Exhibit 10.17
NOVATION
SOFTPRO SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (the "Agreement") is dated as of ___________,
2005 ("Effective Date") and is made by and between FNIS SoftPro, a division of
FIDELITY NATIONAL INFORMATION SOLUTIONS, INC., with its principal office at 000
Xxxx Xxx Xxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx, 00000 ("SoftPro"), and FIDELITY
NATIONAL TITLE GROUP, INC., with its principal offices at 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000 ("Client").
WHEREAS, Fidelity National Information Services, Inc. ("FNIS"), the
parent company of SoftPro, 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 FNIS 50,000,000
shares of FNIS' 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 FNIS 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, SoftPro previously entered into a SoftPro Software License
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 FNIS and
SoftPro, all of FNF's rights and obligations under the FNF Agreement; and
WHEREAS, SoftPro 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 by SoftPro, 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 "ASSISTANCE" shall mean installation, conversion planning,
conversion, consulting assistance, workshops, training or education
classes performed by SoftPro, or other functions mutually agreed to
be "Assistance" by Client and SoftPro.
1.2 "BASE MODIFICATION" shall mean any Modification which SoftPro, in
its sole discretion, has incorporated into the base version of the
SoftPro Software which SoftPro makes generally available to its
customers.
1.3 "CLIENT SERVER SOFTWARE" shall mean those client-server based
applications set forth in Section 1.3 of Exhibit A hereto.
1.4 "COMPETITOR" shall mean a natural or legal person offering a product
that competes with SoftPro Software.
1.5 "CUSTOM MODIFICATION" shall mean any Modification to the SoftPro
Software other than a Base Modification.
1.6 "DAYS" shall mean calendar days, unless otherwise specified.
1.7 "DEFECT" shall mean any failure, malfunction, defect or
non-conformity in the SoftPro Software that prevents the SoftPro
Software in any material respect from operating and performing in
accordance with the Documentation.
1.8 "DOCUMENTATION" shall mean SoftPro's standard operating instructions
relating to the SoftPro Software, consisting of one copy of the
object code form of the SoftPro Software; a copy of manuals
consisting of instructions and procedures for systems and operations
personnel and end users of SoftPro Software, and related
documentation which SoftPro makes available to its customers in
general. SoftPro will deliver the Documentation to Client in paper
form, on CD ROM or electronically, at SoftPro's discretion and in
accordance with SoftPro's then-current practices for such delivery
(except that SoftPro Software shall be delivered on machine readable
media). Client acknowledges that not all items of Documentation are
available in all forms of media. SoftPro shall have the right to
change the medium upon which the Documentation is delivered to
Client without notice to Client. Upon electronic delivery of
Documentation, any obligation of SoftPro to deliver multiple
numbers of copies of such Documentation to Client shall have
no further force or effect.
1.9 "ESCALATION PROCEDURES" shall mean the procedures set forth in
Section 10.3 of this Agreement.
1.10 "INSTALLATION SITE" shall mean each location at which the
SoftPro Software is installed and which is (i) either owned or
controlled by Client, (ii) owned or controlled by one or more
subsidiaries if FNIS that are involved in the operation of the
LSI business for FNIS, or (iii) owned or controlled by a
Client contractor (who is not a Competitor and who has
executed a nondisclosure agreement consistent with the terms
of this Agreement) providing use of systems to Client, and
which is located in the United States. The initial
Installation Site address is listed in Section 2 of Exhibit A.
Client may update the list of Installation Sites from time to
time upon thirty (30) Days prior written notice to SoftPro.
1.11 "MAINTENANCE" shall mean the services described in Exhibit B
hereto.
1.12 "MAINTENANCE RELEASE" shall mean the current Release of the
SoftPro Software and the immediately prior Release (provided
that such Releases have been made available to Client), and
shall also include, at any given time, each Release delivered
to Client within the prior two years.
1.13 "MODIFICATION" shall mean any customization, enhancement,
modification or change made to the SoftPro Software authored
by or for SoftPro under this Agreement.
1.14 "MSA" shall mean the Master Information Technology Services
Agreement by and between Fidelity Information Services, Inc.
and Fidelity National Title Group, Inc. entered into as of the
date hereof.
