Exhibit 10.8
FNF STARTER REPOSITORY ACCESS AGREEMENT
This FNF Starter Repository Access Agreement (this "Agreement"), dated
__________, 2004 (the "Effective Date"), is entered into between, Fidelity
National Financial, Inc., a Delaware corporation with its principal place of
business at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("FNF") and Fidelity
National Information Services, Inc., a Delaware corporation with its principal
place of business at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("FNIS"), for
itself on behalf of those of its direct and indirect subsidiaries as are listed
on Schedule A hereto. FNF and FNIS shall hereinafter be referred to as a "Party"
and collectively, as the "Parties."
WITNESSETH:
WHEREAS, the Customers wish to have access to certain records and/or data
(the "Starters" as defined below) owned by FNF or its subsidiaries;
WHEREAS, FNF is willing to provide such access, subject to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, intending to be
legally bound hereby, agree as follows:
1. CERTAIN DEFINITIONS.
Customer. "Customer" means FNIS, as well as each user specifically identified on
Exhibit A hereto so long as such user is a direct or indirect subsidiary of
FNIS. Issuing Agency Agreement.
"Issuing Agency Agreement" is an agreement pursuant to which an entity is
designated as a title agent, authorized to write title business for a principal.
L&Vs. "L&Vs" consist of that portion of a Starter record related to the legal
description of the real property and vesting information of the owners thereof.
L&V Retrieval. "L&V Retrieval" means any instance where an L&V is selected by a
Customer for viewing or data retrieval in connection with a particular Starter
record. A fee is incurred, as set forth below, upon each Successful Retrieval.
Starters. "Starters" consist of electronic copies of previously issued title
products, which may include policies, commitments, preliminary reports,
guarantees and binders as well as some electronic data elements of the
information contained in such electronic copies.
Starter Retrieval. A "Starter Retrieval" means any instance when a Starter is
selected by a Customer for viewing or data retrieval, which may include an image
of the applicable previously issued title products or any electronic data
elements from such products. A fee is incurred, as set forth below, upon each
Successful Retrieval.
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Starter Repository. The "Starter Repository" is a database of certain Starters
selected by FNF for inclusion.
Successful Retrieval. A "Successful Retrieval" means: (1) in connection with a
L&V Retrieval, the return of data containing a legal description and vesting in
a format generally recognized in the geographic area where the property is
located; (2) in connection with a Starter Retrieval, the return of a product
image and/or data in a form and containing those elements generally contained on
such product in the geographic area where the property is located.
2. ACCESS.
(a) Access. FNF hereby grants to each Customer non-exclusive access to the
Starter Repository, subject to the provisions hereof. Customers may, with
technical information from FNF available on request, create proprietary means of
technical access to the Starter Repository (an "Access Program"), subject
however to compliance with any security protocols or technology that FNF may
reasonably specify. FNF shall have no duty to pay for, support, accommodate, or
update any such Access Program. Using such Access Program, Customers may access
the Starter Repository. FNF may restrict, or may be restricted from allowing, a
Customer from using certain records and materials in the Starter Repository. It
is understood and agreed that, during the first year of this Agreement, FNF
shall provide access availability to the Starter Repository in a nature and
quality reasonably comparable to the access availability provided by FNF during
the year immediately prior to the execution of this Agreement.
(b) Format. The data and materials included in the Starter Repository are
maintained in one or more formats or media determined from time to time by FNF
and FNF reserves the right to modify any such format or medium from time to
time, subject to the notification provisions contained in Section 2(d).
