EXHIBIT 10.14
NOVATION
LICENSE AND SERVICES AGREEMENT
This License and Services Agreement (the "Agreement") is effective as of
________________, 2005 ("Effective Date") by and between FIDELITY NATIONAL
INFORMATION SERVICES, INC., a Delaware corporation ("FIS"), and FIDELITY
NATIONAL TITLE GROUP, INC, a Delaware corporation ("FNT").
WHEREAS, FIS previously entered into a certain Stock Purchase
Agreement, dated as of December 23, 2004 (the "Stock Purchase Agreement"), with
Fidelity National Financial, Inc., a Delaware corporation ("FNF"), pursuant to
which certain purchasers (the "Purchasers") purchased from FIS 50,000,000 shares
of FIS' common stock, subject to the terms and conditions of the Stock Purchase
Agreement; and
WHEREAS, a condition to the closing of the transactions contemplated
by the Stock Purchase Agreement required that FIS and FNF enter into certain
Intercompany Agreements (as defined in the Stock Purchase Agreement), and that
the form and substance of such Intercompany Agreements be satisfactory to the
Parties and the representatives of the Purchasers; and
WHEREAS, FIS previously entered into a License and Services Agreement
dated as of March 4, 2005 (the "FNF Agreement") with FNF, as the parent company
of FNT and its subsidiaries, with respect to the use of certain software and the
provision of certain services, as more fully described herein; and
WHEREAS, pursuant to an Assignment and Assumption Agreement of even date
herewith between FNF and FNT, FNT has assumed, with the consent of FIS, all of
FNF's rights and obligations under the FNF Agreement; and
WHEREAS, FIS and FNT wish to enter into a novation of the rights and
obligations under the FNF Agreement, as assumed by and assigned to FNT, so that
FNT is the clear party in interest with respect to the license and services to
be provided to FIS, as more particularly described herein;
NOW THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS.
As used in this Agreement:
1.1. "COMPETITOR" means a natural or legal person offering a product that
competes with the LSI Processes.
1.2. "DAYS" means calendar days, unless otherwise specified.
1.3. "DOCUMENTATION" means FIS' standard documentation describing the LSI
Processes.
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1.4. "ESCALATION PROCEDURES" means the procedures set forth in Section
10.2 of this Agreement.
1.5. "GEOGRAPHIC AREA" means the counties listed on Exhibit B attached
hereto, as amended from time to time pursuant to Section 6.2 hereof.
1.6. "LSI PROCESSES" means those business processes indicated on Exhibit
A.
1.7. "MODIFICATION" means any customization, enhancement, modification or
change made to the LSI Processes and Documentation under this
Agreement.
1.8. "PERMITTED SUBSIDIARIES" has the meaning set forth in Section
3.1(a).
1.9. "PROPRIETARY INFORMATION" means all information disclosed by or for
FNT or FIS to the other during the negotiations hereof and/or
learned by reason of the relationship established hereunder or
pursuant hereto, including, without limitation, the LSI Processes,
Documentation, 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 FIS receives from or at the direction of FNT
and that concerns any of FNT's "customers" and/or "consumers" (as
defined in the GLB Act).
1.10. "SERVICES" has the meaning set forth in Section 4.1 of this
Agreement.
1.11. "SUBSIDIARY" means, with respect to any party, any corporation,
partnership, company or other entity of which such party controls or
owns, directly or indirectly, more than fifty percent (50%) of the
stock or other equity interest entitled to vote on the election of
the members to the board of directors or similar governing body.
1.12. "TERM" has the meaning set forth in Section 6.1 of this Agreement.
2. GRANT OF LICENSE.
2.1. GRANT. Subject to FNT's full payment, as due, of fees listed in
Exhibit D, FIS hereby grants to FNT for the benefit of the Permitted
Subsidiaries, and FNT for the benefit of the Permitted Subsidiaries
accepts from FIS, a nonexclusive, license (except as otherwise
provided for in Section 3 below) for the Term of this Agreement to
use the LSI Processes and Documentation for properties with the
Geographic Area, subject to the restrictions and obligations set
forth herein.
2.2. DELIVERY. As requested from time to time, FIS agrees to deliver the
LSI Processes and the Documentation to FNT for the benefit of the
Permitted Subsidiaries.
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3. LICENSE USE RESTRICTIONS.
