Exhibit 99.12
This SOFTWARE LICENSE AGREEMENT (the “Agreement”) is dated as of June 1, 2006 (the “Effective
Date”) and is made by FIDELITY INFORMATION SERVICES, INC., and its SoftPro division, with its
principal office at 000 Xxxx Xxx Xxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx, 00000 (“SoftPro”), and
FIDELITY NATIONAL TITLE GROUP, INC., with its principal offices at 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000 (“Client” or “FNTG”).
The previous agreement, Amended and Restated
SoftPro Software License Agreement, dated February 1,
2006 between SoftPro and FNTG (which amended and replaced the
SoftPro Software License Agreement
dated as of March 4, 2005), shall hereby be terminated and the terms and conditions of this
Agreement shall control as of the Effective Date noted above.
| 1. |
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DEFINITIONS. |
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As used in this Agreement: |
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1.1 |
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“Assistance” shall mean installation, conversion planning, conversion,
consulting assistance, workshops, training or education classes performed by SoftPro,
or other functions mutually agreed to be “Assistance” by Client and SoftPro. |
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1.2 |
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“Base Modification” shall mean any Modification which SoftPro, in its sole
discretion, has incorporated into the base version of the SoftPro Software which
SoftPro makes generally available to its customers. |
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1.3 |
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“Competitor” shall mean a natural or legal person offering a product that
competes with SoftPro Software, but specifically excludes Client in the development of
any of its internal systems, including without limitation, Simon, Team, NGS, ELS,
CACTUS or similar programs. |
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1.4 |
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“Client” or “FNTG” shall including FNTG and each and every direct or indirect
subsidiary of FNTG. |
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1.5 |
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“Custom Modification” shall mean any Modification to the SoftPro Software other
than a Base Modification. |
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1.6 |
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“Days” shall mean calendar days, unless otherwise specified. |
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1.7 |
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“Defect” shall mean any failure, malfunction, defect or non-conformity in the
SoftPro Software that prevents the SoftPro Software in any material respect from
operating and performing in accordance with the Documentation. |
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1.8 |
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“Documentation” shall mean SoftPro’s standard operating instructions relating
to the SoftPro Software, consisting of one copy of the object code form of the SoftPro
Software; a copy of manuals consisting of instructions and procedures for systems and
operations personnel and end users of SoftPro Software, and related documentation which
SoftPro makes available to its customers in general. |
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SoftPro will deliver the Documentation to Client in paper form, on CD ROM or
electronically, at SoftPro’s discretion and in accordance with SoftPro’s
then-current practices for such delivery (except that SoftPro Software shall be
delivered on machine readable media). Client acknowledges that not all items of
Documentation are available in all forms of media. SoftPro shall have the right to
change the medium upon which the Documentation is delivered to Client without notice
to Client. Upon electronic delivery of Documentation, any obligation of SoftPro to
deliver multiple numbers of copies of such Documentation to Client shall have no
further force or effect. |
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1.9 |
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“Escalation Procedures” shall mean the procedures set forth in Section 11.2 of
this Agreement. |
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1.10 |
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“Installation Site” shall mean each location at which the SoftPro Software is
installed and which is either (i) owned or controlled by Client, (ii) owned or
controlled by a Client contractor (who is not a Competitor and who has executed a
nondisclosure agreement consistent with the terms of this Agreement) providing use of
systems to Client, and which is located in the United States. |
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1.11 |
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“Maintenance” shall mean the services described in Exhibit A hereto. |
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1.12 |
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“Maintenance Release” shall mean the current Release of the SoftPro Software
and the immediately prior Release (provided that such Releases have been made available
to Client), and shall also include, at any given time, each Release delivered to Client
within the prior two years. |
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1.13 |
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“Modification” shall mean any customization, enhancement, modification or
change made to the SoftPro Software authored by or for SoftPro under this Agreement. |
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1.14 |
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“MSA” shall mean the Amended and Restated Master Information Technology
Services Agreement by and between Fidelity Information Services, Inc. and Fidelity
National Title Group, Inc. entered into as of the date hereof, as amended, supplemented
or modified from time to time. |
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1.15 |
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“Proprietary Information” shall mean all information disclosed by or for Client
or SoftPro to the other during the negotiations hereof and/or learned by reason of the
relationship established hereunder or pursuant hereto, including, without limitation,
the SoftPro Software, Documentation, Releases, Modifications and all information, data
and designs related thereto. Information relating to each party’s business, plans,
affiliates or customers shall also be deemed “Proprietary Information” for purposes of
the Agreement. “Proprietary Information” shall also include all “non-public personal
information” as defined in Title V of the Xxxxx-Xxxxx-Xxxxxx Act (15 U.S.C. Section
6801, et seq.) and the implementing regulations thereunder (collectively, the “GLB
Act”), as the same may be amended from time to time, that SoftPro receives from or at
the direction of |
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Client and that concerns any of Client’s “customers” and/or “consumers” (as defined
in the GLB Act). |
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1.16 |
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“Release” shall mean the Base Modifications, and other new versions,
corrections, revisions, updates, modifications and enhancements to the SoftPro Software
and related Documentation that SoftPro makes commercially available, without additional
charge, to licensees of the SoftPro Software to which SoftPro is providing Maintenance.