(c) Security. In connection with a Customer's access to the Starter
Repository provided hereunder, FNF may establish identification codes and
password security. In such event, a Customer shall be responsible for choosing
one or more secure passwords and for keeping all passwords secret. In the event
of a security breach or unauthorized access to the Starter Repository, each
Customer agrees to contact FNF immediately upon discovering such a breach. Such
Customer is responsible for the results of, and any costs incurred as a result
of, any such unauthorized access until notice of such a security breach is given
to FNF. FNF reserves the right to check the security of Customer passwords, if
password security is implemented. In such event, if a Customer password is found
to be unsecured, FNF shall immediately notify Customer and work with Customer to
implement an appropriate security password. Each Customer agrees to not (i)
attempt to bypass any security mechanisms in place on any FNF system hosting the
Starter Repository, or (ii) use any FNF system or service to attempt to bypass
any security mechanisms in place on any other FNF system, including, but not
limited to, running any password cracking software, or attempting to access a
system that such Customer knows or reasonably should know it is not authorized
to access in the manner or to the extent attempted.
(d) Systems Changes. It is anticipated that FNF may, during the term of
this Agreement, but without obligation to do so, make certain systems
enhancements in the methods of input, storage or retrieval or make other changes
to the Starter Repository or its databases. It is
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agreed by each Customer that FNF will have the right to make enhancements,
changes or additions which require the Customer's use of new methods for access
or changes to the Access Program. FNF agrees to provide advance written notice
of any such enhancements, changes or additions to Customer with as much lead
time as possible, but in no event less than sixty (60) days. FNF will make
available any such enhancements, changes or additions to Customer without
additional cost.
3. FEES AND PAYMENT
(a) Fees. FNIS will pay FNF a fee in the amounts set forth on Exhibit B
for each Successful Retrieval in connection with a Starter Retrieval and L&V
Retrieval by the Customers (the "Starter Retrieval Fee" and the "L&V Retrieval
Fee" respectively and collectively, the "Access Fees"). The Access Fees do not
include taxes. FNIS will pay, or reimburse, FNF for payment of, any applicable
sales, use, personal property or similar taxes and any government charges based
on transactions hereunder, exclusive of corporate income or franchise taxes
based on FNF's net income. FNF may increase the Access Fees for each Starter
Retrieval and L&V Retrieval annually, effective on the anniversary date of this
Agreement, by an amount equal to the percentage amount indicated by the annual
change in the Consumer Price Index for urban wage earners and clerical workers
for the national average as compiled by the U.S. Department of Labor, Bureau of
Labor Statistics ("Index") for the twelve (12) month period most immediately
preceding the adjustment date for which such data has been compiled.
(b) Payment. FNIS shall provide to FNF, (1) on the fifteenth (15th) day of
each month during the term of this Agreement, an accurate count of the number of
Starter Retrievals and L&V Retrievals made by each Customer during the previous
month and (2) within thirty (30) days of providing such count, payment in full
for such Starter Retrievals and L&V Retrievals contained in the Customer count
based on the Access Fees. FNIS agrees that it shall be responsible for payment
to FNF for the number of Starter Retrievals and L&V Retrievals made by each
Customer. FNF shall not be responsible for notifying any Customer about unusual
patterns in the frequency or duration of such access. FNF shall have the right
to receive from each Customer more detailed information regarding the number of
Starter Retrievals and L&V Retrievals in the event that FNF has reason to
believe that the information or number of Starter Retrievals and L&V Retrievals
for a particular period is inaccurate. FNIS will be in breach of this Agreement
whenever FNIS fails to pay in full any undisputed sum on behalf of any Customer
due to FNF for a period of thirty (30) days after FNF provides written notice of
non-payment to FNIS. To cure that breach, the sum then due, plus a late payment
fee equal to ten percent (10%) of the sum then due (or the maximum rate or
amount allowed by applicable law if less), must be paid by FNIS to FNF.
(c) Audit. FNF shall have the right to audit the records of each Customer,
at the expense of FNF, to verify the correctness of the information provided on
behalf of each Customer regarding the number of Starter Retrievals and L&V
Retrievals and the sums being paid to FNF on behalf of each Customer for such
Starter Retrievals and L&V Retrievals. These audits shall be conducted during
normal business hours so as not to unreasonably interfere with the normal
business operations of such Customer. If the audit discloses that such FNIS
under-reported fees to FNF, FNIS shall pay promptly such under-reported amount,
together with interest at the rate
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of ten percent (10%) (or the maximum rate or amount allowed by applicable law if
less). In addition, if such under-reported amount is in excess of five percent
(5%) of the reported amount for the period covered by the audit, then FNIS shall
promptly reimburse FNF for its reasonable audit expenses.