3.1. RESTRICTIONS ON LSI PROCESSES AND DOCUMENTATION.
(a) FNT may not sell, lease, assign, transfer, distribute or
sublicense the LSI Processes or Documentation, to any party,
except that the LSI Processes and Documentation may be used
for the benefit of the Subsidiaries of FNT indicated on
Exhibit C hereof (collectively, the "Permitted Subsidiaries").
(b) FNT will not make copies, or similar versions of the LSI
Processes or Documentation or any part thereof without the
prior written consent of FIS, except in the process of
contemplated use, for administrative, archival or disaster
recovery backup, and as expressly provided otherwise herein.
(c) FNT may not provide copies of the LSI Processes or
Documentation to any person, firm, or corporation not
permitted hereunder except as permitted under Sections 3.1 (a)
and (b) above, and except as to FNT's or a Permitted
Subsidiary's non-Competitor contractors or subcontractors who
have executed nondisclosure terms substantially similar to the
confidentiality terms herein.
(d) FNT shall not allow any third party to use or have access to
the LSI Processes or Documentation for any purpose without
FIS' prior written consent except as permitted under Sections
3.1(a) and (b) above, and except as to FNT's or a Permitted
Subsidiary's non-Competitor contractors or subcontractors who
have executed nondisclosure terms substantially similar to the
confidentiality terms herein.
4. SERVICES.
4.1. PROVISION OF MANAGEMENT SERVICES. During the Term, and subject to
the terms and conditions hereof, FIS shall provide (or cause to be
provided) all of the services described in this Section 4 to FNT for
the benefit of the Permitted Subsidiaries (individually and
collectively, the "Services"). For the avoidance of doubt, the
Services are in addition to and not included within the scope of
services described in that certain Master Information Technology
Services Agreement of even date herewith between Fidelity
Information Services, Inc. and FNT.
4.2. IMPLEMENTATION AND OVERSIGHT OF THE LSI PROCESSES. FIS agrees to
oversee and provide advice to FNT for the benefit of the Permitted
Subsidiaries relating to the implementation of the LSI processes
including (x) all processes, personnel and support functions of FNT
for the benefit of the Permitted Subsidiaries primarily relating to
the implementation and use of the LSI Processes, such oversight and
advice shall, include without limitation, the consulting services to
FNT for the benefit of the Permitted Subsidiaries relating to
computer and database systems, the creation of back-up/disaster
recovery procedures and sites, and implementation of appropriate
architecture. It is understood by the parties that the Services to
be provided hereunder include (but are not limited to)
infrastructure planning and
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implementation work by FIS for FNT for the benefit of the Permitted
Subsidiaries. It is anticipated that FIS may make recommendations to
FNT for the benefit of the Permitted Subsidiaries from time to time
as to improvements to the LSI Processes or additional processes to
supplement the LSI Processes, which recommendation will be
considered by FNT for the benefit of the Permitted Subsidiaries.
4.3. MAINTENANCE OF CURRENT EQUIPMENT AND SOFTWARE. During the term of
this Agreement, FIS shall be responsible for maintaining the
computer hardware and software systems utilized by FNT for the
benefit of the Permitted Subsidiaries in their implementation and
use of the LSI Processes, including, without limitation, all
telephone and communication equipment (such as routers, servers,
etc.) utilized by FNT for the benefit of the Permitted Subsidiaries
(collectively, the "LSI Process Equipment"). FNT for the benefit of
the Permitted Subsidiaries shall maintain the LSI Process Equipment
in the same condition (ordinary wear and tear excepted) and to the
same quality standards as was applicable to the LSI Process
Equipment on the effective date of this Agreement. Without limiting
the Services to be provided herein, FNT acknowledges that, unless
otherwise provided in this Agreement or agreed in writing by the
parties, FNT has no ownership right, title or interest in the LSI
Processes.
4.4. SALES SUPPORT SERVICES AND IMPLEMENTATION OF LSI PROCESSES FOR THIRD
PARTY CUSTOMERS. During the Term of this Agreement and consistent
with permitted practices under applicable state insurance law, FIS
shall provide FNT for the benefit of the Permitted Subsidiaries
support in connection with marketing of products and services of FNT
for the benefit of the Permitted Subsidiaries that require the use
by FNT for the benefit of the Permitted Subsidiaries of any of the
LSI Processes or the implementation or integration of the LSI
Processes with third party customers of FNT for the benefit of the
Permitted Subsidiaries.
