AMENDED AND RESTATED STARTERS REPOSITORY ACCESS AGREEMENT
Exhibit 99.14
AMENDED AND RESTATED STARTERS REPOSITORY ACCESS AGREEMENT
This Amended and Restated Starters Repository Access Agreement (this “Agreement”), effective as of February 1, 2006 (the “Effective Date”), between Fidelity National Title Group, Inc., a Delaware corporation (“FNT”), for itself on behalf of its direct and indirect subsidiaries; and Fidelity National Information Services, Inc., a Delaware corporation that, after the effectiveness of the Merger hereinafter defined, will be merged with and into C Co Merger Sub, LLC (“Merger Co”), which will thereafter be known as “Fidelity National Information Services, LLC” (“FNI Co”), on behalf of those of its direct and indirect subsidiaries as are listed on Exhibit A hereto (including any amended Exhibit A) (each a “Customer” and collectively, the “Customers”). FNT and FNI Co shall hereinafter be referred to as a “Party” and collectively, as the “Parties.”
WITNESSETH:
WHEREAS, the Customers wish to have access to certain records and/or data (the “Starters” as defined below) owned by FNT or its subsidiaries; and
WHEREAS, FNT is willing to provide such access, subject to the terms and conditions set forth herein; and
WHEREAS, FNI Co previously entered into an FNF Starters Repository Agreement dated March 4, 2005 (the “FNF Agreement”) with Fidelity National Financial, Inc., a Delaware corporation (“FNF”), as the parent company of FNT and its subsidiaries, for access to the Starters by the Customers; and
WHEREAS, pursuant to an Assignment and Assumption Agreement dated as of September 27, 2005 between FNF and FNT, FNT assumed, with the consent of FNI Co, all of FNF’s rights and obligations under the FNF Agreement, and FNI Co and FNT entered into a novation of the rights and obligations under the FNF Agreement so that FNT would assume FNF’s obligations with respect to providing Customers with access to the Starters, such novation being set forth in a Starters Repository Access Agreement dated as of September 27, 2005 (the “Prior SRA Agreement”) between FNI Co and FNT; and
WHEREAS, in connection with the consummation of the transactions contemplated by the Agreement and Plan of Merger dated as of September 14, 2005 (as amended, the “Certegy Merger Agreement”), among Certegy Inc. (“Certegy”), Merger Co, and FNI Co, including the effectiveness of the merger of FNI Co with and into Merger Co (the “Merger”) with Merger Co as the surviving entity, the Parties wish to amend and restate the Prior SRA Agreement in its entirety;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
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1. CERTAIN DEFINITIONS.
“Customer” means Property Insight, LLC, a California limited liability company (“PI”), and each user identified on Exhibit A so long as such user is a direct or indirect subsidiary of FNI Co; it being understood that, upon 30 days’ prior written notice, FNI Co may from time to time amend Exhibit A to add one or more of its other direct or indirect subsidiaries of FNI Co and such added subsidiary shall become a “Customer” hereunder effective as of the 30th day after such prior notice is delivered to FNT.
“Issuing Agency Agreement” is an agreement pursuant to which an entity is designated as a title agent, authorized to write title business for a principal.
“L&Vs” consist of that portion of a Starter record related to the legal description of the real property and vesting information of the owners thereof.
“L&V Retrieval” means any instance where an L&V is selected by a Customer for viewing or data retrieval in connection with a particular Starter record. A fee is incurred, as set forth below, upon each Successful Retrieval.
“Starters” consist of electronic copies of previously issued title products, which may include policies, commitments, preliminary reports, guarantees and binders as well as some electronic data elements of the information contained in such electronic copies.
A “Starter Retrieval” means any instance when a Starter is selected by a Customer for viewing or data retrieval, which may include an image of the applicable previously issued title products or any electronic data elements from such products. A fee is incurred, as set forth below, upon each Successful Retrieval.