4. TERM
(a) Term. Unless sooner terminated in accordance with the provisions
hereof, this Agreement shall continue for a period of one year from the date
hereof, and renew automatically, effective upon each anniversary of this
Agreement, for successive annual terms, so long as neither Party has provided
notice in writing to the other Party, of its intention to terminate this
Agreement, such notice to be given on or before the sixtieth (60th) day prior to
the applicable termination.
(b) Termination. If FNF or any Customer is in material breach of this
Agreement and FNF or such Customer, as the case may be, does not cure such
breach within thirty (30) days after receipt of written notice specifying the
breach, then this Agreement may be terminated by (i) FNF, if any Customer is in
breach or (ii) FNIS, if FNF is in breach. Failure by any Party to declare a
termination of this Agreement for the breach of any one or more of the
provisions hereof or a failure of any Party to take action under the provision
hereof shall not be construed as a waiver of the breach or any subsequent
breach. Notwithstanding the above termination, in the event of termination for
FNF's breach, Customers shall continue to receive access to the Starter
Repository until such time as they have found a reasonably acceptable
alternative to obtain the same or substantially similar benefit, but in no event
longer than ninety (90) days after the initial occurrence of an uncured breach,
and FNIS shall continue to pay for such access in accordance with Section 3
hereof. Following FNF's notice of termination, FNIS agrees to find an
alternative means to obtaining the same benefits as quickly as reasonably
possible. This Agreement shall be automatically terminated upon the filing of a
petition in bankruptcy by a Party, or the appointment of a receiver for a Party,
or the adjudication in bankruptcy on an involuntary partition against a Party,
or if a general assignment of a Party's assets occurs for the benefit of such
Party's creditors. The rights under this Agreement as to a particular Customer
shall be automatically terminated by FNF as to such Customer upon the filing of
a petition in bankruptcy by such Customer, or the appointment of a receiver for
such Customer, or the adjudication in bankruptcy on an involuntary petition
against such Customer, or if any general assignment for the benefit of such
Customer's creditors, of its assets, occurs. In the event that the rights of a
particular Customer under this Agreement are terminated because such Customer is
no longer a direct or indirect subsidiary of FNIS, the termination of such
rights shall not be deemed a termination of this Agreement with respect to the
other Customers.
5. OWNERSHIP AND USE
(a) Ownership. All data, information, images and other materials contained
in the Starter Repository and all programs, databases, specifications, manuals
and documentation relating thereto (including without limitation, compression,
storage, and retrieval techniques and formats and any enhancements made thereto)
are and shall remain the property of FNF or its providers. FNIS agrees to treat
and agrees to cause each Customer to treat all proprietary informa-
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tion of FNF as confidential and agrees to make it available solely to itself,
the Customers, their employees or authorized representatives who have a need to
know. Each Party further agrees not to make copies of the other Party's
confidential information or the confidential information of Customers, and not
to obscure or remove any notice of proprietary rights or confidentiality
thereon. Upon termination of this Agreement, each Party shall return all
confidential information of the other Party, and in the case of FNF, the
confidential information of Customers, provided to it pursuant hereto.
FNF warrants that it is the owner of, or has full right to provide access to
each Customer to, all of the records and data contained in the Starter
Repository and all programs, databases, specifications, manuals and
documentation relating thereto (including without limitation, compression,
storage, and retrieval techniques and formats and any enhancements made thereto)
on the terms herein.
(b) Customer Use. Records and data in the Starter Repository made
available to any Customer under this Agreement are to be used by such Customer
solely in accordance with the terms hereof.