5. FNT OBLIGATIONS.
5.1. EXCLUSIVE USE OF FIS SERVICES. With respect to the LSI Processes
that FIS will provide to FNT for the benefit of the Permitted
Subsidiaries as of the Effective Date, FNT for the benefit of the
Permitted Subsidiaries agrees to use exclusively the LSI Processes
and above Services in the Geographic Areas at all times during the
Term of this Agreement, subject in all cases to the termination
provisions set forth in this Agreement.
5.2. ACCESS TO TITLE PLANT. Following the date hereof, if FNT builds or
acquires a title plant with respect to a county described in the
Geographic Area, FNT agrees to provide access to that plant to FIS
on terms no less favorable to FIS than contained in other title
plant access agreements between FNT and FIS, but in all cases upon
commercially reasonable terms.
6. TERM; TERMINATION.
6.1. TERM. The term of the Agreement shall commence as of the date hereof
and continue until such time as FNT has built or acquired a title
plant with respect to all
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counties described in the Geographic Area and provided access to
such title plants to FIS on terms acceptable to FIS in all such
counties, or FIS has acquired on its own access to title plants with
respect to all counties described within the Geographic Area (the
"Term").
6.2. PARTIAL COUNTY TERMINATION. Notwithstanding any other provision of
this Agreement, FIS may upon at least thirty days prior written
notice to FNT terminate the license and Services with respect to one
or more particular counties described in the Geographic Area after
FIS has acquired title plant access from FNT or another third party
on terms acceptable to FIS.
6.3. TERMINATION. As applicable, the license and Services for a
particular county described in the Geographic Area or the Agreement
may be terminated prior to the expiration of the Term as follows:
(a) the license and Services for one or more particular counties
described in the Geographic Area or the Agreement, may be
terminated at any time by mutual agreement of the parties
hereto;
(b) the license and Services for one or more particular counties
described in the Geographic Area may be terminated at any time
by FNT, if FIS breaches any material warranty or fails to
perform any material obligation hereunder, in each case, with
respect to such county or counties affected, and such breach
is not remedied within 30 days after written notice thereof to
FIS that is in default, in which event the obligation to
provide the license and the Services for such affected county
or counties under this Agreement shall terminate on the 20th
business day following the expiration of such 30-day cure
period; provided that if the breach or default is of a nature
that it cannot reasonably be cured within a 30-day period and
FIS is actively pursuing a cure in good faith, then no default
shall be deemed to have occurred so long as the default is
cured as promptly as reasonably possible and in any event
prior to the first anniversary of the occurrence of such
default;
(c) the license and Services for one or more particular counties
described in the Geographic Area may be terminated at any time
by FIS, if FNT breaches any material warranty or fails to
perform any material obligation owing hereunder, in each case,
with respect to the particular county or counties affected,
and such breach is not remedied within 30 days after written
notice thereof to FNT, in which event the obligation to
provide the license and the Services for such affected county
or counties under this Agreement shall terminate on the 20th
business day following the expiration of such 30-day cure
period; provided that if the breach or default is of a nature
that it cannot reasonably be cured within a 30-day period and
FNT is actively pursuing a cure in good faith, then no default
shall be deemed to have occurred so long as the default is
cured as promptly as reasonably possible and in any event
prior to the first anniversary of the occurrence of such
default;
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(d) the Agreement may be terminated at any time by FIS, if FNT
shall admit in writing its inability to, or be generally
unable to, pay its debts as such debts become due, or shall
(1) apply for or consent to the appointment of, or the taking
of possession by, a receiver, custodian, trustee, examiner or
liquidator of itself or of all or a substantial part of its
property or assets, (2) make a general assignment for the
benefit of its creditors, (3) commence a voluntary case under
the federal Bankruptcy Code, (4) file a petition seeking to
take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of
debts, (5) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against
it in an involuntary case under the Bankruptcy Code or (6)
take any company action for the purpose of effecting any of
the foregoing, in which event the obligation to provide the
license and the Services under this Agreement shall terminate
immediately;
(e) the Agreement may be terminated at any time by FNT, if FIS
shall admit in writing its inability to, or be generally
unable to, pay its debts as such debts become due, or shall
(1) apply for or consent to the appointment of, or the taking
of possession by, a receiver, custodian, trustee, examiner or
liquidator of itself or of all or a substantial part of its
property or assets, (2) make a general assignment for the
benefit of its creditors, (3) commence a voluntary case under
the federal Bankruptcy Code, (4) file a petition seeking to
take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of
debts, (5) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against