A Release does not include any new or replacement products. |
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1.17 |
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“SoftPro Affiliate” shall mean any majority-owned, direct or indirect
subsidiary of SoftPro, as from time to time constituted. |
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1.18 |
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“SoftPro Software” shall mean the object code and/or Source Code of any program
or part of a program as described in Exhibit A licensed hereunder to Client. SoftPro
Software includes all Base Modifications, all Modifications authored by or for SoftPro,
and all Releases issued during the term of Maintenance under this Agreement. |
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1.19 |
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“Source Code” of SoftPro Software shall mean a copy of the source code (or
comparable high level coding) for the SoftPro Software, including any annotations
therein, certified by SoftPro to Client, upon each delivery to Client, as a complete
and accurate copy of source code corresponding to the SoftPro Software as last
delivered or otherwise made available by SoftPro (whether in pieces or in an integrated
whole). |
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1.20 |
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“Third Party Software” shall mean those third party applications provided by
SoftPro. |
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1.21 |
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“Use Limitations” shall mean the use by Client of the SoftPro Software
simultaneously on no more than the number of Workstations licensed herein. |
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1.22 |
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“Workstation” shall mean any personal computer or computer terminal on which
use of SoftPro Software is authorized. |
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2.1 |
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Grant. Subject to Client’s full payment, as due, of fees listed in Exhibit C,
SoftPro hereby grants to Client, and Client accepts from SoftPro, a world-wide
nonexclusive, perpetual, irrevocable right and object code license (except as otherwise
provided for in Section 3 below) to use the SoftPro Software and Documentation at the
Installation Site(s), subject to the restrictions and obligations set forth herein. |
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2.2 |
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Delivery. Client acknowledges and agrees that it has received, prior to the
Effective Date, delivery of the SoftPro Software in object code form and the
Documentation. |
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3.1 |
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Duty to Deliver. Under the circumstances listed in Section 3.2 below, solely
for purposes of integration, maintenance, modification and enhancement of Client’s
installation(s) of SoftPro Software, SoftPro shall promptly deliver to Client a
complete copy of Source Code, which shall be subject to all of the license terms and
restrictions applicable to the SoftPro Software. |
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3.2 |
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Conditions. SoftPro’s duty of delivery of Source Code as described above shall
be immediately due and enforceable in equity upon any of these circumstances: |
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(a) |
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SoftPro has given notice to Client under terms of Maintenance
that SoftPro shall cease, or SoftPro has ceased, (i) providing Maintenance
generally or (ii) supporting any part of SoftPro Software, and in the event of
notice of future termination, such termination (whenever notice is given) shall
be effective within twelve months. |
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(b) |
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SoftPro shall apply for or consent to the appointment of a
receiver, trustee, or liquidator of all or a substantial part of its assets,
file a voluntary petition in bankruptcy, make a general assignment for the
benefit of creditors, file a petition or an answer seeking reorganization or
arrangement with creditors or take advantage of any insolvency law, or if an
order, judgment or decree shall be entered by any court of competent
jurisdiction, on the application of a creditor, adjudicating SoftPro as
bankrupt or insolvent or approving a petition seeking reorganization of SoftPro
or appointing a receiver, trustee, or liquidator of SoftPro or of all or
substantial part of its assets, and such order, judgment or decree shall
continue unstayed and in effect for any period of thirty (30) consecutive Days. |
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(c) |
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SoftPro shall be in breach of any material covenant herein or
under Maintenance (or of any Development Services SOW under the MSA) which,
following notice of breach in reasonable detail from Client, is not cured
within thirty (30) Days. To the extent the breach relates to Maintenance on a
specific module or separable component of SoftPro Software, the duty of Source
Code delivery shall be limited to the Source Code for such specific module or
separable component. |
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(d) |
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Client shall have requested development or integration services
with respect to SoftPro Software which SoftPro is unable or unwilling to
provide or as to which the parties cannot timely come to commercial terms. |
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(i) |
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To the extent the integration or development
relates to a specific module or separable component of SoftPro
Software, the duty of Source Code delivery shall be limited to the
Source Code for such specific module or separable component. |
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(ii) |
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In the event of delivery of Source Code by
SoftPro under this subsection (d), upon Client’s completion of its
development or integration effort, equating generally to the same scope
of work that SoftPro was requested to perform but did not perform, it
will provide to SoftPro a copy of the source code for the development
or enhancement, including any annotations therein, certifying same as
complete and accurate and, without further formality, SoftPro shall be
deemed granted a license to use that source code developed by Client or
its non-Competitor contractors, solely for maintenance or further
development of the SoftPro Software as implemented for Client and for
no other use or beneficiary. |
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(iii) |
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Six (6) months following the delivery by
Client to SoftPro of source code for Client’s developments or
enhancements under Section 3.2(d)(ii), SoftPro may request that Client
certify, and Client will promptly certify to SoftPro, that Client has
destroyed all copies of (x) Source Code delivered to it by SoftPro
3.2(d) and (y) all copies of the source code for Client’s development
or enhancement — except two hard copy prints of source code for
Client’s development or enhancement for proof of authorship. |
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(iv) |
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Client’s right to obtain access to Source Code
pursuant to this Section 3.2(d) may be invoked at any time and from
time to time, regardless of the continuity of Maintenance. |
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SOFTWARE USE RESTRICTIONS. |
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4.1 |
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Restrictions on SoftPro Software. |
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(a) |
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Client may not use the SoftPro Software in a service bureau or
in a time share arrangement. |
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(b) |
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Client may not sell, lease, assign, transfer, distribute or
sublicense the SoftPro Software or Documentation, to any party that is not a
(direct or indirect) subsidiary of Client except as set forth in Schedule
4.1(b). |
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(c) |
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Client shall use SoftPro Software subject to the Use
Limitations. |
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(d) |