(c) Use of Information. Each Customer shall use records and data in the
Starter Repository only for the purpose of issuing title insurance and other
products in its ordinary course of business. Each Customer shall make no further
distribution, by sale, lease or otherwise, of any access to records and data in
the Starter Repository, nor enable any third party to access or to make use of
any such records or data in the Starter Repository provided to, or accessible
by, Customer under this Agreement except in accordance with Customer's ordinary
course of business. FNF shall make no distribution, by sale, lease or otherwise,
of Customer confidential information, if any, nor enable any third party to
access or to make use of any such Customer confidential information provided to,
or accessible by, FNF under this Agreement except in accordance with FNF's
ordinary course of business.
(d) Nonexclusive Use. The Parties recognize that FNF shall continue to use
the Starters and L&Vs in the usual and ordinary course of business and may
furnish access to Starters and L&Vs, including the same Starters and L&Vs, to
other customers.
(e) Advertisement of Use or Ownership. During the term of this Agreement,
none of the Customers shall publicize that such Customer owns, possesses or
controls any Starters or L&Vs or has any interest therein except such rights as
are specifically granted to Customer by this Agreement.
(f) Due Care. Each Customer agrees to exercise due care in accessing the
Starter Repository hereunder so as to prevent the alteration or destruction of
records or data therein. Each Customer agrees that it shall be liable to FNF
(or, if applicable, its providers) for loss or damage related to such alteration
or destruction arising out of (i) a failure to exercise due care or (ii) an
intentional, dishonest or fraudulent act of an employee of Customer.
(g) Remedy. In the event that a Customer makes any unauthorized copy or
copies of records or data in the Starter Repository, or FNF ceases to provide
access to the Starter Reposi-
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tory or the records and data in the Starter Repository in accordance with this
Agreement, the Parties acknowledge and agree that: (A) remedies at law will not
adequately compensate FNF or FNIS, as the case may be; (B) FNF or FNIS, as the
case may be, may suffer irreparable harm; and (C) FNF or FNIS, as the case may
be, shall be entitled, not only to its damages, but also to seek injunctive
relief, without the necessity of posting bond.
6. WARRANTY EXCLUSION; DISCLAIMERS; LIMITATION OF LIABILITY
THE INPUT AND RETRIEVAL OF THE INFORMATION CONTAINED IN ANY FNF COMPUTER SYSTEM
IS SUBJECT TO THE RISKS OF TEMPORARY INTERRUPTION BY REASON OF EQUIPMENT OR
COMMUNICATIONS FAILURE ARISING OUT OF NUMEROUS CAUSES NOT WHOLLY WITHIN CONTROL
OF FNF; FNF IS NOT A GUARANTOR OF AND DOES NOT WARRANT UNINTERRUPTED ACCESS TO
THE STARTERS, THE L&VS, THE STARTER REPOSITORY, THEIR CONTINUITY, OR SUITABILITY
FOR ANY PARTICULAR PURPOSE, FREEDOM FROM ERROR OR CONVEYANCE OF MALICIOUS
COMPUTER CODE.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, FNIS AGREES AND
WILL CAUSE EACH CUSTOMER TO AGREE THAT FNF SHALL INCUR NO LIABILITY TO ANY
CUSTOMER IN THE EVENT OF ANY DAMAGE OR DESTRUCTION TO ANY CUSTOMER COMPUTER
SYSTEM OR THE COMMUNICATIONS NETWORK THROUGH WHICH SUCH CUSTOMER ACCESSES SUCH
COMPUTER SYSTEM, EXCEPT ARISING OUT OF ANY FNF (i) GROSS NEGLIGENCE, (ii)
WILLFUL MISCONDUCT, (iii) IMPROPER USE OR DISCLOSURE OF CONFIDENTIAL
INFORMATION, IF ANY, (iv) VIOLATIONS OF LAW, OR (v) INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS OF A PERSON OR ENTITY WHO IS NOT A PARTY HERETO OR THE
SUBSIDIARY OF A PARTY HERETO. FNF SHALL NOT BE REQUIRED TO RECONSTITUTE, RESTORE
OR RECONSTRUCT ANY COMPUTER SYSTEM DAMAGED BY REASON OF ITS USE IN CONJUNCTION
WITH THE ACCESS PROVIDED HEREUNDER, EXCEPT ARISING OUT OF ANY FNF GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
ACCESS TO THE STARTER REPOSITORY AND ALL INFORMATION OBTAINED THROUGH IT,
WHETHER GENERATED BY FNF OR A PROVIDER, ARE LICENSED TO EACH CUSTOMER "AS IS".