it in an involuntary case under the Bankruptcy Code or (6)
take any company action for the purpose of effecting any of
the foregoing, in which event the obligation to provide the
license and the Services under this Agreement shall terminate
immediately;
(f) the license and Services for one or more particular counties
described in the Geographic Area or the Agreement may be
terminated by FIS, upon 5 years' prior written notice to FNT,
which notice may not be delivered prior to the 5th anniversary
of the Effective Date;
(g) the license and Services for one or more particular counties
described in the Geographic Area or the Agreement may be
terminated by FNT, upon 5 years' prior written notice to FIS,
which notice may not be delivered prior to the 5th anniversary
of the Effective Date;
(h) the license and Services for one or more particular counties
described in the Geographic Area or the Agreement may be
terminated at any time by FNT if there has been a change in
control of FIS; it being understood, that for purposes of this
provision, "change of control" means a reorganization, merger,
share (or LLC ownership interest) exchange or consolidation,
or sale or other disposition of more than 50% of the ultimate
ownership interests in,
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or all or substantially all of the assets or business of, FIS,
other than a transaction in which no person or entity, other
than FIS or an entity controlled by FIS, will have beneficial
ownership, directly or indirectly, of 50% or more of the
ownership interests of FIS or of the power to vote in the
election of directors; or
(i) the license and Services for one or more particular counties
described in the Geographic Area or the Agreement may be
terminated upon 6 months prior written notice by FIS to FNT if
there has been a change in control of FNT; it being
understood, that for purposes of this provision, "change of
control" means a reorganization, merger, share exchange or
consolidation, or sale or other disposition of more than 50%
of the voting capital stock in, or all or substantially all of
the assets or business of, FNT, other than a transaction in
which no person or entity, other than FNT or an entity
controlled by FNT, will have beneficial ownership, directly or
indirectly, of 50% or more of the voting capital stock of FNT
or of the power to vote the election of directors.
6.4. SURVIVAL. Notwithstanding anything to the contrary in this
Agreement, Section 7, 8, 9, 10, 11, and 16.10 shall survive the
expiration or termination of this Agreement
6.5. PERMITTED SUBSIDIARY TERMINATION. A license enjoyed by a Permitted
Subsidiary of FNT shall terminate without further formality upon
such entity's ceasing to be a Subsidiary of FNT.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1. OWNERSHIP OF LSI PROCESSES AND DOCUMENTATION. From the date the LSI
Processes and Documentation is first disclosed to FNT, and at all
times thereafter, as between the parties, FIS and/or its
Subsidiaries shall be the sole and exclusive owners of all right,
title, and interest in and to the LSI Processes, Documentation and
all Modification, including, without limitation, all intellectual
property and other rights related thereto. The parties acknowledge
that this Agreement in no way limits or restricts FIS and the FIS
Subsidiaries from developing or marketing on their own or for any
third party in the United States or any other country, the LSI
Processes, Documentation or Modifications, or any similar processes
(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 FNT.
8. CONFIDENTIALITY.
8.1. 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.
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8.2. 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 LSI Processes and Documentation shall
extend in perpetuity. 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 FNT disclose FIS Proprietary Information to a Competitor of
FIS. 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 of a
similar nature.
8.3. 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:
(a) is or becomes publicly known through no wrongful act, fault or
negligence of the receiving party;
(b) was disclosed to the receiving party by a third party that was
free of obligations of confidentiality to the party providing
the information;
(c) is approved for release by written authorization of the
disclosing party;
(d) was known to the receiving party prior to receipt of the
information;
(e) was independently developed by the receiving party without
access to or use of the Proprietary Information of the
disclosing party; or
(f) 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 FIS treat information comprising nonpublic personal
information under the GLB Act as other than Proprietary Information.
8.4. 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 FNT and FIS 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 FNT and FIS agree to exercise
reasonable diligence in limiting such disclosure to the
minimum necessary under the particular circumstances.
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(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.
9. INVOICING AND PAYMENTS, PAST DUE AMOUNTS, CURRENCY.
9.1. INVOICING AND PAYMENT REQUIREMENTS. Within 30 days following the end
of each month, FNT shall prepare and remit to FIS a schedule showing
the fees which it owes FIS under Exhibit D, along with the
appropriate payment. FNT shall make all payments to FIS by check,
credit card or wire transfer of immediately available funds to an
account or accounts designated by FIS. 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 FIS 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. DISPUTE RESOLUTION.