1.15 "PC SOFTWARE" shall mean those personal computer-based
applications developed by SoftPro that are set forth in
Section 1.2 of Exhibit A.
1.16 "PROPRIETARY INFORMATION" shall mean all information disclosed
by or for Client or SoftPro to the other during the
negotiations hereof and/or learned by reason of the
relationship established hereunder or pursuant hereto,
including, without limitation, the SoftPro Software,
Documentation, Releases, Modifications and all information,
data and designs related thereto. Information relating to each
party's business, plans, affiliates or customers shall also be
deemed "Proprietary Information" for purposes of the
Agreement. "Proprietary Information" shall also include all
"non-public personal information" as defined in Title V of the
Xxxxx-Xxxxx-Xxxxxx Act (15 U.S.C. Section 6801, et seq.) and
the implementing regulations thereunder (collectively, the
"GLB Act"), as the same may be amended from time to time, that
SoftPro receives from or at the direction of Client and that
concerns any of Client's "customers" and/or "consumers" (as
defined in the GLB Act).
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1.17 "RELEASE" shall mean the Base Modifications, and other new
versions, corrections, revisions, updates, modifications and
enhancements to the SoftPro Software and related Documentation
that SoftPro makes commercially available, without additional
charge, to licensees of the SoftPro Software to which SoftPro
is providing Maintenance. A Release does not include any new
or replacement products.
1.18 "SERVER" shall mean a logical server that may include one (1)
or more physical servers.
1.19 "SOFTPRO AFFILIATE" shall mean any majority-owned, direct or
indirect subsidiary of SoftPro, as from time to time
constituted.
1.20 "SOFTPRO SOFTWARE" shall mean the object code and/or Source
Code of any program or part of a program as described in
Exhibit A licensed hereunder to Client. SoftPro Software
includes all Base Modifications, all Modifications authored by
or for SoftPro, and all Releases issued during the term of
Maintenance under this Agreement.
1.21 "SOURCE CODE" of SoftPro Software shall mean a copy of the
source code (or comparable high level coding) for the SoftPro
Software, including any annotations therein, certified by
SoftPro to Client, upon each delivery to Client, as a complete
and accurate copy of source code corresponding to the SoftPro
Software as last delivered or otherwise made available by
SoftPro (whether in pieces or in an integrated whole).
1.22 "THIRD PARTY SOFTWARE" shall mean those third party
applications provided by SoftPro that are set forth in Section
1.4 of Exhibit A.
1.23 "USE LIMITATIONS" shall mean the use by Client of the Client
Server Software simultaneously on no more than the number of
Workstations licensed herein.
1.24 "WORKSTATION" shall mean any personal computer or computer
terminal on which use of Client Server Software is authorized.
2. GRANT OF LICENSE.
2.1 GRANT. Subject to Client's full payment, as due, of fees
listed in Exhibit C, SoftPro hereby grants to Client, and
Client accepts from SoftPro, a world-wide nonexclusive,
perpetual, irrevocable right and object code license (except
as otherwise provided for in Section 3 below) to use the
SoftPro Software and Documentation at the Installation
Site(s), subject to the restrictions and obligations set forth
herein.
2.2 DELIVERY. Client acknowledges and agrees that it has received,
prior to the Effective Date, delivery of the SoftPro Software
in object code form and the Documentation.
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3. 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 Client's installation(s) of
SoftPro Software, SoftPro shall promptly deliver to Client a
complete copy of Source Code, which shall be subject to all of
the license terms and restrictions applicable to the SoftPro
Software.
3.2 CONDITIONS. SoftPro's duty of delivery of Source Code as
described above shall be immediately due and enforceable in
equity upon any of these circumstances:
(a) SoftPro has given notice to Client under terms of
Maintenance that SoftPro shall cease, or SoftPro has
ceased, (i) providing Maintenance generally or (ii)
supporting any part of SoftPro Software, and in the
event of notice of future termination, such termination
(whenever notice is given) shall be effective within
twelve months.