FNF ASSUMES NO DUTY TO CONTINUE TO AUGMENT, CORRECT OR REMOVE ANY INACCURATE
INFORMATION OR NOTIFY CUSTOMERS OF ERRORS IN THE STARTER REPOSITORY. EACH
CUSTOMER ASSUMES FULL RESPONSIBILITY FOR THE TANGIBLE AND BUSINESS RESULTS OF
USE AND/OR RELIANCE UPON THE FNF STARTER REPOSITORY AND ANY OTHER FNF PROPERTY.
NEITHER FNF NOR ITS PROVIDERS MAKE ANY IMPLIED WARRANTY OR REPRESENTATION,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ACCURACY OR COMPLETENESS OF STARTERS, L&VS, STARTER REPOSITORY OR ANY OTHER FNF
PROPERTY MADE AVAILABLE TO ANY CUSTOMER IN TANGIBLE, ELECTRONIC OR OTHER FORM.
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DISCLAIMER OF LIABILITIES. EACH PARTY AGREES THAT IN NO EVENT SHALL THE OTHER
PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER FNF NOR
ANY PROVIDER ASSUMES LIABILITY, AND SHALL NOT BE HELD LIABLE, TO ANY CUSTOMER OR
TO ANY CUSTOMER'S CUSTOMERS OR INSUREDS, OR TO ANY OTHER PERSON, WHO MAY RELY
UPON ANY TITLE POLICY, BINDER, GUARANTEE, ENDORSEMENT OR OTHER TITLE ASSURANCE,
OR ANY STARTERS, ANY L&VS, OR OTHER FNF PROPERTY PROVIDED OR ACCESSED HEREUNDER
(INCLUDING BY REASON OF ERROR OR OMISSION IN ANY INFORMATION OR RESULTING FROM
THE USE OF ANY FNF PROPERTY).
7. INDEMNITY
FNIS shall indemnify and cause each Customer to indemnify and hold FNF harmless
from claims, liability, loss, damage or expense of whatever nature, including
attorney's fees, arising as a result of any claims by third parties alleging or
founded in any manner on any errors or omissions in the records or data
contained in the Starter Repository. If such a claim is asserted, FNF shall
promptly notify FNIS and the applicable Customer and, in the event of such
notification, FNIS and such Customer may elect to defend FNF in any resulting
action or litigation. FNIS and such applicable Customer may use for such purpose
counsel of such FNIS' or Customer's choosing, approved in writing by FNF, at
FNIS' or the Customer's expense. FNIS and such Customer shall also have the
right, whether or not any action or litigation results, to compromise or settle
any monetary claim on behalf of FNF, but at the sole cost of FNIS or such
Customer.
FNF shall indemnify and hold each Customer harmless from claims, liability,
loss, damage or expense of whatever nature, including attorney's fees, arising
as a result of any claims by third parties alleging or founded in any manner on
the warranties contained in Section 5(a). If such a claim is asserted, such
Customer shall promptly notify FNF and, in the event of such notification, FNF
may elect to defend such Customer in any resulting action or litigation. FNF may
use for such purpose counsel of FNF's choosing, approved in writing by such
Customer, at FNF's expense. FNF shall also have the right, whether or not any
action or litigation results, to compromise or settle any monetary claim on
behalf of such Customer, but at the sole cost of FNF.