The “Starter Repository” is a database of certain Starters selected by FNT for inclusion.
A “Successful Retrieval” means: (1) in connection with a L&V Retrieval, the return of data containing a legal description and vesting in a format generally recognized in the geographic area where the property is located; (2) in connection with a Starter Retrieval, the return of a product image and/or data in a form and containing those elements generally contained on such product in the geographic area where the property is located.
2. ACCESS.
(a) Access. FNT hereby grants to each Customer non-exclusive access to the Starter Repository, subject to the provisions hereof. Customers may, with technical information from FNT available on request, create proprietary means of technical access to the Starter Repository (an “Access Program”), subject however to compliance with any security protocols or technology that FNT may reasonably specify. Using such Access Program, Customers may access the Starter Repository, provided, however, that FNT shall have no duty to pay for, support, or update any such Access Program. In addition, FNT may from time to time modify, update or otherwise revise the Starter Repository database structure or other means of accessing the Starter Repository, provided that in the event of any of such modification, update or revision, FNT shall provide FNI Co with reasonably detailed access specifications so that FNI Co can create and/or
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modify its Access Program, if any. FNT may restrict, or may be restricted from allowing, a Customer from using certain records and materials in the Starter Repository. It is understood and agreed that, during the first year of this Agreement, FNT shall provide access availability to the Starter Repository in a nature and quality reasonably comparable to the access availability provided by FNT during the year immediately prior to the execution of this Agreement.
(b) Format. The data and materials included in the Starter Repository are maintained in one or more formats or media determined from time to time by FNT and FNT reserves the right to modify any such format or medium from time to time, subject to the notification provisions contained in Section 2(d).
(c) Security. In connection with a Customer’s access to the Starter Repository provided hereunder, FNT may establish identification codes and password security. In such event, a Customer shall be responsible for choosing one or more secure passwords and for keeping all passwords secret. In the event that a Customer becomes aware of a security breach or unauthorized access to the Starter Repository, such Customer agrees to contact FNT immediately upon discovering such a breach. Such Customer is responsible for the results of any unauthorized access caused by such Customer or resulting from such Customer’s failure to maintain appropriate security. In addition, in the event of any such unauthorized access or security breach by such Customer, the Customer shall be liable for all costs by FNT incurred as a result thereof, until notice of such a security breach is given to FNT, unless the Customer can demonstrate that it took commercially reasonable precautions to secure and safe-keep its access to the Starter Repository. FNT reserves the right to check the security of Customer passwords, if password security is implemented. In such event, if a Customer password is found to be unsecured, FNT shall immediately notify Customer and work with Customer to implement an appropriate security password. Each Customer agrees to not (i) attempt to bypass any security mechanisms in place on any FNT system hosting the Starter Repository, or (ii) use any FNT system or service to attempt to bypass any security mechanisms in place on any other FNT system, including, but not limited to, running any password cracking software, or attempting to access a system that such Customer knows or reasonably should know it is not authorized to access in the manner or to the extent attempted.
(d) Systems Changes. It is anticipated that FNT may, during the term of this Agreement, but without obligation to do so, make certain systems enhancements in the methods of input, storage or retrieval or make other changes to the Starter Repository or its databases. It is agreed by each Customer that FNT will have the right to make enhancements, changes or additions which require the Customer’s use of new methods for access or changes to the Access Program. FNT agrees to provide advance written notice of any such enhancements, changes or additions to Customer with as much lead time as possible, but in no event less than sixty (60) days. FNT will make available any such enhancements, changes or additions to Customer without additional cost.