(b) SoftPro shall apply for or consent to the appointment of
a receiver, trustee, or liquidator of all or a
substantial part of its assets, file a voluntary
petition in bankruptcy, make a general assignment for
the benefit of creditors, file a petition or an answer
seeking reorganization or arrangement with creditors or
take advantage of any insolvency law, or if an order,
judgment or decree shall be entered by any court of
competent jurisdiction, on the application of a
creditor, adjudicating SoftPro as bankrupt or insolvent
or approving a petition seeking reorganization of
SoftPro or appointing a receiver, trustee, or liquidator
of SoftPro or of all or substantial part of its assets,
and such order, judgment or decree shall continue
unstayed and in effect for any period of thirty (30)
consecutive Days.
(c) SoftPro shall be in breach of any material covenant
herein or under Maintenance (or of any Development
Services SOW under the MSA) which, following notice of
breach in reasonable detail from Client, is not cured
within thirty (30) Days. To the extent the breach
relates to Maintenance on a specific module or separable
component of SoftPro Software, the duty of Source Code
delivery shall be limited to the Source Code for such
specific module or separable component.
(d) Client shall have requested development or integration
services with respect to SoftPro Software which SoftPro
is unable or unwilling to provide or as to which the
parties cannot timely come to commercial terms.
(i) To the extent the integration or development
relates to a specific module or separable
component of SoftPro Software, the duty of Source
Code delivery shall be limited to the Source Code
for such specific module or separable component.
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(ii) In the event of delivery of Source Code by SoftPro
under this subsection (d), upon Client's
completion of its development or integration
effort, equating generally to the same scope of
work that SoftPro was requested to perform but did
not perform, it will provide to SoftPro a copy of
the source code for the development or
enhancement, including any annotations therein,
certifying same as complete and accurate and,
without further formality, SoftPro shall be deemed
granted a license to use that source code
developed by Client or its non-Competitor
contractors, solely for maintenance or further
development of the SoftPro Software as implemented
for Client and for no other use or beneficiary.
(iii) Six (6) months following the delivery by Client to
SoftPro of source code for Client's developments
or enhancements under Section 3.2(d)(ii), SoftPro
may request that Client certify, and Client will
promptly certify to SoftPro, that Client has
destroyed all copies of (x) Source Code delivered
to it by SoftPro 3.2(d) and (y) all copies of the
source code for Client's development or
enhancement - except two hard copy prints of
source code for Client's development or
enhancement for proof of authorship.
(iv) Client's right to obtain access to Source Code
pursuant to this Section 3.2(d) may be invoked at
any time and from time to time, regardless of the
continuity of Maintenance.
4. SOFTWARE USE RESTRICTIONS.
4.1 RESTRICTIONS ON SOFTPRO SOFTWARE.
(a) Client may not use the SoftPro Software in a service
bureau or in a time share arrangement.
(b) Client may not sell, lease, assign, transfer, distribute
or sublicense the SoftPro Software or Documentation, to
any party that is not a (direct or indirect) subsidiary
of Client except as set forth in Schedule 4.1(b) hereto
and except that Client may sublicense the SoftPro
Software to subsidiaries of FNIS that are involved in
the operation of the LSI business for FNIS. Client may
not sell, lease, assign, transfer, distribute or
sublicense the Source Code to any person or entity at
any time, except that Client may sublicense the Source
Code to a direct or indirect subsidiary of Client as
necessary to exercise Client's rights to modify and
create derivative works of the SoftPro Software and
Documentation.
(c) Client shall use SoftPro Software subject to the Use
Limitations.
(d) Client will not make copies, or similar versions of the
SoftPro Software or any part thereof without the prior
written consent of SoftPro, except in the process of
contemplated use, for administrative, archival or
disaster recovery backup, and as expressly provided
otherwise herein.
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(e) Client may not provide copies of the SoftPro Software to
any person, firm, or corporation not permitted hereunder
except as permitted under Sections 4.1(b) and (d) above,
and except as to Client's non-Competitor contractors or
subcontractors who have executed nondisclosure terms
consistent with the confidentiality terms herein.
(f) Client shall not allow any third party to use or have
access to the SoftPro Software for any purpose without
SoftPro's prior written consent except as permitted
under Sections 4.1(b) and (d) above, and except as to
Client's non-Competitor contractors or subcontractors
who have executed nondisclosure terms consistent with
the confidentiality terms herein.