In the event that any provider of records or data to the Starter Repository or
other information to FNF fails to deliver (or delays the delivery of) such
material or information, or if any provider materially and adversely modifies
the conditions or cost to FNF of obtaining such material or information, then
FNF, at its option, may suspend or terminate its relationship with such provider
and any obligations to any Customer under this Agreement, upon no less than
thirty (30) days written notice. FNF may contract for an alternate source of the
same or similar records or data for the Starter Repository and, notwithstanding
any contrary provision of this Agreement, increase the applicable fees or
charges upon no less than thirty (30) days written notice, or a combination of
the foregoing. FNF will incur no liability to any Customer with respect to any
action or omission under this Section. In the event that a Customer receives a
notice pursuant to this Section substituting records or data or access thereto
or increasing the price thereof, then FNIS
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may terminate such access if it notifies FNF within thirty (30) days after
receipt of notice from FNF regarding such data or access thereto.
8. DISPUTE RESOLUTION
(a) Dispute Resolution. If any Party institutes an action against the
other for breach of this Agreement, either Party may, within sixty (60) days of
service of the complaint in such action upon it, institute arbitration and the
other Party shall cooperate to stay any other proceedings. Any such arbitration
shall be conducted in accordance with the Rules of Commercial Arbitration of the
American Arbitration Association ("AAA"). The arbitration shall be conducted in
Jacksonville, Florida by a single arbitrator knowledgeable about title insurance
and contracts. If the Parties have not agreed to a mutually acceptable
arbitrator within thirty (30) days of the date of the notice to arbitrate, the
arbitrator shall be selected by the AAA from its regularly maintained list of
commercial arbitrators familiar with matters similar to the subject of this
Agreement. The arbitrator shall conduct a single hearing for the purpose of
receiving evidence and shall render a decision within thirty (30) days of the
conclusion of the hearing. The Parties shall be entitled to require production
of documents prior to the hearing in accordance with the procedures of the
Federal Rule of Civil Procedure, shall exchange a list of witnesses, and shall
be entitled to conduct up to five (5) depositions in accordance with the
procedures of the Federal Rules of Civil Procedure. The decision of the
arbitrator shall be binding and final. The arbitrator may award only
compensatory damages, and not exemplary or punitive damages. In the event a
Party asserts multiple claims or causes of action, some but not all of which are
subject to arbitration under law, any and all claims subject to arbitration
shall be submitted to arbitration in accordance with this provision.
(b) Attorneys' Fees and Costs. Each Party shall bear its own costs,
expenses and attorneys' fees and shall equally bear the costs of the arbitrator.
(c) Parties to the Dispute. FNIS agrees that it alone shall, to the extent
it is legally and reasonably able to do so, institute an action for breach of
this Agreement against FNF on behalf of itself or on behalf of Customers. FNIS
shall cause each Customer to agree that FNIS shall be the sole entity to
institute an action for breach of this Agreement by FNF.
9. DISASTER OR OTHER INTERRUPTION OF SERVICE
FNF shall not be held liable for any delay or failure in performance of any part
of this Agreement from any cause beyond its reasonable control and without its
fault or negligence, including, but not limited to, acts of God, acts of civil
or military authority, embargoes, epidemics, war, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, nuclear accidents, floods,
strikes, terrorism and power blackouts. Upon the occurrence of a condition
described in this Article that prevents FNF's performance, FNF shall give
written notice to FNIS, and the Parties shall promptly confer, in good faith, to
agree upon equitable, reasonable action to minimize the impact, on both Parties,
of such conditions.
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10. COMPETITION
This Agreement shall not operate to deny either Party or the Customers the right
and opportunity to compete with each other, or to compete on an equal basis on
the open market. Nothing contained in this Agreement is to be deemed to make any
Party the agent of the other or to constitute an association, partnership or
joint liability between the Parties. The Parties have no intention or thought to
agree between themselves, or even to confer together, as to underwriting
methods, as to fees or premiums to be charged by them to their customers, or as
to any other processes or practices of either Party except as otherwise stated
or prescribed by any Issuing Agency Agreement entered into between the Parties
or, if applicable, their affiliates.
11. COMPLIANCE BY CUSTOMERS
FNIS has the authority to cause and shall cause each other Customer to comply
with the terms of this Agreement.
