Exhibit 10.17
NOVATION
SOFTPRO SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (the "Agreement") is dated as of September 27,
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" or "FNT").
WHEREAS, Fidelity National Information Services, Inc. ("FIS"), 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 FIS 50,000,000 shares
of FIS' common stock, subject to the terms and conditions of the Stock Purchase
Agreement; and
WHEREAS, a condition to the closing of the transactions contemplated by
the Stock Purchase Agreement required that FIS and FNF enter into certain
Intercompany Agreements (as defined in the Stock Purchase Agreement), and that
the form and substance of such Intercompany Agreements be satisfactory to the
Parties and the representatives of the Purchasers; and
WHEREAS, 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 FIS 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:
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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 either (i) owned or
controlled by Client, (ii) owned or controlled by one or more
subsidiaries of FIS that are involved in the operation of
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the LSI business for FIS, 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, as amended, supplemented or modified from time to time.
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).
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.
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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.
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.
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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.
(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
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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 one or more subsidiaries of FIS that are
involved in the operation of the LSI business for FIS.
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.
(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.
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(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 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
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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 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.
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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.
Notwithstanding application of any of the foregoing exceptions,
in no event shall SoftPro treat as other than Proprietary
Information, information comprising nonpublic personal
information under the GLB Act.
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7.4 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 published if not published on the date of payment),
plus one percent from the due date, until paid, applied to the
outstanding balance from time to time. Any amount paid but later
deemed not to have been due, will be repaid or credited with
interest on the same terms.
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9.3 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 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
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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 and Mediation Procedures of the
American Arbitration Association. The Arbitration will
be conducted in Jacksonville, Florida in front of one
mutually agreed upon arbitrator.
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(b) 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 unless provided or specified by
SoftPro including, but not limited to, Client software and/or
Client-provided third party software.
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13. 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 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
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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 other responsibilities
of Client described in this Agreement, (iii) Client or any
governmental agency authorized to regulate or supervise Client
makes any special
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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.
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
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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.
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
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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 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
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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, 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.
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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.
[signature page to follow]
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17.11 PRESS RELEASES. The parties shall consult with each other in
preparing any press release, public announcement, news media
response or other form of release of information concerning this
Agreement or the transactions contemplated hereby that is
intended to provide such information to the news media or the
public (a "Press Release"). Neither party shall issue or cause
the publication of any such Press Release without the prior
written consent of the other party; except that nothing herein
will prohibit either party from issuing or causing publication
of any such Press Release to the extent that such action is
required by applicable law or the rules of any national stock
exchange applicable to such party or its affiliates, in which
case the party wishing to make such disclosure will, if
practicable under the circumstances, notify the other party of
the proposed time of issuance of such Press Release and consult
with and allow the other party reasonable time to comment on
such Press Release in advance of its issuance.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date by their duly authorized representatives.
FIDELITY NATIONAL INFORMATION SOLUTIONS, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
FIDELITY NATIONAL TITLE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
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