(g) Client agrees not to disclose, decompile, disassemble or
reverse engineer the SoftPro 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
SoftPro Software and Client's agreement to maintain the
confidentiality thereof shall apply to the PC Software
and its Documentation.
(b) Client may not modify the PC Software (although SoftPro
may do so on Client'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 Client may terminate the license for convenience upon no less
than ninety (90) days prior written notice to the other.
5.3 A license enjoyed by a direct or indirect subsidiary of Client
shall terminate without further formality upon the six month
anniversary date after such entity's ceasing to be a
subsidiary of Client. Client shall cause such subsidiary to
agree to migrate its data off the SoftPro Software and on to
an alternative product during the above described six month
period. In any event, if the subsidiary becomes a subsidiary
of a Competitor, the license to the subsidiary shall terminate
immediately.
5.4 In the event Client or a Client subsidiary discloses any of
the SoftPro Software or any material part of the Documentation
to a Competitor, then SoftPro upon thirty (30) days prior
written notice to Client, may terminate the license with
respect to that portion of relating to the SoftPro Software
and Documentation provided to such competitor if Client on its
own does not (or if Client does not cause its subsidiary to)
discontinue disclosure of the SoftPro Software and
Documentation to such Competitor within thirty days following
Client's receipt of SoftPro' written
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notice. Any such termination shall be effective upon the
expiration of the cure period. The foregoing is intended to
apply only to the remedy of termination. SoftPro shall retain
the right to pursue any other remedies in the event Client or
its Subsidiary makes an unauthorized disclosure to a
Competitor, including injunctive relief or recovery of
damages, and, depending on the nature of the disclosure,
requesting that Client undertake other measures in addition to
simply discontinuing disclosure to the Competitor.
5.5 In the event of termination of the license for any reason,
Client and/or its subsidiary, as applicable, shall promptly
cease all use of the relevant SoftPro Software, delete from
its systems all copies of the relevant SoftPro Software, and
within thirty (30) days of termination, return to SoftPro all
tangible copies of the relevant SoftPro Software, together
with certification that is has ceased such use, deleted such
copies and returned such tangible copies as required
hereunder.
5.6 Each party acknowledges and agrees that, in the event of
Client's breach or threatened breach or any provision of
Sections 4, 5.3, 5.4, 5.5 or 7, SoftPro shall have no adequate
remedy in damages and notwithstanding the dispute resolution
provisions in Section 11 hereof, is entitled to seek an
injunction to prevent such breach or threatened breach;
provided, however, no specification of a particular legal or
equitable remedy is to be construed as a waiver, prohibition,
or limitation of any legal or equitable remedies in the event
of a breach hereof.
5.7 Licenses purchased pursuant to the option in Schedule 4.1(b)
shall survive in accordance with their terms.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1 OWNERSHIP OF SOFTPRO SOFTWARE AND DOCUMENTATION. From the date
the SoftPro Software and Documentation is first disclosed to
Client, and at all times thereafter, as between the parties,
SoftPro and its licensors shall be the sole and exclusive
owners of all right, title, and interest in and to the SoftPro
Software, Documentation and all Modifications, including,
without limitation, all intellectual property and other rights
related thereto. The parties acknowledge that this Agreement
in no way limits or restricts SoftPro and the SoftPro
Affiliates from developing or marketing on their own or for
any third party in the United States or any other country, the
SoftPro Software, Documentation or Modifications, or any
similar software (including, but not limited to, any
modification, enhancement, interface, upgrade, change and all
software, source code, blueprints, diagrams, flow charts,
specifications, functional descriptions or training materials
relating thereto) without payment of any compensation to
Client, or any notice to Client.
6.2 DEVELOPMENT SERVICES. Client may from time to time wish to
augment the SoftPro product with additional functionality or
utility, or to integrate it with Client systems from other
sources, and for such purposes may request the
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provision of development services from SoftPro pursuant to a
statement of work under the MSA (a "SOW").
6.3 CONFLICT WITH MSA. Title to any SoftPro work product developed
under the MSA shall be determined by the MSA notwithstanding
any conflicting terms herein.
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.