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Client will not make copies, or similar versions of the SoftPro
Software or any part thereof without the prior written consent of SoftPro,
except in the process of contemplated use, for administrative, archival or
disaster recovery backup, and as expressly provided otherwise herein. |
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(e) |
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Client may not provide copies of the SoftPro Software to any
person, firm, or corporation not permitted hereunder except as permitted under
Sections 4.1(b) and (d) above, and except as to Client’s non-Competitor
contractors or subcontractors who have executed nondisclosure terms consistent
with the confidentiality terms herein. |
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(f) |
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Client shall not allow any third party to use or have access to
the SoftPro Software for any purpose without SoftPro’s prior written consent
except as permitted under Sections 4.1(b) and (d) above, and except as to
Client’s non-Competitor contractors or subcontractors who have executed
nondisclosure terms consistent with the confidentiality terms herein. |
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(g) |
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Client agrees not to disclose, decompile, disassemble or
reverse engineer the SoftPro Software. |
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(h) |
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Notwithstanding the foregoing provisions, nothing shall
prohibit Client’s development, improvement or maintenance of its own systems,
even those similar in function and usage to the SoftPro Software, including,
without limitation, Simon, Team, NGS, ELS, CACTUS or similar program provided
no SoftPro Proprietary Information is used in such development improvement or
maintenance. |
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5.1 |
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The initial term of the license shall be for a period of two (2) years,
commencing June 1, 2006, and shall renew automatically, on each anniversary hereof, for
subsequent one year terms. |
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5.2 |
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Client may terminate the license for convenience upon no less than ninety (90)
days prior written notice to the other. |
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5.3 |
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A license enjoyed by a direct or indirect subsidiary of Client shall terminate
without further formality upon the six month anniversary date after such entity’s
ceasing to be a subsidiary of Client. Client shall cause such subsidiary to agree to
migrate its data off the SoftPro Software and on to an alternative product during the
above described six month period. In any event, if the subsidiary becomes a subsidiary
of a Competitor, the license to the subsidiary shall terminate immediately. |
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5.4 |
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In the event Client or a Client subsidiary discloses any of the SoftPro
Software or any material part of the Documentation to a Competitor, then SoftPro upon
thirty (30) days prior written notice to Client, may terminate the license with respect
to that portion of relating to the SoftPro Software and Documentation provided to such
competitor if Client on its own does not (or if Client does not cause its subsidiary
to) discontinue disclosure of the SoftPro Software and Documentation to such Competitor
within thirty (30) Days following Client’s receipt of SoftPro’ written notice. Any such
termination shall be effective upon the expiration of the cure period. The foregoing
is intended to apply only to the remedy of termination. SoftPro shall retain the right
to pursue any other remedies in the event Client or its Subsidiary makes an
unauthorized disclosure to a Competitor, including injunctive relief or recovery of
damages, and, depending on the nature of the disclosure, requesting that Client
undertake other measures in addition to simply discontinuing disclosure to the
Competitor. |
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5.5 |
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In the event of termination of the license for any reason, Client and/or its
subsidiary, as applicable, shall promptly cease all use of the relevant SoftPro
Software, delete from its systems all copies of the relevant SoftPro Software, and
within thirty (30) days of termination, return to SoftPro all tangible copies of the
relevant SoftPro Software, together with certification that is has ceased such use,
deleted such copies and returned such tangible copies as required hereunder. |
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5.6 |
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Each party acknowledges and agrees that, in the event of Client’s breach or
threatened breach or any provision of Sections 4, 5.3, 5.4, 5.5 or 7, SoftPro shall
have no adequate remedy in damages and notwithstanding the dispute resolution
provisions in Section 11 hereof, is entitled to seek an injunction to prevent such
breach or threatened breach; provided, however, no specification of a particular legal
or equitable remedy is to be construed as a waiver, prohibition, or limitation of any
legal or equitable remedies in the event of a breach hereof. |
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5.7 |
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Licenses purchased pursuant to the option in Schedule 4.1(b) shall survive in
accordance with their terms. |
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INTELLECTUAL PROPERTY RIGHTS. |
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6.1 |
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Ownership of SoftPro Software and Documentation. From the date the SoftPro
Software and Documentation is first disclosed to Client, and at all times thereafter,
as between the parties, SoftPro and its licensors shall be the sole and exclusive
owners of all right, title, and interest in and to the SoftPro Software, Documentation
and all Modifications, including, without limitation, all intellectual property and
other rights related thereto. The parties acknowledge that this Agreement in no way
limits or restricts SoftPro and the SoftPro Affiliates from developing or marketing on
their own or for any third party in the United States or any other country, the SoftPro
Software, Documentation or Modifications, or any similar software (including, but not
limited to, any modification, enhancement, interface, upgrade, change and all software,
source code, blueprints, diagrams, flow charts, specifications, functional descriptions
or training materials relating thereto) without payment of any compensation to Client,
or any notice to Client. |
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6.2 |
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Development Services. Client may from time to time wish to augment the SoftPro
product with additional functionality or utility, or to integrate it with Client
systems from other sources, and for such purposes may request the provision of
development services from SoftPro pursuant to a statement of work under the MSA (a
“SOW”). |
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6.3 |
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Conflict with MSA. Title to any SoftPro work product developed under the MSA
shall be determined by the MSA notwithstanding any conflicting terms herein. |
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7.1 |
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Confidentiality Obligation. Proprietary Information (i) shall be deemed the
property of the disclosing party (or the party for whom such data was collected or
processed, if any), (ii) shall be used solely for the purposes of administering and
otherwise implementing the terms of this Agreement and any ancillary agreements, and
(iii) shall be protected by the receiving party in accordance with the terms of this
Section 7. |
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7.2 |
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Non-Disclosure Covenant. Except as set forth in this Section, neither party
shall disclose the Proprietary Information of the other party in whole or in part,
including derivations, to any third party. If the parties agree to a specific
nondisclosure period for a specific document, the disclosing party shall xxxx the
document with that nondisclosure period. In the absence of a specific period, the duty
of confidentiality for (a) SoftPro Software (except pursuant to Schedule 4.1(b),)
