EXHIBIT 10.45
TEAM SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (the "Agreement") is dated as of March 4 , 2005
("Effective Date") and is made by and between ROCKY MOUNTAIN SUPPORT SERVICES,
INC., an Arizona corporation, ("RMSS") and FIDELITY NATIONAL TAX SERVICE, INC.,
a California corporation ("Licensee").
1. DEFINITIONS.
As used in this Agreement:
1.1 "ASSISTANCE" shall mean installation, conversion planning, conversion,
consulting assistance, workshops, training or education classes
performed by RMSS, or other functions mutually agreed to be
"Assistance" by Licensee and RMSS.
1.2 "BASE MODIFICATION" shall mean any Modification which RMSS, in its
sole discretion, has incorporated into the base version of the RMSS
Software which RMSS makes available to itself and other subsidiaries
of Fidelity National Financial, Inc. ("FNF").
1.3 "COMPETITOR" shall mean a natural or legal person offering a product
that competes with RMSS Software.
1.4 "CUSTOM MODIFICATION" shall mean any Modification to the RMSS Software
other than a Base Modification.
1.5 "DAYS" shall mean calendar days, unless otherwise specified.
1.6 "DEFECT" shall mean any failure, malfunction, defect or non-conformity
in the RMSS Software that prevents the RMSS Software in any material
respect from operating and performing in accordance with the
Documentation.
1.7 "DOCUMENTATION" shall mean RMSS's standard operating instructions
relating to the RMSS Software, consisting of one copy of the object
code form of the RMSS Software; a copy of manuals consisting of
instructions and procedures for systems and operations personnel and
end users of RMSS Software, if any, and related documentation, if any.
RMSS will deliver the Documentation to Licensee in paper form, on CD
ROM or electronically, at RMSS's discretion (except that RMSS Software
shall be delivered on machine readable media). Licensee acknowledges
that not all items of Documentation are available in all forms of
media. RMSS shall have the right to change the medium upon which the
Documentation is delivered to Licensee without notice to Licensee.
Upon electronic delivery of Documentation, any obligation of RMSS to
deliver multiple numbers of copies of such Documentation to Licensee
shall have no further force or effect.
1.8 "ESCALATION PROCEDURES" shall mean the procedures set forth in Section
11.2 of this Agreement.
1.9 "LICENSEE SERVER SOFTWARE" shall mean those applications set forth in
Section 1.3 of Exhibit A hereto.
1.10 "MAINTENANCE" shall mean the services described in Exhibit B hereto.
1.11 "MAINTENANCE RELEASE" shall mean the current Release of the RMSS
Software and the immediately prior Release (provided that such
Releases have been made available to Licensee), and shall also
include, at any given time, each Release delivered to Licensee within
the prior two years.
1.12 "MODIFICATION" shall mean any customization, enhancement, modification
or change made to the RMSS Software authored by or for RMSS under this
Agreement.
1.13 "PC SOFTWARE" shall mean those personal computer-based applications
developed by RMSS that are set forth in Section 1.2 of Exhibit A.
1.14 "PROPRIETARY INFORMATION" shall mean all information disclosed by or
for Licensee or RMSS to the other during the negotiations hereof
and/or learned by reason of the relationship established hereunder or
pursuant hereto, including, without limitation, the RMSS 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 RMSS receives from or at the direction of Licensee and that
concerns any of Licensee's "customers" and/or "consumers" (as defined
in the GLB Act).
1.15 "RELEASE" shall mean the Base Modifications, and other new versions,
corrections, revisions, updates, modifications and enhancements to the
RMSS Software and related Documentation.
1.16 "SERVER" shall mean, for purposes of this Agreement, a VAX mainframe
computer.
1.17 "SUBSIDIARY" shall mean any majority-owned or otherwise controlled,
direct or indirect subsidiary.
1.18 "RMSS 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 Licensee but including in all events a product known
between the parties as TEAM. RMSS Software includes all Base
Modifications, all Modifications
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authored by or for RMSS, and all Releases issued during the term of
Maintenance under this Agreement.
1.19 "SOURCE CODE" of RMSS Software shall mean a copy of the source code
(or comparable high level coding) for the RMSS Software, if and to the
extent RMSS has or retains any such code, including any annotations
therein, certified by RMSS to Licensee, upon delivery to Licensee, as
an accurate copy of such source code for RMSS Software as RMSS has in
its possession.