12. MISCELLANEOUS
(a) Interpretation. This Agreement is to be construed under the laws of
the State of Florida. If any one or more of the terms, provisions, promises,
covenants or conditions of this Agreement, or their application to any person,
corporation, other business entity, or circumstance is to any extent adjudged
invalid, unenforceable, void or voidable for any reason by a court of competent
jurisdiction, each and all of the remaining terms, provisions, promises,
covenants and conditions of this Agreement and their application to other
persons, corporations, business entities, or circumstances shall not be affected
and shall be valid and enforceable to the fullest extent permitted by law. This
Agreement shall not be construed against the Party preparing it, but shall be
construed as if both Parties prepared this Agreement. The headings of each
section and paragraph are to assist in reference only and are not to be used in
the interpretation of this Agreement. Nothing contained in this Agreement is to
be deemed to constitute an association, partnership or joint liability between
the Parties.
(b) No Assignment or Transfer. This Agreement cannot be assigned, in whole
or in part, by either Party by operation of law or otherwise, without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld. Any assignment in contravention of this Section shall be void.
(c) Benefit. This Agreement will be binding upon and inure to the benefit
of the Parties hereto and their respective successors and permitted assigns.
This Agreement is solely for the benefit of the Parties hereto and no third
party will have the right or claim to the benefits afforded either Party
hereunder.
(d) Compliance with Laws and Regulations. FNIS agrees to use and agrees to
cause each Customer to use information received from FNF in compliance with all
applicable Federal, State and local laws and regulations, including without
limitation, Fair Credit Reporting Act (U.S.C.A. Title 00, Xxxxxxx 00, Xxxxxxxxxx
XXX), as amended from time to time.
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(e) Survival. Following the expiration or termination of this Agreement,
whether by its terms, operation of law or otherwise, all terms, provisions or
conditions required for the interpretation of this Agreement or necessary for
the full observation and performance by each Party hereto of all rights and
obligations arising prior to the date of expiration or termination, shall
survive such expiration or termination.
(f) Entire Agreement. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes and
integrates all prior and contemporaneous agreements, representations and
understandings of the Parties, oral and written, pertaining to the subject
matter hereof. Except for any deletion of a Customer from Exhibit A because the
Customer is no longer a direct or indirect subsidiary of FNIS (which deletion
and the termination of rights under this Agreement as to that Customer shall be
automatic upon the change of ownership of such Customer) and except as permitted
with regard to Exhibit B pursuant to Section 3(a), no supplement, modification,
or amendment of this Agreement or any Schedules or Exhibits hereto shall be
binding unless executed in writing by the Parties. No waiver of any of the
provisions of this Agreement is to be considered a waiver of any other
provision, whether or not similar, nor is any waiver to constitute a continuing
waiver. No waiver shall be binding unless set forth in a writing executed by the
Party making the waiver. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
(h) Schedules. Each of the Schedules, Addenda and Exhibits attached to
this Agreement (initially or by way of amendment) is incorporated herein by
reference as if set forth in full.
(i) Notices. All written notices permitted or required to be given under
this Agreement may be personally delivered to the office of the other Party, or
shipped via a nationally recognized overnight courier service, or mailed to the
office of the other Party by Certified United States Mail, or sent by electronic
mail. Each notice shall be addressed to the address set forth under the Party's
signature. Any notice delivered hereunder will be effective on the date
delivered when delivered personally or by overnight courier, or on the third
business day after mailing if mailed by Certified United States Mail, or on the
date delivered when sent by electronic mail. Either Party may, by written notice
to the other via first class mail, change its address for notices.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
Fidelity National Financial, Inc.: Fidelity National Financial Services, Inc.
A Delaware corporation A Delaware corporation
By: _________________________________ By: __________________________________
Title: ______________________________ Title: _______________________________
Print Name: _________________________ Print Name: __________________________
Date: _______________________________ Email Address: _______________________
Date: ________________________________
Address for Notices: Address for Notices:
Fidelity National Financial, Inc. Fidelity National Information
000 Xxxxxxxxx Xxxxxx Services, Inc.
Xxxxxxxxxxxx, XX 00000 000 Xxxxxxxxx Xxxxxx
Attn: Corporate Director of IT Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
With a copy to:
Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
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