agreement, to any third party. Confidential Information shall not include (a) Information and Services licensed pursuant to the Agreement; or (b) 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.
7.4 Whenever there is exchange of Confidential Information, each party shall implement and maintain security measures with respect to the D&B Information, Software and Customer Confidential Information in its possession that effectively restrict access only to employees and Contractors with a need to know for the purpose identified in the Order, and protect such Information, Software, and Customer Confidential Information from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those each party employs to safeguard its confidential information of a similar nature.
8.1 In the event of material breach of Section 4 or 7, the non-breaching party may immediately terminate any particular Orders without prior notice; or D&B may, with notice, suspend Customer’s access to the Services subject to such breach if necessary to prevent any ongoing impairment of D&B’s intellectual property rights. In the event of material breach of any other part of this T&C by Customer or D&B, the non-breaching party may terminate any particular Orders if such breach is not cured within thirty (30) days of written notice of breach.
8.2 The provisions set forth in Sections 4, 5, 6, 7, 9 and 10 will survive the termination of this T&C.
9. Limitation of Liability; Indemnification
9.1 NEITHER PARTY NOR D&B’S THIRD PARTY PROVIDERS 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.
9.2. EACH PARTY’S AND D&B’S THIRD PARTY PROVIDERS’ MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE APPLICABLE ORDER, 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 UNDER THE APPLICABLE ORDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LOSS.OCCURRED
9.3. Notwithstanding anything to the contrary, the exclusions and limitations set forth in Section 9.1 and Section 9.2 above shall not apply with respect to: (i) the Parties’ respective obligations under Section 9.4 (Indemnification), or (ii) Customer’s unauthorized use, disclosure, or distribution of Information or Services.
9.4 (a) D&B shall defend or settle at its expense any 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 T&C (but not to the extent Customer modifies the Services in any way or combines the Services with material from third parties). D&B shall indemnify and hold Customer harmless from and pay any and all losses attributable to such Claim. Customer shall give D&B prompt notice of any Claim. D&B 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 that adversely impact Customer’s use of the Services, 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 D&B 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 D&B directly, Customer will pay all costs and expenses, including reasonable attorneys’ fees that D&B incurs in any such action.
10.1 Customer will pay D&B in accordance with the terms set forth in each Order. In the event of late payment, a fine of 2% (two percent) of the amount due, plus default interest of 1% (one percent) per month, calculated pro rata die, will be charged from the due date to the effective date payment of the amount due.
10.2 In the event of a delay of more than thirty (30) days, D&B may, in its sole discretion, suspend the execution of the Services until all the amount due is fully paid, without prejudice to termination of the Order, pursuant to Clause 8.1 above.
11. Choice of Law; Disputes
11.1 This T&C shall be governed by and construed in accordance with the laws of Barbados without giving effect to its conflicts of provisions. Any disputes arising hereunder must be filed and shall be venued in the courts of Barbados and the parties hereby submit to the jurisdiction of such courts. Any representations, warranty, promise or condition not incorporated herein will not be binding upon either party. In the event of a conflict between the T&C and content of any Schedule, the T&C will prevail.
12.1 The T&C, Orders and Master Service Agreement (if executed) constitute the entire agreement between D&B and Customer regarding the Services. All prior agreements, both oral and written, between the Parties are expressly cancelled and superseded by the T&C, Order and Master Service Agreement (if executed). Any Order shall be subject to this T&C. Any amendments of or waivers relating to this T&C and Orders must be in writing signed by the party, or Parties, to be charged therewith, provided that 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.
12.2 The T&C binds and inures to the benefit of the Parties and their successors and permitted assigns, except that neither party may assign any Orders without the prior written consent of the other party; however, either party may assign the Orders to any of its affiliated companies or 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 acquirer of such assets). Notwithstanding the foregoing, an assignment to a competitor of the non-assigning party will allow the non-assigning party to terminate the Orders.