1.20 "THIRD PARTY SOFTWARE" shall mean those third party applications
provided by RMSS that are set forth in Section 1.4 of Exhibit A.
1.21 "USE LIMITATIONS" shall mean the use by Licensee of the RMSS Software
by no more than the number of Users specified herein.
1.22 "USER" shall mean an individual authorized to use the Licensee Server
Software, and the specific Users and number of Users may be changed
from time to time upon request of Licensee.
2. GRANT OF LICENSE.
2.1 GRANT. Subject to Licensee's full payment, as due, of fees listed in
Exhibit C, RMSS hereby grants to Licensee, and Licensee accepts from
RMSS, a worldwide nonexclusive, perpetual, irrevocable right and
object code license (except as otherwise provided for in Section 3
below) to use the RMSS Software and Documentation, subject to the
restrictions and obligations set forth herein.
2.2 DELIVERY. Licensee acknowledges and agrees that it has received, prior
to the Effective Date, delivery of the RMSS Software in object code
form and the Documentation.
3. SOURCE CODE DELIVERY
3.1 DUTY TO DELIVER. Under the circumstances listed in Section 3.2 below,
solely for purposes of integration, maintenance, modification and
enhancement of Licensee's installation(s) of RMSS Software, RMSS shall
promptly deliver to Licensee a copy of Source Code, which shall be
subject to all of the license terms and restrictions applicable to the
RMSS Software.
3.2 CONDITIONS. RMSS's duty of delivery of Source Code as described above
shall be immediately due and enforceable in equity upon any of these
circumstances:
(a) RMSS has given notice to Licensee under terms of Maintenance that
RMSS shall cease, or RMSS has ceased, (i) providing Maintenance
generally or (ii) supporting any part of RMSS 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) RMSS 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 RMSS as bankrupt
or insolvent or approving a petition seeking reorganization of
RMSS or appointing a receiver, trustee, or liquidator of RMSS 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.
(c) RMSS shall be in breach of any material covenant herein or under
Maintenance which, following notice of breach in reasonable
detail from Licensee, is not cured within thirty (30) Days. To
the extent the breach relates to Maintenance on a specific module
or separable component of RMSS Software, the duty of Source Code
delivery shall be limited to the Source Code for such specific
module or separable component.
(d) Licensee shall have requested development or integration services
with respect to RMSS Software which RMSS is unable or unwilling
to provide or as to which the parties cannot timely come to
commercial terms.
(i) To the extent the integration or development relates to a
specific module or separable component of RMSS Software, the
duty of Source Code delivery shall be limited to the Source
Code for such specific module or separable component.
(ii) In the event of delivery of Source Code by RMSS under this
subsection (d), upon Licensee's completion of its
development or integration effort, equating generally to the
same scope of work that RMSS was requested to perform but
did not perform, it will provide to RMSS 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, RMSS shall be
deemed granted a license to use that source code developed
by Licensee or its non-Competitor contractors, solely for
maintenance or further development of the RMSS Software as
implemented for Licensee and for no other use or
beneficiary.
(iii) Six (6) months following the delivery by Licensee to RMSS
of source code for Licensee's developments or enhancements
under Section 3.2(d)(ii), RMSS may request that Licensee
certify, and Licensee will promptly certify to RMSS, that
Licensee has destroyed all copies of (x) Source Code
delivered to it by RMSS 3.2(d) and (y) all copies of the
source code for Licensee's
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development or enhancement - except two hard copy prints of
source code for Licensee's development or enhancement for
proof of authorship; provided, however, that the six (6)
month limitation above shall not apply in the event that the
development of Release 1.0 of the eLenders Solutions
software under the eLenders Joint Development Agreement
dated March 4, 2005 is not completed on the scheduled
completion date and Accepted under the terms of that
agreement, and in such event, the RMSS' request for
certification under this section 3.2(d)(iii) may not be made
until such Release 1.0 is completed and Accepted.
(iv) Licensee'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.
4. SOFTWARE USE RESTRICTIONS.
4.1 RESTRICTIONS ON RMSS SOFTWARE.
(a) Licensee may not use the RMSS Software in a service bureau or in
a time share arrangement.