3. FEES AND PAYMENT
(a) Fees. FNI Co will pay FNT a fee in the amounts set forth on Exhibit B for each Successful Retrieval in connection with a Starter Retrieval and L&V Retrieval by the Customers (the “Starter Retrieval Fee” and the “L&V Retrieval Fee”, respectively, and collectively, the
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“Access Fees”). The Access Fees do not include taxes. FNI Co will pay, or reimburse, FNT for payment of, any applicable sales, use, personal property or similar taxes and any government charges based on transactions hereunder, exclusive of corporate income or franchise taxes based on FNT’s net income. FNT may increase the Access Fees for each Starter Retrieval and L&V Retrieval annually, effective on the anniversary date of this Agreement, by an amount equal to the percentage amount indicated by the annual change in the Consumer Price Index for urban wage earners and clerical workers for the national average as compiled by the U.S. Department of Labor, Bureau of Labor Statistics (“Index”) for the twelve (12) month period most immediately preceding the adjustment date for which such data has been compiled and (subject to compliance with the amendment provisions set forth in Section 12(g), if applicable) Exhibit B shall be deemed to have been amended as a result of each such increase.
(b) Payment. FNI Co shall provide to FNT, (1) on the fifteenth (15th) day of each month during the term of this Agreement, an accurate count of the number of Starter Retrievals and L&V Retrievals made by each Customer during the previous month and (2) within thirty (30) days of providing such count, payment in full for such Starter Retrievals and L&V Retrievals contained in the Customer count based on the Access Fees. FNI Co agrees that it shall be responsible for payment to FNT for the number of Starter Retrievals and L&V Retrievals made by each Customer. FNT shall not be responsible for notifying any Customer about unusual patterns in the frequency or duration of such access. FNT shall have the right to receive from each Customer more detailed information regarding the number of Starter Retrievals and L&V Retrievals in the event that FNT has reason to believe that the information or number of Starter Retrievals and L&V Retrievals for a particular period is inaccurate. FNI Co will be in breach of this Agreement whenever FNI Co fails to pay in full any undisputed sum on behalf of any Customer due to FNT for a period of thirty (30) days after FNT provides written notice of nonpayment to FNI Co. To cure that breach, the sum then due, plus a late payment fee equal to ten percent (10%) of the sum then due (or the maximum rate or amount allowed by applicable law if less), must be paid by FNI Co to FNT.
(c) Audit. FNT shall have the right to audit the records of each Customer, at the expense of FNT, to verify the correctness of the information provided on behalf of each Customer regarding the number of Starter Retrievals and L&V Retrievals and the sums being paid to FNT on behalf of each Customer for such Starter Retrievals and L&V Retrievals. These audits shall be conducted during normal business hours so as not to unreasonably interfere with the normal business operations of such Customer. If the audit discloses that such FNI Co under-reported fees to FNT, FNI Co shall pay promptly such under-reported amount, together with interest at the rate of ten percent (10%) (or the maximum rate or amount allowed by applicable law if less). In addition, if such under-reported amount is in excess of five percent (5%) of the reported amount for the period covered by the audit, then FNI Co shall promptly reimburse FNT for its reasonable audit expenses.
4. TERM AND TERMINATION
(a) Term. Unless sooner terminated in accordance with the provisions hereof, this Agreement shall continue in effect. The obligations under this Agreement may be terminated by any of the following means:
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(i) at any time by mutual agreement of the Parties, in which event the obligations under this Agreement shall terminate as of the date specified by the Parties;
(ii) at any time by FNT, if FNI Co or the Customers breach any material warranty or fails to perform any material obligation hereunder, and such breach is not remedied within 30 days after written notice thereof to FNI Co, in which event the obligations 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 FNI Co 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;
(iii) at any time by FNI Co, if FNT breaches any material warranty or fails to perform any material obligation owing hereunder, and such breach is not remedied within 30 days after written notice thereof to FNT, in which event the obligations 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;
(iv) at any time by FNT, if FNI Co 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 obligations under this Agreement shall terminate immediately;
(v) at any time by FNI Co, 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
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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 obligations under this Agreement shall terminate immediately;
(vi) by FNT, upon 5 years’ prior written notice to FNI Co, which notice may not be delivered prior to the 5th anniversary of the Effective Date;
(vii) by FNI Co, upon 5 years’ prior written notice to FNT, which notice may not be delivered prior to the 5th anniversary of the Effective Date;
(viii) at any time by FNT if there has been a change in control of FNI Co; 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 ownership interests in, or all or substantially all of the assets or business of, FNI Co or Certegy (which, after the Merger, will be known as “Fidelity National Information Services, Inc.”), other than a transaction in which no person or entity will acquire, directly or indirectly, (A) beneficial ownership of 50% or more of the ownership interests of FNI Co or Certegy or (B) the power to elect a majority of the directors of FNI Co or Certegy (as the case may be), provided, however, that “change of control” shall not include any transaction occurring as part of or in connection with the Merger or other transactions expressly contemplated by the Certegy Merger Agreement; or
(ix) upon 6 months prior written notice by FNT to FNI Co 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 will acquire, directly or indirectly, (A) beneficial ownership of 50% or more of the voting capital stock of FNT or (B) the power to elect a majority of the directors of FNT.