10.1. 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 FIS and FNT 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 3 and/or 8), such dispute shall be settled as set forth in
this Section. If either party exercises its right to initiate the
dispute resolution procedures under this Section, 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 FNT's failure to make
any undisputed timely and complete payments to FIS 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
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settlement of the dispute. Disputes arising under Sections 3 or 8
may be resolved by judicial recourse or in any other manner agreed
by the parties.
10.2. 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). To this end, each party shall escalate
any and all unresolved disputes or claims in accordance with
this Section at any time to persons responsible for the
administration of the relationship reflected in this 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 FIS and the President of FNT 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 FIS
and the President of FNT 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.
(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.
10.3. 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.
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(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. LIMITATION OF LIABILITY.
11.1. 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 FNT TO FIS UNDER THIS AGREEMENT FOR
THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
11.2. 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. INDEMNIFICATION.
12.1. PROPERTY DAMAGE. Subject to Section 11 hereof, each party agrees to
indemnify, defend and hold harmless the other and its officers,
directors, employees, and affiliates (including, where applicable,
the FIS Subsidiaries and FNT 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
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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.
12.2. INFRINGEMENT OF LSI PROCESSES. FIS agrees to defend at its own
expense, any claim or action brought by any third party against FNT
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 LSI Processes (except to the extent such infringement
claim is caused by FNT-specified Modifications to the LSI Processes
which could not have been made in a non-infringing manner) or caused
by the combination of LSI Processes with software or hardware
provided, specified or approved by FIS ("Indemnified LSI
Processes"). FNT, at its sole discretion and cost, may participate
in the defense and all negotiations for its settlement or
compromise. FIS further agrees to indemnify and hold FNT, 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 FNT. FIS shall conduct and control
the defense of any such claim or action and negotiations for its
settlement or compromise, by the payment of money. FIS shall give
FNT, and FNT shall give FIS, as appropriate, prompt written notice
of any written threat, warning or notice of any such claim or action
against FIS or FNT, as appropriate, or any other user or any
supplier of components of the Indemnified LSI Processes, which could
have an adverse impact on FNT's use of same, provided FIS or FNT, as
appropriate, knows of such claim or action. If in any such suit so
defended, all or any part of the Indemnified LSI Processes (or any
component thereof) is held to constitute an infringement or
violation of any other party's intellectual property rights and is
enjoined, FIS shall at its sole option take one or more of the
following actions at no additional cost to FNT: (i) procure the
right to continue the use of the same without material interruption
for FNT; (ii) replace the same with non-infringing software; (iii)
modify said Indemnified LSI Processesso as to be non-infringing; or
(iv) take back the infringing Indemnified LSI Processes and credit
FNT with an amount equal to its prepaid but unused license fees
hereunder. The foregoing represents the sole and exclusive remedy of
FNT for infringement or alleged infringement.
12.3. INFRINGEMENT OF FNT OUT OF SCOPE LICENSE AND SERVICES. FNT agrees to
defend at its own expense, any claim or action brought by any third
party against FIS 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 FNT services on behalf of the
Permitted Subsidiaries in the Geographic Area that are outside the
permitted scope of the License and the Services ("Indemnified Out of
Scope License and Services"). FIS, at its sole discretion and cost,
may participate in the defense and all negotiations for its
settlement or compromise. FNT further agrees to indemnify and hold
FIS, 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
12
such claim or action incurred by FIS. FNT shall conduct and control
the defense of any such claim or action and negotiations for its
settlement or compromise, by the payment of money. FNT shall give
FIS, and FIS shall give FNT, as appropriate, prompt written notice
of any written threat, warning or notice of any such claim or action
against FNT or FIS, as appropriate, or any other user or any
supplier of components of the Indemnified Out of Scope License and
Services, provided FNT or FIS, as appropriate, knows of such claim
or action. If in any such suit so defended, all or any part of the
Indemnified Out of Scope License and Services (or any component
thereof) is held to constitute an infringement or violation of any
other party's intellectual property rights and is enjoined, FNT
shall at its sole option take one or more of the following actions
at no additional cost to FIS: (i) procure the right to continue the
use of the same without material interruption for FIS; (ii) replace
the same with non-infringing software; or (iii) modify said
Indemnified Out of Scope License and Services as to be
non-infringing. The foregoing represents the sole and exclusive
remedy of FNT for infringement or alleged infringement.