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) SoftPro Software (except pursuant to
Schedule 4.1(b),) Source Code and related Documentation shall
extend in perpetuity and (b) with respect to any other
Proprietary Information shall extend for a period of five (5)
years from disclosure. Proprietary Information shall be held
in confidence by the receiving party and its employees, and
shall be disclosed to only those of the receiving party's
employees and professional advisors who have a need for it in
connection with the administration and implementation of this
Agreement. In no event shall Client disclose SoftPro
Proprietary Information to a Competitor of SoftPro. Each party
shall use the same degree of care and afford the same
protections to the Proprietary Information of the other party
as it uses and affords to its own Proprietary Information.
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.
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Notwithstanding application of any of the foregoing
exceptions, in no event shall SoftPro treat as other
than Proprietary Information, information comprising
nonpublic personal information under the GLB Act.
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 Client and SoftPro with a need to know the contents
of this Agreement or as required by law or national
stock exchange rule. In no event may this Agreement be
reproduced or copies shown to any third parties (except
counsel, auditors and professional advisors) without the
prior written consent of the other party, except as may
be necessary by reason of legal, accounting, tax or
regulatory requirements, in which event Client and
SoftPro agree to exercise reasonable diligence in
limiting such disclosure to the minimum necessary under
the particular circumstances.
(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, SoftPro shall
offer Maintenance for the SoftPro Software for the fees set forth in
Exhibit C hereto. A description of Maintenance services is set forth
in Exhibit B hereto. Any related professional services shall be
performed pursuant to Exhibit B of the MSA.
9. INVOICING AND PAYMENTS, PAST DUE AMOUNTS, CURRENCY.
9.1 INVOICING AND PAYMENT REQUIREMENTS. SoftPro 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, Client shall
pay SoftPro the invoiced amount in full on or prior to thirty
(30) Days after Client's receipt of such invoice unless Client
notifies SoftPro within such period that it is in good faith
disputing SoftPro's invoice. Client shall make all payments to
SoftPro by check, credit card or wire transfer of immediately
available funds to an account or accounts designated by
SoftPro. Payment in full shall not preclude later dispute of
charges or adjustment of improper payments.
9.2 PAST DUE AMOUNTS. Any amount not received or disputed by
Client by the date payment is due shall be subject to interest
on the overdue balance at a rate equal to the prime rate as
published in the table money rates in the Wall Street Journal
on the date.of payment (or the prior date on which the Wall
Street Journal was
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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
Client desires to purchase Assistance from SoftPro or a
SoftPro Affiliate, such Assistance shall be provided pursuant
to separate agreement. Notwithstanding the foregoing, to the
extent Assistance is available under the MSA, its performance
shall be governed by the terms of the MSA.
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 SoftPro and Client with respect to the
terms and conditions of this Agreement, or any subject matter
governed by this Agreement (other than disputes regarding a
party's compliance with the provisions of Sections 4 and/or
7), such dispute shall be settled as set forth in this Section
11. If either party exercises its right to initiate the
dispute resolution procedures under this Section 11, then
during such procedure any time periods providing for
termination of the Agreement or curing any material breach
pursuant to the terms of this Agreement shall be suspended
automatically, except with respect to any termination or
breach arising out of Client's failure to make any undisputed
timely and complete payments to SoftPro under this Agreement.
At such time as the dispute is resolved, if such dispute
involved the payment of monies, interest at a rate equal to
the prime rate as published in the table money rates in the
Wall Street Journal on the date the dispute is resolved (or
the prior date on which the Wall Street Journal was published
if not published on the date the dispute was resolved) plus
one percent for the period of dispute shall be paid to the
party entitled to receive the disputed monies to compensate
for the lapsed time between the date such disputed amount
originally was to have been paid (or was paid) through the
date monies are paid (or repaid) in settlement of the dispute.
Disputes arising under Sections 4 or 7 may be resolved by
judicial recourse or in any other manner agreed by the
parties.