(b) Termination. Notwithstanding the above termination, in the event of termination pursuant to subparagraphs (iii), (vi), (viii) or (ix), Customers shall continue to receive access to the Starter Repository until such time as they have found a reasonably acceptable alternative to obtain the same or substantially similar benefit, but in no event longer than ninety (90) days after the initial occurrence of an uncured breach, it being understood that during such period (i) FNI
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Co shall continue to pay for such access in accordance with Section 3, and (ii) FNI Co will attempt to obtain an alternative means as quickly as reasonably possible.
5. OWNERSHIP AND USE
(a) Ownership. All data, information, images and other materials contained in the Starter Repository and all programs, databases, specifications, manuals and documentation relating thereto (including without limitation, compression, storage, and retrieval techniques and formats and any enhancements made thereto) are and shall remain the property of FNT or its providers. FNI Co agrees to treat and agrees to cause each Customer to treat all proprietary information of FNT as confidential and agrees to make it available solely to itself, the Customers, their employees or authorized representatives who have a need to know. Each Party further agrees not to make copies of the other Party’s confidential information or the confidential information of Customers, and not to obscure or remove any notice of proprietary rights or confidentiality thereon. Upon termination of this Agreement, each Party shall return all confidential information of the other Party, and in the case of FNT, the confidential information of Customers, provided to it pursuant hereto.
FNT warrants that it is the owner of, or has full right to provide access to each Customer to, all of the records and data contained in the Starter Repository and all programs, databases, specifications, manuals and documentation relating thereto (including without limitation, compression, storage, and retrieval techniques and formats and any enhancements made thereto) on the terms herein.
(b) Customer Use. Records and data in the Starter Repository made available to any Customer under this Agreement are to be used by such Customer solely in accordance with the terms hereof.
(c) Use of Information. Except for PI, each Customer shall use records and data in the Starter Repository only for the purpose of issuing title insurance and other products in its ordinary course of business. Each Customer (including PI) shall make no further distribution, by sale, lease or otherwise, of any access to records and data in the Starter Repository, nor enable any third party to access or to make use of any such records or data in the Starter Repository provided to, or accessible by, Customer under this Agreement except in accordance with Customer’s ordinary course of business. For the avoidance of doubt, PI, from time to time and as part of its ordinary course of business (a) distributes, sells, and leases individual Starters in connection with individual real estate search transactions, but does not and will not distribute, sell or lease Starters in bulk to third parties, and (b) provides access to and makes use of the records and data in the Starter Repository for third parties as part of its Titlepoint service framework. FNT shall make no distribution, by sale, lease or otherwise, of Customer confidential information, if any, nor enable any third party to access or to make use of any such Customer confidential information provided to, or accessible by, FNT under this Agreement.
(d) Nonexclusive Use. The Parties recognize that FNT shall continue to use the Starters and L&Vs in the usual and ordinary course of business and may furnish access to Starters and L&Vs, including the same Starters and L&Vs, to other customers.