(b) Licensee may not sell, lease, assign, transfer, distribute or
sublicense the RMSS Software or Documentation, to any party that
is not a (direct or indirect) subsidiary of Licensee. Licensee
may not sell, lease, assign, transfer, distribute or sublicense
the Source Code to any person or entity at any time, except that
Licensee may sublicense the Source Code to a Subsidiary of
Fidelity National Information Services, Inc., a Delaware
corporation ("FNIS"), as necessary to exercise Licensees rights
to modify and create derivative works of the RMSS Software and
Documentation.
(c) Licensee shall use RMSS Software subject to the Use Limitations.
(d) Licensee will not make copies, or similar versions of the RMSS
Software or any part thereof without the prior written consent of
RMSS, except in the process of contemplated use, for
administrative, archival or disaster recovery backup, and as
expressly provided otherwise herein.
(e) Licensee may not provide copies of the RMSS 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
Licensee's non-Competitor contractors or subcontractors who have
executed nondisclosure terms consistent with the confidentiality
terms herein.
(f) Licensee shall not allow any third party to use or have access to
the RMSS Software for any purpose without RMSS's prior written
consent except as permitted under Sections 4.1 (b) and (d) above,
and except as to Licensee's
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non-Competitor contractors or subcontractors who have executed
nondisclosure terms consistent with the confidentiality terms
herein.
(g) Licensee agrees not to disclose, decompile, disassemble or
reverse engineer the RMSS Software.
4.2 ADDITIONAL RESTRICTIONS ON PC SOFTWARE.
(a) Except as specifically set forth herein, all other restrictions
on use, copying or disclosure of the RMSS Software and Licensee's
agreement to maintain the confidentiality thereof shall apply to
the PC Software and its Documentation.
(b) Licensee may not modify the PC Software (although RMSS may do so
on Licensee's behalf.)
5. TERM; TERMINATION
5.1 The term of license shall be perpetual subject to termination in
accordance with the terms herein.
5.2 Licensee may terminate the license for convenience upon no less than
ninety (90) Days prior written notice to RMSS.
5.3 A license enjoyed by a Subsidiary of FNIS shall terminate without
further formality upon such entity's ceasing to be a Subsidiary of
FNIS. A license enjoyed by a Subsidiary of Licensee shall terminate
without further formality upon the six month anniversary date after
such entity's ceasing to be a Subsidiary of Licensee. Licensee shall
cause such Subsidiary to agree to migrate its data off the RMSS
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.
5.4 In the event Licensee or a Licensee Subsidiary discloses any of the
RMSS Software or any material part of the Documentation to a
Competitor, then RMSS upon thirty Days prior written notice to
Licensee, may terminate the license with respect to that portion
relating to the RMSS Software and Documentation provided to such
Competitor if Licensee on its own does not (or if Licensee does not
cause its Subsidiary to) discontinue disclosure of the RMSS Software
and Documentation to such Competitor within thirty Days following
Licensee's receipt of RMSS' 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. RMSS shall retain
the right to pursue any other remedies in the event Licensee 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 Licensee undertake other measures
in addition to simply discontinuing disclosure to the Competitor.
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5.5 In the event of termination of the license for any reason, Licensee
and/or its Subsidiary, as applicable, shall promptly cease all use of
the relevant RMSS Software, delete from its systems all copies of the
relevant RMSS Software, and within thirty (30) Days of termination,
return to RMSS all tangible copies of the relevant RMSS Software
together with certification that is has ceased such use, deleted such
copies and returned such tangible copies as required hereunder.
5.6 Each party acknowledges and agrees that, in the event of Licensee's
breach or threatened breach or any provision of Sections 4, 5.3, 5.4,
5.5 or 7, RMSS 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.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1 OWNERSHIP OF RMSS SOFTWARE AND DOCUMENTATION. From the date the RMSS
Software and Documentation is first disclosed to Licensee, and at all
times thereafter, as between the parties, RMSS and its licensors shall
be the sole and exclusive owners of all right, title, and interest in
and to the RMSS 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 RMSS and the RMSS Subsidiaries from
developing or marketing on their own or for any third party in the
United States or any other country, the RMSS 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 Licensee, or any
notice to Licensee.