Source Code and related Documentation shall extend in perpetuity and (b) with respect
to any other Proprietary Information shall extend for a period of five (5) years from
disclosure. Proprietary Information shall be held in confidence by the receiving party
and its employees, and shall be disclosed to only those of the receiving party’s
employees and professional advisors who have a need for it in connection with the
administration and implementation of this Agreement. In no event shall Client disclose
SoftPro Proprietary Information to a Competitor of SoftPro. Each party shall use the
same degree of care and afford the same protections to the Proprietary Information of
the other party as it uses and affords to its own Proprietary Information. |
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7.3 |
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Exceptions. Proprietary Information shall not be deemed proprietary and,
subject to the carve-out below, the receiving party shall have no obligation of
nondisclosure with respect to any such information which: |
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(i) |
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is or becomes publicly known through no wrongful act, fault or
negligence of the receiving party; |
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(ii) |
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was disclosed to the receiving party by a third party that was
free of obligations of confidentiality to the party providing the information; |
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(iii) |
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is approved for release by written authorization of the
disclosing party; |
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(iv) |
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was known to the receiving party prior to receipt of the
information; |
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(v) |
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was independently developed by the receiving party without
access to or use of the Proprietary Information of the disclosing party; or |
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(vi) |
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is publicly disclosed pursuant to a requirement or request of a
governmental agency, or disclosure is required by operation of law. |
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Notwithstanding application of any of the foregoing exceptions, in no event shall
SoftPro treat as other than Proprietary Information, information comprising
nonpublic personal information under the GLB Act. |
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7.4 |
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Confidentiality of this Agreement; Protective Arrangements. |
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(a) |
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The parties acknowledge that this Agreement contains
confidential information that may be considered proprietary by one or both of
the parties, and agree to limit distribution of this Agreement to those |
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employees of Client and SoftPro with a need to know the contents of this
Agreement or as required by law or national stock exchange rule. In no
event may this Agreement be reproduced or copies shown to any third parties
(except counsel, auditors and professional advisors) without the prior
written consent of the other party, except as may be necessary by reason of
legal, accounting, tax or regulatory requirements, in which event Client and
SoftPro agree to exercise reasonable diligence in limiting such disclosure
to the minimum necessary under the particular circumstances. |
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(b) |
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In addition, each party shall give notice to the other party of
any demands to disclose or provide Proprietary Information of the other party
under or pursuant to lawful process prior to disclosing or furnishing such
Proprietary Information, and shall cooperate in seeking reasonable protective
arrangements. |
| 8. |
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CONTINUING UNDERTAKINGS. |
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During the duration of the license granted hereunder, SoftPro shall offer Maintenance for
the SoftPro Software for the fees set forth in Exhibit C hereto. A description of
Maintenance services is set forth in Exhibit B hereto. Any related professional services
shall be performed pursuant to Exhibit B of the MSA. |
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| 9. |
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INVOICING AND PAYMENTS, PAST DUE AMOUNTS, CURRENCY. |
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9.1 |
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Invoicing and Payment Requirements. SoftPro shall invoice for such fees
described in Exhibit B hereto as well as for any expenses and any other applicable
charges incurred and owing hereunder. In accordance with this Section 9.1, Client
shall pay SoftPro the invoiced amount in full on or prior to thirty (30) Days after
Client’s receipt of such invoice unless Client notifies SoftPro within such period that
it is in good faith disputing SoftPro’s invoice. Client shall make all payments to
SoftPro by check, credit card or wire transfer of immediately available funds to an
account or accounts designated by SoftPro. Payment in full shall not preclude later
dispute of charges or adjustment of improper payments. |
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9.2 |
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Past Due Amounts. Any amount not received or disputed by Client by the date
payment is due shall be subject to interest on the overdue balance at a rate equal to
the prime rate as published in the table money rates in the Wall Street Journal on the
date of payment (or the prior date on which the Wall Street Journal was published if
not published on the date of payment), plus one percent from the due date, until paid,
applied to the outstanding balance from time to time. Any amount paid but later deemed
not to have been due, will be repaid or credited with interest on the same terms. |
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9.3 |
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Currency. All fees and charges listed and referred to in this Agreement are
stated in and shall be paid in U.S. Dollars. |
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10.1 |
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Basis for Assistance. Assistance, except to the extent included in
Maintenance, is not included in this Agreement. If Client desires to purchase
Assistance from SoftPro or a SoftPro Affiliate, such Assistance shall be provided
pursuant to separate agreement. Notwithstanding the foregoing, to the extent
Assistance is available under the MSA, its performance shall be governed by the terms
of the MSA. |
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11.1 |
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Dispute Resolution Procedures. If, prior to the termination of this Agreement
or the license granted herein, and prior to notice of termination given by either party
to the other, a dispute arises between SoftPro and Client with respect to the terms and
conditions of this Agreement, or any subject matter governed by this Agreement (other
than disputes regarding a party’s compliance with the provisions of Sections 4 and/or
7), such dispute shall be settled as set forth in this Section 11. If either party
exercises its right to initiate the dispute resolution procedures under this Section
11, then during such procedure any time periods providing for termination of the
Agreement or curing any material breach pursuant to the terms of this Agreement shall
be suspended automatically, except with respect to any termination or breach arising
out of Client’s failure to make any undisputed timely and complete payments to SoftPro
under this Agreement. At such time as the dispute is resolved, if such dispute
involved the payment of monies, interest at a rate equal to the prime rate as published
in the table money rates in the Wall Street Journal on the date the dispute is resolved
(or the prior date on which the Wall Street Journal was published if not published on
the date the dispute was resolved) plus one percent for the period of dispute shall be
paid to the party entitled to receive the disputed monies to compensate for the lapsed
time between the date such disputed amount originally was to have been paid (or was
paid) through the date monies are paid (or repaid) in settlement of the dispute.