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(e) Advertisement of Use or Ownership. During the term of this Agreement, none of the Customers shall publicize that such Customer owns, possesses or controls any Starters or L&Vs or has any interest therein except such rights as are specifically granted to Customer by this Agreement.
(f) Due Care. Each Customer agrees to exercise due care in accessing the Starter Repository hereunder so as to prevent the alteration or destruction of records or data therein. Each Customer agrees that it shall be liable to FNT (or, if applicable, its providers) for loss or damage related to such alteration or destruction arising out of (i) a failure to exercise due care or (ii) an intentional, dishonest or fraudulent act of an employee of Customer.
(g) Remedy. In the event that a Customer makes any unauthorized copy or copies of records or data in the Starter Repository, or FNT ceases to provide access to the Starter Repository or the records and data in the Starter Repository in accordance with this Agreement, the Parties acknowledge and agree that: (A) remedies at law will not adequately compensate FNT or FNI Co, as the case may be; (B) FNT or FNI Co, as the case may be, may suffer irreparable harm; and (C) FNT or FNI Co, as the case may be, shall be entitled, not only to its damages, but also to seek injunctive relief, without the necessity of posting bond.
6. WARRANTY EXCLUSION; DISCLAIMERS; LIMITATION OF LIABILITY
THE INPUT AND RETRIEVAL OF THE INFORMATION CONTAINED IN ANY FNT COMPUTER SYSTEM IS SUBJECT TO THE RISKS OF TEMPORARY INTERRUPTION BY REASON OF EQUIPMENT OR COMMUNICATIONS FAILURE ARISING OUT OF NUMEROUS CAUSES NOT WHOLLY WITHIN THE CONTROL OF FNT; FNT IS NOT A GUARANTOR OF AND DOES NOT WARRANT UNINTERRUPTED ACCESS TO THE STARTERS, THE L&VS, THE STARTER REPOSITORY, THEIR CONTINUITY, OR SUITABILITY FOR ANY PARTICULAR PURPOSE, FREEDOM FROM ERROR OR CONVEYANCE OF MALICIOUS COMPUTER CODE.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, FNI Co AGREES AND WILL CAUSE EACH CUSTOMER TO AGREE THAT FNT SHALL INCUR NO LIABILITY TO ANY CUSTOMER IN THE EVENT OF ANY DAMAGE OR DESTRUCTION TO ANY CUSTOMER COMPUTER SYSTEM OR THE COMMUNICATIONS NETWORK THROUGH WHICH SUCH CUSTOMER ACCESSES SUCH COMPUTER SYSTEM, EXCEPT ARISING OUT OF ANY FNT (i) GROSS NEGLIGENCE, (ii) WILLFUL MISCONDUCT, (iii) IMPROPER USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION, IF ANY, (iv) VIOLATIONS OF LAW, OR (v) INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A PERSON OR ENTITY WHO IS NOT A PARTY HERETO OR THE SUBSIDIARY OF A PARTY HERETO. FNT SHALL NOT BE REQUIRED TO RECONSTITUTE, RESTORE OR RECONSTRUCT ANY COMPUTER SYSTEM DAMAGED BY REASON OF ITS USE IN CONJUNCTION WITH THE ACCESS PROVIDED HEREUNDER, EXCEPT ARISING OUT OF ANY FNT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
ACCESS TO THE STARTER REPOSITORY AND ALL INFORMATION OBTAINED THROUGH IT, WHETHER GENERATED BY FNT OR A PROVIDER, ARE LICENSED TO
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EACH CUSTOMER “AS IS”. FNT ASSUMES NO DUTY TO CONTINUE TO AUGMENT, CORRECT OR REMOVE ANY INACCURATE INFORMATION OR NOTIFY CUSTOMERS OF ERRORS IN THE STARTER REPOSITORY. EACH CUSTOMER ASSUMES FULL RESPONSIBILITY FOR THE TANGIBLE AND BUSINESS RESULTS OF USE AND/OR RELIANCE UPON THE STARTER REPOSITORY AND ANY OTHER FNT PROPERTY. NEITHER FNT NOR ITS PROVIDERS MAKE ANY IMPLIED WARRANTY OR REPRESENTATION, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF STARTERS, L&VS, STARTER REPOSITORY OR ANY OTHER FNT PROPERTY MADE AVAILABLE TO ANY CUSTOMER IN TANGIBLE, ELECTRONIC OR OTHER FORM.