6.2 DEVELOPMENT SERVICES. Licensee may from time to time wish to augment
the RMSS product with additional functionality or utility, or to
integrate it with Licensee systems from other sources, and for such
purposes may request the provision of development services from RMSS.
7. CONFIDENTIALITY.
7.1 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 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) RMSS Software, Source Code and related
Documentation shall extend in perpetuity and (b) with respect to any
other Proprietary Information shall extend for a period of (5) five
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
Licensee disclose RMSS Proprietary Information to a Competitor of
RMSS. 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.
7.3 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:
(i) is or becomes publicly known through no wrongful act, fault or
negligence of the receiving party;
(ii) was disclosed to the receiving party by a third party that was
free of obligations of confidentiality to the party providing the
information;
(iii) is approved for release by written authorization of the
disclosing party;
(iv) was known to the receiving party prior to receipt of the
information;
(v) was independently developed by the receiving party without access
to or use of the Proprietary Information of the disclosing party;
or
(vi) is publicly disclosed pursuant to a requirement or request of a
governmental agency, or disclosure is required by operation of
law.
Notwithstanding application of any of the foregoing exceptions, in no
event shall RMSS treat as other than Proprietary Information,
information comprising nonpublic personal information under the GLB
Act.
7.4 CONFIDENTIALITY OF THIS AGREEMENT; PROTECTIVE ARRANGEMENTS.
(a) 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 employees of Licensee and RMSS 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
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Licensee and RMSS agree to exercise reasonable diligence in
limiting such disclosure to the minimum necessary under the
particular circumstances.
(b) 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. CONTINUING UNDERTAKINGS.
During the duration of the license granted hereunder, RMSS shall offer
Maintenance for the RMSS 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
further agreement between the parties.
9. INVOICING AND PAYMENTS, PAST DUE AMOUNTS, CURRENCY.
9.1 INVOICING AND PAYMENT REQUIREMENTS. RMSS shall invoice for such fees
described in Exhibit C hereto as well as for any expenses and any
other applicable charges incurred and owing hereunder. In accordance
with this Section 9.1, Licensee shall pay RMSS the invoiced amount in
full on or prior to thirty (30) Days after Licensee's receipt of such
invoice unless Licensee notifies RMSS within such period that it is in
good faith disputing RMSS's invoice. Licensee shall make all payments
to RMSS by check, credit card or wire transfer of immediately
available funds to an account or accounts designated by RMSS. Payment
in full shall not preclude later dispute of charges or adjustment of
improper payments.
9.2 PAST DUE AMOUNTS. Any amount not received or disputed by Licensee 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.
9.3 CURRENCY. All fees and charges listed and referred to in this
Agreement are stated in and shall be paid in U.S. Dollars.
10. ASSISTANCE.
10.1 BASIS FOR ASSISTANCE. Assistance, except to the extent included in
Maintenance, is not included in this Agreement. If Licensee desires to
purchase Assistance from RMSS or a RMSS Subsidiaries, such Assistance
shall be provided pursuant to separate agreement.
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11. DISPUTE RESOLUTION.
11.1 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 RMSS and Licensee 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 10. 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 Licensee's failure to make
any undisputed timely and complete payments to RMSS 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.
11.2 ESCALATION PROCEDURES.
(a) 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 TEAM Software License
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 claim to
the President of RMSS and the President of Licensee or their
designated representative(s) for resolution.
(b) Upon receipt by a party of a written notice escalating the
dispute to the company president level, the President of RMSS and
the President of Licensee or their designated representative(s)
shall promptly communicate with his/her counter party, negotiate
in good faith and use reasonable
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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.
(c) 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.
11.3 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.
(a) 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.
(b) 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.
(c) 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.
11.4 CONTINUATION OF SERVICES. Unless RMSS initiates an action for
Licensee's failure to make timely and complete payment of undisputed
amounts claimed due to RMSS, RMSS will continue to provide Maintenance
under the Maintenance services agreement, and unless Licensee is
unable to lawfully use the RMSS Software and Modifications thereto,
Licensee will continue to make payments of
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undisputed amounts to RMSS, in accordance with this Agreement,
notwithstanding a dispute between the parties relating hereto or
otherwise.