Disputes arising under Sections 4 or 7 may be resolved by judicial recourse or in any
other manner agreed by the parties. |
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11.2 |
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Escalation Procedures. |
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(a) |
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Each of the parties shall escalate and negotiate, in good
faith, any claim or dispute that has not been satisfactorily resolved between
the parties at the level where the issue is discovered and has immediate impact
(excluding issues of title to work product, which shall be initially addressed
at the general counsel level but otherwise pursuant to Section 11.2(b)
following). To this end, each party shall escalate any and all unresolved
disputes or claims in accordance with this Section 11.2 at any time to persons
responsible for the administration of the relationship reflected in this
Agreement. The location, format, frequency, duration and conclusion of these
elevated discussions shall be left to the discretion of the representatives
involved. If such parties do not resolve the underlying dispute within ten
(10) Days of its escalation to them, then either party may notify the other in
writing that he/she desires to elevate the dispute or |
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claim to the President of Fidelity Information Services, Inc. (“FIS”) and
the President of Fidelity National Title Group, Inc. (“FNTG”) or their
designated representative(s) for resolution. |
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(b) |
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Upon receipt by a party of a written notice escalating the
dispute to the company president level, the President of FIS and the President
of FNTG or their designated representative(s) shall promptly communicate with
his/her counter party, negotiate in good faith and use reasonable efforts to
resolve such dispute or claim. The location, format, frequency, duration and
conclusion of these elevated discussions shall be left to the discretion of the
representatives involved. Upon agreement, such representatives may utilize
other alternative dispute resolution procedures to assist in the negotiations.
If the parties have not resolved the dispute within ten (10) Days after receipt
of the notice elevating the dispute to this level, either may once again
escalate the dispute to binding arbitration. |
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(c) |
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All discussions and correspondence among the representatives
for purposes of these negotiations shall be treated as Proprietary Information
developed for purposes of settlement, exempt from discovery and production,
which shall not be admissible in any subsequent proceedings between the
parties. Documents identified in or provided with such communications, which
are not prepared for purposes of the negotiations, are not so exempted and may,
if otherwise admissible, be admitted in evidence in such subsequent proceeding. |
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11.3 |
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Arbitration Procedures. If a claim, controversy or dispute between the parties
with respect to the terms and conditions of this Agreement, or any subject matter
governed by this Agreement (and not otherwise excepted), has not been timely resolved
pursuant to the foregoing escalation process, upon notice either party may initiate
binding arbitration of the issue in accordance with the following procedures. |
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(a) |
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Either party may request arbitration by giving the other party
written notice to such effect, which notice shall describe, in reasonable
detail, the nature of the dispute, controversy or claim. Such arbitration shall
be governed by the then current version of the Commercial Arbitration Rules and
Mediation Procedures of the American Arbitration Association. The Arbitration
will be conducted in Jacksonville, Florida in front of one mutually agreed upon
arbitrator. |
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(b) |
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Each party shall bear its own fees, costs and expenses of the
arbitration and its own legal expenses, attorneys’ fees and costs of all
experts and witnesses. Unless the award provides otherwise, the fees and
expenses of the arbitration procedures, including the fees of the arbitrator or
arbitrators, will be shared equally by the involved parties. |
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(c) |
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Any award rendered pursuant to such arbitration shall be final,
conclusive and binding upon the parties, and any judgment thereon may be
entered and enforced in any court of competent jurisdiction. |
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11.4 |
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Continuation of Services. Unless SoftPro initiates an action for Client’s
failure to make timely and complete payment of undisputed amounts claimed due to
SoftPro, SoftPro will continue to provide Maintenance under the Maintenance services
agreement (and development services under an MSA SOW), and unless Client is unable to
lawfully use the SoftPro Software and Modifications thereto, Client will continue to
make payments of undisputed amounts to SoftPro, in accordance with this Agreement,
notwithstanding a dispute between the parties relating hereto or otherwise. |
| 12. |
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LIMITATION OF LIABILITY. |
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12.1 |
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EXCEPT TO THE EXTENT ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BY
REASON OF AN INDEMNITY OBLIGATION HEREUNDER OR BY REASON OF A BREACH OF WARRANTY,
EITHER PARTY’S LIABILITY FOR ANY CLAIM OR CAUSE OF ACTION WHETHER BASED IN CONTRACT,
TORT OR OTHERWISE WHICH ARISES UNDER OR IS RELATED TO THIS AGREEMENT SHALL BE LIMITED
TO THE OTHER PARTY’S DIRECT OUT-OF-POCKET DAMAGES, ACTUALLY INCURRED, WHICH UNDER NO
CIRCUMSTANCES SHALL EXCEED, IN THE AGGREGATE, THE AMOUNT PAID BY CLIENT TO SOFTPRO
UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM
AROSE. |
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12.2 |
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IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER OR THE CLAIMS OR DEMANDS