DISCLAIMER OF LIABILITIES. EACH PARTY AGREES THAT IN NO EVENT SHALL THE OTHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER FNT NOR ANY PROVIDER ASSUMES LIABILITY, AND SHALL NOT BE HELD LIABLE, TO ANY CUSTOMER OR TO ANY CUSTOMER’S CUSTOMERS OR INSUREDS, OR TO ANY OTHER PERSON, WHO MAY RELY UPON ANY TITLE POLICY, BINDER, GUARANTEE, ENDORSEMENT OR OTHER TITLE ASSURANCE, OR ANY STARTERS, ANY L&VS, OR OTHER FNT PROPERTY PROVIDED OR ACCESSED HEREUNDER (INCLUDING BY REASON OF ERROR OR OMISSION IN ANY INFORMATION OR RESULTING FROM THE USE OF ANY FNT PROPERTY).
7. INDEMNITY
FNI Co shall indemnify and cause each Customer to indemnify and hold FNT harmless from claims, liability, loss, damage or expense of whatever nature, including attorney’s fees, arising as a result of any claims by third parties alleging or founded in any manner on any errors or omissions in the records or data contained in the Starter Repository. If such a claim is asserted, FNT shall promptly notify FNI Co and the applicable Customer and, in the event of such notification, FNI Co and such Customer may elect to defend FNT in any resulting action or litigation. FNI Co and such applicable Customer may use for such purpose counsel of FNI Co’s or such Customer’s choosing, approved in writing by FNT, at FNI Co’s or the Customer’s expense. FNI Co and such Customer shall also have the right, whether or not any action or litigation results, to compromise or settle any monetary claim on behalf of FNT, but at the sole cost of FNI Co or such Customer.
FNT shall indemnify and hold each Customer harmless from claims, liability, loss, damage or expense of whatever nature, including attorney’s fees, arising as a result of any claims by third parties alleging or founded in any manner on the warranties contained in Section 5(a). If such a claim is asserted, such Customer shall promptly notify FNT and, in the event of such notification, FNT may elect to defend such Customer in any resulting action or litigation. FNT may use for such purpose counsel of FNT’s choosing, approved in writing by such Customer, at FNT’s expense. FNT shall also have the right, whether or not any action or litigation results, to compromise or settle any monetary claim on behalf of such Customer, but at the sole cost of FNT.
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In the event that any provider of records or data to the Starter Repository or other information to FNT fails to deliver (or delays the delivery of) such material or information, or if any provider materially and adversely modifies the conditions or cost to FNT of obtaining such material or information, then FNT, at its option, may suspend or terminate its relationship with such provider and any obligations to any Customer under this Agreement, upon no less than thirty (30) days written notice. FNT may contract for an alternate source of the same or similar records or data for the Starter Repository and, notwithstanding any contrary provision of this Agreement, increase the applicable fees or charges upon no less than thirty (30) days written notice, or a combination of the foregoing. FNT will incur no liability to any Customer with respect to any action or omission under this Section. In the event that a Customer receives a notice pursuant to this Section substituting records or data or access thereto or increasing the price thereof, then FNI Co may terminate such access if it notifies FNT within thirty (30) days after receipt of notice from FNT regarding such data or access thereto.