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
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issues of title to work product, which shall be
initially addressed at the general counsel level but
otherwise pursuant to Section 11.2(b) following). To
this end, each party shall escalate any and all
unresolved disputes or claims in accordance with this
Section 11.2 at any time to persons responsible for the
administration of the relationship reflected in this
Agreement. The location, format, frequency, duration and
conclusion of these elevated discussions shall be left
to the discretion of the representatives involved. If
such parties do not resolve the underlying dispute
within ten (10) Days of its escalation to them, then
either party may notify the other in writing that he/she
desires to elevate the dispute or claim to the President
of Fidelity National Information Solutions, Inc. and the
President of Fidelity National Title Group, Inc. 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 Fidelity National Information Solutions,
Inc. and the President of Fidelity National Title Group,
Inc. 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.
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
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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 SoftPro initiates an action
for Client's failure to make timely and complete payment of
undisputed amounts claimed due to SoftPro, SoftPro will
continue to provide Maintenance under the Maintenance services
agreement (and development services under an MSA SOW), and
unless Client is unable to lawfully use the SoftPro Software
and Modifications thereto, Client will continue to make
payments of undisputed amounts to SoftPro, in accordance with
this Agreement, notwithstanding a dispute between the parties
relating hereto or otherwise.
12. 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 CLIENT TO SOFTPRO 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 CLIENT SOFTWARE. SoftPro has no obligation or liability,
either express or implied, with respect to the compatibility
of SoftPro Software with any other software
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unless provided or specified by SoftPro including, but not
limited to, Client software and/or Client-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 SoftPro Affiliates and Client
affiliates), and agents from any and all liabilities, losses,
costs, damages and expenses (including reasonable attorneys'
fees) arising from or in connection with the damage, loss
(including theft) or destruction of any real property or
tangible 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 SOFTPRO SOFTWARE. SoftPro agrees to defend at
its own expense, any claim or action brought by any third
party against Client and/or against its officers, directors,
and employees and affiliates, for actual or alleged
infringement within the United States of any patent, copyright
or other intellectual property right (including, but not
limited to, misappropriation of trade secrets) based upon the
SoftPro Software (except to the extent such infringement claim
is (i) caused by Client-specified Custom Modifications to the
SoftPro Software which could not have been made in a
non-infringing manner; (ii) caused by the combination of
SoftPro Software with software or hardware not provided,
specified or approved by SoftPro; or (iii) based upon the
Third Party Software ("Indemnified SoftPro Software")).
Client, at its sole discretion and cost, may participate in
the defense and all negotiations for its settlement or
compromise. SoftPro further agrees to indemnify and hold
Client, its officers, directors, employees and affiliates
harmless from and against any and all liabilities, losses,
costs, damages, and expenses (including reasonable attorneys'
fees) associated with any such claim or action incurred by
Client. SoftPro shall conduct and control the defense of any
such claim or action and negotiations for its settlement or
compromise, by the payment of money. SoftPro shall give
Client, and Client shall give SoftPro, as appropriate, prompt
written notice of any written threat, warning or notice of any
such claim or action against SoftPro or Client, as
appropriate, or any other user or any supplier of components
of the Indemnified SoftPro Software, which could have an
adverse impact on Client's use of same, provided SoftPro or
Client, as appropriate, knows of such claim or action. If in
any such suit so defended, all or any part of the Indemnified
SoftPro Software (or any component thereof) is held to
constitute an infringement or violation of any other party's
intellectual property rights and is enjoined, SoftPro shall at
its sole option take one or more of the following actions at
no additional cost to Client: (i) procure the right to
continue the use of the same without material interruption for
Client; (ii) replace the same with non-infringing software;
(iii) modify said Indemnified SoftPro Software so
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as to be non-infringing; or (iv) take back the infringing
Indemnified SoftPro Software and credit Client with an amount
equal to its purchase price. The foregoing represents the sole
and exclusive remedy of Client for infringement or alleged
infringement.
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, hurricanes, tornadoes,
nuclear accidents, floods, power blackouts affecting
facilities (the "Affected Performance").
(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. SoftPro 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. SoftPro's time of
performance under this Agreement shall be adjusted, if and to
the extent reasonably necessary, in the event and to the
extent that (i) Client fails to timely submit material data or
materials in the prescribed form or in accordance with the
requirements of this Agreement, (ii) Client fails to perform
on a timely basis, the material functions or
14
other responsibilities of Client described in this Agreement,
(iii) Client or any governmental agency authorized to regulate
or supervise Client makes any special request, which is
affirmed by Client and/or compulsory on SoftPro, which affects
Pro's normal performance schedule, or (iv) Client has modified
the SoftPro Software in a manner affecting SoftPro's burden.