12. LIMITATION OF LIABILITY.
12.1 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 LICENSEE TO RMSS UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
12.2 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.
12.3 LICENSEE SOFTWARE. RMSS has no obligation or liability, either express
or implied, with respect to the compatibility of RMSS Software with
any other software unless provided or specified by RMSS including, but
not limited to, Licensee software and/or Licensee-provided third party
software.
13. INDEMNIFICATION.
13.1 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
RMSS Subsidiaries and Licensee Subsidiaries), 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 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.
13.2 INFRINGEMENT OF RMSS SOFTWARE. RMSS agrees to defend at its own
expense, any claim or action brought by any third party against
Licensee and/or against its officers, directors, and employees and
affiliates, for actual or alleged infringement
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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 RMSS Software
(except to the extent such infringement claim is caused by
Licensee-specified Custom Modifications to the RMSS Software which
could not have been made in a non-infringing manner) or caused by the
combination of RMSS Software with software or hardware not provided,
specified or approved by RMSS, or based upon the Third Party Software
("Indemnified RMSS Software"). Licensee, at its sole discretion and
cost, may participate in the defense and all negotiations for its
settlement or compromise. RMSS further agrees to indemnify and hold
Licensee, 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 Licensee. RMSS shall conduct and
control the defense of any such claim or action and negotiations for
its settlement or compromise, by the payment of money. RMSS shall give
Licensee, and Licensee shall give RMSS, as appropriate, prompt written
notice of any written threat, warning or notice of any such claim or
action against RMSS or Licensee, as appropriate, or any other user or
any supplier of components of the Indemnified RMSS Software, which
could have an adverse impact on Licensee's use of same, provided RMSS
or Licensee, as appropriate, knows of such claim or action. If in any
such suit so defended, all or any part of the Indemnified RMSS
Software (or any component thereof) is held to constitute an
infringement or violation of any other party's intellectual property
rights and is enjoined, RMSS shall at its sole option take one or more
of the following actions at no additional cost to Licensee: (i)
procure the right to continue the use of the same without material
interruption for Licensee; (ii) replace the same with non-infringing
software; (iii) modify said Indemnified RMSS Software so as to be
non-infringing; or (iv) take back the infringing Indemnified RMSS
Software and credit Licensee with an amount equal to its prepaid but
unused license fees hereunder. The foregoing represents the sole and
exclusive remedy of Licensee for infringement or alleged infringement.
13.3 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. FORCE MAJEURE, TIME OF PERFORMANCE AND INCREASED COSTS.
14.1 FORCE MAJEURE.
(a) 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, nuclear accidents,
floods, power blackouts affecting facilities (the "Affected
Performance").
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(b) 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. RMSS shall be entitled to be
paid for that portion of the Affected Performance which it
completed through the termination date.
14.2 TIME OF PERFORMANCE AND INCREASED COSTS. RMSS'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) Licensee
fails to timely submit material data or materials in the prescribed
form or in accordance with the requirements of this Agreement, (ii)
Licensee fails to perform on a timely basis, the material functions or
other responsibilities of Licensee described in this Agreement, (iii)
Licensee or any governmental agency authorized to regulate or
supervise Licensee makes any special request, which is affirmed by
Licensee and/or compulsory on RMSS, which affects RMSS's normal
performance schedule, or (iv) Licensee has modified the RMSS Software
in a manner affecting RMSS's burden. In addition, if any of the above
events occur, and such event results in an increased cost to RMSS,
RMSS shall estimate such increased costs in writing in advance and,
upon Licensee's approval, Licensee shall be required to pay any and
all such reasonable, increased costs to RMSS upon documented
expenditure, up to 110% of the estimate.
15. NOTICES.
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 Licensee: Fidelity National Tax Service, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: President
with a copy to: Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
If to RMSS: Rocky Mountain Support Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
with a copy to: Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
15.2 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. WARRANTIES.
16.1 PERFORMANCE. For as long as RMSS is providing Maintenance to Licensee
for the RMSS Software, RMSS warrants and represents that the RMSS
Software and the Custom Modifications, as delivered to Licensee and
the Base Modifications, will perform in all material respects in
accordance with the respective Documentation, in concert and
otherwise.