8. DISPUTE RESOLUTION
(a) Dispute Resolution. If a Party institutes an action against the other for breach of this Agreement, such other Party may, within sixty (60) days of service of the complaint in such action upon it, institute arbitration and the other Party shall cooperate to stay any other proceedings. Any such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association (“AAA”). The arbitration shall be conducted in Jacksonville, Florida by a single arbitrator knowledgeable about title insurance and contracts. If the Parties have not agreed to a mutually acceptable arbitrator within thirty (30) days of the date of the notice to arbitrate, the arbitrator shall be selected by the AAA from its regularly maintained list of commercial arbitrators familiar with matters similar to the subject of this Agreement. The arbitrator shall conduct a single hearing for the purpose of receiving evidence and shall render a decision within thirty (30) days of the conclusion of the hearing. The Parties shall be entitled to require production of documents prior to the hearing in accordance with the procedures of the Federal Rule of Civil Procedure, shall exchange a list of witnesses, and shall be entitled to conduct up to five (5) depositions in accordance with the procedures of the Federal Rules of Civil Procedure. The decision of the arbitrator shall be binding and final. The arbitrator may award only compensatory damages, and not exemplary or punitive damages. In the event a Party asserts multiple claims or causes of action, some but not all of which are subject to arbitration under law, any and all claims subject to arbitration shall be submitted to arbitration in accordance with this provision.
(b) Attorneys’ Fees and Costs. Each Party shall bear its own costs, expenses and attorneys’ fees and shall equally bear the costs of the arbitrator.
(c) Parties to the Dispute. FNI Co agrees that it alone shall, to the extent it is legally and reasonably able to do so, institute an action for breach of this Agreement against FNT on behalf of itself or on behalf of Customers. FNI Co shall cause each Customer to agree that FNI Co shall be the sole entity to institute an action for breach of this Agreement by FNT.
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9. DISASTER OR OTHER INTERRUPTION OF SERVICE
FNT shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, terrorism and power blackouts. Upon the occurrence of a condition described in this Article that prevents FNT’s performance, FNT shall give written notice to FNI Co, and the Parties shall promptly confer, in good faith, to agree upon equitable, reasonable action to minimize the impact, on both Parties, of such conditions.
10. COMPETITION
This Agreement shall not operate to deny either Party or the Customers the right and opportunity to compete with each other, or to compete on an equal basis on the open market. Nothing contained in this Agreement is to be deemed to make either Party the agent of the other or to constitute an association, partnership or joint liability between the Parties. The Parties have no intention or thought to agree between themselves, or even to confer together, as to underwriting methods, as to fees or premiums to be charged by them to their customers, or as to any other processes or practices of either Party except as otherwise stated or prescribed by any Issuing Agency Agreement entered into between the Parties or, if applicable, their affiliates.
11. COMPLIANCE BY CUSTOMERS
FNI Co has the authority to cause and shall cause each other Customer to comply with the terms of this Agreement.
12. MISCELLANEOUS
(a) Interpretation. This Agreement is to be construed under the laws of the State of Florida. If any one or more of the terms, provisions, promises, covenants or conditions of this Agreement, or their application to any person, corporation, other business entity, or circumstance is to any extent adjudged invalid, unenforceable, void or voidable for any reason by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this Agreement and their application to other persons, corporations, business entities, or circumstances shall not be affected and shall be valid and enforceable to the fullest extent permitted by law. This Agreement shall not be construed against the Party preparing it, but shall be construed as if both Parties prepared this Agreement. The headings of each section and paragraph are to assist in reference only and are not to be used in the interpretation of this Agreement. Nothing contained in this Agreement is to be deemed to constitute an association, partnership or joint liability between the Parties.
(b) No Assignment or Transfer. Except as set forth herein, neither Party may sell, assign, convey or transfer its rights or interests, or delegate any of its obligations, under this Agreement without the prior written consent of the other Party, provided, however, that the Parties hereby agree and acknowledge that, upon the consummation of the Merger, Certegy shall be a permitted assignee of FNI Co. Any assignment hereunder shall be conditioned upon the
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understanding that this Agreement shall be binding upon the assigning Party’s successors and assigns.