In addition, if any of the above events occur, and such event
results in an increased cost to SoftPro, SoftPro shall
estimate such increased costs in writing in advance and, upon
Client's approval, Client shall be required to pay any and all
such reasonable, increased costs to SoftPro upon documented
expenditure, up to 110% of the estimate.
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:
If to Client: 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 SoftPro: Fidelity National Information Solutions, Inc.
FNIS SoftPro Division
000 Xxxx Xxx Xxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: President
with a copy to: Fidelity Information Services, 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.
15
16. WARRANTIES.
16.1 PERFORMANCE. For as long as SoftPro is providing Maintenance
to Client for the SoftPro Software, SoftPro warrants and
represents that the SoftPro Software and the Custom
Modifications, as delivered to Client and the Base
Modifications, will perform in all material respects in
accordance with the respective Documentation, in concert and
otherwise.
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. SoftPro warrants that (i) it has the
power and corporate authority to enter into and perform this
Agreement, (ii) its performance of this Agreement does not and
will not violate any governmental law, regulation, rule or
order, contract, charter or by-law; (iii) it has sufficient
right, title and interest (or another majority-owned, direct
or indirect subsidiary of FNF has or will grant it sufficient
license rights) in the SoftPro Software to grant the licenses
herein granted, (iv) it has received no written notice of any
third party claim or threat of a claim alleging that any part
of the SoftPro Software infringes the rights of any third
party in any of the United States, and (v) each item of
SoftPro Software provided by or for SoftPro to Client shall be
delivered free of undisclosed trapdoors, Trojan horses, time
bombs, time outs, spyware, viruses or other code which, with
the passage of time, in the absence of action or upon a
trigger, would interfere with the normal use of, or access to,
any file, datum or system.
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 direct or
indirect subsidiary that is not a Competitor except that the
assigning party shall remain responsible for all obligations
under this Agreement including the payment of fees.
Notwithstanding anything contained herein to the contrary,
Client may not assign this Agreement to a Competitor.
16
17.2 SEVERABILITY. Provided Client retains quiet enjoyment of the
SoftPro Software including Custom Modifications and Base
Modifications, if any one or more of the provisions contained
herein shall for any reason be held to be unenforceable in any
respect under law, such unenforceability shall not affect any
other provision of this Agreement, but this Agreement shall be
construed as if such unenforceable provision or provisions had
never been contained herein, provided that the removal of such
offending term or provision does not materially alter the
burdens or benefits of either of the parties under this
Agreement or any Exhibit or Schedule, in which case the
unenforceable portion shall be replaced by one that reflects
the parties original intent as closely as possible while
remaining enforceable.
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 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
17
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 any
of the term of the Agreement, Sections 2, 3, 4, 6, 9, 12, 13,
14.2, 16.2, 17.10, Exhibits B or C, rights upon default by
Client or SoftPro's right to terminate, 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,
18
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
SoftPro Software or related services provided under this
Agreement. If a sales, use, services or a similar tax is
assessed on the SoftPro Software or related services provided
to Client under this Agreement, Client will pay directly,
reimburse or indemnify SoftPro for such taxes as well as any
applicable interest and penalties. Client shall pay such taxes
in addition to the sums otherwise due under this Agreement.
SoftPro shall, to the extent it is aware of taxes, itemize
them on a proper VAT, GST or other invoice submitted pursuant
to this Agreement. All property, employment and income taxes
based on the assets, employees and net income, respectively,
of SoftPro shall be SoftPro's sole responsibility. The parties
will cooperate with each other in determining the extent to
which any tax is due and owing under the circumstances and
shall provide and make available to each other any withholding
certificates, information regarding the location of use of the
SoftPro Software or provision of the services or sale and any
other exemption certificates or information reasonably
requested by either party.
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
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date by their duly authorized representatives.
FIDELITY NATIONAL INFORMATION SOLUTIONS, INC.
By
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Xxxxxxx X. Xxxxxxxx
Senior Vice President
FIDELITY NATIONAL TITLE GROUP, INC.
By
---------------------------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
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