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.
16.3 COMPLIANCE WITH LAW. RMSS 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 order, contract, charter or
by-law; (iii) it has sufficient right, title and interest (or another
Subsidiary of FNF has or will grant it sufficient license rights) in
the RMSS 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 RMSS Software infringes the rights
of any third party in any of the United States, and (v) each item of
RMSS Software provided by or for RMSS to Licensee shall be delivered
free of undisclosed trapdoors, Trojan horses, time bombs, time outs,
spyware, viruses or other code which, with the passage of time,
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in the absence of action or upon a trigger, would interfere with the
normal use of, or access to, any file, datum or system.
16.4 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.
17. MISCELLANEOUS.
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 such
consent 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 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, Licensee may not assign this Agreement to a Competitor.
17.2 SEVERABILITY. Provided Licensee retains quiet enjoyment of the RMSS
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.
17.3 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 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.
17.4 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
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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.
17.5 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.
17.6 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.
17.7 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.
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.
Notwithstanding the foregoing, at any time prior to the Sale of FNIS
or any offering and sale to the public of any shares or equity
securities of FNIS or any of its Subsidiaries pursuant to a
registration statement in the United States, this Agreement may not be
amended without the prior written consent of Xxxxxx X. Xxx Equity Fund
V, L.P. ("THL") and TPG Partners III, L.P. ("TPG") if such amendment
would affect Sections 2.1, 3, 4, 5, 9, 13, 14.2, 16.2, 17.10, Exhibits
B
17
or C, either party's limitation of liability, RMSS' right to terminate
or rights upon default by Licensee or a Licensee Subsidiary, in any
manner materially adverse to the consolidated business activities of
the FNIS Group (defined below), taken as a whole, or FNIS Group's
costs of doing business, viewed on a consolidated basis, provided that
in no event shall any change to the schedules hereto require such
prior written consent unless such change would materially and
adversely affect in any manner FNIS Group's consolidated business
activities, taken as a whole, or FNIS Group's costs of doing business,
viewed on a consolidated basis, and provided, further, that in no
event shall the amendment provisions set forth in this Section 17.8 be
amended or modified without the consent of THL and TPG. THL and TPG
are intended third party beneficiaries of this Agreement solely with
respect to this Section 17.8. "FNIS Group" means FNIS, Subsidiaries of
FNIS, and each Person that FNIS directly or indirectly controls
(within the meaning of the Securities Act) immediately after the
Effective Date, and each other individual, a partnership, corporation,
limited liability company, association, joint stock company, trust,
joint venture, unincorporated organization, governmental entity or
department, agency, or political subdivision thereof that becomes an
Affiliate of FNIS after the Effective Date. "Sale of FNIS" means an
acquisition by any Person (within the meaning of Section 3(a)(9) of
the Securities and Exchange Act of 1934, as amended (the "Exchange
Act") and used in Sections 13(d) and 14(d) thereof ("Person")) of
Beneficial Ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of 50% or more of either the then outstanding shares of
FNIS common stock or the combined voting power of the then outstanding
voting securities of FNIS entitled to vote generally in the election
of directors; excluding, however, the following: (i) any acquisition
directly from FNIS, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so
converted was itself acquired directly from FNIS or (ii) any
acquisition by any employee benefit plan (or related trust) sponsored
or maintained by FNIS or a member of the FNIS Group.
17.9 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.
17.10 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 RMSS Software or
related services provided under this Agreement. If a sales, use,
services or a similar tax is assessed on the RMSS Software or related
services provided to Licensee under this Agreement, Licensee will pay
directly, reimburse or indemnify RMSS for such taxes as well as any
applicable interest and penalties. Licensee shall pay such taxes in
addition to the sums otherwise due under this Agreement. RMSS shall,
to the extent it is aware of taxes, itemize them on a proper VAT, GST
or other invoice submitted pursuant
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to this Agreement. All property, employment and income taxes based on
the assets, employees and net income, respectively, of RMSS shall be
RMSS'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 RMSS Software or provision of the services or sale and any other
exemption certificates or information reasonably requested by either
party.
17.11 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 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.
FIDELITY NATIONAL TAX SERVICE, INC. ROCKY MOUNTAIN SUPPORT SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President Title: Vice President
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