(c) Benefit. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement is solely for the benefit of the Parties hereto and no third party will have the right or claim to the benefits afforded either Party hereunder.
(d) Compliance with Laws and Regulations. FNI Co agrees to use and agrees to cause each Customer to use information received from FNT in compliance with all applicable Federal, State and local laws and regulations, including without limitation, Fair Credit Reporting Act (U.S.C.A. Title 00, Xxxxxxx 00, Xxxxxxxxxx XXX), as amended from time to time.
(e) Survival. Following the expiration or termination of this Agreement, whether by its terms, operation of law or otherwise, all terms, provisions or conditions required for the interpretation of this Agreement or necessary for the full observation and performance by each Party of all rights and obligations arising prior to the date of expiration or termination, shall survive such expiration or termination.
(f) Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes and integrates all prior and contemporaneous agreements, representations and understandings of the Parties, oral and written, pertaining to the subject matter hereof. Without limiting the foregoing, the Parties expressly acknowledge that this Agreement, together with the Exhibits and Schedules hereto, is intended to amend and restate the Prior SRA Agreement in its entirety, and upon the effectiveness of this Agreement, the Prior SRA Agreement shall be deemed to have been superseded and replaced in its entirety by this Agreement. No waiver of any of the provisions of this Agreement is to be considered a waiver of any other provision, whether or not similar, nor is any waiver to constitute a continuing waiver. No waiver shall be binding unless set forth in a writing executed by the Party making the waiver. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
(g) Amendments. Except for (x) any deletion of a Customer from Exhibit A because the Customer is no longer a direct or indirect subsidiary of FNI Co (which deletion and the termination of rights under this Agreement as to that Customer shall be automatic upon the change of ownership of such Customer), (y) any annual increases in the fees described in Exhibit B, as expressly permitted pursuant to Section 3(a), no supplement, modification, or amendment of this Agreement or any Schedules or Exhibits hereto shall be binding unless executed in writing by the Parties.
(h) Schedules. Each of the Schedules, Addenda and Exhibits attached to this Agreement (initially or by way of amendment) is incorporated herein by reference as if set forth in full.
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(i) Effectiveness. Notwithstanding the date hereof, this Agreement shall become effective as of the date and time that the Merger becomes effective pursuant to the terms of the Certegy Merger Agreement.
(j) Notices. All written notices permitted or required to be given under this Agreement may be personally delivered to the office of the other Party, or shipped via a nationally recognized overnight courier service, or mailed to the office of the other Party by Certified United States Mail, or sent by electronic mail. Each notice shall be addressed to the address set forth under the Party’s signature. Any notice delivered hereunder will be effective on the date delivered when delivered personally or by overnight courier, or on the third business day after mailing if mailed by Certified United States Mail, or on the date delivered when sent by electronic mail. Either Party may, by written notice to the other via first class mail, change its address for notices.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
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FIDELITY NATIONAL TITLE GROUP, INC. |
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/s/ Xxxxxxx X. Xxxxx |
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Xxxxxxx X. Xxxxx |
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Chief Executive Officer |
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Address for Notices: |
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Fidelity National Title Group, Inc. |
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000 Xxxxxxxxx Xxxxxx |
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Xxxxxxxxxxxx, XX 00000 |
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Attn: President |
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(to be known as Fidelity National Information Services, LLC) |
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By |
/s/ Xxxxxxx X. Xxxxxxxx |
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Xxxxxxx X. Xxxxxxxx |
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Senior Vice President |
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Address for Notices: |
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000 Xxxxxxxxx Xxxxxx |
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Xxxxxxxxxxxx, Xxxxxxx 00000 |
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Attention: General Counsel |
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