MADE BY ANY THIRD PARTIES, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. |
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12.3 |
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Client Software. SoftPro has no obligation or liability, either express or
implied, with respect to the compatibility of SoftPro Software with any other software
unless provided or specified by SoftPro including, but not limited to, Client software
and/or Client-provided third party software. |
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13.1 |
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Property Damage. Subject to Section 12 hereof, each party agrees to indemnify,
defend and hold harmless the other and its officers, directors, employees, and
affiliates (including, where applicable, the SoftPro Affiliates and Client affiliates),
and agents from any and all liabilities, losses, costs, damages and expenses (including
reasonable attorneys’ fees) arising from or in connection with the damage, loss
(including theft) or destruction of any real property or tangible |
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personal property of the indemnified party resulting from the actions or inactions
of any employee, agent or subcontractor of the indemnifying party insofar as such
damage arises out of or is ancillary to fulfilling its obligations under this
Agreement and to the extent such damage is due to any negligence, breach of
statutory duty, omission or default of the indemnifying party, its employees, agents
or subcontractors. |
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13.2 |
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Infringement of SoftPro Software. SoftPro agrees to defend at its own expense,
any claim or action brought by any third party against Client and/or against its
officers, directors, and employees and affiliates, for actual or alleged infringement
within the United States of any patent, copyright or other intellectual property right
(including, but not limited to, misappropriation of trade secrets) based upon the
SoftPro Software (except to the extent such infringement claim is (i) caused by
Client-specified Custom Modifications to the SoftPro Software which could not have been
made in a non-infringing manner; (ii) caused by the combination of SoftPro Software
with software or hardware not provided, specified or approved by SoftPro; or (iii)
based upon the Third Party Software (“Indemnified SoftPro Software”)). Client, at its
sole discretion and cost, may participate in the defense and all negotiations for its
settlement or compromise. SoftPro further agrees to indemnify and hold Client, its
officers, directors, employees and affiliates harmless from and against any and all
liabilities, losses, costs, damages, and expenses (including reasonable attorneys’
fees) associated with any such claim or action incurred by Client. SoftPro shall
conduct and control the defense of any such claim or action and negotiations for its
settlement or compromise, by the payment of money. SoftPro shall give Client, and
Client shall give SoftPro, as appropriate, prompt written notice of any written threat,
warning or notice of any such claim or action against SoftPro or Client, as
appropriate, or any other user or any supplier of components of the Indemnified SoftPro
Software, which could have an adverse impact on Client’s use of same, provided SoftPro
or Client, as appropriate, knows of such claim or action. If in any such suit so
defended, all or any part of the Indemnified SoftPro Software (or any component
thereof) is held to constitute an infringement or violation of any other party’s
intellectual property rights and is enjoined, SoftPro shall at its sole option take one
or more of the following actions at no additional cost to Client: (i) procure the right
to continue the use of the same without material interruption for Client; (ii) replace
the same with non-infringing software; (iii) modify said Indemnified SoftPro Software
so as to be non-infringing; or (iv) take back the infringing Indemnified SoftPro
Software and credit Client with an amount equal to its purchase price. The foregoing
represents the sole and exclusive remedy of Client for infringement or alleged
infringement. |
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13.3 |
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Dispute Resolution. The provisions of Section 13 shall apply with respect to
the submission of any claim for indemnification under this Agreement and the resolution
of any disputes relating to such claim. |
| 14. |
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FORCE MAJEURE, TIME OF PERFORMANCE AND INCREASED COSTS. |
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(a) |
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Neither party shall be held liable for any delay or failure in
performance of its obligations under this Agreement from any cause which with
the observation of reasonable care, could not have been avoided — which may
include, without limitation, acts of civil or military authority, government
regulations, government agencies, epidemics, war, terrorist acts, riots,
insurrections, fires, explosions, earthquakes, hurricanes, tornadoes, nuclear
accidents, floods, power blackouts affecting facilities (the “Affected
Performance”). |
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(b) |
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Upon the occurrence of a condition described in Section
14.1(a), the party whose performance is affected shall give written notice to
the other party describing the Affected Performance, and the parties shall
promptly confer, in good faith, to agree upon equitable, reasonable action to
minimize the impact on both parties of such condition, including, without
limitation, implementing disaster recovery procedures. The parties agree that
the party whose performance is affected shall use commercially reasonable
efforts to minimize the delay caused by the force majeure events and recommence
the Affected Performance. If the delay caused by the force majeure event lasts
for more than fifteen (15) Days, the parties shall negotiate an equitable
amendment to this Agreement with respect to the Affected Performance. If the
parties are unable to agree upon an equitable amendment within ten (10) Days
after such fifteen (15)-Day period has expired, then either party shall be
entitled to serve thirty (30) Days’ notice of termination on the other party
with respect to only such Affected Performance. The remaining portion of the