12.4. DISPUTE RESOLUTION. The provisions of Section 12 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.
13. FORCE MAJEURE, TIME OF PERFORMANCE AND INCREASED COSTS.
13.1. 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, hurricanes,
tornadoes, nuclear accidents, floods, power blackouts
affecting facilities (the "Affected Performance").
(b) Upon the occurrence of a condition described in Section
13.1(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
13
continue in full force and effect. FIS shall be entitled to be
paid for that portion of the Affected Performance which it
completed through the termination date.
13.2. TIME OF PERFORMANCE AND INCREASED COSTS. FIS' 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) FNT
fails to timely submit material data or materials in the prescribed
form or in accordance with the requirements of this Agreement, (ii)
FNT fails to perform on a timely basis, the material functions or
other responsibilities of FNT described in this Agreement, (iii) FNT
or any governmental agency authorized to regulate or supervise FNT
makes any special request, which is affirmed by FNT and/or
compulsory on FIS, which affects FIS' normal performance schedule,
or (iv) FNT has modified the LSI Processes, Documentation or
Modifications in a manner affecting FIS' burden. In addition, if any
of the above events occur, and such event results in an increased
cost to FIS, FIS shall estimate such increased costs in writing in
advance and, upon FNT's approval, FNT shall be required to pay any
and all such reasonable, increased costs to FIS upon documented
expenditure, up to 110% of the estimate.
14. NOTICES.
14.1. 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:
If to FNT: Fidelity National Title Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
with a copy to: Fidelity National Title Group, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
If to FIS: Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
with a copy to: Fidelity National Information Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: General Counsel
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14.2. 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.
15. WARRANTIES.
15.1. 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.
15.2. COMPLIANCE WITH LAW. FIS 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 FIS has or will grant it sufficient license
rights) in the LSI Processes to grant the licenses herein granted,
and (iv) it has received no written notice of any third party claim
or threat of a claim alleging that any part of the LSI Processes
infringes the rights of any third party in any of the United States.
FNT 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
received no written notice of any third party claim or threat of a
claim alleging that any part of the LSI Processes infringes the
rights of any third party in the United States.
15.3. 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.
16. MISCELLANEOUS.
16.1. 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, FNT may not assign this Agreement to a
Competitor.
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16.2. SEVERABILITY. Provided FNT on behalf of the Permitted Subsidiaries
retains quiet enjoyment of the LSI Processes, 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.
16.3. 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.
16.4. 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 resolution process
described in Section 109, will not be subject to the provisions of
Section 10 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 14.1 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.
16.5. 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.
16.6. 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.
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16.7. 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.
16.8. 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 FIS or any offering
and sale to the public of any shares or equity securities of FIS
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, 6, 7, 12, and 16.10, Exhibit D either
party's limitation of liability, FIS' right to terminate or rights
upon default by FNT or a FNT Subsidiary or this Section 16.8, in
any manner materially adverse to the consolidated business
activities of the FIS Group (defined below), taken as a whole, or
FIS Group's costs of doing business, viewed on a consolidated
basis, provided that in no event shall any change to Exhibits A,
B, and C hereto require such prior written consent unless such
change would materially and adversely affect in any manner FIS
Group's consolidated business activities, taken as a whole, or FIS
Group's costs of doing business, viewed on a consolidated basis.
THL and TPG are intended third party beneficiaries of this
Agreement solely with respect to this Section 16.8. "FIS Group"
means FIS, Subsidiaries of FIS, and each Person (defined below)
that FIS directly or indirectly controls (within the meaning of
the Securities Act) immediately after the Effective Date, and each
other Person that becomes an Affiliate of FIS after the Effective
Date. "Person" means an individual, a partnership, a corporation,
a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization,
a governmental entity or any department, agency, or political
subdivision thereof.
16.9. 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.
16.10. 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 LSI
Processes or related services provided under this Agreement. If a
sales, use, services or a similar tax is assessed on the LSI
Processes or related services
17
provided to FNT for the benefit of the Permitted Subsidiaries
under this Agreement, FNT will pay directly, reimburse or
indemnify FIS for such taxes as well as any applicable interest
and penalties. FNT shall pay such taxes in addition to the sums
otherwise due under this Agreement. FIS 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 FIS shall be FIS' 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 LSI
Processes or provision of the services or sale and any other
exemption certificates or information reasonably requested by
either party.
16.11. 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 TITLE GROUP, INC.
By _________________________________________
Xxxxxxx X. Xxxxx
Chief Executive Officer
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By _________________________________________
Xxxxxxx X. Xxxxxxxx
Senior Vice President
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