Agreement that does not involve the Affected Performance shall continue in full
force and effect. SoftPro shall be entitled to be paid for that portion of the
Affected Performance which it completed through the termination date. |
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14.2 |
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Time of Performance and Increased Costs. SoftPro’s time of performance under
this Agreement shall be adjusted, if and to the extent reasonably necessary, in the
event and to the extent that (i) Client fails to timely submit material data or
materials in the prescribed form or in accordance with the requirements of this
Agreement, (ii) Client fails to perform on a timely basis, the material functions or
other responsibilities of Client described in this Agreement, (iii) Client or any
governmental agency authorized to regulate or supervise Client makes any special
request, which is affirmed by Client and/or compulsory on SoftPro, which affects Pro’s
normal performance schedule, or (iv) Client has modified the SoftPro Software in a
manner affecting SoftPro’s burden. In addition, if any of the above events occur, and
such event results in an increased cost to SoftPro, SoftPro shall estimate such
increased costs in writing in advance and, upon Client’s approval, Client shall be
required to pay any and all such reasonable, increased costs to SoftPro upon documented
expenditure, up to 110% of the estimate. |
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15.1 |
|
Notices. Except as otherwise provided under this Agreement or in the Exhibits,
all notices, demands or requests or other communications required or permitted to be
given or delivered under this Agreement shall be in writing and shall be deemed to have
been duly given when received by the designated recipient. Written notice may be
delivered in person or sent via reputable air courier service and addressed as set
forth below: |
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If to Client:
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Fidelity National Title Group, Inc. |
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000 Xxxxxxxxx Xxxxxx |
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Xxxxxxxxxxxx, XX 00000 |
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Attn: President |
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with a copy to:
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Fidelity National Title Group, Inc. |
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000 Xxxxxxxxx Xxxxxx |
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Xxxxxxxxxxxx, XX 00000 |
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Attn: General Counsel |
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If to SoftPro:
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Fidelity Information Services, Inc. |
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FNIS SoftPro Division |
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000 Xxxx Xxx Xxxxx Xxxx |
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Xxxxxxx, XX 00000-0000 |
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Attn: President |
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with a copy to:
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Fidelity Information Services, Inc. |
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000 Xxxxxxxxx Xxxxxx |
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Xxxxxxxxxxxx, XX 00000 |
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Attn: General Counsel |
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15.2 |
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Change of Address. The address to which such notices, demands, requests,
elections or other communications are to be given by either party may be changed by
written notice given by such party to the other party pursuant to this Section. |
| |
16.1 |
|
Performance. For as long as SoftPro is providing Maintenance to Client for the
SoftPro Software, SoftPro warrants and represents that the SoftPro Software and the
Custom Modifications, as delivered to Client and the Base Modifications, will perform
in all material respects in accordance with the respective Documentation, in concert
and otherwise. |
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16.2 |
|
Performance of Obligations. Each party represents and warrants to the other
that it shall perform its respective obligations under this Agreement, including
Exhibits and Schedules, in a professional and workmanlike manner. |
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16.3 |
|
Compliance With Law. SoftPro warrants that (i) it has the power and corporate
authority to enter into and perform this Agreement, (ii) its performance of this
Agreement does not and will not violate any governmental law, regulation, rule or |
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order, contract, charter or by-law; (iii) it has sufficient right, title and
interest (or another majority-owned, direct or indirect subsidiary of FNF has or
will grant it sufficient license rights) in the SoftPro Software to grant the
licenses herein granted, (iv) it has received no written notice of any third party
claim or threat of a claim alleging that any part of the SoftPro Software infringes
the rights of any third party in any of the United States, and (v) each item of
SoftPro Software provided by or for SoftPro to Client shall be delivered free of
undisclosed trapdoors, Trojan horses, time bombs, time outs, spyware, viruses or
other code which, with the passage of time, in the absence of action or upon a
trigger, would interfere with the normal use of, or access to, any file, datum or
system. |
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16.4 |
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Exclusive Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT, NEITHER PARTY
MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE, AND EACH PARTY AGREES THAT ALL REPRESENTATIONS AND WARRANTIES
THAT ARE NOT EXPRESSLY PROVIDED IN THIS AGREEMENT ARE HEREBY EXCLUDED AND DISCLAIMED. |
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17.1 |
|
Assignment. Except as set forth herein, neither party may sell, assign,
convey, or transfer the licenses granted hereunder or any of such party’s rights or
interests, or delegate any of its obligations hereunder without the written consent of
the other party. Any assignment hereunder shall be conditioned upon the understanding
that this Agreement shall be binding upon the assigning party’s successors and assigns.
Either party may assign this Agreement to any direct or indirect subsidiary that is
not a Competitor except that the assigning party shall remain responsible for all
obligations under this Agreement including the payment of fees. Notwithstanding
anything contained herein to the contrary, Client may not assign this Agreement to a
Competitor. |
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17.2 |
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Severability. Provided Client retains quiet enjoyment of the SoftPro Software
including Custom Modifications and Base Modifications, if any one or more of the
provisions contained herein shall for any reason be held to be unenforceable in any
respect under law, such unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such unenforceable provision or
provisions had never been contained herein, provided that the removal of such offending
term or provision does not materially alter the burdens or benefits of either of the
parties under this Agreement or any Exhibit or Schedule, in which case the
unenforceable portion shall be replaced by one that reflects the parties original
intent as closely as possible while remaining enforceable. |
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17.3 |
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Third Party Beneficiaries. Except as set forth herein, the provisions of this
Agreement are for the benefit of the parties and not for any other person. Should |
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any third party institute proceedings, this Agreement shall not provide any such
person with any remedy, claim, liability, reimbursement, cause of action, or other
right. |
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17.4 |
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Governing Law; Forum Selection; Consent of Jurisdiction. This Agreement will
be governed by and construed under the laws of the State of Florida, USA, without
regard to principles of conflict of laws. The parties agree that the only circumstance
in which disputes between them, not otherwise excepted from the resolution process
described in Section 11, will not be subject to the provisions of Section 11 is where a
party makes a good faith determination that a breach of the terms of this Agreement by
the other party requires prompt and equitable relief. Each of the parties submits to
the personal jurisdiction of any state or federal court sitting in Jacksonville,
Florida with respect to such judicial proceedings. Each of the parties waives any
defense of inconvenient forum to the maintenance of any action or proceeding so brought
and waives any bond, surety or to other security that might be required of any party
with respect thereto. Any party may make service on the other party by sending or
delivering a copy of the process to the party to be served at the address set forth in
Section 15 above. Nothing in this Section, however, shall affect the right of any
party to serve legal process in any other manner permitted by law or in equity. Each
party agrees that a final judgment in any action or proceeding so brought shall be
conclusive and may be enforced by suit on the judgment or in any other manner provided
by law or in equity. |
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17.5 |
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Executed in Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but such counterparts shall together constitute but one
and the same document. |
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17.6 |
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Construction. The headings and numbering of sections in this Agreement are for
convenience only and shall not be construed to define or limit any of the terms or
affect the scope, meaning or interpretation of this Agreement or the particular section
to which they relate. This Agreement and the provisions contained herein shall not be
construed or interpreted for or against any party because that party drafted or caused
its legal representative to draft any of its provisions. |
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17.7 |
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Entire Agreement. This Agreement, including the Exhibits and Schedules attached
hereto and the agreements referenced herein constitute the entire agreement between the
parties, and supersedes all prior oral or written agreements, representations,
statements, negotiations, understandings, proposals, marketing brochures,
correspondence and undertakings related thereto. Without limiting the foregoing, the
parties expressly acknowledge that this Agreement, together with the Exhibits and
Schedules hereto, is intended to amend and restate the Prior License Agreement in its
entirety, and upon the effectiveness of this Agreement, the Prior License Agreement
shall be deemed to have been superseded and replaced in its entirety by this Agreement. |
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17.8 |
|
Amendments and Waivers. This Agreement may be amended only by written
agreement signed by duly authorized representatives of each party. No waiver of any
provisions of this Agreement and no consent to any default under this Agreement shall
be effective unless the same shall be in writing and signed by or on behalf of both
parties. No course of dealing or failure of any party to strictly enforce any term,
right or condition of this Agreement shall be construed as a waiver of such term, right
or condition. Waiver by either party of any default by the other party shall not be
deemed a waiver of any other default. |
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17.9 |
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Remedies Cumulative. Unless otherwise provided for under this Agreement, all
rights of termination or cancellation, or other remedies set forth in this Agreement,
are cumulative and are not intended to be exclusive of other remedies to which the
injured party may be entitled by law or equity in case of any breach or threatened
breach by the other party of any provision in this Agreement. Use of one or more
remedies shall not bar use of any other remedy for the purpose of enforcing any
provision of this Agreement. |
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17.10 |
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Taxes. All charges and fees to be paid under this Agreement are exclusive of
any applicable sales, use, service or similar tax which may be assessed currently or in
the future on the SoftPro Software or related services provided under this Agreement.
If a sales, use, services or a similar tax is assessed on the SoftPro Software or
related services provided to Client under this Agreement, Client will pay directly,
reimburse or indemnify SoftPro for such taxes as well as any applicable interest and
penalties. Client shall pay such taxes in addition to the sums otherwise due under
this Agreement. SoftPro shall, to the extent it is aware of taxes, itemize them on a
proper VAT, GST or other invoice submitted pursuant to this Agreement. All property,
employment and income taxes based on the assets, employees and net income,
respectively, of SoftPro shall be SoftPro’s sole responsibility. The parties will
cooperate with each other in determining the extent to which any tax is due and owing
under the circumstances and shall provide and make available to each other any
withholding certificates, information regarding the location of use of the SoftPro
Software or provision of the services or sale and any other exemption certificates or
information reasonably requested by either party. |
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17.11 |
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Press Releases. The parties shall consult with each other in preparing any
press release, public announcement, news media response or other form of release of
information concerning this Agreement or the transactions contemplated hereby that is
intended to provide such information to the news media or the public (a “Press
Release”). Neither party shall issue or cause the publication of any such Press
Release without the prior written consent of the other party; except that nothing
herein will prohibit either party from issuing or causing publication of any such Press
Release to the extent that such action is required by applicable law or the rules of
any national stock exchange applicable to such party or its affiliates, in which case
the party wishing to make such disclosure will, if practicable under the circumstances,
notify the other party of the proposed time of |
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issuance of such Press Release and consult with and allow the other party reasonable
time to comment on such Press Release in advance of its issuance. |
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date by
their duly authorized representatives.
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FIDELITY INFORMATION SERVICES, INC.
|
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By |
/s/ Xxxx Xxxxxxx
|
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Xxxx Xxxxxxx |
|
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Senior Vice President |
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FIDELITY NATIONAL TITLE GROUP, INC.
|
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By |
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx |
|
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Chief Executive Officer |
|
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19
